,”

. A

AUSTIN xa.T~xan

WILL WIILSON AlTORNEYGENERAL my 17, 1962

Honorable Tom Todd OpinionNo, WW-1334 District Attorney 104thDistrict Re: Whether the County Auditor Abilene, Texas can approve for payment a claim by a Court Reporter for a transcriptmade of Grand Jury proceedings Dear Sir: under the following facts.

In your recent letteryou request our opinion on whether the County Auditor can approve for payment a claim by a Court Reporter for a transcriptmade of Grand Jury proceedings under the following facts.

The relevant facts are that prior to employing the reporter the County Judge and one Commissionerwere contacted and consented to such employment. Further such reporterbegan his duties with the full knowledge of the balance of the members of the Commissioners'Court. The DistrictAttorney feels that the expensewas a necessary one In the conduct of his office. Article 3899, Section (b) states in part:

"(b) Each officer named in thisAct [District Attorneysbeing named in theAcqwhere he receives a salaryas 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 insuranceprotecting 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 suretybonds 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 ensuingmonth, upon theHonorable Tom Todd, page 2 (WW-1334)

applicationby each officer, stating the kind, probable amount of expenditureand the necessity for'the expenses of his office for such ensuing month,which application shall,before presentation to said court, first be endorsedby the countyauditor, if any, otherwise the county treasurer,only as to whether funds are available for payment of such expenses. . . .'
The DistrictAttorney is thereforeauthorized to charge to his county all reasonable expenses necessary in the proper and legal conduct of his office.

This office has heretoforeheld that the District Attorney was acting in the proper and legal conduct of his officewhen he contracted for a transcript of an examining trial,Attorney General Opinion (1949)v-976, a transcript of a tape recordin Opinion (1960) WW- 74, 8 of a radio program,Attorney General and employmentof a public accountant to audit records for the grand jurywhen 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 sufficientlybroad in scope to cover the expense of employinga court reporterby the District Attorney to transcribe the testimonybefore a grand jury. Certainly a diligent DistrictAttorneywould 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 Commissionergave their approval and that the remaining Commissionersknew about the employment when the reporter took on the duties. Whether thiswas sufficient to be "passedon, predetermined,and allowed" Is doubtful. However,Attorney General's Opinions (1961)WW1086 and (1951)V-1149 hold that such expensesmay be either approved prior to the expenditureor subsequentlyratified by the Commissioners'Court. It is said In Attorney General Opinion (1961)~~-1086:

"The question of whether the prior endorsement of the CountyAuditor or County Treasurer, as the case may be, and the prior approval of the CommissionersCourt is necessarybefore incurring such expense, underArticle 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 OpinionV-1149. Th?; ease concerns interpretationof said article concerning expendituresby the sheriff'sdepartment: 'Whilethe entry by the commlssionerst court of an order authorizing the appointment of deputies and fixing their compensation upon proper applicationby the officer in accordancewith article 3902 is a condition precedent to his claiming creditas a matter of right, for salariespaid his deputies, this statutoryprovisionwas not Intended as a limitation on the power of the commissioners' court, and any affirmative action of the court authorizing or approving the expenditurebefore 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 ratificationby themwill be sufficient to authorize the payment of this expense.

The authority of a court reporter to be present before the proceedings of a grand jurywas dlscussed'by the Court of CriminalAppeals In Mc.Gregorv. State, 201 S.W. 184, 185 (1918):

"Construingthese provisions of the statute, it has been held that amoung the persons authorized by law to be presentwith the grand jury were the state's attorney,his assistant and stenographer,witnesses and members ofthe grand jurydisqualified 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;Porterv. State, 72 Tex. Cr. R. 71, 1.60S.W. 1194. None of these persons are authorized to be presentwhile the grand jury isHonorable 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 perceivedwhy, if the presence of the District Attorney's stenographerin the grand jury room is authorized, the presence of a court reporter employedby the District Attorneywould not be. For the main purpose of the presence of eitherwould 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 subsequentlyratifiedby the Commisslonersl Court, the CountyAuditor should approve for payment the claim,as a reasonable expense of the DistrictAttorney 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 transcriptmade of Grand Jury proceedingswhen requestedby the district attorney if the Commissioners Court either approved or subsequently ratified said claim. Very trulyyours,
WILL WILSON

Assistant JHH:kkc:mkh
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,