# THEATTORNEYGENERAL OF TElG$s **AUSTIN.** 

# TEXAS**78711**

January 7, 1974 The Honorable Tom Hanna Criminal District Attorney Jefferson County Box 2553 Beaumont, Texas 77701 Opinion No. H- 200 Re: Fees ofcourt reporters

Dear Mr. Hanna: Your first question concerns whether Article 3912k, 88, V. T. 61S., repeals Article 2324, V. T. C.S. IfArticle 2324 is repealed, you want to know onwhat basis must an official court reporter charge for his services. Article 3912k, $8. V. T. C.S., states:

“To,the extent that any local, special.or general law, including Acts ofthe 62nd Legislature, ~Regular Session, 1971, prescribes the compensation, office expense, travel expense, or any other allowance for any official or employee covered by this Act, that .lawis repealed. ” Article 3912k, $3(a) states in part:

“In addition to transcript fees, fees for statements of facts, and other expenses necessary to the office authorized bv law, the official shorthand reporter of each district or domestic relations court shall be paid a salary set by order ofthejudge ofthat court. . . .‘I (emphasis added) Although $8 states that any law prescribing compensation is repealed, §3indicates that the transcript and statement offact fees for court reporters are still in existence. Incase of conflict between two sections ofany act, one section will not beheld to repeal another unless this is the only construction that is permitted. Ifpossible, effect will be given toall sections and provisions. See 53 Tex. Jur. Zd, Statutes, $$102 and 106.

p* 938The Honorable Tom Hanna, page 2 (H-200)

After setting out the duties of each official court reporter in the State of Texas, Article 2324, V. T. C.S., states in part: “When any party toany suit reported by any such reporter shall desire a transcript ofthe evidence in said suit, said party may apply for same and the reporter shall make up such transcript and shall receive as compensation therefor the sum of not more than thirty cents per one hundred words for the original thereof.
. . .” The question of repeal, whether express or implied, is one of legislative intent. Inconstruing a repealing clause, courts ,will give effect to the legislative intent, and for this purpose will depart, when necessary, from the literal meaning ofwords used. Ifbyany reasonable construction, twoacts can be reconciled and so construed that both may stand, one will not beheld to repeal the other. 53 Tex. Jur. Zd, Statutes, S593 and 96. Itappears that the salary inArticle 3912k is intended to be in addition to the statutory fees that may be charged by the reporter inaccordance with Article 2324. Therefore, since Article 3912k deals with compensation other than transcript and statement offact fees, andArticle 2324 sets out the rate that may be charged for transcripts and statement offacts, the two statutes can be reconciled. Inother words, Article 3912k, $8, does not expressly or by implication, repeal Article 2324. Your second inquiry concerns whether Article 3912k, §8, repeals Article 2321, V. T. C.S. IfArticle 2321 is repealed, you ask “how should a court reporter be appointed and what rules of examination should govern his or her qualifications? ‘! Article 2321, V. T. C.S., states: “Each district and criminal district judge shall appoint an official court reporter who shall be a sworn officer of the court and shall hold his office during the pleasure of the court. Before any person is so appointed, thejudge shall assign three attorneys practicing in said court to

p. 939The Honorable Tom Hanna, page 3 (H-200)

examine said applicant as tohis competency as follows: The applicant shall, in the presence of such committee, write at the rate ofat least one hundred and seventy-five words per minute for five consecutive minutes from questions and answers submitted tohim, notcountingthe words ‘question’ and ‘answer,’ and shall transcribe the same with accuracy. Ifthe applicant passes this test satisfactorily a majority ofthe committee shall furnish him with a certificate ofthat fact, which shall be filed among the records of the court and be recorded by the clerk inthe ,minutes thereof. As to subsequent appointments, the presentation ofa certified copy from said clerk of staidcertificates shall be prima facie evidence oftheapplicant’s competency. No examination byany committee shall be required ofan applicant who has been official stenographer ofany district court inthis State for not less than twoyears prior tohis application. ” Article 3912k was enacted by the Legislature for ,thepurpo~se of establishing and ~settingfees of office for various county and precinct officials and employees who are paid wholly from ~countyfunds. Inasmuch as Article 2321 pr.otides for-the,appointment and examination of official court reporters and Article 3912k deals with the fees of office ofindividual office hold,ers, $8 does not repeal, either expressly or by implication, Article 2321.

**Your** third question asks:

Ifclosing arguments are requested by either party to be taken by the court reporter, typed, and included as a part ofthe statement offacts, what charge could be made by the court reporter for such duties? Article 2324 states inpart:

“Each Official Court Reporter shall:

p0 940The Honorable Tom Hanna, page 4 (H-200)

I,

. . . take full shorthand notes ofclosing arguments when requested to do so by the attorney for any party to such case, together with all objections to such arguments, the rulings and remarks ofthe court thereon, and all exceptions thereto; “Preserve all shorthand notes taken in said court for future use or reference for a full year, and furnish to any person a transcript ofall such evidence or other proceedings, or any portion thereof as such person may order, upon the payment tohim ofthe fees provided by law. “When any ~partytoany suit reported byany such reporter, , shall desire a transcript ofthe evidence in said suit, said party may apply for same and the reporter shall make up such transcript and shall receive as compensation therefor the sum ofnot more than thirty cents per one hundred words for the original thereof
. . . .‘I (emphasis added) The court reporter is under aduty to take full shorthand notes of closing arguments when requested todo so by the attorney for any party to such case. Moore v. State, 363 S.W. 2d477 (Tex. Grim. 1962); Newhouse v. State, 420 S.W. 2d 729 (Tex. Grim. 1967). The last portion ofArticle 2324 authorizes the reporter to charge the sutn of not more than thirty cents per one hundred words for the original transcript which includes closing arguments if requested by any party toa suit. Your fourth question is:

Ifeither party requests the court reporter to take shorthand notes ofthe voir dire examination and itis later requested the voir dire examinatinn be typed as part of the Statement ofFacts, must the court reporter charge thirty cents (30$) per hundred words for typing the voir dire examination when, in fact, Article 2324 does not mention voir dire examinations at all?

p. 941The Honorable Tom Hanna, page 5 (H-200)

Article 40.09, $4, Texas Code of Criminal Procedure, states in part: “At the request of either party the court reporter

shall take shorthand notes ofall trial proceedings, including voir dire examination, objections to the court’s charge, and final arguments. He is not entitled to any fee inaddition tohis salary for taking these notes

. . . .” (emphasis added) Although there is no statutory rule or requirement that voir dire examination be recorded by the court reporter in civil cases, we believe he may be required to do so at the direction ofthe court. See McCoy v. State, 2S.W. 2d 242 (Tex. Grim. 1927). The reporter may not charge for the mere taking of shorthand notes of the voir dire examination. However, inaccordance with Article 2324, the reporter is under a duty topreserve all shorthand notes taken and tofurnish toany person a transcript ofall evidence or other proceedings. Itis further stated that the court reporter shall receive as compensation the sum of not more than thirty cents per one hundred words for the original transcript. Your fifth question asked:

May a court reporter charge for the mere taking of shorthand notes of the voir dire examinations, closing arguments and/or the attorneys’ objections to the Court’s charge? Ifso, what rate may be charged? Article 2324 is silent as towhether afee may be charged for the mere taking of shorthand notes. Ittherefore appears that the court reporter is not authorized to charge for the taking of such notes. Article 40.09, $4, Code of Criminal Procedure, expressly prohibits the court reporter from charging any fee in addition tohis salary for taking notes ofvoir dire examination, objections to the court’s charge, and final arguments. Under the provisions of Rule 272, Texas Rules of Civil Procedure, the court reporter is required to

p. 942The Honorable Tom Hanna. page 6 (H-200)

take an attorney’s objections to the **court ’** **s** charge when such request is made. See Long v. Smith, 466 S.W. 2d 32 (Tex. Civ.App., Corpus Christi, 1971, n.r. e. 1. The only duty imposed on the reporter by the **statute** is to “take” shorthand notes. There is no;,duty totranscribe these notes unless and until he is requested to do so. Itis specifically provided inArticle 2324 that if the reporter is requested to transcribe the notes, he may charge a transcript.fee. See Attorney General Opinion WW-702 (1959) and M-248 (1968). SUMMARY 1. Article 3912k, §8, V. T. C.S., does not repeal either Article 2324, V. T. C.S., or Article 2321, V. T. C.S.

2. Ifclosing arguments or thevolr dire examination are requested by either party to be typed as a part ofthe Statement ofFacts, the **court** reporter must charge no more than thirty cents per hundred words inaccordance with Article 2324, V. T. C.S.

3. The court reporter may not charge for the mere taking of shorthand notes ofthevoir dire examination, closing **arguments, or**  the **attorneys ’**  objections **to** the **court ’** **s** charge. Very truly yours,

p0 943The Honorable Tom Hanna, page 7 (H-200)

APPROVEP:

DAVID M. KENDALL, Chairman Opinion Committee

p. 944