Can a Texas county clerk charge the court reporter service fee if the court has no official court reporter?

TX AG Opinion GA-0372: Can a county clerk charge the court reporter service fee with no official court reporter?

Plain-English summary

Government Code section 51.601 lets a court clerk add a $15 "court reporter service fee" as a court cost in each civil case, but only for "each court that has an official court reporter." The money goes into a county court reporter service fund that the commissioners court uses to pay for court-reporter-related services. The Rains County Attorney asked whether his county clerk could collect that fee when the county court did not keep a full-time or even part-time reporter on staff, and instead hired various court reporters as independent contractors whenever a case actually needed one.

The Attorney General answered the definitional question first, because it controlled the rest. "Official court reporter" is not a loose description; it is a defined term. Chapter 52 of the Government Code defines it as "the shorthand reporter appointed by a judge as the official court reporter," and a related provision says each judge of a court of record "shall appoint an official court reporter," who is a sworn officer of the court holding office at the court's pleasure. So a court that merely lines up contract reporters as the need arises, without appointing one as its official court reporter, does not "have an official court reporter."

From there the fee question answered itself. Section 51.601(a) authorizes the fee only for the clerk of a court with an official court reporter, so a clerk of a court that has not appointed one cannot collect it. The office closed with a practical point: a county court is a court of record and is generally required by section 52.041 to appoint an official court reporter, but nothing requires that position to be full-time. The county court could appoint a part-time, county-paid person as its official court reporter, and once it did, its clerk would be authorized to collect the section 51.601 fee.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

County clerks: The opinion told a clerk not to collect the $15 court reporter service fee in civil cases unless the court had actually appointed an official court reporter. Relying on contract reporters hired case by case did not authorize the charge.

County courts and their judges: It explained that a county court, as a court of record, was generally required to appoint an official court reporter, but could satisfy that with a part-time appointment rather than a full-time staff position.

Civil litigants: It clarified when the $15 fee could legitimately appear on their bill of court costs, namely only where the court had an appointed official court reporter.

Commissioners courts: It bore on the court reporter service fund the commissioners court administers, since the fund is supplied by fees that can be collected only where an official court reporter has been appointed.

Common questions

Can the clerk collect the $15 fee if the court only uses contract reporters?
No. The Attorney General concluded section 51.601 authorizes the fee only for the clerk of a court "that has an official court reporter," and a court using independent-contractor reporters as needed has not appointed one.

What counts as an "official court reporter"?
A defined term: under Government Code chapter 52, it means the shorthand reporter a judge has appointed as the court's official court reporter, a sworn officer of the court who holds office at the court's pleasure.

Isn't a county court required to have an official court reporter?
Generally yes. A county court is a court of record, and section 52.041 directs each judge of a court of record to appoint an official court reporter. Some courts are excepted by special statutes that let the judge contract instead.

Does the official court reporter have to be full-time?
No. The opinion noted nothing requires the position to be full-time; the job is described by duties, not hours, and the commissioners court sets a salary that can reflect the hours worked.

So how could this clerk become able to collect the fee?
If the county court appointed a person (even part-time and county-paid) as its official court reporter, the clerk of that court would then be authorized to collect the section 51.601 fee.

Background and statutory framework

Government Code section 51.601 directs that "[t]he clerk of 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," delivers the fee to the county treasurer for deposit in the court reporter service fund, and has the commissioners court administer that fund to assist in paying for court-reporter-related services (Tex. Gov't Code Ann. § 51.601(a)-(d) (Vernon 2005)). Construing the statute by its plain language and giving technical terms their particular meaning (Tex. Gov't Code Ann. § 311.011(a)-(b), 311.021, 311.023 (Vernon 2005)), the office looked to chapter 52, which governs court reporters and defines "official court reporter" as "the shorthand reporter appointed by a judge as the official court reporter," and provides that each judge of a court of record "shall appoint an official court reporter," who is "a sworn officer of the court" holding office at the court's pleasure (id. § 52.001(3), 52.001(4), 52.001(5), 52.041).

The office concluded the term is a term of art for a reporter appointed by a judge as the court's official court reporter, drawing on prior opinions distinguishing an appointed official reporter from one taking notes on a per-case basis (Tex. Att'y Gen. Op. Nos. GA-0164 (2004) at 4, M-1095 (1972) at 6). A court that secures contract reporters as needed and has not appointed an official court reporter therefore is not "considered to have an official court reporter," and because section 51.601(a) authorizes the fee only for the clerk of a court with an official court reporter, such a clerk may not collect it.

Finally, the office observed that a county court is a court of record and is generally required by section 52.041 to appoint an official court reporter (Tex. Const. art. V, § 15; Tex. Gov't Code Ann. § 52.041 (Vernon 2005)), though some courts are excepted by special statutes that allow the judge to contract for reporter services instead (id. § 25.0042(h), 25.0392(h), 25.1412(g) (Vernon 2004)). Because the official-court-reporter position need not be full-time, the county court could appoint a part-time, county-paid official court reporter, after which the clerk would be authorized to collect the fee (Tex. Att'y Gen. Op. Nos. JM-1083 (1989) at 3-4, GA-0164 (2004) at 7, GA-0155 (2004) at 6).

Citations

Statutes and constitutional provisions:

• Tex. Gov't Code Ann. § 51.601(a)-(d) (Vernon 2005)
• Tex. Gov't Code Ann. § 52.001(3), 52.001(4), 52.001(5), 52.041 (Vernon 2005)
• Tex. Gov't Code Ann. § 25.0042(h), 25.0392(h), 25.1412(g) (Vernon 2004)
• Tex. Gov't Code Ann. § 311.011(a)-(b), 311.021, 311.023 (Vernon 2005)
• Tex. Const. art. V, § 15

Other authorities:

• Tex. Att'y Gen. Op. Nos. GA-0164 (2004), GA-0155 (2004), JM-1083 (1989), M-1095 (1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0372
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0372.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 3, 2005

The Honorable Robert F. Vititow
Rains County Attorney
220 West Quitman
Post Office Box 1075
Emory, Texas 75440

Opinion No. GA-0372

Re: Whether a county clerk may collect a court reporter service fee under section 51.601 of the 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 51.601 of the Government Code if the county court has not appointed an official court reporter.[1]

Section 51.601 of the Government Code authorizes a court clerk to collect a court reporter service fee in certain circumstances:

             (a) The clerk of 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.

             (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, 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 CODE ANN. § 51.601(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 51.601 of the Government Code:

             Can a county clerk collect a fee pursuant to Sec. 51.601 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 51.601, we must give effect to the legislature's intent. See TEX. GOV'T CODE ANN. §§ 311.021, .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); Republic Bank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607-08 (Tex. 1985); see also TEX. GOV'T CODE ANN. § 311.011(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 CODE ANN. § 311.011(b) (Vernon 2005).

Section 51.601(a) requires "[t]he clerk of each court that has an official court reporter" to collect the $15.00 court reporter service fee. Id. § 51.601(a) (emphasis added). Chapters 51 through 57 of the Government Code govern judicial branch personnel. Chapter 51 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. § 52.001(3).[2] We further note that section 52.041 of the Government Code provides that "[e]ach 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. § 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. §§ 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 51.601. Request Letter, supra note 1, at 1.

Your first question is whether "a county clerk [may] collect a fee pursuant to [section 51.601] 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 51.601(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 CODE ANN. § 51.601(a) (Vernon 2005) ("The clerk of 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 51.601 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, § 15, and therefore required by section 52.041 to appoint an official court reporter, see TEX. GOV'T CODE ANN. § 52.041 (Vernon 2005).[3] However, there is no requirement that the position of official court reporter of the county court must be a full-time position. See Tex. Att'y Gen. Op. No. JM-1083 (1989) at 3-4;[4] see 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.

                                   SUMMARY

                    A county clerk may not collect a court reporter service fee under section 51.601 of the Government Code if the county court has not appointed an official court reporter.

                                         Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. McBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee

Footnotes

[1] 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].

[2] See also TEX. GOV'T CODE ANN. § 52.001(4) (Vernon 2005) ("'Shorthand reporter' and 'court reporter' 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.'").

[3] Unlike your county court, some courts are excepted from this general requirement by a special statute. See, e.g., id. §§ 25.0042(h) (Vernon 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 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."), 25.1412(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).

[4] As 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.