DAN MORALES

ATTORNEY GENERAL 

### QBffice of the Elttornep &metal



## Btate of PCexae
March 29, 1995

Honorable Don Henderson Chair Jurisprudence Committee Texas State Senate P.O. Box 12068 Austin, Texas 7871 l-2068 Qpiion No. DM-339
Re: Whether a “videographer” who is also
a notary public may record a deposition upon oral examination (RQ-709)

Dear Senator Henderson:

You submit a letter t?om a constituent who asks whether section 406.016 of the Government Code, rule 202 of the Texas Rules of Civil Procedure., and Attorney General Qpiion IM-110 (1983) authorize a “videographer” who is also a notary public to record a deposition upon oral examination. We understand that the videographer is not a certi&d shorthand reporter and that he wishes to videotape depositions that are not simultaneously recorded by a certified shorthand repotter. Attorney General Qpiion JM-110 interpreted the statutory predecessor to section 406.016 of the Government Code, now-repealed article 5954, V.T.C.S., to authorize notaries public to record writfen depositions in nonstenographic form. That opinion took great pains to distinguish such written depositions from oral depositions (“depositions upon oral examination”) which must generally be recorded by a certified shorthand reporter. See Attorney General Opinion TM-110 (1983) at 2. Neither section 406.016 of the Government Code nor Attorney General Opinion TM-110 authorizes a “videographer” who is also a notary public to record a deposition upon oral examination.
Rule 202 of the Texas Rules of Civil Procedure provides in pertinent part as follows:
1. Non-Stenographic Recording. Any party may cause the

testimony and other available evidence at a deposition upon oral examination to be recorded by other than stenographic means, inchtdmg videotape recordmgs, without leave of court, and the nonstenographic recording may be presented at trial in lieu of readingHonorable Don Henderson - Page 2 (DM-339)

from a stenographic transcription of the deposition, subject to the following rules:

e. The non-stenographic recording shall not diqense with the requirement of a stenogrqhic transcription of the deposition unless the court shall so or&r on motion and notice before the deposition is taken, and such order shall also make such provision concerning the manner of taking, preserving and filing the nonstenographic recording as may be necessary to assure that the recorded testimony will be intelligible, accurate and trustworthy. Such order shah not prevent any party from having a stenographic transcription made at his own expense. In the event of an appeal, the non-stenographic recording shall be reduced to writing. [Emphasis added.]
With the exception of subpart (e), rule 202 requires that both a stenographic transcription and a nonstenographic recording be made. Clearly, the rule contemplates that the stenographic transcription will be made by a certified shorthand reporter (or othenvise qualiied person). It imposes no requirements for the person making the nonstenographic recording, however. Thus, we believe that any person may make a nonstenographic recording if a certified shorthand reporter makes a stenographic transcription simultaneously. Subpart (e), on the other hand, allows a court to order that a non-stenographic recording will dispense with a stenographic transcription. The constituent suggests that r&202(e) authorizes a videographer who is a notary public but not a certified shorthand reporter to make a nonstenographic recording that is the sole recording of the deposition. We believe, however, that rule 202(e) is inconsistent with newly enacted section 52.021(f) of the Government Code.
Section 52.021(f) provides as follows: Except as provided by Section 52.031 and by Section 20.001, Civil Practice and Remedies Code, all depositions conducted in this state must be recorded by a certified shorthand reporter. The legislature added subsection (fj to section 52.021 in 1993. Act ofMay 20, 1993,73d Leg., RS., ch. 1037, 5 2, 1993 Tex. Sess. Law Serv. 4453,4453-54. Section 20.001 of the Civil Practice and Remedies Code, referred to in subsection (f), provides for the taking of depositions upon written questions by certain persons. See Civ. Prac. & Rem. Code 4 20.001(a), as amended by Act of May 20, 1993, 73d Leg., R.S.. ch. 1037, $4, 1993 Tex. Sess. Law Serv. 4453,4454. Section 52.031(b) of the Government Code provides

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for the reporting of a deposition upon oral examination by a noncertified shorthand reporter if a certified shorthand reporter is not available.* Neither of these two exceptions is applicable here.2

In Attorney General Opinion DM-308 (1994) and Letter Opinion No. 93-110 (1993). this office construed section 52.021(f) to rewire that all depositions upon oral examination conducted in this state be recorded by a certified shorthand reporter, except
as authorized by section 52.031(b). Reasoning that tape recording is not a method of shorthand reporting and that a person who uses such a method does not act as a certifted shorthand reporter, we concluded recording of a deposition upon oral examination only by tape recorder would run afoul of section 52.021(f). Letter Opinion No. 93-110 (1993) at 3-4.

In Attorney General Opinion DM-308, we concluded that to the extent that rule 166c of the Texas Rules of Civil Procedure permits parties to stipulate that a deposition upon oral examination be recorded by a person other than a certified shorthand reporter, it wntlicts with subsection (t) of section 52.021 of the Government Code. As noted in that opinion, it is a well-established principle of statutory construction that when a rule of civil procedure promulgated by the Texas Supreme Court wntlicts with a statute, the rule must yield. Attorney General Opinion DM-308 (1994) at 2 (citing Few Y. Charier Oak Fire Ins. Co., 463 S.W.2d 424 flex. 1971); Purolator Armored, Inc. v. Railroad Comm ’n,662 S.W.2d 700,702-03 n.4 (Tex. Civ. App.-Austin 1983, no writ); Drake Y. Muse, Currie & Kohen, 532 S.W.Zd 369, 372 (Tex. Civ. App.-Dallas 1975, writ refd n.r.e.); C. E. Duke ’s Wrecker Sew., Inc. v. Oakley, 526 S.W.Zd 228 (Tex. Civ. App.-Houston (1st Dist.] 1975, writ refd n.r.e.)); see also Tex. Con% art. V, cj31 (providing that supreme court shah promulgate rules of civil procedure for all courts not inconsistent with laws of state).

‘Exceptas provided

by section52.031, a personwho cngagcsin shonhand reporting in violation of section 52.021 commitsa” offensepunishable as a ClassA misdemeanor.Gov’t code 5 52.032(a),as amended byAd of May20, 1993,73d Leg.,R.S., ch. 1037.8 3.1993 Tex. Scss.Law Serv. 4453.4454.
?kction 52.033 of the Govemnxnt Code provides thatchapter

52 doesnot applyto a party to the liiigatioo, the attorneyof the party,or a full-time Unployccof a partyor a parry’s attorney. Burr Y. Shannon, 593 S.W.2d 677 vex. 1980). which holds that that a notarypublic who is “ot a certified shorthsnd mportcr

is authorizedto tape recordand make a written recordof a depositionupon oral acamination,isdistinguirhablebccsuscthcwtarypublicinthateasewastheseQctarydaparty’s attorney and thus wss cxmptcd fromchsptcr52 by virtueof section 52.033. We do not considerthe mlatio”ship

betwee”section52.033 andsection52.021(f).

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Here, we believe that rule 202(e),’ to the extent it authorizes a court to permit parties to dispense with a stenographic transcription, conflicts irreconcilably with section 52.021(f) ofthe Government Code.3 Rule 202(e) is void to the extent it conflicts with the statute. We are aware of no other statute’ that would permit a videographer to make a videotape recordii of a deposition upon oral examination in lieu of a stenographic transcription made by a certified shorthand reporter pursuant to an authorized method. ’

‘Oacmi%targuethattheruleandtbestatutccouldkharmonizedifwcwemto~nsuuerule 202(e) N autheri7.e

only cortitkd ShoIthsttd

tqlortcrs to tmkc “o”ste”ogmphic, videQtape recnrdings

of dqxsitioas uponoral -nation in lieu of stcnngraphic tmnsaiiptions. Webelieve, however, thst such a an&&ion nfRule202(e) is fomcl& by section52.02 1ef the Govcmmcnt

Cede. Subsection

(II)of section 52.021ptidcs that a person “my not engsgein shorthandmpnrlingin this slste unless the parsonis ccrtihl as a shorthsndmpnrtu by the supmnm court. Gov’tC&e 8 52.021(b).Subsoztion (c) of s&ion 52.021

provides that a certikation issued

underchapter52 of the GowmnxntCcdemustbe for Oneor more “Mhods of ShortlUnd re@i”g, “anlcly written shorn machine shnrlhsnd, oral mgmphy, or “sny other mahod of shorlhsnd mpnrting authorizedby the supreme court.” Id. 8 52.021(c);see also TexasSuprenxcourt Standarbc snd Rulesfor Certikstion of ktikd Shorthand Rcpatem pt. I(C) (unpublished, on 6le with the CourtReporters Certitication

Board);AttorneyGeneral LetterOpinionNo. 93-110(1993)(notingthat TexasSupreme Courthas not adoptedrules authorizing olccttunic ramding ss slmthmi rcpordngmctlmd). Oar conclusion in LetterOpinionNo. 93-110 that taprrcordlngisaotamethodofEhorthandrcpMtingendthatapcMnwhowssuchamdhoddosnot act ss a cerMcd shorthand

mpnrtcr is equally applicable tn videotape

roxding.

‘S~bsecti0”(e) of se&m 52.021of the Government Gxle pmvidesthat “[n]oIhingin this s§ionshall be construed to eithersanction

orpmhibitthe use of electmniccourtrecording equipment operated by a noncertikd cmm reporter pmsoant and accordingto rules adoptedor approved by the sopreme court.” In LenerOpinion93-l 10, this officeconcluded thatthis languageis intendedto ensure thatthe prohibition

in thefirstparlof the subsection, pncluding a personwho is not a certiiied shorthand reporter fromholding himselfor herselfout as such, does not interfere with local coml roles permitting elwtmnic recording

of courtprcceedings. See Letter Opinion No. 93-110 (1993) at 2. This language dces not permita videogtapher to makea videotapeof a depositionupon oral examinationia lieu of a stub3gmphic

tramxxiption.
*It is well settkdthatthe takingof testimony by deposition

is a departurr

fromthe common-law rules of evidcnee and that the right N so take a depositiondependsentirelyupon **staNNry** provisions thcmfor. Tlms,the role in Texas is thatthe rightto takethe deposition of a witness dependsentirelyon the statutes,

and the provisionsof the statutesmost bs stktly compliedwith.” Gmza Y.Terra@, 699 S.W.Zd 275, 278 (Tex. App.-14thDist.] 1985, w?itmfd n.r.c.) (citingfiporte Stiles, 150 S.W.Zd234 (Tcx. 1941)).

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SUMMARY

Neither section 406.016 of the Government Code, rule 202 of the Texas Rules of Civil Procedure, nor Attorney General Opinion JM-110 (1983) permits a “vidwgrapher” who is also a notary public, but who is not a certitkd shorthand reporter, to make a videotape recording of a deposition upon oral examination in lieu of a stenographic transcription made by a certified shorthand reporter pursuant to an authorized method. Rule 202(e), to the extent it authorizes a court to permit parties to dispense with a stenographic transcription, wnflicts irreconcilably with section 52.021(t) of the Government Code. Rule 202(e) is void to the extent it wntlicts with the statute. Any person may make a videotape recording of a deposition upon oral examination if a certified shorthand reporter simultaneously makes a stenographic transcription pursuant to an authorized method.

DAN MORALES Anomey General of Texas

JORGE VEGA Fist Assistant Attorney General

SARAH J. SHIRLEY Chair, Opinion Committee
Prepared by Mary R. Grouter Assistant Attorney General

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