Johnson, In re

• Decision Date: 30 June 1977
• Docket Number: No. 1132,1132
• Parties: In re Martin A. JOHNSON, Official Court Reporter.
• Court: Texas Court of Appeals

Page 775

554 S.W.2d 775

In re Martin A. JOHNSON, Official Court Reporter.

No. 1132.

Court of Civil Appeals of Texas, Corpus Christi.

June 30, 1977.

Rehearing Denied Aug. 31, 1977.

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

David M. Kendall, Jr., First Asst. Atty. Gen., Austin, Mark H. Giles, Stone, Berryman & Giles, Corpus Christi, James M. Whitten, Sinton, for appellee.

OPINION

NYE, Chief Justice.

This is a suit to determine the constitutionality of Article 2324 and/or the reasonableness of a court reporter's fee for preparing a statement of facts. The City of Ingleside as appellant objected to the charges made by the court reporter (pursuant to Article 2324). A hearing was then requested by the court reporter, Martin A. Johnson, who sought to have the trial judge approve his fee as being reasonable. The City answered claiming the statute was unconstitutional and in any event, the fee charged was unreasonable. From an order by the trial judge approving the court reporter's fee, the City has perfected its appeal to this Court.

This suit represents the third appeal to come before this Court arising out of a single non-jury trial held before the Judge of the 156th District Court. The original case styled The City of Ingleside v. T. R. Stewart, d/b/a L & S Air Conditioning Company, Inc., was given our Cause Number 1111. The original case was an appeal by the City from a judgment of the trial court. This original case has heretofore been decided by this Court adversely to the City. The motion for rehearing in this original cause was overruled this day with written opinion (Reference is here made to our opinion on rehearing in Cause No. 1111 concerning the costs). Docket No. 1111 (Tex.Civ.App. Corpus Christi March 31, 1977 not yet reported). Prior to the time that Cause Number 1111 was submitted, the City brought an original mandamus proceeding in this Court to require the official court reporter for the 156th Judicial District Court, to deliver the statement of facts in Cause Number 1111 to this Court. The court reporter refused to deliver the statement of facts until his fee for preparing the statement of facts had been paid in full and in advance. By writ of mandamus, this Court ordered the court reporter to deliver the statement of facts in controversy to us. See City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex.Civ.App. Corpus Christi 1976, no writ).

This particular appeal arose following the hearing before the trial judge to determine the reasonableness of the court reporter's fee. The City had, by written notice, objected to the amount of the court reporter's fee. The court reporter requested that the trial court approve his fee. A hearing was set for May 4, 1976 pursuant to Article 2324. The City filed an answer, a plea in abatement and a motion for continuance. The latter two were denied. A full hearing was then held in which the trial court heard evidence. At the conclusion of the hearing, without ever viewing the statement of facts in question, the trial court approved the court reporter's fee of $1,991.00.

The City in its points of error 1-13 contends that the trial court erred in not finding that Art. 2324, Tex.Rev.Civ.Stat.Ann. (Supp.1976), was unconstitutional. We believe that there are four basic contentions under these points that merit our consideration and discussion. The City's first contention is that the statute is unconstitutional because it is an unlawful delegation to the judiciary of an exclusive legislative power to prescribe the fees, duties and compensation of public officials in violation of the Tex.Const. Art. II, §§ 1, 13, 19, Art. III, § 44. A second constitutional argument that is advanced is that the statute improperly delegates to the judiciary the exclusive legislative function of providing for the duties and fees of court reporters without providing for therein, legally sufficient standards or guidelines concerning said duties and fees. The City's third contention is that the statute violates both the Tex.Const. Art. III, §§ 35 and 56 and U.S.Const. Amend. XIV, because the statute is a special law incapable of uniform application throughout the State of Texas. The fourth constitutional argument is that the statute constitutes a legislative attempt to increase the jurisdiction of the Texas Supreme Court without so specifically stating in contravention of the Tex.Const. Art. III, § 35 and that such delegation of authority prevents a trial court from ruling on the reasonableness of the court reporter's fees before the Supreme Court actually exercises such power.

Whenever an attack on the constitutionality of a statute is presented for determination, we start with the presumption that such statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting the statute. Texas State Board of Public Accountancy v. Fulcher,515 S.W.2d 950 (Tex.Civ.App. Corpus Christi 1974, writ ref'd n.r.e.); Vernon v. State, 406 S.W.2d 236 (Tex.Civ.App. Corpus Christi 1966, writ ref'd n.r.e.). The burden rests on the individual who challenges the act to establish its unconstitutionality. Robinson v. Hill, 507 S.W.2d 521 (Tex.Sup.1974); Smith v. Craddick, 471 S.W.2d 375 (Tex.Sup.1971); Texas State Board of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729 (Tex.Sup. 1970). If a statute is capable of two constructions, one of which sustains its validity, the courts will give to it that interpretation which upholds the statute. State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.Sup.1964); Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Texas State Board of Public Accountancy v. Fulcher, supra.

The City's first attack on Article 2324 is that the statute unlawfully delegates to the judiciary the exclusive legislative function of setting compensation for public utilities and officials. The pertinent sections of Article 2324 were amended by the 64th Legislature in 1975. Acts 1975, 64th Leg., p. 826, ch. 319. The section of the amended statute which the City now is attacking reads as follows:

"When any party to any suit reported by any such reporter shall desire a transcript of the evidence in said suit, said party may apply for same by written demand, and the reporter shall make up such transcript and shall receive as compensation therefor a reasonable amount, subject to the approval of the judge of the court if objection is made thereto, taking into consideration the difficulty and technicality of the material to be transcribed and the time within which the transcript is requested to be prepared. The original transcript fee charged shall pay for the original plus one copy of the transcript, and additional copies may be purchased for a fee per page not in excess of one-third ( 1/3) of the original cost per page. In addition such reporter may make a reasonable charge, subject to the approval of the trial court if objection shall be made thereto, for postage and/or express charges paid; photostating, blue-printing or other reproduction of exhibits; indexing; and preparation for filing and special binding of original exhibits. Provided further, that in case any such reporter shall charge in excess of the fees herein allowed by the judge, whether by accident or design, he shall, on demand filed with the court, make refund of the excess to the party to which it is due. Provided, however, that the Supreme Court of Texas under its rulemaking authority shall provide for the duties and fees of court reporters in all civil judicial proceedings, except as provided by law." (emphasis added)

It is the City's position that the language of Article 2324 which allows the court reporter to set his own rate of compensation subject to approval of the trial judge, allows the judiciary in effect to set compensation rates for officers of the court in violation of Art. II, § 1, and Art. III, § 44 of the Texas Constitution.

Art. II, § 1 of the Texas Constitution is the separation of powers clause which prohibits any of the three branches of government from exercising any power properly attached to the other branches of government. ¹ Art. III, § 44 specifically provides that the legislature shall provide by law for the compensation of all officers, not provided for elsewhere in the Constitution. ² Therefore, it is the City's position that since Art. II, § 1 prohibits the judiciary from exercising any power expressly granted the legislature and since Art. III, § 44 expressly provides that the legislature shall set the compensation of officers, Article 2324 is therefore unconstitutional because it attempts to delegate to the judiciary an express power reserved exclusively to the legislature.

The first question which we must answer that necessarily arises from the City's contention is what is the exact status of court reporter Martin A. Johnson?

Johnson is the official shorthand reporter for the 156th Judicial District of Texas. An official shorthand reporter is an official or officer of the State as that word is used in Art. III, § 44 of the Texas Constitution. See Butcher v. Tinkle, 183 S.W.2d 227 (Tex.Civ.App. Beaumont 1944, writ ref'd w.o.m.); Dunn v. Allen, 63 S.W.2d 857 (Tex.Civ.App. Dallas 1933, no writ). As an official court reporter, Johnson's base salary was set by the legislature in 1971 at $9,600.00 per annum. Art. 2326j-59, Tex.Rev.Civ.Stat.Ann. (Supp.1976). In addition, the legislature provided in 1972 that an official court reporter's salary could be increased a maximum of 10% per annum. Art. 3912k, § 3(c), Tex.Rev.Civ.Stat.Ann. (Supp.1976). Based on these two statutes, according to the record, Johnson's salary has increased the maximum the last four years, to $14,056.36 per annum, an increase of 46% over the last five years. In addition, Johnson receives additional compensation for transcribing and preparing records under Article 2324.

It is well settled that the legislature may impose a function upon the courts that...