,” 

. A 

AUSTIN xa.T~xan 

WILL WIILSON 

AlTORNEYGENERAL 

my 17, 1962 

Honorable Tom Todd Opinion No, WW-1334 

District Attorney 

104th District Re: Whether the County Auditor 

Abilene, Texas can approve for payment 

a claim by a Court Reporter 

for a transcript made of 

Grand Jury proceedings 

Dear Sir: under the following facts. 

In your recent letter you request our opinion on 

whether the County Auditor can approve for payment a claim by 

a Court Reporter for a transcript made of Grand Jury proceedings 

under the following facts. 

The relevant facts are that prior to employing the 

reporter the County Judge and one Commissioner were contacted 

and consented to such employment. Further such reporter began 

his duties with the full knowledge of the balance of the members of the Commissioners' Court. The District Attorney feels 

that the expense was a necessary one In the conduct of his 

office. 

Article 3899, Section (b) states in part: 

"(b) Each officer named in this Act [District 

Attorneys being named in the Acqwhere he receives 

a salary as compensation for his services, shall 

be entitled and permitted to purchase or charge 

to his county all reasonable expenses necessary 

in the proper and legal conduct of his office, 

premiums on officials' bonds, premiums on fire, 

burglary, theft, robbery insurance protecting 

public funds, and Including the cost of surety 

bonds for his deputies, provided that expenses 

incurred for premiums on offici.alst bonds for the 

county treasurer, county auditor, county road 

commissioners, county school superintendent, 

and the hide and animal inspector, Including 

the cost of surety bonds for any deputies of 

any such officers, may be also included, and 

such expenses to be passed on, predetermined 

and allowed in the time and amount as nearly 

as possible, by the Commissioners' Court once 

each month for the ensuing month, upon the 
Honorable Tom Todd, page 2 (WW-1334) 

application by each officer, stating the kind, 

probable amount of expenditure and the necessity 

for'the expenses of his office for such ensuing 

month, which application shall, before presentation to said court, first be endorsed by the 

county auditor, if any, otherwise the county 

treasurer, only as to whether funds are available for payment of such expenses. . . .' 

The District Attorney is therefore authorized to charge to 

his county all reasonable expenses necessary in the proper 

and legal conduct of his office. 

This office has heretofore held that the District 

Attorney was acting in the proper and legal conduct of his 

office when he contracted for a transcript of an examining 

trial, Attorney General Opinion (1949) v-976, a transcript 

of a tape recordin 

Opinion (1960) WW- 8 74, 

of a radio program, Attorney General 

and employment of a public accountant 

to audit records for the grand jury when necessary for 

c,r;;Einal investigation, Attorney General Opinion (1961) WW- 

. 

It is the opinion of this office that the phrase 

"all reasonable expenses necessary in the proper and legal 

conduct of his office" is sufficiently broad in scope to 

cover the expense of employing a court reporter by the District 

Attorney to transcribe the testimony before a grand jury. 

Certainly a diligent District Attorney would want to preserve 

such testimony for his own use in the event of trial. 

A further question concerns the prior approval by 

the Commissioners' Court of such expenditure. You have stated 

that the County Judge and one Commissioner gave their approval 

and that the remaining Commissioners knew about the employment 

when the reporter took on the duties. Whether this was sufficient to be "passed on, p redetermined, and allowed" Is 

doubtful. However, Attorney General's Opinions (1961) WW1086 and (1951) V-1149 hold that such expenses may be either 

approved prior to the expenditure or subsequently ratified 

by the Commissioners' Court. It is said In Attorney General 

Opinion (1961) ~~-1086: 

"The question of whether the prior endorsement of the County Auditor or County Treasurer, 

as the case may be, and the prior approval of 

the Commissioners Court is necessary before 

incurring such expense, under Article 3899, 
Honorable Tom Todd, page 3 (WW-1334 ) 

Section (b) is discussed in State v. Carnes, 

106 S.W.2d 397, 399 (Clv.App. 1937) d'At 

torney General's Opinion V-1149. Th?; ease 

concerns interpretation of said article concerning expenditures by the sheriff's department: 

'While the entry by the commlssionerst 

court of an order authorizing the appointment 

of deputies and fixing their compensation 

upon proper application by the officer in 

accordance with article 3902 is a condition 

precedent to his claiming credit as a matter 

of right, for salaries paid his deputies, 

this statutory provision was not Intended 

as a limitation on the power of the commissioners' court, and any affirmative action 

of the court authorizing or approving the 

expenditure before or after it was Incurred 

would bind the county and authorize the 

deduction. The commissloners~ court may 

Since you state that the Commissioners' Court Is desirous of 

paying this bill, a subsequent ratification by them will be 

sufficient to authorize the payment of this expense. 

The authority of a court reporter to be present before 

the proceedings of a grand jury was dlscussed'by the Court of 

Criminal Appeals In Mc.Gregor v. State, 201 S.W. 184, 185 (1918): 

"Construing these provisions of the statute, 

it has been held that amoung the persons authorized by law to be present with the grand jury 

were the state's attorney, his assistant and 

stenographer, witnesses and members of the grand 

jury disqualified In the particular inquiry under 

investigation. Stuart v. State, 35 Tex. Cr. R. 

440, 34 S.W. 118; Sims v. State, 45 S.W. 705; 

Wilson v. State, 41 Tex. Cr. R. 115 51 S.W. 916; 

McElroy v. State, 49 Tex. Cr. R. 604, 95 S.W. 

539; Moody v. State, 57 Tex. Cr. R. 76, 121 S.W. 

1117; Haywood v. State, 61 Tex. Cr. R. 92, 134 

S.W. 21tl; Porter v. State, 72 Tex. Cr. R. 71, 

1.60 S.W. 1194. None of these persons are authorized to be present while the grand jury is 
Honorable Tom Todd, page 4 (WW-1134) 

deliberati*ng upon the accusation, or voting on 

it. This is held in all the cases mentioned." 

No reason Is perceived why, if the presence of the District 

Attorney's stenographer in the grand jury room is authorized, the presence of a court reporter employed by the 

District Attorney would not be. For the main purpose of 

the presence of either would be to transcribe evidence to 

aid the State's attorney in preparing for trial. 

It is the opinion of this office that when the 

said expense is subsequently ratified by the Commisslonersl 

Court, the County Auditor should approve for payment the 

claim,as a reasonable expense of the District Attorney in 

the proper and legal conduct of his office. 

SUMMARY 

The County Auditor can approve for 

payment, a claim by a Court Reporter 

for a transcript made of Grand Jury 

proceedings when requested by the 

district attorney if the Commissioners 

Court either approved or subsequently 

ratified said claim. 

Very truly yours, 

WILL WILSON 

JHH:kkc:mkh Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Riley Eugene Fletcher 

Elmer McVey 

Linward Shivers 

Joe Osborn 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr,