Could a Texas district attorney's secretary also work as the county court's certified court reporter?

Texas AG Opinion JM-163: DA Secretary as Court Reporter

Plain-English summary

The Rockwall County Criminal District Attorney asked whether his secretary could also work as the county court's court reporter. She was the only certified court reporter in the county and filled in for the county court intermittently when needed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

The Attorney General found no general prohibition on county employees holding more than one county position, and said the two jobs here are "clearly not 'offices'" to which the state constitution's dual-office-holding ban could apply. An earlier opinion, MW-415, had already concluded that one person could serve as both deputy county clerk and deputy district clerk. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

The "full-time" label did not change the answer. The opinion said that status is meaningless in the sense that no definition of full-time exists and no rule requires employees to work a 40 hour week. Since the DA set his secretary's hours himself and they varied, she was being paid to perform specified duties rather than being held to fixed hours that would exclude other work. Where a county has legally adopted office hours, though, the opinion said full-time employees may not hold other employment during those hours. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

The AG limited the answer to non-criminal matters. It concluded she was not barred as a matter of law from serving as a court reporter in the county court, but expressly declined to address the propriety, as a matter of policy, of her reporting a criminal case in which her employer was the prosecutor. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

Currency note

This opinion was issued in 1984. 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

Why didn't the constitutional ban on holding two offices apply?

Because neither job was an office. The opinion said the positions "are clearly not 'offices' to which the dual office holding prohibition of the state constitution may apply," citing article XVI, section 40 of the Texas Constitution. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

Did being a full-time employee prevent outside work?

Not on these facts. The opinion said the "full-time" characterization was of little consequence, since there is no definition of full-time and no requirement that employees work a 40 hour week. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

When would county office hours matter?

Where office hours have been legally adopted for county employees, the opinion said full-time employees may not have other employment during those hours, citing article 2372h on hours of work in counties over 500,000 and article 2372h-6 on civil service systems in counties over 200,000. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

Did the AG approve her reporting criminal cases her boss prosecuted?

No. The opinion said it did not address the propriety, as a matter of policy, of the secretary serving as court reporter in a criminal case in which the district attorney serves as prosecutor, and pointed to article 2324b, § 13(a). The summary limited the holding to non-criminal matters. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

Who paid the district attorney's staff?

The commissioners court paid the salaries of his administrative personnel, along with necessary expenses. Under article 326k-77, the criminal district attorney could appoint "stenographers, clerks, and other personnel as are required for the proper and efficient operation and administration of the office." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

Background and statutory framework

The office of criminal district attorney for Rockwall County was created by article 326k-77, V.T.C.S., which made it his duty to prosecute all criminal offenses in the district and inferior courts of Rockwall County. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

The secretary served the county court in her private capacity from time to time. The opinion collected the court reporter provisions: article 2321 on appointment of a court reporter for each court of record, article 2324 on duties, article 2324b on regulation and certification, article 2327 on appointment of certified shorthand reporters in civil cases pending in county courts, and Texas Rules of Civil Procedure 376b and 376c on a reporter's duties. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

Citations and references

• Tex. Const. art. XVI, § 40
• V.T.C.S. art. 326k-77, § 5
• V.T.C.S. arts. 2321, 2324, 2324b, 2327
• V.T.C.S. arts. 2372h, 2372h-6
• Tex. R. Civ. P. 376b, 376c
• Attorney General Opinion MW-415 (1981)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0163
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0163.pdf

Original opinion text

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

The Attorney General of Texas

June 8, 1984

JIM MATTOX
Attorney General

Honorable Nick D. Woodall
Criminal District Attorney
Rockwall County Courthouse
Rockwall, Texas 75087

Opinion No. JM-163

Re: Whether an individual may be employed both as a secretary to a criminal district attorney and as a court reporter for a county court

Dear Mr. Woodall:

You have asked whether an individual may be employed as a secretary for the criminal district attorney and as a court reporter for the county court.

There is no general prohibition which would prohibit county employees from holding more than one position of employment within the county. The positions about which you inquire are clearly not "offices" to which the dual office holding prohibition of the state constitution may apply. See Tex. Const. art. XVI, § 40.

You state that your secretary is a "full-time, salaried employee" who is the only certified court reporter in the county and works for the county court intermittently when needed. Your characterization of the employee as "full-time" is of little consequence in answering your question. The status of a county employee as "full-time" is meaningless in the sense that there is no definition of full-time or requirement, for example, that employees work a 40 hour work week. You state that the hours observed by your secretary in performing duties in your office are determined solely by you and are variable. In essence, your secretary is being paid to perform specified duties and is not necessarily employed for a specified time during the day during which she cannot have other employment.

Where office hours have been legally adopted for county employees, we believe that "full-time" employees may not have other employment during those hours. See V.T.C.S. art. 2372h (hours of work in counties over 500,000); art. 2372h-6 (civil service system in counties over 200,000 population).

In Attorney General Opinion MW-415 (1981) this office concluded that one person could legally serve in the positions of deputy county clerk and deputy district clerk. Thus, a person may hold more than one position within county government.

The office of criminal district attorney for Rockwall County is created by article 326k-77, V.T.C.S. Under the statute, it is his duty to prosecute all criminal offenses in district and inferior courts of Rockwall County. He is authorized to appoint "stenographers, clerks, and other personnel as are required for the proper and efficient operation and administration of the office." Id. § 5. The salaries of his administrative personnel are paid by the commissioners court as are necessary expenses.

You state that your secretary is employed by the Rockwall County Court in her private capacity from time to time to serve as a certified court reporter. See V.T.C.S. art. 2321 (appointment of court reporter for each court of record); art. 2324 (duties of court reporter); art. 2324b (regulation and certification of court reporters); art. 2327 (appointment of certified shorthand reporters in civil cases pending in county courts); Tex. R. Civ. P. 376b, 376c (duties of court reporter). We do not believe that your secretary is barred as a matter of law from serving as a court reporter in the Rockwall County Court. We do not, however, address the propriety, as a matter of policy, of your secretary serving as court reporter in a criminal case in which you serve as prosecutor. See art. 2324b, § 13(a).

SUMMARY

The secretary for the Rockwall County Criminal District Attorney may serve as a court reporter for the Rockwall County Court in non-criminal matters.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by David Brooks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton