THEA~~-~RNEY GENERAL
OFTEXAS
September 11, 1959
Honorable Robert S. Calvert
Comptroller of Public Acco,unts
Capitol Station
Austin, Texas
Opinion No. WW-702
Re: Authority of the Comp-
troller to approve a
voucher for payment to
a court reporter for
taking oral deposition
of a witness of a pend-
ing case, under Article
2423a, Vernon's Civil
Statutes and related
Dear Mr. Calvert: Articles.
We have received your letter of August 6, 1959, which
reads as follows:
"This department has received a voucher
presented by your department for payment to
Jack K. Tingle, a court reporter, for taking
oral depositions from a witness. This voucher
is being returned to you as we are doubtful
that it is properly payable by the state in
view of the holdings in Attorney General's
Opinion number V-409 and Articles 2324a,
2324, 2326, 3746, and Rule 194 of R.C.P.
This department will appreciate hearing from
you as to your findings in the event you find
that this voucher is payable by the state.
There is no litigation pending which will have
a bearing on this question."
Attorney General's Opinion V-409 (1947) relating to
the duty of a court reporter under Article 119, V.C.C.P.
reads in part as follows:
. .
Honorable Robert S. Calvert, Page 2 (ww-702)
"A court reporter is an officer of
the court. In performing the functions
and duties imposed upon him by Article
119, he is merely performing an added
duty for which no provision is made for
extra compensation by the State."
Article 232&a, Vernon's Civil Statutes, reads in
part as follows:
"Section 1. All official District
Court reporters are authorized to take
depositions of witnesses, and to receive,
execute and return commissions, administer
oaths and affidavits, in connection with
such depositions, and make a certificate of
such fact, and do all other things necessary
in the taking of such depositions in accord-
ance with existing laws. (Emphasis ours).
Article 2326, Vernon's Civil Statutes, is the
general statute establishing compensation of court re-
porters in various categories of counties. In each cate-
gory the stipulated compensation is specifically set to be
in addition to the "transcript fees" that may be charged
by the reporter.
Article 3746, Vernon's Civil Statutes, and Rule 194,
Rules of Civil Procedure, impose a duty on the addressee of
a commission to take the deposition of a witness.
We shall assume it is the official duty of the court
reporter to take the deposition of witnesses in proceedings
before the court. May, then, the reporter charge the state
a fee for such service, and if so, how much may he charge
the state?
Article 2,324,Vernon's Xiv11 Statutes, reads as
follows:
"Each official court reporter shall:
"Attend all sessions of the court; take full
shorthand notes of all oral testimony offered in
every case tried in said court, together with all
objections to the admissibility of the evidence,
the rulings and remarks of the court thereon, and
. .
Honorable Robert S. Calvert, page 3 (W-702)
all exceptions thereto; take full shorthand
notes of closing arguments when requested so
to do by the attorney for any party to such
case, together with all objections to such
arguments, the rulings and remarks of the
court thereon, and all exceptions thereto;
"Preserve all shorthand notes taken in
said court for future use or reference for a
full year, and furnish to any person a trans-
cript in question and answer form of all such
evidence or other proceedings,
- _ or any portion
thereof as such person may order, upon-the pay-
ment to him of the fees provided by law.
"When any party to any suit reported by any
such reporter shall desi.rea transcript of the
evidence in said suit, said party may apply for
same and the reporter shall make up such trans-
cript and shall receive as compensation therefor
the sum of not more than thirty cents per one
hundred words for the original thereof. In the
event said transcript should be ordered made in
narrative form, then such reporter shall make up
same in duplicate in narrative form, and shall
receive as compensation therefor the sum of
twenty cents per hundred words for the originrl;
provided, however, that no charge shall be made
for the duplicate copy, and provided further, that
in case any reporter charges more than the fees
herein allowed he shall be liable to the person
paying the same a sum equal to four times the ex-
cess so paid.
"Provided further, that when such court re-
porter is requested to report the ciosing arguments
in any case, the clerk of the court shall tax as
costs in such case the sum of Five Dollars ($5.00).
Said fee shall be paid as other costs in the case,
and paid by said clerk, when collected, into the
General Funds of the county in which said court
sits; provided further, however, that if a trans-
cript of such arguments or any portion thereof be
ordered by any party, said reporter shall prepare
‘ .
Honorable Robert S. Calvert, page 4 (WW-702)
same and charge therefor at the rate herein
provided for transcripts in question and ans-
wer form; provided, that in case any reporter
charges more than the fees herein allowed he
shall be liable to the person paying the same
a sum equal to four times'the excess so paid.
As amended Acts 1955, 54th Leg., p. 1033, ch.
390, 81."
The above statutes and rules establish that the report-
er is authorized to take depositions, and in certain instances
a duty to do so is imposed upon him. It is clear that a deposi-
tion is evidence taken from a witness in a judicial proceeding
(see 12 Words and Phrases, 253, and numerous cases cited there-
in). We feel the duty of the reporter relative to taking deposi-
tions is the same as his duty to take other oral testimony in
the proceeding.
It will be noted that the only duty imposed upon the
reporter by any of the above statutes is to "take" the testimony
offered in full shorthand notes. There is no duty imposed on
a reporter to transcribe those notes unless and until he is re-
quested to do so. It is specifically provided that if he is
requested to transcribe the testimony, he may charge a trans-
cript fee.
Although the statute does not provide any fee for
"taking" the deposition when the duty to do so is imposed on a
reporter, there is a statutory scheme for his fees when he makes
a transcript thereof. If the transcript is written in other
than narrative form, the reporter may charge, and the state
may pay, not to exceed thirty cents per one hundred words for
the original thereof. (Article 2324). It is not the official
duty of the reporter to make a carbon copy of the transcript
if so taken, so if one is ordered and made for the use of a
state agency or department, the price thereof is a matter for
negotiation between the reporter.and that agency or department.
(See Attorney General's Opinion W-692 (19%)). If appropriated
funds are available to that agency or department to purchase
the copy, the price agreed upon is entirely within the discre-
tion of that agency or department.
Therefore, you are advised that in our opinion, the
Comptroller may issue warrants in payment for services rendered
* .
Honorable Robert S. Calvert, Page 5 (W-702)
by court reporter8 in transcribing depositions for the state
in accordance with the fees prescribed in Article 2324 of
Vernon's Civil Statutes.
SUMMARY
The Comptroller may issue warrants
in payment for services rendered
by court reporters in transcribing
depositions for the state in accord-
ance with the fees prescribed in
Article 2324 of Vernon's Civil
Statutes.
Yours very truly,
WILL WILSON
Attorney General of Texas
Tom I. McFarling
TIM:mfh:rm Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
B. H. Tlmmins, Jr.
C. Dean Davis
William E. Allen
Jay Howell
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert