Does the district attorney's office have to pay for the extra copy of the court reporter's record in a criminal appeal?

Plain-English summary

The Nueces County District Attorney asked the AG a narrow cost question that came up in criminal appeals. Under Texas Rule of Appellate Procedure 34.6(h), when a party in a criminal case requests a reporter's record, the court reporter has to prepare a duplicate of that record and file it with the trial court clerk. The DA wanted to know whether his office had to pay the court reporter for that duplicate when the appellant is someone who is not indigent, has already requested the reporter's record, and has paid for his or her own copy.

The AG walked through how court reporters are paid. Under chapter 52 of the Government Code, an official court reporter is a sworn officer appointed by the judge and paid a salary set by the court, on top of transcript fees and other expenses the law allows. A person who orders a transcript has to ask in writing, pay the transcript fee, and pay any additional authorized fees, like postage, reproduction of exhibits, indexing, and special binding. So the fee structure is built around the person who requests the transcript.

The AG then concluded the DA's office does not owe the reporter for the duplicate. Rule 34.6(h) requires the extra copy but says nothing about who pays for it, and no provision of chapter 52 puts that cost on the district attorney when the State is not the appellant. The Legislature knows how to assign a charge to a particular party when it wants to, and it did not do so here. The "additional fee" a reporter may charge under section 52.047(d) is one borne by the person requesting the transcript, and article 44.01(f) of the Code of Criminal Procedure puts appeal costs on the State only when the State is the appellant. With no express authority to bill the DA's office, the reporter cannot charge it.

The AG also addressed the court reporters' ethics argument. Reporters had pointed to the Texas Court Reporter's Code of Professional Conduct, claiming that filing a free duplicate with the trial court effectively hands the DA's office a free copy and that they must charge all parties the same. The AG disagreed. The duplicate filed with the trial court is not requested by the DA's office; it is required by Rule 34.6(h). A reporter who files the duplicate is fulfilling a duty under the rules, not giving the DA an improper benefit or charging the parties unequally. So the ethics code does not authorize a charge to the DA's office either.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered that neither the appellate rules, chapter 52 of the Government Code, nor the court reporter's ethical duties authorized a court reporter to charge the DA's office for the duplicate reporter's record filed with the trial court clerk when the State was not the appellant.

Court reporters (as the opinion described them): The opinion treated the duplicate as a filing required of the reporter by Rule 34.6(h), not a transcript requested and paid for by a party, so the reporter could not bill the district attorney's office for it and was not violating the Court Reporter's Code by filing it without charge.

Non-indigent criminal appellants (as the opinion described them): The opinion described the appellant as the party who requests and pays the reporter for his or her own copy of the reporter's record, separate from the duplicate the reporter must file with the trial court clerk.

Common questions

Does the DA's office pay for the duplicate reporter's record in a criminal appeal?
Under this opinion, no. The AG concluded that when the State is not the appellant, a court reporter has no authority to charge the district attorney's office for the duplicate record required by Rule 34.6(h).

Who pays the court reporter for the reporter's record in the first place?
The opinion described the appellant who requests the record as the party who pays the transcript fee and any additional authorized fees to the court reporter under chapter 52 of the Government Code.

Why can't the reporter charge the DA if it ends up giving the office a free copy?
The AG explained that the duplicate is filed because Rule 34.6(h) requires it, not because the DA's office requested it, so the reporter is fulfilling a duty rather than handing the office a purchased copy.

Does the court reporter's ethics code require charging both sides equally for this copy?
The opinion said the Court Reporter's Code did not authorize a charge to the DA's office for the required duplicate. Filing it does not give the office anything the code prohibits or charge the parties inequitably.

Background and statutory framework

Texas Rule of Appellate Procedure 34.6(h) provides that in a criminal case in which a party requests a reporter's record, the court reporter must prepare a duplicate of the reporter's record and file it with the trial court clerk (Tex. R. App. P. 34.6(h)). Official court reporters are regulated by chapter 52 of the Government Code (Tex. Gov't Code §§ 52.041-.059). Each judge of a court of record appoints an official court reporter who is a sworn officer of the court (Tex. Gov't Code §§ 52.041, 52.042) and receives a salary set by the judge, in addition to transcript fees and other necessary expenses authorized by law (Tex. Gov't Code § 52.051(a)). A person ordering a transcript must request it in writing and pay the transcript fee plus any additional charged fees the law allows, such as postage, reproduction of exhibits, indexing, and special binding (Tex. Gov't Code § 52.047(a), (c), (d)).

The appellate record consists of the clerk's record and, if necessary, the reporter's record (Tex. R. App. P. 34.1, 34.6(a)). An appellant perfecting an appeal must request the reporter's record from the reporter in writing and file a copy of the request with the trial court clerk (Tex. R. App. P. 34.6(b)(1)-(2)), and the reporter is responsible for preparing, certifying, and timely filing the record once the appellant satisfies certain steps, including payment (Tex. R. App. P. 35.3(b)). An indigent appellant may move to have the record furnished without charge (Tex. R. App. P. 20.2). Rule 34.6(h) requires the additional duplicate for the trial court but does not address who pays for it.

No provision of chapter 52 expressly puts the cost of the duplicate on the district attorney when the State is not the appellant, and the Legislature knows how to impose a charge on a particular party when it intends to (FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000); Tex. Att'y Gen. Op. No. KP-0083 (2016) at 3). The "additional fee" under section 52.047(d) is borne by the person requesting the transcript, and article 44.01(f) of the Code of Criminal Procedure places appeal costs on the State only when the State is the appellant (Tex. Code Crim. Proc. arts. 44.01(f), 44.01(a)-(b)). Because the matter of costs in criminal cases is purely statutory (Dunn v. State, 683 S.W.2d 729, 730 (Tex. App.—Amarillo 1984, pet. ref'd)), and there is no express authorization, a court reporter may not charge the district attorney's office for the duplicate record.

Citations

Statutes and rules:

• Tex. R. App. P. 34.6(h), 34.1, 34.6(a), 34.6(b)(1)-(2), 35.3(b), 20.2
• Tex. Gov't Code §§ 52.041-.059 (incl. §§ 52.041, 52.042, 52.051(a), 52.047(a), (c), (d))
• Tex. Code Crim. Proc. arts. 44.01(f), 44.01(a)-(b)
• Tex. Att'y Gen. Op. No. KP-0083 (2016)

Cases:

• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)
• Dunn v. State, 683 S.W.2d 729 (Tex. App.—Amarillo 1984, pet. ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0163
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0163.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 8, 2017

The Honorable Mark A. Gonzalez Opinion No. KP-0163
Nueces County District Attorney
901 Leopard, Room 206 Re: Whether the district attorney's office
Corpus Christi, Texas 78401-3681 must pay for the copy of the reporter's record
filed with the trial court Clerk pursuant to Rule
of Appellate Procedure 34.6(h) (RQ-0153-KP)

Dear Mr. Gonzalez:

    Texas Rule of Appellate Procedure 34.6(h) provides that "[i]n a criminal case in which a party requests a reporter's record, the court reporter must prepare a duplicate of the reporter's record and file it with the trial court clerk." Tex. R. App. P. 34.6(h). You ask whether a district attorney's office must pay the court reporter for this duplicate record when an appellant who is not indigent [1] requests and pays for his or her copy of the reporter's record. [2] To provide context for your question, we begin with chapter 52 of the Government Code, which regulates official court reporters. See TEX. GOV'T CODE §§ 52.041-.059.

    Under chapter 52, each judge of a court of record appoints an official court reporter, who is a sworn officer of the court and serves at the pleasure of the court. See id. § 52.041; see also id. § 52.042 (providing for the appointment of a deputy court reporter). An official court reporter receives a "salary set by the order of the judge of the court." Id. § 52.051(a). This established salary is "in addition to transcript fees, fees for a statement of facts, and other necessary expenses authorized by law." Id. A person ordering a transcript from the court reporter must do so in writing, pay the transcript fee, and pay any additional charged fees as the law allows. Id. § 52.047(a), (c), (d); see also id. § 52.047(d) (authorizing the court reporter to charge for "(1) postage or express charges; (2) photostating, blueprinting, or other reproduction of exhibits; (3) indexing; and (4) preparation for filing and special binding of original exhibits").

    Pursuant to the Rules of Appellate Procedure ("Rules"), the appellate record consists of the clerk's record and "if necessary to the appeal, the reporter's record." Tex. R. App. P. 34.1. The reporter's record comprises the court reporter's transcription of the proceedings and any exhibits the parties to the appeal may designate, or the "certified copies of all tapes or other audio-storage devices on which the proceedings were recorded" and any exhibits designated by the appealing parties along with the certified copies of the logs prepared by the court reporter. Tex. R. App. P. 34.6(a) (defining contents of record). In perfecting his or her appeal, the appellant must request the reporter's record from the court reporter in writing and "must file a copy of the request with the trial court clerk." Tex. R. App. P. 34.6(b)(1)-(2). The court reporter, then, "is responsible for preparing, certifying, and timely filing the reporter's record" with the appellate court upon satisfaction of certain steps by the appellant, including payment to the court reporter for the reporter's record. Tex. R. App. P. 35.3(b).

    Rule 34.6(h), about which you ask, requires that an additional copy of the reporter's record be filed with the trial court clerk when the appeal is from a criminal case. Tex. R. App. P. 34.6(h). In providing for the duplicate reporter's record, rule 34.6(h) does not address payment of costs regarding the duplicate reporter's record that is to be filed with the trial court. Id. Further, no provision in chapter 52 expressly places the cost of the duplicate record on the district attorney's office when the State is not the appellant. However, provisions in chapter 52 and elsewhere indicate that the Legislature knows how to impose a charge upon a particular party, such as the district attorney, and has not done so here. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature knows how to enact laws effectuating its intent); Tex. Att'y Gen. Op. No. KP-0083 (2016) at 3. As noted previously, subsection 52.047(a) authorizes a court reporter to charge a transcript [3] fee to a person requesting a transcript. See TEX. GOV'T CODE § 52.047(a); see also TEX. CODE CRIM. PROC. art. 44.01(f). Subsection 52.047(d) also authorizes the court reporter to charge an "additional fee" for specified items in addition to the transcript. See TEX. GOV'T CODE § 52.047(d). In the context of section 52.047, we construe "additional fee" to mean a fee borne by the person requesting the transcript in addition to the fee for the transcript. See NEW OXFORD AMERICAN DICTIONARY 18 (3d ed. 2010) (defining "additional" to mean "added, extra, or supplementary to what is already present or available"). Similarly, article 44.01(f) of the Code of Criminal Procedure places the costs of an appeal on the State when the State is the appellant. TEX. CODE CRIM. PROC. arts. 44.01(f) (requiring the State to "pay all costs of appeal"), 44.01(a)-(b) (authorizing the State to appeal an order of a court in a criminal case in certain instances). Such costs would include the fee for any reporter's record requested for appeal purposes under Rule 34.6(b). Accordingly, absent an express authorization for a court reporter to impose a fee for the preparation of the duplicate record on a district attorney's office, we cannot conclude that a court reporter may charge a district attorney's office to prepare and file the duplicate record. See Dunn v. State, 683 S.W.2d 729, 730 (Tex. App.—Amarillo 1984, pet. ref'd) ("The matter of costs in criminal cases is purely statutory.").

    You state that court reporters raise the Texas Court Reporter's Code of Professional Conduct ("Court Reporter's Code") suggesting that their ethical obligations may require a court reporter to charge a district attorney's office a fee for preparing the duplicate record. See Brief at 2-3. You tell us that court reporters claim that providing the duplicate record to the trial court provides a free copy for use by the district attorney's office. See id. at 2. You also tell us the court reporters point to their ethical duty to not give, directly or indirectly, "'any incentive, reward or anything of value to attorneys, clients, witnesses, insurance companies, or any other persons or entities associated with the litigation'" and the requirement that they "'charge all parties to an action the same price for [a] ... reporter's record.'" Id. (quoting Court Reporter's Code rules 4 and 17). Yet, the duplicate record filed with the trial court is not requested by the district attorney's office but required by Rule 34.6. Tex. R. App. P. 34.6(h). To the extent the Rules place a duty on the official court reporter to file the duplicate record with the trial court clerk, the court reporter does not give anything prohibited by the Court Reporter's Code to the district attorney's office or charge the parties to the litigation inequitably. Rather, the court reporter fulfills his or her duty under the Rules. Thus, we cannot conclude that the Court Reporter's Code authorizes a court reporter to charge a district attorney's office for the duplicate reporter's record filed with the trial court clerk.

                                   SUMMARY

                  Neither the Texas Rules of Appellate Procedure, nor chapter
           52 of the Government Code, nor a court reporter's ethical duties
           authorizes a court reporter to charge a district attorney's office when
           the State is not the appellant for the copy of the reporter's record
           filed with the trial court clerk pursuant to Texas Rule of Appellate
           Procedure 34.6(h).

                                          Very truly yours,

                                          KEN PAXTON
                                          Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] With regard to an indigent defendant, Rule 20.2 provides that "[w]ithin the time for perfecting the appeal, an appellant who is unable to pay for the appellate record may, by motion and affidavit, ask the trial court to have the appellate record furnished without charge." Tex. R. App. P. 20.2.

[2] See Letter and Brief from Honorable Mark A. Gonzalez, Nueces Cty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. (Mar. 8, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Brief" respectively).

[3] The Rules and chapter 52 of the Government Code use the term "transcript" inconsistently. Pursuant to 1997 changes to the Rules, the term "transcript" replaced the term "clerk's record." Tex. R. App. P. 34.6, Notes & Comments (noting that the Rule's term "reporter's record" is substituted for "statement of facts"). Chapter 52 of the Government Code uses the term "transcript" to refer to the transcript of the evidence in a case reported by the official court reporter. TEX. GOV'T CODE § 52.047(a).