NEY GENERAL O,P TEXAS

PRICE DANIEL ATTORNEY

GENERAL April 9, 1948

Hon. Elmer 8. Parish, District Attorney, Thirteenth Judicial District, Wichita Falls, Texas Opinion No. V-538

Dear Sirr Rer Liability for compensation to stenographer for taking and transcribing testimonyat an inquest,
Werefer to your letter of March 15, 1948, in which you submit the followingr

We would like for you to submit an opinion to us as to whether or not a $150.00 fee of a reporter for taking testimony ate an inquest andtranscribing the testimony is a proper and necessary expense to be paid as expenses of the County Attorney. e 0 0
no D, TheJustice of the Peace called an inquest on the case andadvised both the County andDistrict Attorney’s offices th;tl;;id inquest would be heard onAugm The CountyAttorney desired to have the testimony of the witnesses transcribed in question andanswer form to aid andassist him in the prosecution of the case should a criminal charge result. For this purpose he madearrangements to have a reporter present to take downthe testimonyandtranscribe the same.

“The hearing consumedtwo days andthe reporter submitted a bill to the County Attorney for the sumof $150,00, All the testimcng introduced in the trial was

/:Hon. Elmer H. Parish - Page 2. (~438) ,,

transcribed by the reporter in question andanswer form. After a study ,ofthe Statement 0r Pacts, no,criminal charge was filed. The County‘Attorney submitted the blll,of the reporter to the Commisslonefs’ Court as a reasonable expense necessary In the proper and legal conduct of .his office. The Commissioners’ Court failed to approve the bill or author&G ~. the payment by t,heCounty Attorney but, did authorize the Justice of the Peace to,, pay the same.

“In Wichita County the CountyAttorney receives a fixed salary as compensation for his services andthe JustIce .ofthe Peace is on a fee basis.” Asweconstrue your letter, the question is as to whether the Justice of the Peace or the county is -liable for the compensation to the reporter employed by the County Attorney to take andtranscribe the evidence in the Inquest proceedings in question andanswer form to assist the County Attorney in the prosecution of an anticipated criminal charge.

Theauthority andduties of Justices of the Peace concerning inquests are prescribed in Articles 96 989, and 1053, V. C. C. P.

Article 975 reads8
nWitnesses shall be sworn and examined by the justice andtheir testimony reduced to writing by or under his direction, and subscribed by them.” Article 987, V.C. C. P, require,s the Justice of the Peace to l’cert$fy to the proceedings and shall enclose in an envelope the testimony takenw etc.

Article 1053, V. C. C. P, reads, in part:

“A Justice of the peace shall be entitled;for an inquest on a dead body; ineludlng certifying and returning the proceedings to the Dollars ($10P

roper. court, the sumof Ten to be paid by the county.”Hon. Elmer H. Parish - Page 

### 3 (v-538)

You say that the inquest was held because a question was raised that the death was under circumstances which mayhave constituted negligent homicide, and that “the County Attorney desired to have the testimony of the witnesses transcribed in question and answer form to aid and assist himin the prosecution of the case should a criminal charge result. For this purpose he madearrangements to have’a reporter present to take downthe testimony and transcribe the same.”

The question is as to whether the County Attorney was authorized to incur such expense to be paid byWichita County under section b of Article 

### 3899,V.C.S., the pertinent part of which reads:

“Each officer namedin this act where he receives a salary as compensation for his services shall be entitled andpermitted to purchase or charge to his county all reasonable expenses necessary in the proper and legal conduct of his office.” TheCounty Attorney was present at the inquest in the *legal conduct of his office,11

Article 

### 977,which prescribes procedure in inquest proceedings, reads in part:

“If any other persons than the justice, the accused andhis counsel, andthe counsel for the State, are present at the inquest, they shall not interfere with the proceedings. Noquestion shall be asked awitness9except by the justice, the accused or his counsel, andthe counsel for the State.” Article 

### 26,V. C. C. P,, reads, in part:

“The CountyAttorney shall attend the terms of all courts in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county.” In the case of Meyers v. State, 

### 26S. W. 

### 199, an inquest had been held. The testimony of awitnessHon. Elmer H. Parish - Page 4 (V-538)

was taken in the presence of the defendant andhis counsel, whowere offered the privilege of cross-examination, which offer was refused. Thewitness died and on trial the defendant objected to the evidence taken because It was taken at an inquest, said8 The Court of Criminal Appeals

“It seemswholly Immaterial whether the justice styled’the proceeding an ‘inquest’ or an ‘examining trial’ e O

. .I1andheld the evidence admissible on final trial of a charge of murder against the defendant. The Court held that the justice of the peace mayhold an examining trial while holding an inquest. In efther such case the defendant maycross-examine witnesses andthe County Attorney has the duty to be present and represent the State. In Opinion No. O-3670, a Conference Opinion by a former Attorney General, It was held that expenses fncurred by the County Attorney, compensated on salary basis, in attending justice courts in lfne of duty fn the county outside of the county seat are “expenses necessary in the proper and legal conduct of hfs offfcew wfthfn the quoted language from Article 3899, V, C. S.9andpayable by the county.

Weare of the opfnfon that Justices of the Peace are not required to have the testSmony in an inquest proceeding taken andtranscribed in question and answer form or to pay for such service rendered by the reporter.

We are also of the opinion that, in the factual situation stated in your letter, ,the County Attorneywhose compensation for services is on a salary basis, was aeting in the proper and legal conduct of his office, and was authorized to employ the reporter to take andtranscrfbe the testimony in the Inquest proceeding in question and answer form for use In the prosecutfon of an anticipated criminal charge.
SUMMARY

Justices of the Peace are not required to transcribe testimony, taken by OFunder their direction in an inquest proceeding, in question and answer form.Hon. Elmer H. Parish - Page 

### 5 (V-538)

TheCounty Attorney of'wichita County was authorized to require that the testimony taken at an inquest be transcribed in question and answer form for use by him in the conduct of his office in Investigating 'circumstances concerning a death andto employ a reporter to take andtranscribe such testimony at the expense of the county, Yours very truly, ATTORNEY

GENERAL

OFTEXAS

WTW:wb Encl.
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