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AUSTIN xa.T~xan
WILL WIILSON
AlTORNEYGENERAL
my 17, 1962
Honorable Tom Todd Opinion No, WW-1334
District Attorney
104th District Re: Whether the County Auditor
Abilene, Texas can approve for payment
a claim by a Court Reporter
for a transcript made of
Grand Jury proceedings
Dear Sir: under the following facts.
In your recent letter you request our opinion on
whether the County Auditor can approve for payment a claim by
a Court Reporter for a transcript made of Grand Jury proceedings
under the following facts.
The relevant facts are that prior to employing the
reporter the County Judge and one Commissioner were contacted
and consented to such employment. Further such reporter began
his duties with the full knowledge of the balance of the mem-
bers of the Commissioners' Court. The District Attorney feels
that the expense was a necessary one In the conduct of his
office.
Article 3899, Section (b) states in part:
"(b) Each officer named in this Act [District
Attorneys being named in the Acqwhere he receives
a salary as compensation for his services, shall
be entitled and permitted to purchase or charge
to his county all reasonable expenses necessary
in the proper and legal conduct of his office,
premiums on officials' bonds, premiums on fire,
burglary, theft, robbery insurance protecting
public funds, and Including the cost of surety
bonds for his deputies, provided that expenses
incurred for premiums on offici.alstbonds for the
county treasurer, county auditor, county road
commissioners, county school superintendent,
and the hide and animal inspector, Including
the cost of surety bonds for any deputies of
any such officers, may be also included, and
such expenses to be passed on, predetermined
and allowed in the time and amount as nearly
as possible, by the Commissioners' Court once
each month for the ensuing month, upon the
Honorable Tom Todd, page 2 (WW-1334)
application by each officer, stating the kind,
probable amount of expenditure and the necessity
for'the expenses of his office for such ensuing
month, which application shall, before presen-
tation to said court, first be endorsed by the
county auditor, if any, otherwise the county
treasurer, only as to whether funds are avail-
able for payment of such expenses. . . .'
The District Attorney is therefore authorized to charge to
his county all reasonable expenses necessary in the proper
and legal conduct of his office.
This office has heretofore held that the District
Attorney was acting in the proper and legal conduct of his
office when he contracted for a transcript of an examining
trial, Attorney General Opinion (1949) v-976, a transcript
of a tape recordin of a radio program, Attorney General
Opinion (1960) WW-874, and employment of a public accountant
to audit records for the grand jury when necessary for
investigation, Attorney General Opinion (1961) WW-
c,r;;Einal
.
It is the opinion of this office that the phrase
"all reasonable expenses necessary in the proper and legal
conduct of his office" is sufficiently broad in scope to
cover the expense of employing a court reporter by the District
Attorney to transcribe the testimony before a grand jury.
Certainly a diligent District Attorney would want to preserve
such testimony for his own use in the event of trial.
A further question concerns the prior approval by
the Commissioners' Court of such expenditure. You have stated
that the County Judge and one Commissioner gave their approval
and that the remaining Commissioners knew about the employment
when the reporter took on the duties. Whether this was suf-
ficient to be "passed on, predetermined, and allowed" Is
doubtful. However, Attorney General's Opinions (1961) WW-
1086 and (1951) V-1149 hold that such expenses may be either
approved prior to the expenditure or subsequently ratified
by the Commissioners' Court. It is said In Attorney General
Opinion (1961) ~~-1086:
"The question of whether the prior endorse-
ment of the County Auditor or County Treasurer,
as the case may be, and the prior approval of
the Commissioners Court is necessary before
incurring such expense, under Article 3899,
Honorable Tom Todd, page 3 (WW-1334 )
Section (b) is discussed in State v. Carnes,
106 S.W.2d 397, 399 (Clv.App. 1937) d'At
torney General's Opinion V-1149. Th?; ease
concerns interpretation of said article con-
cerning expenditures by the sheriff's department:
'While the entry by the commlssionerst
court of an order authorizing the appointment
of deputies and fixing their compensation
upon proper application by the officer in
accordance with article 3902 is a condition
precedent to his claiming credit as a matter
of right, for salaries paid his deputies,
this statutory provision was not Intended
as a limitation on the power of the commis-
sioners' court, and any affirmative action
of the court authorizing or approving the
expenditure before or after it was Incurred
would bind the county and authorize the
deduction. The commissloners~ court may
Since you state that the Commissioners' Court Is desirous of
paying this bill, a subsequent ratification by them will be
sufficient to authorize the payment of this expense.
The authority of a court reporter to be present before
the proceedings of a grand jury was dlscussed'by the Court of
Criminal Appeals In Mc.Gregor v. State, 201 S.W. 184, 185 (1918):
"Construing these provisions of the statute,
it has been held that amoung the persons author-
ized by law to be present with the grand jury
were the state's attorney, his assistant and
stenographer, witnesses and members of the grand
jury disqualified In the particular inquiry under
investigation. Stuart v. State, 35 Tex. Cr. R.
440, 34 S.W. 118; Sims v. State, 45 S.W. 705;
Wilson v. State, 41 Tex. Cr. R. 115 51 S.W. 916;
McElroy v. State, 49 Tex. Cr. R. 604, 95 S.W.
539; Moody v. State, 57 Tex. Cr. R. 76, 121 S.W.
1117; Haywood v. State, 61 Tex. Cr. R. 92, 134
S.W. 21tl;Porter v. State, 72 Tex. Cr. R. 71,
1.60 S.W. 1194. None of these persons are author-
ized to be present while the grand jury is
Honorable Tom Todd, page 4 (WW-1134)
deliberati*ngupon the accusation, or voting on
it. This is held in all the cases mentioned."
No reason Is perceived why, if the presence of the District
Attorney's stenographer in the grand jury room is author-
ized, the presence of a court reporter employed by the
District Attorney would not be. For the main purpose of
the presence of either would be to transcribe evidence to
aid the State's attorney in preparing for trial.
It is the opinion of this office that when the
said expense is subsequently ratified by the Commisslonersl
Court, the County Auditor should approve for payment the
claim,as a reasonable expense of the District Attorney in
the proper and legal conduct of his office.
SUMMARY
The County Auditor can approve for
payment, a claim by a Court Reporter
for a transcript made of Grand Jury
proceedings when requested by the
district attorney if the Commissioners
Court either approved or subsequently
ratified said claim.
Very truly yours,
WILL WILSON
JHH:kkc:mkh Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Riley Eugene Fletcher
Elmer McVey
Linward Shivers
Joe Osborn
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr,