Untitled Texas Attorney General Opinion ( 1989 )

August 8, 1989
Honorable Galen Ray Sumrow Opinion No. JM-1083
Criminal District Attorney
Rockwall County Courthouse Re: Whether an individual may
Rockwall, Texas 75087 be employed as a chief deputy
for a county tax assessor-
collector and as an official
court reporter for a county
court (RQ-1690)
Dear Mr. Sumrow:
You state that the person employed by Rockwall County
as the county tax assessor-collector's chief deputy was
formerly the official court reporter for the Rockwall County
Court. She would like to know whether it would be legally
possible for her to hold both positions.
We will first consider whether article XVI, section 40
of the Texas Constitution would prohibit one person from
holding both positions. This provision states in part:
No person shall hold or exercise at the same
time, more than one civil office of emolu-
ment . . . .
Tex . Const. art. XVI, 9 40.
The following statute provides for the employment of a
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.
Gov't Code § 52.041. A county court is a court of record
and is therefore subject to this provision. See Tex. Const.
art. V, 5 15.
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Honorable Galen Ray Sumrow - Page 2 (JM-1083)
A court reporter is not an officer within article XVI,
section 30,,of the Texas Constitution, which provides that
the "duration of all offices not fixed by this Constitution
shall never exceed two years . . . .'I In Robertson v. Ellis
County, 84 S.W. 1097 (Tex. Civ. App. 1904, no writ), the
court held that an official stenographer appointed by the
district court did not hold an office within this constitu-
tional provision. Although the statute described the
position of stenographer as an office and declared that the
stenographer "shall be a sworn officer of the court," it did
not confer on that person any sovereign functions of the
judicial department of the government. 84 S.W. at 1099.
Other Texas courts have concluded that an official
court reporter is not an officer within various other
provisions. m Liahtfoot v. Lane, 140 S.W. 89, 90 (Tex.
1911) (stenographer for Court of Civil Appeals was employee,
not officer); Harris County v. Hunt, 388 S.W.2d 459, 467
(Tex. Civ. App. - Houston 1965, no writ) (court reporter was
not an officer within article XVI, section 61, of the Texas
Constitution requiring officers to pay fees into county
treasury); Tom Green Countv v. Proffitt, 195 S.W.Zd 845, 847
(Tex. Civ. App. - Austin 1946, no writ) (official court
reporter is not a "public officer" within article III,
section 56, prohibition against local laws creating
offices). Finally, this office has concluded that a court
reporter is not a civil officer of emolument within article
XVI, section 40, of the constitution. Attorney General
Opinion O-6491 (1945).1 A court reporter for a county court
is not a civil officer of emolument.
A deputy appointed by a county tax assessor-collector
to assist him in his duties is an employee, and not a civil
officer of emolument. See Green v. Stewart, 516 S.W.2d 133
(Tex. 1974); Local Gov't Code ch. 151 (ap;;t;Eytnt of
employees by county officer). Accordingly, WI,
section 40, of the Texas Constitution does not prevent one
person from holding both positions.
The common law doctrine of incompatibility does not
bar one person from holding two public employments. See
1. The court in Tom Green Countv v. Proffitt, 195
S.W.Zd 845 (Tex. Civ. App. - Austin 1946, no writ) described
Attorney General Opinion O-6491 as 'Iavery able opinion" on
the court reporter's status as an employee.
p. 5657
Honorable Galen Ray Sumrow - Page 3 (JM-1083)
aenerally Attorney General Opinion JM-1047 (1989). The dual
employment you inquire about is accordingly not prohibited
by this doctrine.
You argue, based on Attorney General Opinion o-5070
(1943) I that the position of an official court reporter is a
full-time position, and that the judge may not appoint a
part-time court reporter. Attorney General Opinion O-5070
determined that a district judge could not appoint the
official court reporter to work part-time and be paid on a
per diem basis. The official court reporter's yearly salary
was set by statute and no statute authorized him to work
part-time and receive a lesser amount.
Attorney General Opinion O-5070 is not dispositive of
this matter. It relied on statutes that have since been
amended or repealed. m V.T.C.S. art. 2327a (1929, re-
pealed 1947) (setting salary of court reporter). Moreover,
it dealt only with the court reporter of a district court
and not the court reporter of a county court.
Section 52.046 of the Government Code, which states the
powers and duties of an official court reporter, provides in
part:
(a) On reouest, an official court reporter
shall:
(1) attend all sessions of the court:
(2) take full shorthand notes of oral
testimony offered before the court . . . ;
(3) take full shorthand notes of
closing arguments if requested to do so by
the attorney of a party to the case . . . ;
(4) preserve the notes for future
reference for three years . . . :
(5) furnish a transcript of the
reported evidence or other pro-
ceedings . . . .
. . . .
(d) A judge of a county court or county
court at law shall appoint a certified short-
hand reporter to report the oral testimony
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Honorable Galen Ray Sumrow - Page 4 (JM-1083)
given in any contested probate matter in that
judge's court. (Emphasis added.)
Gov't Code § 52.046.
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, formerly article 3912k, V.T.C.S. Attorney
General Opinion MW-487 (1982). The commissioners court may
set a salary commensurate with the number of hours worked.
See Local Gov't Code 5 152.012 (salary may not be set at an
amount less than the salary in effect on January 1, 1972).
-We find no provision that expressly or impliedly
requires the court reporter for the county court to serve as
and be paid as a full-time employee, no matter how little
work the job actually requires. See aenerallv Attorney
General Opinions JM-163 (1984) (secretary of Rockwall County
criminal district attorney is not barred from serving from
time to time as court reporter for Rockwall County court);
MW-415 (1981) (service by one person as deputy county clerk
and deputy district clerk of Dallas County). Whether a
person who already serves as deputy tax assessor-collector
will be able to meet the work schedule of the court reporter
for the county court is a fact question to be considered by
the county judge in making the appointment and not a legal
question to be addressed in an attorney general opinion.
You ask whether your county personnel policy will be
violated if one person holds both positions. Since this
question is premised on a conclusion that a county court
reporter must serve as a full-time employee, we need
not address it. But see Attorney General Opinions JM-440
(1986) ; JM-182 (1984) (commissioners court may not set hours
for employees of other county officers).
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Honorable Galen Ray Sumrow - Page 5 (JM-1083)
SUMMARY
Article XVI, section 40, of the Texas
Constitution does not prohibit one person
from serving as deputy tax assessor-
collector of Rockwall County and court
reporter of the Rockwall County Court. The
position of official court reporter of the
county court is not legally required to be a
full-time position.
dfy&
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 5660