Untitled Texas Attorney General Opinion

@ffice of tfp Bttornep @eneral

&dateof bias

DAN MORALES July 16,1992

ATTORSEY

GENERAL

Honorable Merrill L. Hartman Opinion No. DM-142

Chainnan

Court Reporters Certification Board Re: Whether the Court Reporters Certifica-

P. 0. Box 13131 tion Board is subject to article 6252-13f,

Austin, Texas 78711-3131 V.T.C.S., which establishes the State Office of

Administrative Hearings (RQ-138)

Dear Judge Hartman:

In 1991, the legislature created the State Offtce of Administrative Hearings

(“the office”) by enacting into law Senate Bill 884. Acts 1991,72d Leg., ch. 591, at

2127-28. Senate Bill 884 has been codified as article 6252-13f, V.T.C.S. Section

2(b) of article 6252-13f provides that the office

shall conduct all administrative hearings in contested cases

under the Administrative Procedure and Texas Register Act

(Article 6252-13a, Vernon’s Texas Civil Statutes) that are before

an agency that does not employ a person whose only duty is to

preside as a hearings officer over matters related to contested

cases before the agency.

See &o V.T.C.S. art. 6252-13a, 0 3(2) (definition of “contested case”). Article

6252-13f applies only to state agencies. V.T.C.S. art. 6252-13f, Q 3(a). Section l(3)

of that article defines “state agency” as “a state board, commission, department, or

other agency that is subject to the Administrative Procedure and Texas Register

Act.”

You ask whether article 6252-13f applies to the Court Reporters

Certification Board (“the board”). We conclude that the board is not subject to the

p. 732

Honorable Merrill L Hartman - Page 2 (W-142)

Administrative Procedure and Texas Register Act (“APTRA” or “the act”), and

consequently, that article 62S2-13f does not apply to the board.’

By its terms, article 62S2-13f applies only to a state agency that is subject to

APTRA and that does not employ a person whose only duty is to conduct

administrative hearings in contested cases before the agency. We are advised that

the board does not employ such a person, and that instead, the chairman of the

board or his designee preside at all disciplinary hearings before the board in

accordance with chapter 52 of the Government Code, which establishes the board

and defines its powers and duties.2 One of the two requirements for application of

article 62S2-13f to a state agency is thus satisfied. To determine if the other

requirement, that the board be. subject to APTRA, is met, we must examine the

language and legislative history of APTRA and relevant case law.

APTRA applies only to state agencies. See V.T.C.S. art. 6252-13a, 00 4(a),

4A, S(a). While certain personnel practices of all state agencies and certain

functions of some state agencies are specifically exempted in section 21 of the act,

no provision of the act specifically exempts the board as a whole or the hearing

activities of the board from APTIU. See id 0 21.

‘The IcgHktivc history of senate Bii ssd dots not Mohrc your question. The testimony

before the legislature and the bii analyses document only the legis&tule’s intent to consmvc state

funds by prmiding P pool of qualikd examiners for agencies who previwdy may have coatrxtcd for

the scrviccs of heariqp examiners and the legislature’s desire to insure the independence of w

examiners by having P separate state agency employ their services. See, e.g., F’ublic Heariq on S.B.

884, Senate Comm. on State Affairs (April S,1991); 6~4 notea and House and Senate committee bii

adyxcs, S.B. 884, Bii File; House Research Orgnnivtion Bill AnaJy& at 74-76 (May 23,199l).

%‘be cbaiman and other board members have various statutory duties, in&ding the duty to

determine the cligiiity of persons applyiq for ccrtitih to engage ill shortband report& in this

state. G&t Code $0 52Ol3,52021-W, see aho P 52.011(i) (members rcceiw w--only

reimb-cot of expenses). Certifiions are issued by the supreme court on the board’s

rcummendation. Id P$S2.001(2), 52&?1. After isuwe, the. board may revoke or suspend a

reportds cmtification or reprimand the rcpxter for certain conduct. Id 00 52029(a)-@).

Disciplinary action may be taken only after notice and an opportunity for a bearing is pwided the

reporter. Id 552.029(a). AppcalofadiccipliaaryadionisbytrinldrMvointbewun~olthe

reporter’s residence. Id 0 52.030. By statute, the chairmao or his dcsigwc must preside at disciplinary

beaings that tbc.board conducts. Id. 0 52028(c). The statute also rquLcs an ‘rctivc distrkt jud@ to

serve as the chairman. Id 0 52011(a)(l).

p. 733

Honorable Merrill L Hartman - Page 3 D-t-142)

Section 3( 1) of APTRA, however, excludes “the courts” from the definition of

“agency”for purposes of the act? Since the act does not define that phrase, we turn

to its legislative history. AFTRA was enacted in 1975 on adoption of Senate Bill 41.

Acts 1975,64th Leg., ch. 61. The definition of “agency”in section 3(l) of Senate Bill

41 contained the exclusion for “the courts” that appears in the current law. Id

# 3(l), at 137. The legislative history of Senate Bill 41, however, does not elucidate

the scope of the exclusion. See Testimony before the Senate Comtn. on Inter-

governmental Relations (January 30, 1975) and the House Comm. on Judicial

Affairs (March 19, 1975); see also that House committee’s bib analysis, S.B. 41, Bill

File; House Cornm. on the Judiciary, An Adminirrmtiue Rxedun? AU for Texas

(1974).

Senate Bill 41 was based on the Model State Administrative Procedure Act

adopted in 1961 by the National Conference of Commissioners on Uniform State

Laws (“the commissioners”). M&alla, hposed Aa?ninirin+e Wedum Act, 37

TEX. B.J. 1163 (1974); see taIso 15 UNIFORM LAWS ANNOTATED 147 (199-O)

(includes copy of 1961 model act) (hereinafter “U.L.A.“). Section (l)( 1) of the l%l

model act defines “agency”to include “each state board, commission, department or

officer, other than the legislature or rhe cowfs, author&d by law to make rules or

determine contested cases.” 15 U.L.A. at 147 (brackets deleted and emphasii

added). The 1961 model act, like the Texas act, contains no definition of the phrase

“the courts.

The 1961 act was the second model administrative act adopted by the

commissioners. The first model administrative procedure act was adopted in 1946.

SeegenemQ 9C U.L.A. 174 (1957) (includes copy of 1946 model act). The 1946 act

defines “agency”as “any state board, commission, department, or officer authorized

by law to make rules or adjudicate contested cases, except those in r&r Zegirkrtiveor

p. 734

Honorable Merrill L. Hartman - Page 4 @I-142)

judicial branches.” 9C U.L.A. at 179 (brackets deleted and emphasis added)? The

commissioners’ comments accompanying the 1946 and 1961 acts do not elaborate on

the meaning of the respective phrases. 9C U.LA. at 174-78 (1946 act); 15 U.LA. at

148-49 (1961 act). Nor do the comments to the 1961 act explain the reason for the

change in language. 15 U.L.A. at 148-49.

The third and most recent model administrative procedure act was adopted

in 1981. 15 U.LA. 1. Section l-102 of the 1981 act defies “agency,”and like the

1961 act, excludes “the courts.” 15 U.LA. at 10-11. The commissioners’ comments

to section l-102 state in part:

Tbe 1961 Revised Model Act also excluded, as does this

definition, the legislature and the courts. Note that it is only ‘the

legislature’ and ‘tile courts’ that are excluded, and not ‘the

legislative branch’ and ‘the judicial branch,’ and that exemptions

from the Act are to be construed narrowly. [Emphasis in

original.]

15 U.LA. at 12.5 We found no indication in the legislative history of the Texas act

that the Texas legislature was aware of or intended the narrower meaning of the

phrase “the courts.” See page 3 supra. Nor did we find any mention of a narrower

meaning for the phrase in the commentary about the Texas act published soon after

its enactment. See, e.g., McCalla, The AdministrativeProcedure and Texas Register

Act, 28 BAYLOR L. REV. 445 (1976); State Bar of Texas, Workshop Guide for the

New AdministrativeProcedure and Texa RegisterAct (1975); see alro F. E. Cooper, 1

State Adminirtrutive Law 97-107 (1965) (stating in discussion on 1961 model act

4Languagesimilarlo the quoteddefmition was used in the definition of “agenw in article

6252-U, a statute that addressedgenerally the authorityof state agencies to promulgate rules. That

statute.was repealed by section 22 of Senate Bill 41, the bill that enacted AFTRA. Acts 1975, 64th

Leg., ch. 61, 0 22, at 148; for prior law see Acts l%l, 57th Leg., cb. 274, at 581, as amended by Acts

1962, 57th Leg., 3d C.S., ch. 31, 5 1, at 90 (“apen means “any state board.. . except those in the

legislative01 judicial branches”). State cases construingarticle6252-U do not address issues pertinent

to your question.

sAs support for this explanation, the comments reference only a 1975 article on the Iowa

admiinistrativeprocedure act by Earl Boafield. See Bontield, The Iowa Administrative Procedure

Act: Backgrowr~ Comtn~tion, Applicability, Public Access to Agency hw, Tlw Rulemaking Process, 60

IOWA L.RJzv.731,763-64 (1975). The author, however,in that article does not delineate the scope of

the phrase “the courts,”but only states various reasons for excluding “the courts”from the Iowa act,

including reasons such as the availabiity of altern&iveproceduralsafeguardsin the courts, that would

supporta narrowermeaning of the phrase.

p. 735

Honorable Merrill L Hartman - Page 5 (DM-142)

definitions that “agency”was purposefully drafted in general terms to accommodate

varying state needs).

In contrast to the narrow meaning of the phrase “the courts” suggested by the

change in the model act definition of “agency”and the comments to the 1981 model

act, a number of other states’ judicial decisions have construed the phrase “the

courts” more eapansivelyP For instance, the supreme courts of Rhode Island and

Louisiana have construed the phrase to mean the judicial branch of government.’

The Rhode Island court in two different decisions has held that the Rhode Island

administrative procedure act does not apply to either the state bar association or the

Disciplinary Board of the Rhode Island Supreme Court See Ber;berian v.

DisciplinatyBd of Rhode IslandSupreme Cowt, 427 A.2d 1332 (ICI. 1981); Petition

of Rhode I&andBar A,ssMn, 374 A.&l 802 (R.I. 1977). The court in Berkian

described the disciplinary board as an agency of the court and cited its earlier

decision for the proposition that the administrative procedure act was not applicable

to the judicial branch of government. In its earlier decision, the Rhode Island court

had referred to the definition of “agency”in the state act, which like the Texas act,

excludes “the courts,” and had stated “[i]t is obvious that the agency described by the

APA is a governmental entity apart from the judicial or legislative branches.” Id at

803 (also noting inability of bar association to decide contested cases or make rules

without court approval).

In support of its holding in Petit&mof Rhde Island Bar AmaXon, the

Rhode Island court cited the decision of the Louisiana Supreme Court in Bubkeur

v. Judicimy Cotnm’n, 341 So.2d 396 (La 1976). One of the issues in Bubitreaur

p. 736

Honorable Merrill L Hartman - Page 6 (D-l-142)

concerned the adequacy of the procedures before the Judiciary Commission in a

hearing held to determine the applicability of a particular judicial canon to ten state

judges. The state supreme court in Bubineaur construed the exchrsion for “the

courts” in the Louisiana administrative procedure act to mean the judicial branch of

state government and held therefore that the act did not apply to the Judiciary

Commission, an entity it described as “an independent, disciplinary body within the

judiciary branch.” Id. at 401.

The Supreme Court of Connecticut has not as clearly defined the scope of

the phrase “the courts” in the Connecticut administrative procedure act. In one

case, the court held the Connecticut act did not apply to a statewide committee

required by statute to review complaints concerning attorney misconduct

Sob&k-i v. Statewide Grievance Comm, 576 A.2d 532 (Can. 1990). The

Connecticut court held the act inapplicable to the committee, and in so doing,

referred to the exclusion for “the courts” in the act. It did not, however, expressly

equate the phrase with the entire judicial branch. Instead, the court dkusse.d the

inherent authority of the courts over court officers such as attorneys, and described

the statewide committee as a supervisory arm of the court. Id. at 535-36. Thus, the

decision leaves open the possibility that only certain disciplinary entities within the

judicial branch would be part of “the courts” for purposes of the Connecticut actP

The Texas Supreme Court has not expressly equated the exclusion in

APTRA for “the courts” with entities within the judicial branch of government as

have the Rhode Island and Louisiana Supreme Courts. Nor has the Texas court

expressly stated that disciplinary entities within the judicial branch are covered by

the exclusion. In Cameron v. Greenhill, 582 S.W.2d 775 vex. 1979). the Texas court

held only that the exclusion for “the courts” excepts from APTRA the administrative

activities of the court. The petitioner in Cameron had challenged in district court an

order of the supreme court assessing a one-time fee against members of the State

Bar of Texas on the basis that the order was not in compliance with APTF&A. The

court’s order had been issued in accordance with the provisions of the State Bar Act.

See Gov’t Code 00 81.024,81.054 (rulemaking procedures followed in assessing fees

p. 737

Honorable Merrill L Hartman - Page 7 (W142)

against bar members)? In response to the petitioner’s argument, the supreme court

stated the decision of the Austin appeals court correctly determined “that provisions

of the Administrative Procedure Act do not apply to the acts of this Court”

Comemt, 582 S.W.2d at 777. The Austin appeals court had relied on the

unqualified exemption of “the courts” in APTRA to conclude that “the courts are

entirely exempt from the Act, regardless of the capacity [administrative or judicial]

in which they act.” Camenm v. Greenhill, 577 S.WJd 389 (Tex. Civ. App.-Austin

1979).‘0

The Texas Supreme Court also addressed the application of APlRA to

judges in L.in&ay v. Steding, 690 S.W.2d 560 (Tex. 1985). In L&a@, the court

determined that the actions of a county judge denying a wine and beer license

pursuant to chapter 61 of the Alcoholic Beverage Code would be reviewed in the

courts in accordance with the substantial evidence requirements of APTRA. While

the supreme court therein described the co~ty judge’s actions pursuant to chapter

61 as ones “taken in an administrative, rather than a judicial capacity,” the decision

turned more on the role of the judge as part of the review process of the Alcoholic

Beverage Commission, a state agency generally subject to APTRA. See L&fray,

690 S.W.2d at 56263 (referring to code provisions providing appeal from judge’s

decision was against commission alone); see L&OAko. tiev. Code 08 531, 5.43,

11.62 - .67 (describing powers to make rules and decide contested cases); V.T.C.S.

art. 6252-13a, 5 21(h) (specific exemption for appeal under Alcoholic Beverage

Code 0 32.18 from 0 19(b)(l) of APTRA).II

p. 738

Honorable Merrill L. Hartman - Page 8 (DM-142)

Neither Centeron nor Lindrqy resolves your question. On the basis of those

decisions, we can state with certainty only that APTRA will not apply to the

administrative activities of a court acting solely as a court, but will apply to the

activities if the court undertakes them on behalf of and as part of an agency within

the executive branch. Neither Canumn nor Lkdsay establishes that the phrase “the

courts” means the entire judicial branch or includes along with the courts themselves

the disciplinary entities within that bran&u Nor do we read those decisions as

precluding either construction of the phrase.

We demonstrate below that the board is an entity within the judicial branch

that engages in disciplinary activities on behalf of the judiciary. Consequently, the

issue here is whether APTRA applies to such activities. Since no Texas court has

addressed that issue, we must decide if a Texas court faced with the issue here,

would follow the lead of the state and federal courts that have broadly construed the

exclusion for “the courts.” We believe that the court would do so.

We now turn to the history of the statutory provisions in chapter 52 of the

Government Code authorixing regulation of court reporters since that history

documents the status of the board as a disciplinary arm of the courts. In 1975, the

legislature enacted into a law a provision providing that the Texas Supreme Court,

under its rulemaking authority, “provide for the duties and fees of court reporters in

all civil judicial proceedings,” Acts 1975,6&h Leg., ch. 319,s 1, at 826 (now codified

as Gov’t Code 0 52.046). Apparently, the provision enacted in 1975 did not resolve

the problem the courts were having in obtaining timely records for appeals from

lower courts, and the following session, the legislature adopted Senate Bill 586,

p. 739

Honorable Merrill L. Hartman - Page 9 (EM-142)

which established the Texas Court Reporters Committee. Acts 1977,65th Leg., ch.

438, at 1155 (codified first as V.T.C.S. article 2324b); Public Hearing, Senate

Comm. on Juris. (testimony of Senator Schwartz) (March 8.1977). The committee

members, who were to be appointed by the supreme court, were authorized by the

new Jaw to examine applicants for court reporter certifications, certify to the

supreme court applicants who were qualified, and revoke certifications of certified

reporters who had engaged in prohibited conduct. Acts 1977, 65th Leg., ch. 438,

5%12, 13, at 1156-58 (now codified as G&t Code 30 52.013(a)-(b), 52.023-.024.

52.027-30, at 115658. In addition, section 9 of the new law provided the committee

“was charged with the executive functions necessary to effectuate” the purposes of

the act, while sections 12(f) and 13(e) provided that rules not inconsistent with the

committee’s examination and disciplinary powers “may be promulgated by the

supreme court.” Id (now codified as Gov’t Code 80 52.002,52.013(d)).

Justice Jack Pope, then a member of the Texas Supreme Court, testified at

the senate committee hearing on March 8, 1977, about the need to regulate the

profession of shorthand reporting, and to enact Senate Bill 586 and bring “the court

reporting profession into the judiciary of Texas.” See &o Testimony of Senator

Schwartz during debate on Second Reading in the Senate, March 17, 1977 (bill sets

up within the supreme court the capacity to issue certifications); Testimony of

Representative Powers during debate on Second Reading in the House, May 19,

1977 (bill creates a committee under the supervision and direction of the supreme

court, which would have control of the committee). Justice Pope also described the

new Jaw “as the additional pieces of legislation that we [the court] felt were

necessary to implement” regulatory control by the court. Thii wmment may refer to

the provisions in the new law investing the board with supervisory powers over

anyone practicing as a shorthand reporter in the state wurts, including the powers

to issue certifications to shorthand reporters and to revoke the certification of any

shorthand reporter engaged in prohibited conduct. Such powers generally are

considered to be within the domain of licensing boards in the executive bran&u

%ioce. the early 19Ws, Texas statutes have authaizcd attain courts to appoint of6cial court

rqorters, mado those. rqmten of8ccrs of the cmrts, and required them to take the oath required of

of5cm by the constitution. Tu. Rev. t3. Stat. arts. 192&19’Z2(1911); see Go+t Chic 8 52.041,

52.045 (simii pmvisior~~ia current law); see a130 Tcx. Ccmst. ti XV& f 1. Art& 192l, one of thase

earlystatutes,provideda methodfor cxambah and ce&cath of offichl reporters. Id. art. 1921.

Rusuanttothet~~priortoappointmentrs~offieLli.cportw,apcnon~tobceamincdbya

~uccofthrccmcmbs~ofthcrtltcbsrwho~tobc~lcetcdbytbe apphtbgjudge. Upon

~passagcofthccxaminatiwbymcxamincc,a~dtbceomminccsMtoircuetht

cxambeeacertXicatewhichwastobctikdwiththcrcoxdsofthecout. Article194motk1911

statutc,providcdioccltaiocir eumstanccsforthcrem~of8npaatcr~hicofiidal~bya

mmmittceofthrccattorncysappointcdbythecouft. Thc1911rtaNcsalsoauthorizcdtk

p. 740

Honorable Merrill L Hartman - Page 10 (DEs142)

The legislature amended the 1977 law in 1983 by enacting Senate Bill 565.

Acts 1983,6&h Leg., ch. 541, at 3139. According to the available legislative history,

the name of the committee was changed to the Court Reporters Certification Board

to indicate that it was a state entity, and not a private association for court reporters.

House Study Group Bill Analysis to Senate Bill 565 (April 27, 1983), at 2;

Testimony of Senator Washington during second reading of the bill (March 29,

1983). That history also indicates that no substantive change was intended with

regard to the jurisdiction of the Texas Supreme Court over the board.14 Testimony

of Senator Washington and C. Raymond Judice, then executive director of the

board, Public Hearing on S.B. 565, Senate Comm. on Jurisprudence (March 1,

1983). The amended article subsequently was codified as part of chapter 52 of the

Govermnent Code.

(footnote conthud)

appointment of competent stenographers in the district and county courts, but provided no procedure

for judicial determination of competency. Tcx. Rev. Civ. Stat. arts. 193&33 (1911).

Tk 1911 pw&ions CoOCCrningWlUt~portcrsIWCpartoftitk.37ofthCTWiSSWtC&a

titleaddrcssingpracticciatheatatedistrktaadcouatycowts. Tkylaterbccdmepartoftitle42ofthe

1925statutyatitlcabofoeusingonprndiccinthcdirtridladcountycourts. Tcx.Rcv.Civ.Stat.art.

2371-n (1927). As subscqucntly amended$ those provisions wm c&tied 8s part of chapter 52.

Chapter 52 is a part of subtitle D of title 2 of the current statutes. Subtitle D is e.ntitkd “Judicial

Personnel and Officials,. while title 2 is entitled the ‘hdicial Branch.~ Appropriaths by the

lcgidaturc to the board also appear in title IV of the appropriations act, the. title devoted to the

judiciary. See, e.g., Tu H.B. 1,72d Leg., lst C.S., ch. 19, at 957.

t%ection 9 of Senate Bill 565 added section 16A to article 2324b. which provided tbat the

suprcmc cowl ‘may promulgate rides,, not incoosistent witb this Act, govuning the axti6catioa and

conduct of court reporters and persons who engage in the practice of &or&and rcpozting.. Ads 1983,

68tb Leg., cb. 541,s 9, at 3168; see G&t Ccdc 0 52.002 (current law). T&e supnmc court’s current

rub coataia detailed provisions for the examination, cedkation, and disciplinaxy auivitkoftbc

board, iachdiog provisions addressing the procedures to follow during disciplinary hearings. The bill

analysis accompanying Senate Bii 565 @ains a rulcmaking pro&ho similar to the one that was

crudcdrrbringingtogcthcriooncplaccthcvariousrcfe~inihc19n~totbccourt’s

rulcmakiag-rs. Inconjunctionwitbthat~~ti~thcbillrnrlyrisMtertbrttherutcmrldag

rquirements of AFl-RA arc inapplicable to the Texas Supreme Court, and cites as support the

d.hitionof”agca~inscdion3(1)ofAPTR4. wedonotcoostruetheab6cnccofm-

statcmcat coaccmiag tbc appkab8ity of APTRA to the disciplinary hearing of the board as

dispositivc of your qucstioa The statement c4mccmirlg the inapphbiity of the rulcmriting

rquiremcats of AFTRA was included as part of the bill amsly& simply to sati!& the House Rub that

rquircd the Ldl adpis wcompmyiag a cauaittcc report to contain ‘a 6tatemcDt generally dcwibhg

thescopeofandthereasons for any rulcmalring authority delegated to a state oftI=, department,

agency.’ See House Rule 4 0 29(c)(4) (1983 rules); House Rule 4 0 33(c)(4) (1991 rub).

p. 741

Honorable Merrill L Hartman - Page 11 CM-142)

In summary, we believe a Texas court would wnstrue the exclusion for “the

courts” in APIRA to cover the board. The history of the statutory provisions

authorizing regulation of the practice of shorthand reporting documents the status

of the board as a disciplinary entity within the judicial branch. Thus, we also believe

that a Texas wurt would find that APTRA does not apply to the board, and

consequently. that the board is not subject to article 6252-13f.

SUMMARY

The Court Reporters Certification Board is not subject to

article 6252-135, V.T.C.S., which establishes the State Office of

Administrative Hearings.

DAN MORALES

Attorney General of Texas

WJLL PRYOR

First Assistant Attorney General

MARYKELLER

Deputy Assistant Attorney General

RENEAHIcKs

Special Assistant Attorney General

MADELEINE B. JOHNSON

Chair, Opinion Committee

Prepared by Celeste A. Baker

Assistant Attorney General

p. 742