IN RE: RQ-0993-GA Whether section 52.021(f), Government Code, which requires that all depositions must be recorded by a certified shorthand reporter, has been repealed ) FOR CONSIDERATION BY ) ) THE ATTORNEY GENERAL ) ) OF THE STATE OF TEXAS ) BRIEF ON BEHALF OF TEXAS LEGAL MEDIA I am writing in response to a request by the Chairman of the Court Reporters Certification Board (CRCB), designated RQ-0993-GA. The Chairman requested an opinion of the Attorney General regarding whether or not oral depositions can be recorded solely by nonstenographic means, or whether such practice would violate Texas Government Code section 52.021(f), which requires that all depositions be recorded by a certified shorthand reporter. Vernon s Tex. Gov t Code Ann. 52.021(f) (West 2011). I believe that the recording of oral depositions solely by nonstenographic means should be allowed pursuant to Tex. R. Civ. P. 199.1. I. BACKGROUND Section 52.021(f) states, [e]xcept as provided by section 52.031 and by section 20.001, Civil Practice and Remedies Code, all depositions conducted in this state must be recorded by a certified shorthand reporter. 1 In addition to the two exceptions cited, Texas law provides that neither section 52.021(f) nor anything else in that chapter applies to (1) a party to the litigation involved; (2) the attorney of the party; or (3) a full-time employee of a party or a party's attorney. Vernon s Tex. Gov't Code Ann. 52.033 (West 2011). Certified shorthand reporters must take depositions by one of the methods of shorthand reporting for which they are certified, which include (1) written shorthand; (2) machine shorthand; (3) oral stenography; (4) or any other method of shorthand reporting authorized by the supreme court 52.021(c). Shorthand reporting is defined in relevant part as making a verbatim record of a[ ].... deposition.... using written 1 Tex. Gov t Code 52.031: (a) A noncertified shorthand reporter may be employed until a certified shorthand reporter is available. (b) A noncertified shorthand reporter may report an oral deposition only if: (1) the noncertified shorthand reporter delivers an affidavit to the parties or to their counsel present at the deposition stating that a certified shorthand reporter is not available; or (2) the parties or their counsel stipulate on the record at the beginning of the deposition that a certified shorthand reporter is not available.... Tex. Civ. Prac. & Rem. Code 20.001: (a) A deposition on written questions of a witness who is alleged to reside or to be in this state may be taken by: (1) a clerk of a district court; (2) a judge or clerk of a county court; or (3) a notary public of this state.
symbols in shorthand, machine shorthand, or oral stenography. Vernon s Tex. Gov't Code Ann. 52.001(a)(5) (West 2011). By way of the provisions above, chapter 52 thus restricts the recording of oral depositions to authorized methods employed by certified shorthand reporters. The authorized methods do not include any form of electronic recording such as video or audio tape. However, Texas Rule of Civil Procedure 199.1 liberalizes the practice of recording depositions. Rule 199.1 states in part [a]ny party may cause a deposition upon oral examination to be recorded by other than stenographic means, including videotape recording. 2 Tex. R. Civ. P. 199.1(c). Contrary to the provisions of section 52.021(f), the subsection includes no requirement that the deposition also be recorded stenographically by a certified shorthand reporter. The party noticing the deposition must simply note whether the deposition will also be recorded stenographically. Id. The general rule is that when a statute and a rule conflict, the rule must yield. See Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (1971). Such conflicts are controlled in Texas by the Rules of Practice Act, which provides in pertinent part: (c) So that the supreme court has full rulemaking power in civil actions, a rule adopted by the supreme court repeals all conflicting laws and parts of laws governing practice and procedure in civil actions, but substantive law is not repealed. At the time the supreme court files a rule, the court shall file with the secretary of state a list of each article or section of general law or each part of an article or section of general law that is repealed or modified in any way. The list has the same weight and effect as a decision of the court. Vernon s Tex. Gov't Code Ann. 22.004(c) (West 2011). Thus rule 199.1, effective 1999, would seem to repeal section 52.021(f), which took effect September 1993. 2 Texas Rule of Civil Procedure 199.1: (a) Generally. A party may take the testimony of any person or entity by deposition on oral examination before any officer authorized by law to take depositions. The testimony, objections, and any other statements during the deposition must be recorded at the time they are given or made. (b) Depositions by Telephone or Other Remote Electronic Means. A party may take an oral deposition by telephone or other remote electronic means if the party gives reasonable prior written notice of intent to do so. For the purposes of these rules, an oral deposition taken by telephone or other remote electronic means is considered as having been taken in the district and at the place where the witness is located when answering the questions. The officer taking the deposition may be located with the party noticing the deposition instead of with the witness if the witness is placed under oath by a person who is present with the witness and authorized to administer oaths in that jurisdiction. (c) Nonstenographic Recording. Any party may cause a deposition upon oral examination to be recorded by other than stenographic means, including videotape recording. The party requesting the nonstenographic recording will be responsible for obtaining a person authorized by law to administer the oath and for assuring that the recording will be intelligible, accurate, and trustworthy. At least five days prior to the deposition, the party must serve on the witness and all parties a notice, either in the notice of deposition or separately, 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. Any other party may then serve written notice designating another method of recording in addition to the method specified, at the expense of such other party unless the court orders otherwise.
The CRCB gives two reasons why 52.021(f) is not repealed as provided by the Rules of Practice Act. First, they note that the supreme court has not included section 52.021(f) in its list of repealed statutes filed with the secretary of state. Second, they contend that 52.021(f) cannot be repealed under the Rules of Practice Act because it is substantive and not procedural. Previous Attorney General opinions do not reach the issue directly. A 1993 opinion concludes that a certified shorthand reporter who uses a tape recorder as the only means of recording a deposition does not engage in shorthand reporting and therefore fails to satisfy the requirements of section 52.021(f). See Op. Tex. Att y Gen. No. 93-110 at 2-3 (1993). The 1993 opinion does not consider the relationship between section 52.021(f) and rule 202, a predecessor to rule 199.1 that allowed a court to dispense with the requirement that a stenographic recording be made simultaneous to any nonstenographic method. Id. at 2. A 1994 opinion considered former rule 166c, which allowed a deposition to be recorded by persons other than certified shorthand reporters, and concluded that it was void by conflict with section 52.021(f). See Op. Tex. Att y Gen. DM-308 at 2 (1994). That opinion did not consider whether subsection (f) of section 52.021 of the Government Code is merely a procedural law which the supreme court could repeal by rule. Id. That issue was immaterial for the purpose of the opinion partly because 52.021(f) was enacted five years after rule 166c, and section 22.004(c) only allows for the repeal of statutes by subsequently established rules. Finally, a 1995 opinion considers whether a videographer who is also a notary public may record a deposition upon oral examination. See Op. Tex. Att y Gen. DM-339 (1995). The Attorney General found that 52.021(f) governed the practice of recording oral depositions, and that all depositions must therefore be recorded by a certified shorthand reporter employing certified means of recording. Id. at 2. However, that opinion joined the others in failing to expressly consider the possibility that 52.021(f) was repealed by subsequent procedural rule as provided by section 22.004(c), quoted above. It is this question that has been submitted to the Attorney General by the CRCB. For the reasons discussed below, the CRCB s contention that the statute must prevail is without merit. II. DISCUSSION 1. RULE 819 ALLOWS REPEAL OF A STATUTE NOT SUBMITTED TO THE SECRETARY OF STATE With respect to the CRCB s first contention, the procedure for notifying the secretary of state that a statute has been repealed is not prerequisite for annulment. A statutory procedure may be repealed even when it is not included in the list of repealed statutes filed with the secretary of state. Rule 819 provides that [i]n case of inconsistency between the provisions of these rules and any statutory procedure not specifically listed
as repealed, these rules shall apply. Tex. R. Civ. P. 819. See, e.g., Tex. Emp rs Ins. Ass n v. Etheredge, 263 S.W.2d 815, 816 (Tex. Civ. App. Dallas 1953) (holding that inconsistency between a rule of civil procedure and a statute must be resolved in favor of the rule pursuant to rule 819), rev d on other grounds, 272 S.W.2d 869 (1954). Previous Attorney General opinions cite several authorities for the principle that, where the statute and the rule conflict, the rule must yield. In Purolator Armored v. Railroad Commission of Texas the court considers whether an agency record must be introduced in evidence in district court on appeals from final adminstrative agency decisions, an issue over which the court is given special limited jurisdiction by statute. Purolator Armored v. Railroad Comm n of Tex., 662 S.W.2d 700, 701 (Tex. App. Austin 1983) superseded by statute, Tex. Gov t Code Ann. 2001.175 (West 2011), as recognized in Tex. Health Enters., Inc. v. Tex. Dept. of Health, 925 S.W.2d 750, 753 (Tex. App. Austin 1996). The court there notes that the rules are given limited effect because in these proceedings [based on statutory jurisidiction] the Texas Rules of Procedure may be irrelevant and even contradictory of the manner of proceeding directed by the Legislature in conferring the jurisdiction. Id. at 702 n.4. The court clearly distinguishes between its holding in such cases of special jurisdiction and the general application of the rules of civil procedure to an ordinary civil case where the trial court exercises the jurisdiction given it by the common law and the Constitution of the State of Texas. Id. The relationship between statute and rule raised by the CRCB, in contrast, is without such limits. Other caselaw either deals with scenarios where the statute is passed after the rule, see Drake v. Muse, Currie & Kohen, 532 S.W.2d 369, 372 (Tex. Civ. App. Dallas 1975), or where the statute creates an exception to the rule but does void it, see C.E. Duke s Wrecker Services, Inc. v. Oakley, 526 S.W.2d 228, 232 (Tex. Civ. App. 1st Dist. 1975). Caselaw supporting the general principle that a statute prevails over a conflicting rule does not apply to the scenario where a rule repeals the procedural statute in accordance with rule 819 and section 22.004(c). 2. SECTION 52.021(F) IS A PROCEDURAL STATUTE AND IS REPEALED BY RULE 199.1 Turning the CRCB s second issue, the conclusion that 52.021(f) is substantive and therefore cannot be repealed by a subsequent rule is unsupported. In distinguishing substantive from procedural matters, the Supreme Court of Texas has found the following definition useful: [p]rocedure is the machinery for carrying on the suit, and it includes pleading, process, evidence, and practice.... [P]rocedure includes every step which may be taken from the beginning to the end of a case. Brooks v. Texas Emp rs Ins. Ass'n, 358 S.W.2d 412, 414 (Tex. Civ. App. Houston 1962) (citing 72 C.J.S. Practice 471, 73). Substantive law, on the other hand, includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property, and quite generally fix the type of remedy available in case of invasion of those rights. Id. at 414-15 (citing 52 C.J.S. Law 1026, 1026). Under these general guidelines it seems that the process for recording depositions falls squarely under procedure. The provisions of section 52.021(f) merely give certified
shorthand reporters exclusive authority to record oral depositions. It is unclear what primary right of either the deponent or the parties to a suit is thereby secured. Of course, the categories are not rigidly defined, and elements of procedure may affect individual rights when applied to the facts of a case. See Johnstone v. State, 22 S.W.3d 408, 410 (2000) (where the time limit to appeal a court order mandating mental health services must be supplied by the statute rather than the rule governing new trial requests, because the orders resulted in deprivation of liberty); see also Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (1971) (where the issue of whether or not a husband was an indispensible party to a property dispute was determined by statute, notwithstanding Tex. R. Civ. P. 39). However, the statutes mentioned in these cases deal with constitutionally protected rights of liberty and property, of which the parties to the litigation would be deprived if the statute did not govern. The method of recording depositions is the means the procedure by which the court secures parties rights to a fair trial. One may argue that Tex. Gov. Code 52.021(f) protects parties procedural due process rights by ensuring that evidence, including oral deposition, is entered into the record in an accurate and reliable manner. See State ex rel. Merriman v. Ball, 116 Tex. 527, 537 (1927). The Texas Constitution provides that [n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. Tex. Const. art. I, 19 (West, Westlaw through the end of the 2011 Regular Session). However, provisions like rule 199.1 have survived under the similar due process clause of the U.S. Constitution. Since 1993, the Federal Rules of Civil Procedure have allowed oral depositions to be recorded solely by nonstenographic means without the leave of the court or the stipulation of the parties. Fed. R. Civ. P. 30(b)(4). Apparently the federal rule has never been challenged on constitutional grounds. Like the federal rule, Texas rule 199.1 provides safeguards for accuracy and reliability: [t]he party requesting the nonstenographic recording will be responsible for obtaining a person authorized by law to administer the oath and for assuring that the recording will be intelligible, accurate, and trustworthy. Tex. R. Civ. P. 199.1(c). The rules further provide that the court, for good cause shown, may require that the party seeking to use a nonstenographic recording or written transcription first obtain a complete transcript of the deposition recording from a certified court reporter. The court reporter's transcription must be made from the original or a certified copy of the deposition recording..... [T]he court reporter's certificate must include a statement that the transcript is a true record of the nonstenographic recording. Tex. R. Civ. P. 203.6(a). Finally, any other party may cause the deposition to be recorded stenographically as well. Tex. R. Civ. P. 199.1(c). As with any rule, the court must use its discretion to ensure that the rule s application to the facts comports with due process. However, neither caselaw, nor the relevant statutes, nor the CRCB identifies
any substantive right or remedy secured by 52.021(f) that rule 199.1 abridges, modifies, or expands. Both the statute and the rule relate to pre-trial discovery procedure, and under section 22.004, the rule repeals the statute to the extent that they conflict. Admittedly, the legislature has ultimate authority over judicial administration and may pass laws regulating the means, manner, and mode of asserting a parties rights in court. Tex. Const. art. V, 31 (West, Westlaw through the end of the 2011 Regular Session); see, e.g., Ex parte Mallares, 953 S.W.2d 759, 762 (Tex. App. Austin 1997), abr d 213 S.W.3d 327 (Tex. Crim. App. 2006). There are exceptions to this authority, however: [a] prerequisite to the legislature's exercise of this authority is the existence of a right for which the legislature can provide procedural guidelines. Mallares, S.W.2d at 762. The Rules of Practice Act, section 22.004, also establishes limits by delegating rule-making authority to the supreme court. The Court of Civil Appeals, Fort Worth interpreted the predecessor to section 22.004, Texas Civil Statute art. 1731a, as giving the supreme court a wide berth to promulgate the procedural rules of the court: Early in the history of the State of Texas it was generally recognized and conceded that the right to prescribe rules of practice and procedure in this State rested in its law-making bodies, and our statutes reflect the fact that the Legislature from time to time relinquished to the Supreme Court the right to make certain rules only. This state of affairs continued until the 46th Legislature, in the year 1939, passed House Bill No. 108, Vernon's Ann. Civ. St. art. 1731a, which evidenced the will of the law-making body of Texas to relinquish the rule-making power to the Supreme Court. As a check-rein, it will be observed that the Legislature reserved unto itself the right to disapprove any rule that may be proposed by the Supreme Court. Bar Ass n of Dallas v. Hexter Title & Abstract Co., 175 S.W.2d 108, 113 (Tex. Civ. App. Forth Worth 1943). The intention of the legislature to allow a rule to stand unless it is repealed by statute is expressed in the provision of section 22.004(c) whereby rules repeal only statutes that precede the rule. If the legislature wishes to supersede a rule it may do so by legislative act. This design is apparent in the language of the Rules of Practice Act, which gives the supreme court full rule-making power in civil actions. 22.004(c). Rule 199.1 should be given full force unless the legislature deems otherwise. It is true that the supreme court has approved the Uniform Format Manual, which includes a comment under the section on CSR Certification of Non-stenographic Record stating that whether or not oral depositions can be recorded nonstenographically is governed by statute. Uniform Format Manual for Reporters Records 13, 13 (2010). However, comments in the Manual are not binding, as the Manual s introduction states: [s]uch commentary does not prescribe the format or content of the record, but instead provides explanation and reference to applicable statutes and court rules. Id. at 3. Even if the supreme court endorsed the comment in the 2010 edition of the Manual, the August
2011 amendments to the Texas Rules of Civil Procedure implicitly withdraw that endorsement by way of rule 199.1. Commentators disagree on whether the statute or the rule governs. See 3 McDonald & Carlson Texas Civil Practice 13:19 (2d. ed.) (explaining that Texas rules allow for any party to record depositions nonstenographically); but see 47 Texas Practice, Discovery Practice 17:5 (2011 ed.) (noting that nonstenographic recording is governed primarily by statute). At least one Texas court has held that depositions may be recorded nonstenographically. See, e.g., Deprez v. Brewer, No. 05-94-01540-CV, 1995 WL 547094, at *5 (Tex. App. Sept. 8, 1995) (citing former Tex. R. Civ. P. 202 to conclude that the trial court erred in excluding videotaped deposition); see also Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 499 (2002) (noting that a written transcription of a nonstenographic video deposition may be used to the same extent as a deposition taken by stenographic means, but declining to reach the question of whether recording depositions nonstenographically violated Tex. Gov. Code 52.021(f)). With rule 199.1, the Texas Supreme Court joins at least fifteen other states that allow oral depositions to be recorded nonstenographically to the same extent as the Federal Rules. See 17 Rev. Litig. 1, 22 (1998). 3 Twenty-one more states allow depositions to be taken nonstenographically subject to various limitations. Id. The benefits of recording depositions nonstenographically, where it is appropriate, have been recognized. See Paisley Park Enters., Inc. v. Uptown Prods., 54 F. Supp. 2d 347, 349 (S.D.N.Y. 1999) (stating that videotapes are a means of presenting deposition testimony to juries that is superior to readings from cold, printed records ); see also Riley v. Murdock, 156 F.R.D. 130, 131 (E.D.N.C. 1994) (noting that video deposition is a superior method of conveying to the fact finder the full message of the witness in a manner that assists the fact finder in assessing credibility ). The Texas Supreme Court seeks to secure these benefits for litigants of the courts of Texas, and the legislature by way of the Rules of Practice Act has granted it the authority to do so. III. CONCLUSION For the foregoing reasons, Texas Rule of Civil Procedure 199.1 effectively repeals section 52.021(f) pursuant to section 22.004(c). 3 See the following state provisions: Colo. R. Civ. P. 30(b)(2); Del. Super. Ct. R. Civ. P. 30(b)(1); Fla. R. Civ. P. 1.310(b)(4); Ill. St. S.Ct. R. 206(g)(6); Ind. R. Tr. P. 30(b)(4); Ky. R. Civ. P. 30.02(4); La. Civ. Code Ann. art. 1440 (West 1996); Me. R. Civ. P. 30(b)(1), (4); Mich. R. Ct. 2.315; Miss. R. Civ. P. 30(b)(4); N.Y. S. Ct. R. 202.15(a); N.C. R. Civ. P. 30(b)(4); Ohio R. Civ. P. 30(B)(3); Or. R. Civ. P. 39(c)(4); R.I. Super. Ct. R. Civ. P. 30(c); Tex.R. Civ. P. 202(1). Michael J. Henke & Craig D. Margolis, The Taking and Use of Video Depositions: An Update, 17 Rev. Litig. 1, 25 (1998)