Who could record a Texas deposition solely by video or other nonstenographic means under Rule 199.1?

Plain-English summary

The Texas Attorney General concluded in 2012 that Rule of Civil Procedure 199.1 and Government Code sections 52.021 and 52.033 could be read together without conflict. Rule 199.1 allowed a deposition to be recorded solely by nonstenographic means, including video, after the required notice.

Government Code section 52.021 generally required Texas depositions to be recorded by a certified shorthand reporter, but section 52.033 excluded a party, the party's attorney, and a full-time employee of either from chapter 52. Those three categories therefore could make the sole nonstenographic recording. The opinion noted that additional people could make a nonstenographic recording when a stenographic record was also being made.

Currency note

This opinion was issued in 2012. 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.

Common questions

Q: Could a Texas deposition be recorded only by video or audio?
A: The opinion said yes under Rule 199.1 when the recording was made by a person excluded from chapter 52 under section 52.033.

Q: Who fell within the section 52.033 exclusion?
A: A party to the litigation, the party's attorney, or a full-time employee of the party or attorney.

Q: Did the AG find a conflict between Rule 199.1 and section 52.021(f)? A: No. The opinion harmonized the rule with the statutory exception in section 52.033.

Q: Could someone else make a video recording if a court reporter also created a stenographic record? A: The opinion noted that people outside the three excluded categories could make an additional nonstenographic recording when a stenographic recording was already being made.

Background and statutory framework

Rule 199.1 permitted nonstenographic recording with advance notice. Section 52.021(f) generally required certified shorthand reporting, while section 52.033 removed parties, their attorneys, and their full-time employees from chapter 52. The Texas Supreme Court's decision in Burr v. Shannon had applied the predecessor exception to audio and video recording by litigants, lawyers, or their employees.

Citations and references

• Tex. R. Civ. P. 199.1(c)
• Tex. Gov't Code §§ 52.021(f), 52.033
• Burr v. Shannon, 593 S.W.2d 677 (Tex. 1980)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0928
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0928.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

May 14, 2012
The Honorable Ben Woodward Opinion No. GA-0928
Chair, Court Reporters Certification Board
205 West Fourteenth Street, Suite 101 Re: Whether and to what extent depositions can Austin, Texas 78701 be recorded solely by non-stenographic means

(RQ-0993-GA)
Dear Judge Woodward:

You seck an opinion addressing whether “an oral deposition meant for use in litigation in the courts of this state [can] be recorded solely by non-stenographic means.”' Your question arises due to a perceived conflict between a rule of civil procedure adopted by the Texas Supreme Court and a provision of the Government Code. Request Letter at 1-2.

Texas Rule of Civil Procedure 199.1, adopted by the Texas Supreme Court in 1998, states, in relevant part:

(c) Nonstenographic Recording. Any party may cause a deposition
upon oral examination to be recorded by other than stenographic
means, including videotape recording. ... Atleast five days prior to
the deposition, the party must serve on the witness and all parties a
notice . . . that the deposition will be recorded by other than
stenographic means. This notice must state the method of
nonstenographic recording to be used and whether the deposition will
also be recorded stenographically.

TEx. R. Crv. P. 199.1(c) (emphasis added). Thus, the rule allows a party to record an oral deposition solely by non-stenographic means.

Subsection 52.021(f) of the Government Code generally requires that “all depositions conducted in this state must be recorded by a certified shorthand reporter.” TEX. GOV’T CODE ANN.

'Y etter from Honorable Ben Woodward, Chair, Court Reporters Certification Bd., to Honorable Greg Abbott, Tex. Att’y Gen. at 1 (Aug. 31, 2011), http://www.texasattorneygeneral.gov/opin (“Request Letter”).

The Honorable Ben Woodward - Page 2 (GA-0928)

§ 52.021(f) (West 2005).? For purposes of chapter 52 of the Government Code, the Legislature defines a “shorthand reporter” as “a person who engages in shorthand reporting,” and it 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 using written symbols in shorthand, machine shorthand, or oral stenography.”” Id. § 52.001(a)(4)-(5) (West Supp. 2011).

Important in analyzing subsection 52.021(f), however, is the exception found in section 52.033 of the Government Code:

This chapter does not apply to:
(1) aparty to the litigation involved;
(2) the attorney of the party;
(3) a full-time employee of a party or a party’s attorney.‘

Id. § 52.033 (West 2005). The Texas Supreme Court has construed this language to mean that litigants or lawyers may notice an oral deposition to be recorded non-stenographically and have their secretary record the proceeding by audiotape or videotape. See Burr v. Shannon, 593 S.W.2d 677, 677-78 (Tex. 1980) (orig. proceeding) (addressing the predecessor statute to section 52.033).

When construing rules and statutes, “they must be interpreted so as to harmonize and give effect, if possible, to all of their parts.” Owens-IIlinois Inc. v. Chatham, 899 S.W.2d 722, 732 (Tex. App.—Houston [14 Dist.] 1995, writ dism’d). Construing Rule 199.1 in light of Government Code sections 52.021 and 52.033, the individuals authorized to make a non-stenographic recording are (1) a party to the litigation; (2) the attorney of the party; or (3) a full-time employee of a party or a party’s attorney.> TEX. Gov’T CODE ANN. § 52.033 (West 2005); TEX. R. CIv. P. 199.1; see also TEx. R. Cv. P. 203.6(a) (“A nonstenographic recording . . . may be used to the same extent as a

Section 52.021(f) lists two exceptions to this general rule: (1) section 52.03 lof the Government Code, which allows a noncertified shorthand reporter to be employed under certain circumstances when a certified shorthand reporter is unavailable; and (2) section 20.001 of the Civil Practices and Remedies Code, which allows depositions on written questions and depositions of witnesses outside the state to be taken by various individuals other than certified shorthand reporters. TEX. GOvV’T CODE ANN. §§ 52.021(f), 52.031 (West 2005); TEX. Civ. PRAC. & REM. CODE ANN. § 20.001 (West 2008).

4We find no statutory definition for “stenography.” However, the common meaning of “stenography” is “the action or process of writing in shorthand or taking dictation.” NEW OXFORD AMERICAN DICTIONARY 1669 (2001).

4Both sections 52.021 and 52.033 are found in chapter 52, subchapter C of the Texas Government Code. See TEX. GOV’T CODE ANN. §§ 52.021, 52.033 (West 2005).

>We note that in circumstances where a stenographic recording is already being made, individuals beyond these
three categories may also make a non-stenographic recording.

The Honorable Ben Woodward - Page 3 (GA-0928)

deposition taken by stenographic means.”). These individuals may record a deposition solely by non-stenographic means without violating Government Code section 52.021(f).

Because we do not find a conflict between Rule of Civil Procedure 199.1 and Government Code section 52.021(f), we do not address your concerns about whether the Texas Supreme Court followed the procedure in Texas Government Code section 22.004 to repeal a statute or whether the requirement in section 52.021(f) is procedural or substantive. See Request Letter at 4.6

You note two prior attorney general opinions that similarly addressed non-stenographic recordings. Request Letter at 2-3; Tex. Att’y Gen. Op. Nos. DM-339 (1995) at 4 (concluding that former Rule 202(e) is void to the extent that it permits parties to dispense with a stenographic transcription), DM-308 (1994) at 2 (concluding that former Rule 166c is invalid to the extent that it permits parties to stipulate that a deposition may be taken by a person other than a certified shorthand reporter). Those opinions addressed different rules of procedure that have since been repealed, and neither opinion addressed the interaction of Government Code sections 52.021(f) and 52.033.

The Honorable Ben Woodward - Page 4 (GA-0928)

SUMMARY

Construing Rule of Civil Procedure 199.1 in harmony with
Government Code sections 52.021 and 52.033, a party to litigation,
the attorney of the party, or a full-time employee of a party or a
party’s attorney may record a deposition solely by non-stenographic
means without violating Government Code section 52.021(f).

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee