DAN MORALES

ATTORSEY GENERAL 

## @ffice oftfp Bttornep @eneral

&date of

## bias July 16,1992

Honorable Merrill L. Hartman Chainnan Opinion No. DM-142

Court Reporters Certification Board Re: Whether the Court Reporters CertificaP. 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 6252-13fprovides 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 6252-13fapplies only to state agencies. V.T.C.S. art. 6252-13f,Q3(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. 732Honorable Merrill L Hartman - Page 2 (W-142)

Administrative Procedure and Texas Register Act (“APTRA” or “the act”), and consequently, that article 62S2-13fdoes not apply to the board.’
By its terms, article 62S2-13fapplies 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 ofAPTRA and relevant case law.

APTRA applies only to state agencies. See V.T.C.S. art. 6252-13a, 004(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 ofthe board from APTIU. Seeid 021.

‘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 Ppool 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’ublicHeariq 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 BillAnaJy& at 74-76(May23,199l).

%‘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 $052Ol3,52021-W, see aho P52.011(i) (members rcceiw w--only reimb-cot of expenses). Certifiions are issued by the supreme court on the board’s rcummendation. Id P$S2.001(2), 52&?1. After isuwe, the. board may revoke or suspend a reportds cmtification or reprimand the rcpxter for certain conduct. Id 0052029(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. Bystatute, the chairmao or his dcsigwc must preside at disciplinary beaings that tbc.board conducts. Id. 0 52028(c). The statute also rquLcs an ‘rctivc distrktjud@ to
serve as the chairman. Id 052011(a)(l).

p. 733Honorable Merrill L Hartman - Page 3 D-t-142)

Section 3(1)ofAPTRA, 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 1975on 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 Intergovernmental 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 AdminirrmtiueRxedun? 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 UNIFORMLAWSANNOTATED 147 (199-O) (includes copy of 1961model 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 1961model 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 1946model act). The 1946act defines “agency”as “any state board, commission, department, or officer authorized by law to make rules or adjudicate contested cases, except those in r&rZegirkrtive or

p. 734Honorable 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 1946and 1961acts do not elaborate on the meaning ofthe respective phrases. 9C U.LA. at 174-78(1946 act); 15U.LA. at 148-49(1961 act). Nor do the comments to the 1961act explain the reason for the change in language. 15U.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 1961act, excludes “the courts.” 15U.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 ‘thejudicial branch,’ and that exemptions from the Act are to be construed narrowly. [Emphasis in original.] 15U.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 Administrative Procedure and Texas Register Act, 28 BAYLOR L. REV. 445 (1976); State Bar of Texas, WorkshopGuidefor the NewAdministrative

Procedureand Texa Register Act (1975); see alro F. E. Cooper, 1 StateAdminirtrutiveLaw 97-107 (1965) (stating in discussion on 1961 model act

4Language

similar lo thequoteddefmitionwas used in the definition of “agenw in article 6252-U, a statutethat addressedgenerallythe authorityof state agenciesto promulgaterules. That statute. was repealedby section 22 of Senate Bill 41, the bill that enactedAFTRA. Acts 1975,64th Leg.,ch. 61, 0 22,at 148;for priorlawsee Acts l%l, 57thLeg.,cb.274,at 581, as amendedbyActs 1962,57th Leg., 3d C.S., ch. 31, 5 1, at 90 (“apen means “anystate board..
.except those in the legislative01

judicialbranches”).Statecasesconstruing article6252-U do not addressissuespertinent toyourquestion.

sAs supportfor this explanation,the comments referenceonly a 1975 articleon the Iowa admiinistrative

procedureact by Earl Boafield. See Bontield, The Iowa Administrative Procedure Act: Backgrowr~ Comtn~tion, Applicability, PublicAccess toAgency hw, Tlw Rulemaking Process, 60
**IOWA** L.RJzv.

731,763-64 (1975). The author,however,in thatarticledoes not delineatethe scope of the phrase“thecourts,”

but only statesvariousreasonsfor excluding“thecourts” from the Iowa act, includingreasonssuch as the availabiityof altern&ive procedural

safeguards

in the courts,thatwould supporta narrower

meaningofthe phrase.

p. 735Honorable 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 ofthe phrase “the courts” suggested by the change in the model act definition of “agency”and the comments to the 1981model 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. Disciplinaty

Bd ofRhodeIsland

Supreme Cowt,427 A.2d 1332 (ICI. 1981);Petition ofRhodeI&and

Bar 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]tis obvious that the agency described by the APA is a governmental entity apart from thejudicial or legislative branches.” Id at 803 (also noting inability ofbar association to decide contested cases or make rules without court approval).
In support of its holding in Petit&m of Rhde IslandBarAmaXon, the Rhode Island court cited the decision ofthe Louisiana Supreme Court in Bubkeur
v. Judicimy Cotnm

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

p. 736Honorable 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 thejudicial 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 ofthe 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 ofthe 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.2d775 vex. 1979).the Texas court held only that the exclusion for “the courts”excepts from APTRA the administrative activities ofthe 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 ofthe State Bar Act. See Gov’t Code 00 81.024,81.054 (rulemaking procedures followed in assessing fees

p. 737Honorable Merrill L Hartman - Page 7 (W142)

against bar members)? In response to the petitioner’s argument, the supreme court stated the decision ofthe 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 ajudicial 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 032.18from 0 19(b)(l) ofAPTRA).II

p. 738Honorable 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 ofthe 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 ofthe 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 civiljudicial 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 1975did 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. 739Honorable 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 ofthe new law provided the committee “wascharged 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 8052.002,52.013(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 oflicensing 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,

provided

a method

for 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. 740Honorable Merrill L Hartman - Page 10 (DEs142)

The legislature amended the 1977law in 1983by enacting Senate Bill 565. Acts 1983,6&h Leg., ch. 541, at 3139. According to the available legislative history, the name ofthe 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 forjudicial determination ofcompetency. 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 052.002 (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. wedonotcoostruetheab6cnccofmstatcmcat 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 ofAFTRA was included as part ofthe bill amsly& simply to sati!& the House Rub that rquircd the Ldl adpis wcompmyiag a cauaittcc report to contain ‘a 6tatemcDtgenerally dcwibhg thescopeofandthereasons for any rulcmalring authority delegated to a state oftI=, department, agency.’ See House Rule 4 029(c)(4) (1983rules); House Rule 4 033(c)(4) (1991 rub).

p. 741Honorable 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 ofthe board as a disciplinary entity within thejudicial 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 ofTexas

WJLLPRYOR 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