June 8, 1972
Honorable K. Baker Opinion NO. M-1159
District Attorney
Shelby-Panola Counties Re: Whether a court order
l?.0. Box 633 is required for tran-
Carthage, Texas 75633 scripts of individuals
in state and federal
penitentiaries under
Dear Mr. Baker: a pauper's oath.
You have requested an opinion from our office on the
following questions:
"Whether a court order is required for tran-
scripts of individuals in state and federal peni-
tentiaries under a pauper's oath."
Article 40.09, Sec. 5, Vernon's Code of Criminal Procedure,
provides as follows:
"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 3.n time for inclusion in the record
and defendant shall pay therefor. The court will
order the reporter to make such transcription with-
out charge to defendant if the court finds, after
hearing in response to affidavit by defendant that
he is unable to pay or give security therefor.
Unon certificate of the court that this service
has been rendered, payment therefor shall be made
from the general funds by the county in which the
offense is alleged to have been committed in a
sum to be set by the trial judge. The court re-
porter shall report any portion of proceedings
requested by either party or directed by the court."
(Emphasis added.)
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Honorable K. Baker, page 2. (M-1159)
In Ex Parte Ambrose, 145 TexiCrim. 582, 170 S.W.2d 731,
732 (1943) the appellant sought to excuse his failure to
file a stacement'of facts by saying that he filed an affidavit
of inability to pay for a transcript of the testimony but
the court reporter failed to furnish the statement of facts.
The Court thereupon overruled appellant's contention on the
ground that it did not appear:
. . . that the affidavit of inability to pay for
a transcript of the testimony was presented to the
trial judge or that an order was made by the trial
judge directing the court reporter to prepare, and
to furnish the appellant, a transcript of the testi-
mony.
"In order for an accused to avail himself of
the right to have the court reporter prepare a
transcript of the testimony because of his inability
to pay therefor, it is necessary not only that the
affidavit comply with the statute, Vernon's Ann.
C.C.P., Art. 760, sub division 6, but that it be
called to the attention of the trial court, and
must reflect. P'ultonv. State,.Tex.
t.th;';;;ord
101 S.W.2d 251 ('1937),and au%orities
theie ciied."
In 1965, the Code of Criminal Procedure, including Arti-
cles 760 thereof, was revised, and the new Article 40.09
replaced the old Articles. In a Special Commentary there-
under, at pages 154-155 of Volume 5 of Vernon's~Code,of
Criminal Procedure, the Honorable John F. Onion, Jr., says,
in part:
"If a pauper's oath is filed to obtain a tran-
script of the court reporter's notes on appeal,
the court may conduct a hearing to determine
indigency. If the record is ordered on a pauper's
oath, the court reporter is to be paid in full
by the county."
This removed a thorn in the side of court reporters in crimi-
nal cases who many times got nothing at all under former
practice.
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. 1
Honorable K. Baker, Page 3. (M-1'159)
It is our conclusion that since the statute confers a
discretion upon the presiding judge to order the court reporter
to prepare the transcript either at the defendant's expense
or at the expense of the county where an affidavit of inability
to pay is filed, and the judge may either accept it or reject
the affidavit and order a hearing thereon, the burden is upon
the defendant both to present his affidavitand to obtain a
court order thereon before the court clerk or reporter is
required to prepare the record at county expense.
We therefore hold that neither a clerk of the court nor
a court reporter is required to prepare and furnish any por-
tion of the record to individuals confined in State and Fed-
eral Penitentiaries under a pauper's oath without the indi-
vidual first making a timely request therefore, bringing the
affidavit in forma pauperis to the trialscourt's attention,
and obtaining a court order for the record. An indigent
seeking to avail himself of the benefit of this statute,muSt
not only act with diligence in filing the pauper's oath, but
he must bring,it to the attention of the trial court. Ex
Parte Thorbus, 455 S.W.2a 756, 758, 761 (Tex.Crim. 1970~
The Clerk has only such powers and duties as are ex-
pressly or impliedly conferred upbn hitiby law. 47 Tex.Jur.
2d, 139-140, Public Officers, Sec. 106. He has no duty or
power to prepare the transcript for the indigent in the
absence of an order by the trial court.
SUMMARY
A Clerk of the Court, or a Court Reporter,
is not required to prepare and furnish any
portion of the record to individuals confined
in State and Federal Penitentiaries under a
pauper's oath in the absence of a court order.
YOJ&S very truly,
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Honorable K. Baker, page 4. (M-1159)
Prepared by E; L. Hamilton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kern6 Taylor, Chairman
W. E. Allen, Co-chairman
Ben Harrison
Harold Kennedy
Houghton Brownlee
Lewis Jones
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOIA WHITE
First Assistant
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