Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 3,2005
The Honorable Robert F. Vititow Opinion No. GA-0372
Rains County Attorney
220 West Quitman Re: Whether a county clerk may collect a court
Post Office Box 1075 reporter service fee under section 51.601 of the
Emory, Texas 75440 Government Code if the county court has not
appointed an official court reporter (RQ-0343-GA)
Dear Mr. Vititow:
You ask whether a county clerk may collect a court reporter service fee under section 5 1.601
of the Government Code if the county court has not appointed an official court reporter.’
Section 5 1.601 of the Governrnent Code authorizes a court clerk to collect a court reporter
service fee in certain circumstances:
(a) The clerk ofeach court that has an ofjcial court reporter
shall collect a court reporter service fee of $15 as a court cost in each
civil case filed with the clerk to maintain a court reporter who is
available for assignment in the court.
(b) The clerk shall collect this fee in the manner provided for
other court costs and shall deliver the fee to the county treasurer, or
the person who performs the duties of the county treasurer, of the
county in which the court sits. The county treasurer, or the person
who performs the duties of the county treasurer, shall deposit the fees
received into the court reporter service fund.
(c) The commissioners court of the county shall administer
the court reporter service fund to assist in the payment of
court-reporter-related services, that may include maintaining an
adequate number of court reporters to provide services to the courts,
‘See Letter from Honorable Robert F. Vititow, Rains County Attorney, to Honorable Greg Abbott, Texas
Attorney General, at 1 (May 3, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Robert F. Vititow - Page 2 (GA-0372)
obtaining court reporter transcription services, closed-caption
transcription machines, Braille transcription services, or other
transcription services to comply with state or federal laws, or
providing any other service related to the functions of a court
reporter.
(d) The commissioners court shall, in administering the court
reporter service fund, assist any court in which a case is filed that
requires the payment of the court reporter service fee.
TEX. GOV’T CODEANN. $ 5 1.601(a)-(d) (Vernon 2005) (emphasis added).
As background to your question, you explain that the county court in your county uses a court
reporter only when requested by the parties. See Request Letter, supra note 1, at 1. The county court
has “neither a full-time or part-time reporter nor a contract with any specific reporter to use only
that reporter’s service.” Id. The court “contract[s] with various court reporters on an independent
contractors basis as the need arises.” Id.
Given these facts, you ask two questions about section 5 1.601 of the Government Code:
Can a county clerk collect a fee pursuant to Sec. 5 1.60 1 of the
Texas Government Code when the county court has neither a full-
time court reporter nor a contract with a court reporter to exclusively
use that reporter’s service?
Is a court considered to have an official court reporter for
purposes of Sec. 51.601 of the Texas Government Code when the
court does not have a full-time court reporter but instead secures the
services of various court reporters as independent contractors when
needed?
Id.
Your second question asks about the meaning of the statutory term “official court reporter.”
See id. Because the meaning of the term is essential to answering your first question, we address
your second question first.
In construing section 5 1.601, we must give effect to the legislature’s intent. See TEX. GOV’T
CODEANN. $$j 3 11.021, .023 (Vernon 2005); Albertson ‘s, Inc. v. Sinclair, 984 S.W.2d 958, 960
(Tex. 1999); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436,438 (Tex. 1997). To do so, we
must construe it according to its plain language. See In re Canales, 52 S.W.3d 698,702 (Tex. 2001);
RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607-08 (Tex. 1985); see also TEX.
GOV’T CODEANN. 5 3 11 .Ol 1(a) (Vernon 2005) (words and phrases to be read in context). “Words
and phrases that have acquired a technical or particular meaning, whether by legislative definition
or otherwise, shall be construed accordingly.” TEX. GOV’T CODEANN. § 3 11 .Ol 1(b) (Vernon 2005).
The Honorable Robert F. Vititow - Page 3 (GA-0372)
Section 5 1.601(a) requires “[tlhe clerk of each court that has an official court reporter” to
collect the $15 .OOcourt reporter service fee. Id. 9 5 1.601(a) (emphasis added). Chapters 5 1 through
57 of the Government Code govern judicial branch personnel. Chapter 5 1 of the Government Code,
which governs court clerks, does not define the term “official court reporter.” However, chapter
52, which generally governs court reporters, does define the term. In chapter 52, the term “official
court reporter” means “the shorthand reporter appointed by a judge as the official court reporter.”
Id. 5 52.001(3).* We further note that section 52.041 of the Government Code provides that “[elach
judge of a court of record shall appoint an official court reporter. An official court reporter is a
sworn officer of the court and holds office at the pleasure of the court.” Id. 9 52.041.
We believe it is clear from chapter 52 that the term “official court reporter” is a term of art
that refers to a court reporter who has been appointed by a judge as the official court reporter for
the court. See id. $5 52.001(3), .041; see also Tex. Att’y Gen. Op. Nos. GA-0164 (2004) at 4
(concluding that a court reporter appointed by a court under the Family Code is an official court
reporter), M-1095 (1972) at 6 (distinguishing between a reporter “taking the notes on a ‘per case’
basis” and an official court reporter appointed “as part of the personnel of the court”). Thus, in
answer to your second question, a court that “secures the services of various court reporters as
independent contractors when needed” and has not appointed an official court reporter would not
be “considered to have an official court reporter for purposes of’ section 5 1.60 1. Request Letter,
supra note 1, at 1.
Your first question is whether “a county clerk [may] collect a fee pursuant to [section 5 1.60 1]
when the county court has neither a full-time court reporter nor a contract with a court reporter to
exclusively use that reporter’s service.” Id. By its plain terms, section 5 1.601(a) provides for the
collection of the court reporter service fee only by the clerk of a court with an official court reporter.
See TEX. GOV’T CODEANN. 5 5 1.601(a) (Vernon 2005) (“The clerkof each court that has an official
court reporter shall collect a court reporter service fee of $15 as a court cost in each civil case filed
with the clerk to maintain a court reporter who is available for assignment in the court.“) (emphasis
added). Section 5 1.601 does not authorize a clerk of a court that does not have an official court
reporter to collect the court reporter service fee.
Finally, we note that a county court is a court of record, see TEX. CONST.art. V, 9 15, and
therefore required by section 52.04 1 to appoint an official court reporter, see TEX. GOV’T CODEANN.
8 52.041 (Vernon 2005).3 However, there is no requirement that the position of official court
2SeeaZsoT~~.G~~‘~C~~~A~. 5 52.001(4)(Vernon2005) (“Shorthandreporter”and“courtreporter”mean
“a person who engages in shorthand reporting.“), (5) (“Shorthand reporting” and “court reporting” mean “the practice
of shorthand reporting for use in litigation in the courts of this state by making a verbatim record of an oral court
proceeding, deposition, or proceeding before a grand jury, referee, or court commissioner using written symbols in
shorthand, machine shorthand, or oral stenography.“).
3Unlike your county court, some courts are excepted from this general requirement by a special statute. See,
e.g., id. $§ 25.0042(h) (V ernon 2004) (“The judge of [an Anderson County] court at law may appoint an official court
reporter or the judge may contract for the services of a court reporter under guidelines established by the commissioners
(continued.. .)
The Honorable Robert F. Vititow - Page 4 (GA-0372)
reporter of the county court must be a full-time position. See Tex. Att’y Gen. Op. No. JM-1083
(1989) at 3-4;4see also Tex. Att’y Gen. Op. Nos. GA-0164 (2004) at 7 (noting that “typically, court
reporters serve the judges who appoint them, rather than work traditional 40-hour-per-week jobs;
their jobs are described in terms of the tasks or duties to be performed, not the number of required
hours”) (citing Attorney General Opinion JM-1083)’ GA-0155 (2004) at 6 (same). As a result, the
county court could appoint as its official court reporter a person who is paid by the county on a part-
time basis. If the court does so, the clerk of the court would be authorized to collect the court
reporter service fee.
‘(...continued)
court.“), 25.0392(h) (“The judge of a [Cherokee County] court at law may appoint an official court reporter or the judge
may contract for the services of a court reporter under guidelines established by the commissioners court.“), 25.14 12(g)
(“The judge of a [Lamar County] court at law may appoint an official court reporter or the judge may contract for the
services of a court reporter.“); see also Tex. Att’y Gen. Op. No. M-1095 (1972) at 5 (addressing a statute permitting but
not requiring a court to appoint an official court reporter).
4As this office stated in Attorney General Opinion JM-1083,
The position of court reporter is described in terms of the duties to be
performed, not of the number of hours of service required each week. The number
of hours required to perform the job will depend upon the number of sessions the
court reporter is requested to attend, record, and reduce to a written transcript and
is likely to reflect the workload of the court with which the reporter is associated.
No provision fixes a salary for a county court reporter that must be paid without
regard to the amount of time required to perform the duties of the position. Instead,
the commissioners court sets the salary of the court reporter in accordance with
chapter 152, subchapter B of the Local Government Code . . . . The commissioners
court may set a salary commensurate with the number of hours worked.
Tex. Att’y Gen. Op. No. JM-1083 (1989) at 4.
The Honorable Robert F. Vititow - Page 5 (GA-0372)
SUMMARY
A county clerk may not collect a court reporter service fee
under section 5 1.601 of the Government Code if the county court has
not appointed an official court reporter.
Very truly yours,
Attomeyeneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Mary R.. Crouter
Assistant Attorney General, Opinion Committee