Can parties in a Texas case agree to have someone other than a certified court reporter take a deposition?

Plain-English summary

The chair of the Court Reporters Certification Board asked the Attorney General to clear up how a discovery rule fit with a court-reporter statute. Government Code section 52.021(f), enacted in 1993, said that, with limited exceptions, "all depositions conducted in this state must be recorded by a certified shorthand reporter." An earlier opinion had read that subsection to mean depositions taken by oral examination. The board chair pointed to Texas Rule of Civil Procedure 166c, a stipulations rule that let the parties agree in writing to take depositions "before any person, at any time or place, upon any notice, and in any manner." The question was whether the rule and the statute conflicted.

The office said they did, to the extent the rule let parties agree that a non-certified person take an oral deposition, and that the statute won. The governing principle is straightforward: a rule of civil procedure adopted by the Texas Supreme Court must yield when it conflicts with a statute. So rule 166c could not be used to stipulate around section 52.021(f)'s requirement that an oral deposition be recorded by a certified shorthand reporter. The office added two qualifications. First, section 52.031, which subsection (f) expressly cross-referenced, still let a non-certified reporter record an oral deposition in certain circumstances. Second, the timing supported the statute: rule 166c had taken effect in 1988, five years before subsection (f) was enacted, so the office found no sign the rule's drafters meant to dodge a statute that did not yet exist, and read subsection (f) as the later, controlling expression of legislative will. If the legislature had not intended that result, the office said, it was for the legislature to amend the statute.

Currency note

This opinion was issued in 1994. 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.

The Texas Rules of Civil Procedure governing depositions were substantially reorganized after 1994, and the Government Code court-reporter provisions have been amended. Rule and section numbers here describe the law as it stood in 1994. Read this page for the office's reasoning on how a court rule and a statute interact, and verify the current deposition and court-reporter rules before relying on any specific provision.

What the opinion meant for those who asked

For the Court Reporters Certification Board: The opinion supported the board's enforcement position. It concluded that section 52.021(f)'s certified-reporter requirement for oral depositions controlled over rule 166c, so parties could not agree to have a non-certified person take an oral deposition.

For litigators and parties using stipulations: The opinion treated a rule 166c stipulation as ineffective insofar as it would let a non-certified person record an oral deposition. The certified-shorthand-reporter requirement of section 52.021(f) governed, subject to section 52.031's own exceptions.

Common questions

Could parties agree to use a non-certified person to take an oral deposition?
No, not as a way around the statute. The office concluded that to the extent rule 166c allowed such an agreement, it conflicted with section 52.021(f) and had to yield, so an oral deposition still had to be recorded by a certified shorthand reporter.

Why did the statute beat the court rule?
Because a rule of civil procedure adopted by the Texas Supreme Court must give way when it conflicts with a statute. The office cited several Texas cases for that principle.

Were there any exceptions to the certified-reporter requirement?
Yes. Section 52.031, which subsection (f) expressly referenced, allowed a non-certified shorthand reporter to record an oral deposition in certain circumstances.

Did it matter that the rule was older than the statute?
Yes, to the office's reasoning. Rule 166c took effect in 1988 and subsection (f) was enacted in 1993, so the office found no intent by the rule's drafters to avoid a then-nonexistent statute and treated the later statute as controlling.

Background and statutory framework

The opinion built on Letter Opinion No. 93-110 (1993), which had read section 52.021(f) to apply to depositions upon oral examination. Subsection (e) of section 52.021 barred a person from using the title "court reporter" or "shorthand reporter" unless certified by the supreme court, and subsection (f) required that, except as provided by section 52.031 and by section 20.001 of the Civil Practice and Remedies Code, all depositions be recorded by a certified shorthand reporter. Rule 166c, "Stipulations Regarding Discovery Procedure," let parties agree by writing to take depositions before any person and otherwise modify discovery procedures. The tension was real: a literal rule 166c stipulation could authorize a non-certified person to take an oral deposition that subsection (f) said a certified reporter had to record.

The office resolved it with the rule-yields-to-statute principle, citing Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (Tex. 1971); Purolator Armored, Inc. v. Railroad Comm'n, 662 S.W.2d 700, 702-03 n.4 (Tex. App.—Austin 1983, no writ); Drake v. Muse, Currie & Kohen, 532 S.W.2d 369, 370 (Tex. Civ. App.—Dallas 1975, writ ref'd n.r.e.); and C.E. Duke's Wrecker Serv., Inc. v. Oakley, 526 S.W.2d 228 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd n.r.e.). It reinforced the reading with legislative history: rule 166c was adopted in 1987 (effective January 1, 1988), while subsection (f) was not enacted until 1993 (H.B. 2073, Acts 1993, 73d Leg., ch. 1037, § 2), so the rule's drafters could not have intended to avoid it; and on third reading the House had rejected an amendment that would have allowed depositions "by agreement of the parties," cutting against any reading that preserved party stipulations. The office noted that under Government Code section 22.004(b), supreme court rules remain in effect until disapproved by the legislature, and expressly left open (under section 22.004(c)) whether subsection (f) was merely procedural law the supreme court could itself repeal by rule, a question the board did not ask.

Citations

Statutory provisions and rules discussed:

• Gov't Code § 52.021(e), (f), (g) (court-reporter title restriction; certified-reporter requirement for depositions; board enforcement)
• Gov't Code § 52.031 (reporting of an oral deposition by a noncertified shorthand reporter in certain circumstances)
• Gov't Code § 22.004(b), (c) (supreme court rulemaking; rules in effect until disapproved; rule repeals conflicting procedural law)
• Civil Practice and Remedies Code § 20.001 (cross-referenced exception)
• Texas Rule of Civil Procedure 166c (stipulations regarding discovery procedure)
• Acts 1993, 73d Leg., ch. 1037, § 2 (H.B. 2073; enacting subsection (f))

Cases discussed:

• Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (Tex. 1971)
• Purolator Armored, Inc. v. Railroad Comm'n, 662 S.W.2d 700, 702-03 n.4 (Tex. App.—Austin 1983, no writ)
• Drake v. Muse, Currie & Kohen, 532 S.W.2d 369, 370 (Tex. Civ. App.—Dallas 1975, writ ref'd n.r.e.)
• C.E. Duke's Wrecker Serv., Inc. v. Oakley, 526 S.W.2d 228 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd n.r.e.)

Other authority discussed:

• Letter Opinion No. 93-110 (1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0308
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0308.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

December 5, 1994

Honorable Merrill L. Hartman
Chair
Court Reporters Certification Board
P.O. Box 13131
Austin, Texas 78711-3131

Opinion No. DM-308

Re: Whether rule 166c of the Texas Rules of Civil Procedure and section 52.021(f) of the Government Code conflict (RQ-695)

Dear Judge Hartman:

You request clarification of Letter Opinion No. 93-110 (1993) in which this office addressed, at your request, the relationship between subsections (e) and (f) of section 52.021 of the Government Code. Specifically, you ask whether rule 166c of the Texas Rules of Civil Procedure and section 52.021(f) of the Government Code conflict, a question which you did not raise and this office did not reach in our prior letter opinion.[1]

Section 52.021 of the Government Code provides in pertinent part:

(e) A person may not assume or use the title or designation "court recorder," "court reporter," or "shorthand reporter," or any abbreviation, title, designation, words, letters, sign, card, or device tending to indicate that the person is a court reporter or shorthand reporter, unless the person is certified as a shorthand reporter by the supreme court. Nothing in this subsection shall be construed to either sanction or prohibit the use of electronic court recording equipment operated by a noncertified court reporter pursuant and according to rules adopted or approved by the supreme court.

(f) Except as provided by Section 52.031 and by Section 20.001, Civil Practice and Remedies Code, all depositions conducted in this state must be recorded by a certified shorthand reporter.

(g) The board may enforce this section by seeking an injunction or by filing a complaint against a person who is not certified by the supreme court in the district court of the county in which that person resides. Said action for an injunction shall be in addition to any other action, proceeding, or remedy authorized by law. The board shall be represented by the attorney general and/or the county or district attorney of this state, or counsel designated and empowered by the board.

Gov't Code § 52.021(e) - (g) (emphasis added). In Letter Opinion No. 93-110, this office concluded that subsection (f) refers to depositions upon oral examination. Letter Opinion No. 93-110 at 3.

As you point out, rule 166c of the Texas Rules of Civil Procedure, entitled "Stipulations Regarding Discovery Procedure," appears to permit any person to take a deposition upon oral examination in certain circumstances. It provides as follows:

Unless the court orders otherwise, the parties may by written agreement (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery. An agreement affecting a deposition upon oral examination is enforceable if the agreement is recorded in the deposition transcript. [Emphasis added.]

To the extent that rule 166c permits parties to stipulate that a deposition upon oral examination be taken by a person other than a certified shorthand reporter, it conflicts with subsection (f) of section 52.021 of the Government Code. When a rule of civil procedure promulgated by the Texas Supreme Court conflicts with a statute, the rule must yield. Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (Tex. 1971); Purolator Armored, Inc. v. Railroad Comm'n, 662 S.W.2d 700, 702-03 n.4 (Tex. App.—Austin 1983, no writ); Drake v. Muse, Currie & Kohen, 532 S.W.2d 369, 370 (Tex. Civ. App.—Dallas 1975, writ ref'd n.r.e.); C.E. Duke's Wrecker Serv., Inc. v. Oakley, 526 S.W.2d 228 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd n.r.e.). Thus, to the extent that rule 166c permits parties to stipulate that a deposition upon oral examination be taken by a person other than a certified shorthand reporter, it must yield to the requirement of subsection (f) of section 52.021 of the Government Code that a deposition upon oral examination must be taken by a certified shorthand reporter. Of course, section 52.031 of the Government Code, to which subsection (f) expressly refers, provides for the reporting of a deposition upon oral examination by a noncertified shorthand reporter under certain circumstances.

Your letter includes a discussion of the legislative history of rule 166c, and states that "[i]t is not clear whether the intent of the commenters or the drafters of Rule 166c was to permit parties to dispense with the statutory requirements regarding the use of a court reporter." We note that rule 166c was adopted in 1987 and effective January 1, 1988. Subsection (f) of section 52.021 of the Government Code, on the other hand, was not enacted until 1993. See H.B. 2073, Acts 1993, 73d Leg., ch. 1037, § 2 (eff. Sept. 1, 1993). Given that rule 166c was adopted five years before subsection (f), we cannot infer any intent on the part of the drafters of rule 166c to either dispense with or avoid a conflict with subsection (f). We also note that subsection (f), on its face, appears to have been intended to limit the authority of persons other than certified shorthand reporters to take depositions upon oral examination, at least implicitly disapproving rule 166c. See Gov't Code § 22.004(b) (supreme court rules remain in effect until disapproved by the legislature). We are not aware of any legislative history to the contrary,[2] and therefore must abide by the plain meaning of the statute. If this was not the purpose of section (f), it is for the legislature to amend subsection (f) to clarify that this was not its intent.[3]

SUMMARY

To the extent that rule 166c of the Texas Rules of Civil Procedure permits parties to stipulate that a deposition upon oral examination be taken by a person other than a certified shorthand reporter, it must yield to the requirement of subsection (f) of section 52.021 of the Government Code that a deposition upon oral examination must be taken by a certified shorthand reporter.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

DREW T. DURHAM
Deputy Attorney General for Criminal Justice

JAVIER AGUILAR
Special Assistant Attorney General

RENEA HICKS
State Solicitor

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[1] In the letter opinion, we expressly noted that we did not consider the relationship between section 52.021(f) and rule 202 of the Texas Rules of Civil Procedure. See Letter Opinion No. 93-110 (1993) at 3 n.2.

[2] In fact, on third reading the House of Representatives failed to adopt an amendment to House Bill 2073 that would have substituted a new subsection (f) providing as follows: "Except as provided by Section 52.031 and by Section 20.001, Civil Practice and Remedies Code, or by agreement of the parties, all depositions, except depositions on written questions, conducted in this state must be recorded by a certified shorthand reporter." H.J. of Tex., 73d Leg., at 2309 (1993) (emphasis added).

[3] Section 22.004(c) of the Government Code provides as follows: "So that the supreme court has full rulemaking power in civil actions, a rule adopted by the supreme court repeals all conflicting laws and parts of laws governing practice and procedure in civil actions, but substantive law is not repealed. At the time the supreme court files a rule, the court shall file with the secretary of state a list of each article or section of general law or each part of an article or section of general law that in the court's judgment is repealed. The list has the same weight and effect as a decision of the court." You do not ask and we do not consider here whether subsection (f) of section 52.021 of the Government Code is merely a procedural law which the supreme court could repeal by rule.