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406.016 of the Government Code, now-repealed article 5954, V.T.C.S., to authorize 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-1 10 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 reading 
Honorable 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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Honorable Don Henderson - Page 3 (nn-339) 

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, cj 31 (providing that 

supreme court shah promulgate rules of civil procedure for all courts not inconsistent with 

laws of state). 

‘Except as provided by section 52.03 1, a person who cngagcs in shonhand reporting in violation 

of section 52.021 commits a” offense punishable as a Class A misdemeanor. Gov’t code 5 52.032(a), as 

amended by Ad of May 20, 1993,73d Leg., R.S., ch. 1037.8 3.1993 Tex. Scss. Law Serv. 4453.4454. 

?kction 52.033 of the Govemnxnt Code provides that chapter 52 does not apply to a party to the 

liiigatioo, the attorney of the party, or a full-time Unploycc of a party or a parry’s attorney. Burr Y. 

Shannon, 593 S.W.2d 677 vex. 1980). which holds that that a notary public who is “ot a certified 

shorthsnd mportcr is authorized to tape record and make a written record of a deposition upon oral 

acamination,isdistinguirhablebccsuscthcwtarypublicinthateasewastheseQctarydaparty’s 

attorney and thus wss cxmptcd from chsptcr 52 by virtue of section 52.033. We do not consider the 

mlatio”ship betwee” section 52.033 and section 52.021(f). 

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Honorable Don Henderson - Page 4 (DM-339) 

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 upon oral -nation in lieu of stcnngraphic tmnsaiiptions. We believe, however, thst such 

a an&&ion nf Rule 202(e) is fomcl& by section 52.02 1 ef the Govcmmcnt Cede. Subsection (II) of 

section 52.021 ptidcs that a person “my not engsge in shorthand mpnrling in this slste unless the 

parson is ccrtihl as a shorthsnd mpnrtu by the supmnm court. Gov’t C&e 8 52.021(b). Subsoztion (c) 

of s&ion 52.021 provides that a certikation issued under chapter 52 of the GowmnxntCcdemustbe 

for One or more “Mhods of ShortlUnd re@i”g, “anlcly written shorn machine shnrlhsnd, oral 

mgmphy, or “sny other mahod of shorlhsnd mpnrting authorized by the supreme court.” Id. 

8 52.021(c); see also Texas Suprenx court Standarbc snd Rules for Certikstion of ktikd Shorthand 

Rcpatem pt. I(C) (unpublished, on 6le with the Court Reporters Certitication Board); Attorney General 

Letter Opinion No. 93-110 (1993) (noting that Texas Supreme Court has not adopted rules authorizing 

olccttunic ramding ss slmthmi rcpordng mctlmd). Oar conclusion in Letter Opinion No. 93-110 that 

taprrcordlngisaotamethodofEhorthandrcpMtingendthatapcMnwhowssuchamdhoddosnot 

act ss a cerMcd shorthand mpnrtcr is equally applicable tn videotape roxding. 

‘S~bsecti0” (e) of se&m 52.021 of the Government Gxle pmvides that “[n]oIhing in this 

s§ion shall be construed to either sanction or pmhibit the use of electmnic court recording equipment 

operated by a noncertikd cmm reporter pmsoant and according to rules adopted or approved by the 

sopreme court.” In Lener Opinion 93-l 10, this office concluded that this language is intended to ensure 

that the prohibition in the first parl of the subsection, pncluding a person who is not a certiiied shorthand 

reporter from holding himself or herself out as such, does not interfere with local coml roles permitting 

elwtmnic recording of court prcceedings. See Letter Opinion No. 93-110 (1993) at 2. This language 

dces not permit a videogtapher to make a videotape of a deposition upon oral examination ia lieu of a 

stub3gmphic tramxxiption. 

*It is well settkd that the taking of testimony by deposition is a departurr from the common-law 

rules of evidcnee and that the right N so take a deposition depends entirely upon staNNry provisions 

thcmfor. Tlms, the role in Texas is that the right to take the deposition of a witness depends entirely on 

the statutes, and the provisions of the statutes most bs stktly complied with.” Gmza Y. Terra@, 699 

S.W.Zd 275, 278 (Tex. App.-14th Dist.] 1985, w?it mfd n.r.c.) (citing fiporte Stiles, 150 S.W.Zd 234 

(Tcx. 1941)). 

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Honorable Don Henderson - Page 5 (DM-339) 

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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