Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORSEY GESERAL
OF ?&-ESAS
August 7, 1987
Honorable Dale Hanna Opinion No, JM-764
Johnson County Attorney
1st Floor, Courthouse Re: Whether the individual who
Cleburne. Texas 76031 keeps the minutes for a commis-
sioners court is required to be
a certified shorthand reporter
Dear Mr. Hanna:
You ask whether the county clerk or a duly appointed deputy
county clerk who keeps the minutes of the proceedings of the
commissioners court is required to be a certified official court
reporter.
Section 52.041 of the Government Code provides that every “court
of record” must appoint an “official court reporter”:
Each 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.
Section 52.001(3) of the Government Code defines “official court
reporter” as “the shorthand reporter appointed by a judge as the
official court reporter.” Section 52.001(5) of the Government Code
defines “shorthand reporting” as
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 "Sing written
symbols in shorthand, machine shorthand, or oral
stenography.
Section 52.046 of the Government Code sets out the powers and the
duties of an official court reporter:
(a) On request, an official court reporter
shall:
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Honorable Dale Henna - Page 2 (&I-764)
(1) attend all sessions of the court;
(2) take full shorthand notes of oral
testimony offered before the court, including
objections made to the admissibility of evidence,
court rulings end remarks on the objections, end
exceptions to the rulings;
(3) take full shorthand notes of closing
arguments if requested to do so by the attorney of
a party to the case, including objections to the
arguments, court rulings end remarks on the
objections, end exceptions to the rulings:
(4) preserve the notes for future
reference for three years from the date on which
they were taken; and
(5) furnish a transcript of the reported
evidence or other proceedings, in whole or in
part, es provided by this chapter.
(b) An official court reporter of a district
court may conduct the deposition of witnesses,
-,
receive, execute, end return commissions, end make
a certificate of the proceedings in any county
that is included in the judicial district of that
court.
(c) The supreme court may adopt rules
consistent with the relevant statutes to provide
for the duties and fees of official court
reporters in all civil judicial proceedings.
(d) A judge of a county court or county court
at law shall appoint a certified shorthand
reporter to report the oral testimony given in any
contested probate matter in that judge’s court.
A commissioners court is not a court that conducts litigation;
rather, it is “e political body, the powers end duties of its members
being largely legislative and ministerial.” Robinson v. Smith County,
76 S.W. 584 (Tex. Civ. App. 1903, no writ). Nonetheless, a
commissioners court has been said to be a “court of record.” Maples
v. Henderson County, 259 S.W.2d 264 (Tex. Civ. App. - Dallas 1953,
writ ref’d n.r.e.). Consequently, you are concerned that section
52.041 of the Government Code, which requires all courts of record to
appoint official court reporters, requires that the county clerk or
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Honorable Dale Henna - Page 3 (JM-764)
deputy county clerk that keeps the minutes for the commissioners court
be en official court reporter.
We think, however, that the phrase "court of record" in section
52.041 of the Government Code must be reed in the context of the other
statutes deeling with official court reporters. Section 52.001
defines en official court reporter es a person who practices shorthand
reporting for use in litigation, end the powers and duties of official
court reporters that are set out in section 52.046 relate generally to
litigation. Therefore, we think that the requirement that every court
of record appoint a shorthand reporter was intended to apply to courts
that conduct litigation.
Furthermore, even if the phrase "court of record" as used in
section 52.041 did encompass commissioners courts, we think that
article 2349, V.T.C.S., rather than chapter 52 of the Government Code
governs how and by whom the proceedings of commissioners courts are to
be recorded. T.he commissioners court is a "court of record" because
it is required to record its proceedings. Attorney General Opinion
V-1038 (1950). In Attorney General Opinion O-6318 (1945) this office
said th;?t article 2349, V.T.C.S., makes the commissioners court a
court of record. Article 2349 provides:
r The court shell require the county clerk to
keep suitable books in which shall be recorded the
proceedings of each term of the court; which
record shall be reed end signed after each term by
the county judge, or the member presiding end
attested by the clerk. The clerk shell also
record all authorized proceedings of the court
between terms; and such record shell be reed and
signed on the first day of the term next after
such proceedings occurred.
See also V.T.C.S. art. 1938 (county clerk may appoint deputies who
shell perform all acts of county clerk). Thus, the same provision
that makes the commissioners court a court of record assigns the task
of keeping the minutes of the commissioners court to the county clerk.
Compare Attorney General Opinion V-1038 (1950)(indicating that minutes
of commissioners court should contain a record of actions taken rather
than a verbatim transcription of meeting); with Go"' t Code
§52.001(official court reporters keep verbatim transcriptions of
proceedings). We find no requirement that the county clerk be an
official shorthand reporter. See generally V.T.C.S. art. 2345 end
Gov't Code 551.402 (powers and duties of county clerk). A general law
does not ordinarily repeal a special law on the same subject; rather,
the special law is construed as an exception to the general law.
P Flowers v. Pecos River R. Co., 156 S.W.2d 260 (Tex. 1941). Therefore,
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Honorable Dale Henna - Page 4 (JM-764)
we think that article 2349, which governs how and by whom the
proceedings of comissioners courts are to be recorded, would be read
as an exception to the statute that sets out a general requirement
that courts of record must appoint an official court reporter even if
that general rule were broad enough to include commissioners courts.
SUMMARY
A commissioners court is not required to
appoint en official court reporter to record its
proceedings.
. .
MARY KELLER
- Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLCI
Special Assistant Attorney General
RICK GILPIN
Chairmen, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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