. -
R-837
TEEATTORNEYGENERAL
PRICE DANIEL
ATTORNEY
GENERAL
October 17, 1947
Hon. George R. Sheppard
Comptroller of Public Accounts
Austin, Texas opinion Ro. v-409
Re: The ep liceblllt~ of
h-t. 7 k!
0, V.C.C.P.,
to payment of the
court reporter bj the
State In 8 habeas oor-
pus action, tried on a
pauper’s oath
Dear Sir:
Your opinion request of September 30, 1947, is es
follows :
“ThLa department has reoeived a clrlu from
an official court reporter for fees under the pro-
Vlslons of Article 760, Section 6, V.C .C.r., for
servioes rendered by him in making 8 narr8tlve
statement of facts on e pauper’s oath. The nor-
retlve statement of facts was ordered by the din-
trict judge In a writ of habeas corpus rctlon,
said writ was made returnable to the Court of Crim-
in01 Appeals. The relator in the writ w18 convict-
ed of .sfelony end given 8 penitentiary sentenoe.
Are these fees properly payable under the provisions
of Article 760, V.C.C.P.?'!
The question presented le: Is the official
court reporter, who prepares under Article 119, V.C.C.P. 8
statement of fects in e habeas corpus proceeding upon the
request of the District Judge, entitled to be paid for same
by the State under the terms of Arttiole76~, Vi0.C .?+?
To make clear our answer to your question, we
quote below the pertinent portions of the statutes. They
respectively provide:
. Where
?*icle the defendant in e crimlnai
760.
- .
Hon. George H. Sheppard - Page 2, V-409
case appeals, he is entitled to a statement
of facts certified by the trial judge and
sent up with the record; provided that'said
statement of facts shall be in narrative
form.
"2 . To accompany Transcript.--The
Statement of Facts in felony or misdemeanor
cases shall not be copied In The Transcript
of the Clerk, but when agreed to by the
parties and approved by the Judge, shall be
filed in duplicate with the Clerk, and the
original sent up as a part of the record of
the cause on appeal; and like procedure
shall be followed if the Statement of Facts
is prepared by the parties or by the Judge,
on the failure of the parties to agree.
1, . . .
“6. When defendant cannot pay--When
any felony case is appealed and the defendant
is not able to pay for a transcript of the
testimony or give security therefor, he may
make affidavit of such fact, and upon the mak-
ing of such affidavit, the court shall order
the official court reporter to make a narra-
tive statement of facts and deliver it to such
defendant. In all cases where the court Is
required to and does appoint an attirney to
represent the defendant in a criminal action,
such reporter shall be required to furnish
the attorney for said defendant, if convicted
and where an appeal is prosecuted,,with a
transcript of hFs notes. For each said serv-
ice he shall be paid by the State of Texas,
upon the certificate of the trial judge, one-
half of the rate provided by law in civil cases."
The above article has no bearing on this question.
It S8y.T: 'Where a defendant in a criminal case a
is entitled to a statement of facts, etc.". In reY%Perr nghe
to a statement of facts that may be incorporated in the
transcript as provided in Section 2 of said Article when a-
greed to by the parties and approved by the judge, we find
the following language:
"lnd the original cent up as a part of
the record of the cause on appeal."
. .
Hon. George H. Sheppard - Page 3, V-409
Thus we see that Art. 760 has reference only to
a case appealed to the Court of Criminal Appeals by the
defendsnt from a conviction in the trial court, and has no
reference to habeas corpus proceedings wh&ch does not in-
valve an appeal and is not 8 cause on appeal. Neither is
the 8DDlicant in a habeas corDu8 DrOCeedinR a defendant.
Therefore, we lay aside Art. 760 es Fmmaterlal Fn answering
the question.
We now turn to Art. 119 which is material. It
reads:
"After indictment found In any felony
ame, and before conviction, the'wrlt aust
be msde returnable Fn the county where the
offense has been committed, on account of
which the appllornt stands indicted.
"After fin81 conviction in 82-q felony
case the writ must be made returnable to the
Caurt of Criminsl Appeals of Tex8s et Austin,
Texas. The writ may issue upon the order of
any district judge, end said judge may upon
presentation to him of a petition for said
writ, set the same down for a heering 8s to
whether the writ should issue, 8nd ascertain
the f8ct8, which facts shall be transmitted to.
the Court of Criminal Appe8lS with the return
of the writ If same Is issued after such hear-
ing. Provided further, that should au&h writ
be returned to the Court of Criminal Apperls
without the fects eccompenying acme, or with-
out all of the fscts deemed necessary bt the
Court of Criminal Appeals, eaid court may *es-
ignate and direct any district judge or judges
of this state to ascertain the facts necessero
By this language above underscored, it Is made
mandatory upon the court reporter to prepare a narration
of the facts adduced In evidence upon such hearing and
Hon. George R. Sheppard - Page 4, V-409
transmit the same to the Court of Criainal Appeals within
ten days of the date of such hearing. Ro compensation is
fixed by law for the services thus performed by the court
reporter; hence none can be p,aldby the State.
We do not mean to hold that the court reporter
mey not, In any event, be paid for a statement of faots in
habeas corpus prodeedings if the Court of Criminal Appeals
hearing the application makes an order concerning the coats
aa provided In Article 162. That Article provldesz
"Art. 162. costs .--The judge trying the
cause under habees corpus may moko such order
as is deemed right concerning the cost of
bringing the defendant before him, end all
other costs of the proceeding, awarding the
same either against the person to whom the writ
was directed, the person seeking relief, or may
award Qo costs et all."
Under this Article, the costs may be adjudged a-
gainst the person t.owhom the writ WEISdirected, or the
person seeking relief, unless such person has filed 8 pau-
per's oath. But it is observed that this Article makes no
provision for the awerding of costs against the State, and
fees cennot be collected against the Stete unless provided
for by law.
A court reporter la an officer of the court. In
performing the functions and duties imposed upon him by
Article 119, he is merely performing 8n added duty for which
no provision is mede for extra compensati.onby the State.
You are therefore respectfully advised that the
official court reporter is not entitled to any fees to be
paid by the Stete in preparing a stetement of fects in 8
habeas corpus proceeding returnable to the Court of Criminal
Appeals.
SU?dMARY
No provision is made by lav for the
State to pay an official court reporter for
preparing a stetement of fects in a habeas
oorpus proceeding under Article 119 V.C.C.P.
He is required to perform this service a8 an
Bon. Georga H. Sheppard - P8ga 5, V-409
added official duty without’extra oompenss-
tlon insofsr no the St&e is concerned.
Yours very truly
ATTORNEY GENERAL OF TEXA3
EV+-J-
5i. L Ilar
Assistant
LPL/lh
A?PROVRD :
PIR
ATT