December 8, 1966
Honorable Don Hall Opinion No. c-785
District Attorney
McLennan County Re: Compensation to court
Waco, Texas reporters for appeal
involving indigent de-
Dear Mr. Hall: fendants.
You recently requested an opinion from this office on the
following questions:
"(1) Is Article 40.09, Section 6 of the Texas
Code of Criminal Procedure mandatory?
"(2) If 80, is the reasonability of the amount
of the bill discretionary with the Commissioners
Court, or must the Commissioners Court abide
by the Certification of the trial Judge,
regarding the reasonability of the charge, if
said trial Judge so certifies?
"(3) Is the payment of these charges a County or
State responsibility individually, or a joint
responsibility? It
Paragraph 5 of Article 40.09, Vernon's Code of Criminal
Procedure, states, in part, as follows:
11 The court will order the reporter to
make S&&I Cranscriptlon without 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. Upon certificate of the
court that this service has been rendered, payment
therefor shall be made from the general funds by
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Honorable Don Hall, page 2 (C-785 )
In answer to ycur first and third questions, Article 40.09,
.paragraph 5, Vernon's Code of Criminal Procedure, is specific and
the legislative intent is clear. Ordinarily, when the word "shall"
is used, the presumption is that it is in the imperative, and not
in the directory sense. McLaren v. State, 199 S.W. 811 (Tex. Grim.
1917).
Therefore, it Is the opinion of this office that the
language of Article 40.09 directing that "payment shall be made
from the general funds by the county in which the offenge is
alleged to have been committed," is mandatory and not directory;
and that upon certification of the trial L!Jdgethat this service
has been rendered and that the amount of ihe bill submitted by
the court reporter Is reasonable the Commissioners Court must
make payment to the court reporter from the general funds ?,'the
county. Article 40.09, paragraph 5, clearly states that the
responsibility of paying the fee lies with the county and not the
State.
In answer to your second question, Article 40.09, para-
graph 5, does not outline what the court reporters shall.be paid
or what is a reasonable amount for the preparing of the statement
of facts and transcripts. However, this office ruled in Attorney
General's Opinion No. c-683 (1966) that a reasonable amount should
be paid and that the trial court may certify whether the amount
requested by the court reporter is reasonable. Opinion NO: c-683
also sets forth the guidelines that may be used by the trial court
and states that the reasonableness of the amount requested by the
court reporter is within the discretion of' ine trial court. It
is our opinion that the Commissioners Court must abide by that
determination.
SUMMARY
Under the provisions of Article 40.09, paragraph 5 of
Vernon's Code of Criminal Procedure, upon certification
from the trial court that the court reporter's fee is
.reasonable the Commissioners Court must make payment
from the general funds of the county in which the
offense is alleged to have been committed.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
DHC/lk
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Honorable Don Hall% page 3, (C-785 )
1
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Robert Owen
Robert Norris
Lonny Zwiener
Gilbert Pena
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
-376%
Untitled Texas Attorney General Opinion
Combined Opinion