~ii. 

### THEAITORNEYGENERAL

OF TEXAS
AUSTIN. TRXAS 78711
March 10, 1977

The Honorable Oscar B. McInnis Opinion No. H-952 Criminal District Attorney Hidalgo County Re: Propriety of per diem Edinburg, Texas 78539 payments tovisiting official court reporter from another district. Dear Mr. McInnis: You advise that theofficial court reporter for the 117th District Court~in Nueces County substituted for the official court reporter of the 206th District Court of Hidalgo County when the judge of the 117th District Court was temporarily assigned tohold court for the judge of the 206th District Court inHidalgo County. You ask:

Can we . . .pay avisiting court reporter from another d,istrictper diem? Official court reporters are sworn officers of the court appointed by district and criminal district judges. V.T.C.S. art. 2321. The lastparagraph of article 2326a, V.T.C.S., states:

LWlhenever any official or deputy official shorthand reporter iscalled upon to report theproceedings of any special term of court, or on account of the sickness of any official shorthand reporter of any Judicial District, necessitating the employment of a shorthand reporter from some other county within the state, then the shorthand reporter so employed shall receive and be paid all actual and necessary expenses ingoing to and returning from theplace where heor shemay be called on to report theproceedings of any regular or special terms of court.

P. 3975. -

. The Honorable Oscar B.McInnis -page 2 (H-952)

Assuming, without deciding, that this court reporter fallswithin article 2326a,we do not believe it authorizes him to receive per diem. Attorney General Price Daniel considered an almost identical question from Harrison County inAttorney General Opinion V-446 (1947). Hewas advised that the regular shorthand reporter for the 71st Judicial District Court there became illand that the official reporter for the 4th Judicial District inanother county substituted forhim. The inquiry toAttorney General Daniel was:

If... Lthevisiting reporter] should be paid under the last paragraph ofArticle 2326a, that is,his actual and necessary expenses ingoing toand returning from the place where he or shemay be called on to report theproceedings, then ishe entitled to any per diem in addition tohis necessary and actual expenses? Id. at l-2. - After deciding that thevisiting reporter should receive actual and necesary expenses, the opinion answered:

[IJtis theopinion of this Department that the substitute court reporter who is theofficial court reporter for the 4th Judicial District would not be entitled to any per diem inaddition to the actual and necessary expenses. Hewould, of course, continue todraw his regular salary from the county or counties inwhich he is regularly employed. Id. at 4. - We believe the conclusion ofAttorney General Opinion V-446 is sound. See also Attorney General Opinion V-959 (1949). --
Ithas been suggested article 2323 requires that per diem in addition to expenses bepaid visiting official court reporters. That statute provides inpertinent part:

In case of illness, press of official work, or unavoidable disability of the official shorthand reporter toperform his duties
. . . the judge of the courtmay . . .authorize

P. 3976The Honorable Oscar B. McInnis -page 3 (H-9521

a deputy
. . .reporter to act during

_ -- _ the **absence** of said official
. . .reporter, and said deputy
. . .shall receive, during the time he acts . . .the same salary and fees as the official
. . .reporter . . .but said official
. . .reporter shall also receive his salary in full during such temporary disability to act. The necessity for adeputy
. official
. . .reporter shall be left entirely within thediscretion of the judge of the court. When an official court reporter of one judicial district substitutes for an official court reporter of another judicial district, he does not thereby become adeputy official reporter of the judicial district inwhich he is substituting; hemerely performs additional duties of his own office. Compare Bexar County v. Gazley, 172 S.W.2d 702 (Tex.Civ. APP. -- SanAntonio 1943, nowrit) with Groves v. Gould, 102 S.W.2d 1114 (Tex.Civ.App. --Ft. Wx -nowrit), for distinctions between an official reporter of a judicial district and adeputy official reporter for the district. We do not believe article 2323 is applicable to a substitution by the official court reporter of one judicial district for the official court reporter of a different judicial district. Consequently, we answer your question in the negative. SUMMARY.

A visiting official court reporter from a judicial district inanother county who substitutes for the official court reporter of the county visited isnot entitled to be paid per diem for services rendered to the county visited in addition to expenses. A visiting court reporter covered by article 2326a, V.T.C.S. is entitled to receive his actual and necessary expenses and continues to draw his regular salary from the county or counties inwhich he is regularly employed.

p. 3977The Honorable Oscar B.McInnis -page 4 (H-952)

APPROVED: -..

DAVID G KENDALL, First Assigtant

Opinion Committee jwb

P. 3978