### THE ATTORSEY GESERAL OF ?&-ESAS August 7, 1987

Honorable Dale Hanna Johnson County Attorney 1st Floor, Courthouse Cleburne. Texas 76031 Opinion No, JM-764 Re: Whether the individual who keeps theminutes for acommissioners court is required to be acertified shorthand reporter DearMr. Hanna: You ask whether the county clerk or a duly appointed deputy county clerk who keeps the minutes of the proceedings of the commissioners court is required to be a certified official court reporter. Section 52.041 of the Government Codeprovides that every “court of record” must appoint an“official court reporter”:

Eachjudge of a court of record shall appoint an official court reporter. An official court reporter is asworn officer of the court andholds office at the pleasure of the court. Section 52.001(3) of the Government Code defines “official court reporter” as “the shorthand reporter appointed by a judge as the official court reporter.” Section 52.001(5) of the Government Code defines “shorthand reporting” as

the practice of shorthand reporting for use in litigation in the courts of this state bymaking a verbatim record of an oral court proceeding, deposition, or proceeding before a grand jury, referee, or court commissioner "Sing written symbols in shorthand, machine shorthand, or oral stenography. Section 52.046 of the Government Code sets out the powers and the duties of anofficial court reporter:

(a) On request, an official court reporter shall:

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(1) attend all sessions of the court; (2) take full shorthand notes of oral testimony offered before the court, including objections madeto the admissibility of evidence, court rulings end remarks on the objections, end exceptions to the rulings;

(3) take full shorthand notes of closing arguments if requested todosobythe attorney of a party to the case, including objections to the arguments, court rulings end remarks on the objections, endexceptions tothe rulings:

(4) preserve the notes for future reference for three years from the date onwhich they were taken; and

(5) furnish a transcript of the reported evidence or other proceedings, in whole or in part, es provided bythis chapter. (b) Anofficial court reporter of a district court may conduct the deposition of witnesses, receive, execute, endreturn commissions, endmake a certificate of the proceedings in any county that is included in thejudicial district of that court. (c) The supreme court may adopt rules consistent with the relevant statutes to provide for the duties and fees of official court reporters in all civil judicial proceedings. (d) Ajudge of acounty court or county court at law shall appoint a certified shorthand reporter to report theoral testimony given in any contested probate matter in that judge’s court. Acommissioners court is not a court that conducts litigation; rather, it is “e political body, the powers end duties of its members being largely legislative andministerial.” Robinson v. Smith County, 76 S.W. 584 (Tex. Civ. App. 1903, no writ). Nonetheless, a commissioners court has been said to be a “court of record.” Maples v. Henderson County, 259 S.W.2d 264 (Tex. Civ. App. - Dallas 1953, writ ref

’d n.r.e.). Consequently, you are concerned that section 52.041 of the Government Code, which requires all courts of record to appoint official court reporters, requires that the county clerk or -,

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P deputy county clerk that keeps the minutes for the commissioners court

beenofficial court reporter. Wethink, however, that the phrase "court of record" in section 52.041 of the Government Codemustbereed in the context of the other statutes deeling with official court reporters. Section 52.001 defines enofficial court reporter es aperson whopractices shorthand reporting for use in litigation, endthe powers andduties of official court reporters that are set out in section 52.046 relate generally to litigation. Therefore, wethink that the requirement that every court of record appoint ashorthand reporter wasintended toapply to courts that conduct litigation. Furthermore, even if the phrase "court of record" as used in section 52.041 did encompass commissioners courts, we think that article 2349, V.T.C.S., rather than chapter 52of the Government Code governs howandbywhomthe proceedings of commissioners courts are to be recorded. T.hecommissioners court is a"court of record" because it is required to record its proceedings. Attorney General Opinion V-1038 (1950). InAttorney General Opinion O-6318 (1945) this office said th;?t article 2349, V.T.C.S., makes the commissioners court a court of record. Article 2349provides:

The court shell require the county clerk to keep suitable books inwhich shall berecorded the proceedings of each term of **the** court; which record shall be reed endsigned after each termby the county judge, or the member presiding end attested by the clerk. The clerk shell also record all authorized proceedings of the court between terms; and such record shell be reed and signed on the first day of the term next after such proceedings occurred.

See also V.T.C.S. art. 1938 (county clerk may appoint deputies who shell perform all acts of county clerk). Thus, the same provision that makes the commissioners court acourt of record assigns the task of keeping theminutes of the commissioners court to the county clerk. CompareAttorney General Opinion V-1038 (1950)(indicating that minutes of commissioners court should contain arecord of actions taken rather than a verbatim transcription of meeting); with Go"'t Code §52.001(official court reporters keep verbatim transcriptions of proceedings). Wefind no requirement that the county clerk be an official shorthand reporter. See generally V.T.C.S. art. 2345 end Gov't Code 551.402 (powers andduties of county clerk). Ageneral law does not ordinarily repeal aspecial lawonthe samesubject; rather, the special law is construed as an exception to the general law. Flowers v. Pecos River R. Co., 156S.W.2d 260 (Tex. 1941). Therefore,

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we think that article 2349, which governs how and by whom the proceedings of comissioners courts are tobe recorded, would be read as an exception to the statute that sets out a general requirement that courts of record must appoint anofficial court reporter even if that general rule were broad enough to include commissioners courts. SUMMARY A commissioners court is not required to appoint en official court reporter to record its proceedings.

.. MARYKELLER

- Executive Assistant Attorney General JUDGEZOLLIESTEAKLCI Special Assistant Attorney General RICKGILPIN Chairmen, Opinion Committee Prepared by SarahWoelk Assistant Attorney General

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