AUSTIN. TSXAS 78711
July 25, 1973
The Honorable Royce Adkins Opinion NO. H- 69
District Attorney
39th Judicial District Re: Whether Court Reporter
Haskell, Texas 79521 is entitled to be paid for
preparing a Statement of
Facts in connection with
an application for writ
of habeas corpus under
Dear Mr. Adkins: Article Il. 07, V. C. C. P.
Your letter requesting our opinion asks whether a court reporter
who prepares a transcript of the evidence at a hearing on a writ of
habeas corpus is entitled to be compensated for it by the county.
Article Il. 07, Vernon’s Code of Criminal Procedure, governing
the procedure for taking evidence on writs of habeas corpus, in per-
tinent part reads as follows:
“It shall be the duty of the official court
reporter of the district judge or judges so de-
signated to forthwith prepare a narration of the
facts adduced in evidence upon any suchhearing
and transmit the same, together with the judge’s
finding of fact and conclusions of law, to the
clerk of the Court of Criminal Appeals within
ten days of the date of such hearing.”
As your request notes, Article 11.07 fails to specifically provide
payment to the court reporter in the case of an indigent petitioner, as
compared to the provisions of Article 40.09, V. C. C. P., (dealing with
the preparation of a Statement of Facts for use on direct appeal from
the trial court):
p. 296
The Honorable Royce Adkins, page 2 (H-69)
“A party desiring to have included in the
record a transcription of notes of the reporter
shall have the responsibility of obtaining such
transcription and furnishing same to the clerk
in duplicate in time for inclusion in the record
and defendant shall pay therefor. The court
will order the reporter to make such transcrip-
tion without charge to the defendant if the court
finds, a&ter hearing in response to affidavit by
defendant, that he is unable to pay or give secu-
rity therefor. Upon.certificate of the court that
this service has beeh rendered, payment there-
for shall be made from the general funds by the
county in which the offense is alleged to have
been committed. The court reporter shall re-
port any portion of the proceedings requested by
either party or directed by the court. (emphasis
added).
There are no Texas cases dealing with this particular situation.
However, there is authority indicating that court reporters may obtain
compensation for preparing a transcript of proceedings even if not a
part of his official duties. See Attorney General’s Opinion No. V-976
(1949).
In McCoy v. State, 2 S. W. 2d 242 (Tex. Crim. 1928), it was held
that a court reporter may have official duties which extend beyond the
express statutory requirements which would rest largely within the dis-
cret~ion of the trial court, Attorney General’s Opinion No. WW-702
(1959) stated that services for taking and transcribing depositions for
the State could be legally paid for by the Comptroller in accordance
with the fees prescribed in Article 2324, V. T. C. S. Obviously the ques-
tion presented in your request is not answered directly by these autho-
rities since there is the express statutory require’ment of Article 11.07
that the court reporter prepare a Statement of Facts.
p. 297
The Honorable Royce Adkins, page 3 (H-69)
Article 16.09, V. C. C. P., requires the reducing to writing of
testimony given at an examining trial. As noted in Attorney General’s
Opinion No. M-303 (1968) :
II . . . [A]n official appointed court reporter
who is required by the Magistrate to transcribe and
give the court the ‘original’ Statement of Facts is
entitled to reasonable compensation for his services
to the court aside from any private arrangement he
may have with defense counsel.
“The examining trial is an official hearing
authorized by law. Once a reporter is officially
appointed by the Magistrate his Statement of Facts
become the work product of the court and may not
be withheld for the private advantage .of defense
counsel. ”
An Article 11.07 habeas corpus hearing is “an official hearing
authorized by law. ” The court reporter’s Statement of Facts becomes
“the work product of the court. ” Therefore such transcripts should be
on an equal basis with transcripts of an examining trial .(Attorney Gen-
eral Opinion V-976 (1949), a tape recording of a radio program (Attor-
ney General Opinion WW-874 (1960) when ordered bythe iiotrict attorney.
See Attorney General’s Opinion WW-1334 (1962).
It is our opinion, therefore, that a court reporter who prepares a
statement of facts reflecting the testimony given at a hearing on a writ of
habeas corpus is entitled to be compensated for it by the State or County.
SUMMARY
A court reporter who prepares the narration of
the facts adduced in evidence at a hearing on a writ of
p. 298
The Honorable Royce Adkins, page 4 (H-69)
habeas corpus under Article Il. 07, V. T. C. C. P.,
is entitled to be compensated for its preparation
by the State or County.
Very truly yours,
APPI$@VED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 299