City of Ingleside v. Johnson, 1123

• Citation: 537 S.W.2d 145
• Decision Date: 20 May 1976
• Docket Number: No. 1123,1123
• Parties: The CITY OF INGLESIDE, Relator, v. Martin A. JOHNSON, Official Court Reporter, et al., Respondents.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 145

537 S.W.2d 145

The CITY OF INGLESIDE, Relator, v. Martin A. JOHNSON, Official Court Reporter, et al., Respondents.

No. 1123.

Court of Civil Appeals of Texas,

Corpus Christi.

May 20, 1976.

Bruce D. Viles, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for relator.

Horkin & Horkin, Corpus Christi, amicus curiae.

James M. Whitten, Sinton, Elizabeth B. Levatino, Austin, Mark H. Giles, Stone, Berryman & Giles, Inc., Corpus Christi, for respondents.

Tony Korioth, Austin, amicus curiae.

OPINION

NYE, Chief Justice.

This is an original proceeding initiated in this Court by Relator, The City of Ingleside, requesting relief in the nature of mandamus, injunction and declaratory judgment against Respondent, Martin A. Johnson, Official Court Reporter for the 156th Judicial District Court of San Patricio County.

The City requests that this Court issue its writ of mandamus directing the Court Reporter to deliver to the City the completed statement of facts in Cause No. 16,417, styled T. R. Stewart, d/b/a L & S Air Conditioning Company v. The City of Ingleside, without requiring the City to make any further payment to the Court Reporter therefor. The City further requests that we grant declaratory relief whereby this Court would make a determination as to the constitutionality of Article 2324, Tex.Rev.Civ.Stat.Ann., upon which Court Reporter relies, and make a determination of the lawful basis upon which Court Reporter's compensation for the preparation of the statement of facts may be computed. The Attorney General of the State of Texas has been made a party to this action pursuant to Article 2524--1, § 11, Tex.Rev.Civ.Stat.Ann.

The facts surrounding this case being uncontroverted will be set out as follows. The controversy upon which this original suit is based grew out of a lawsuit originating in the 156th Judicial District Court of San Patricio County between T. R. Stewart (Plaintiff) and the City of Ingleside (Defendant), designated Cause No. 16,417 in the trial court. The subject matter of the lawsuit involves a controversy over alleged labor performed and materials furnished by Stewart to the City of Ingleside, and for payment therefor. The official Court Reporter for the 156th Judicial District Court is Martin A. Johnson. During the course of the trial, the Court Reporter took full short-hand notes of all oral testimony, objections to the admissibility of evidence and the rulings and remarks of the trial judge.

Subsequent to the trial and prior to entry of judgment, the trial judge advised the parties that it was prepared to render judgment in Stewart's favor for $4,700.00. In light of the trial court's action, the attorney representing the City of Ingleside wrote to the Court Reporter requesting an estimate of the costs in preparing a complete question and answer statement of facts and the approximate length of time he would require in preparing the statement of facts. The Court Reporter replied by return mail that he estimated the statement of facts would cost from $2,500.00 to $3,000.00 and that it would require from four to six weeks to prepare the same. The Court Reporter stated that a $1,000.00 deposit would be required 'before I will even start on same, with the balance due upon delivery.'

Because the estimated cost of between $2,500.00 to $3,000.00 appeared high, the attorney for the City of Ingleside wrote to the Court Reporter asking him to review his notes as he (the attorney) believed that he (Court Reporter) must have made a mistake in his estimate of the costs of the statement of facts because the trial only lasted 3 1/2 days and the oral testimony reported covered no more than 15 1/4 hours. The Court Reporter made no reply to the above request.

Thereafter, on January 26, 1976, the trial court entered its judgment for Stewart in the amount of $4,700.00. The City of Ingleside filed its notice of appeal pursuant to Rule 354(c), T.R.C.P. on the same date. On February 16, 1976, the City made formal written request upon the Court Reporter for the preparation of and delivery to it of a transcript of the evidence in question and answer form. In light of the difference of opinion over the proposed costs of the statement of facts, appellant's attorney in a separate letter to the Court Reporter stated that he would pay a reasonable amount for the Court Reporter's services as provided in Article 2324. However, the City reserved the right to make objections to the trial court as to the reasonableness of the charges and have the trial court determine if such charges were reasonable, and, if necessary, to have the matter finally determined by the appellate courts.

The Court Reporter by letter dated February 20, 1976, acknowledged receipt of appellant's request for the statement of facts and again demanded the $1,000.00 deposit. The Court Reporter further stated that 'Any attorney's fees and expenses of expert witnesses that I incur with reference to any litigation, I shall add to the total bill for the statement of facts.' The Court Reporter further requested that the City's attorney obtain an extension of time for the filing of the statement of facts from this Court as he would be unable to complete the statement of facts within the time remaining (40 days); otherwise, he would charge an additional charge of twenty-five cents (25cents) per page.

On February 28, 1976, the Court Reporter advised the City by letter that he estimated the number of pages in the statement of facts to be from 800 to 1,000 pages and that he would charge $2.00 per page, plus fifty cents (50cents) per page for exhibits and fifty cents (50cents) per page for the indexing of the exhibits. In addition, he stated he would charge $2.00 to $3.00 for covers and binding the statement of facts and the same amount for covers and binding the exhibits. On March 3, 1976, the City delivered to the Court Reporter the $1,000.00 deposit requested, reserving the right to object to the trial court, and to pay only such sum for the statement of facts as is ultimately determined to be reasonable.

Notice of appeal was filed by the City on January 26, 1976. On March 18, 1976, the transcript in Cause No. 16,417 was filed by appellant City in this Court, thereby clothing us with exclusive jurisdiction over the appeal, giving it our Cause No. 1111. Thereafter on March 24, 1976, the appellant filed its first motion for an extension of time to file the statement of facts. The appellant alleged in said motion, the existing controversy between it and the Court Reporter and the need for additional time in which the City may present its objections as to the reasonableness of the Court Reporter's charges and objections to Article 2324, in the appropriate forum. This Court granted the motion on March 31, 1976 and extended the time in which to file the statement of facts 45 days, until May 10, 1976.

On April 14, 1976, the City filed in this Court its motion for leave to file its petition for mandamus, injunction, declaratory and other relief. On April 19, 1976, this Court granted the City's motion for leave to file the petition, and set the case for submission and oral argument on May 12, 1976. Notice of the setting was given to all parties concerned.

The record before us shows that the Court Reporter in the meantime requested the same trial judge to approve the fee that he had quoted to the attorney for the City of Ingleside. On May 4, 1976, a hearing for the determination of the reasonableness of the Court Reporter's charges was had before the Honorable Rachel Littlejohn, Judge of the 156th District Court. The City filed a plea in abatement, answer and motion for continuance raising among other things, the question as to the constitutionality of Art. 2324. The trial judge, after considering the pleadings on file and the evidence introduced, entered its order determining only the point that, the sum of $1,991.00 was a reasonable compensation for the Court Reporter to charge.

Thereafter the Attorney General of Texas filed in this Court its brief pursuant to Article 2524--1, § 11, Tex.Rev.Civ.Stat.Ann. The memorandum was submitted solely with respect to the question concerning the constitutionality of Article 2324, asserting that this Court is without jurisdiction to consider the constitutionality of Article 2324 under either the Declaratory Judgment Act, Article 2524--1 or under Article 1823, Tex.Rev.Civ.Stat.Ann. which gives this Court original jurisdiction.

The City insists that Article 2324, Tex.Rev.Civ.Stat.Ann. upon which the Court Reporter bases his charges for such statement of facts is unconstitutional and void because: 1) it is an unlawful delegation to the judiciary of an exclusively legislative power to prescribe the fees, duties and compensation of public officials and utilities and, therefore, violates Article II, § 1, Texas Constitution; 2) it unlawfully violates Article III, § 44, Texas Constitution by providing that the compensation of a public official shall be set by the judiciary; 3) it improperly delegates to the judiciary the exclusive legislative function of providing for the duties and fees of court reporters and failing to provide therein legally sufficient standards; and 4) it violates Article III, §§ 35, 56, Texas Constitution and the Fourteenth Amendment to the U.S. Constitution as being a special law which is incapable of uniform application and, therefore deprives litigants due process and equal protection of the law.

The City, in addition to requesting that we issue a writ of mandamus, requests also that we enter a declaratory judgment declaring Article 2324, Tex.Rev.Civ.Stat.Ann. to be unconstitutional, saying we have authority to render such a declaratory judgment under Article 1822 ¹ and Article 1823. ² We do not agree. Our authority, under such statute is limited. Courts of Civil Appeals have no jurisdiction to render a declaratory judgment in a case filed originally in that Court. See Lydick v. Chairman Of...