                                    ATTORNEY           GENERAL      OF   TEXAS
                                                GREG     ABBOTT




                                                 September l&2006



The Honorable Bruce Isaacks                                 Opinion No. GA-0461
Denton County Criminal District Attorney
Post Office Box 2850                                        Re: Whether an indigent parent is entitled
Denton, Texas 76202                                         to receive a free transcript of hearings and
                                                            depositions in cases where the state initiates
                                                            proceedings under chapter 262 of the Family
                                                            Code (RQ-0459-GA)

Dear Mr. Isaacks:

        You seek our guidance regarding “payment for transcripts in cases where the state initiates
proceedings against a child’s parents under chapter 262 of the Family Code wherein both parents
have been deemed indigent by the court and granted appointed attorney ad litems.“’ Specifically,
with respect to non-appellate transcripts, you ask:

                    1. Is an indigent parent entitled to free non-appellate transcripts of
                    hearings and depositions? If so, is the official court reporter and/or
                    contract court reporter required to produce            same without
                    compensation or is the county obligated to pay the court reporters’
                    fees?

                    2. Does a District Court Judge have the authority to order the official
                    court reporter to produce the requested non-appellate transcripts
                    without extra compensation?

                    3. Does aDistrict Court Judge have the authority to order the County
                    to pay for non-appellate transcripts of hearings and depositions?

                    4. May the costs of non-appellate transcripts be assessed against the
                    County as ad litem attorney’s fees or expenses?




        ‘Letterfrom Honorable Bruce Isaacks, Denton County CriminalDistrict Attorney, to Honorable Greg Abbott,
Attorney General of Texas (Mar. 1, 2006) (on file with the Opinion Committee, nlso availableaf http://www.oag
.state.tx.us) [hereinafter   Request Letter].
The Honorable Bruce Isaacks - Page 2             (GA-0461)




                  5 May the costs of non-appellate transcripts, ordered by an attorney
                  ad litem, be assessed against the County under the authority of [Texas
                  Rule of Civil Procedure] 145?

Request Letter, supya note 1, at 2 (footnotes omitted).    Finally, with respect to appellate transcripts
you ask:

                  Assuming an indigent parent perfects an appeal after the fmal
                  judgment was entered, under what circumstances, if any, is the
                  County obligated to pay for an indigent parent’s appellate transcript?

Id. at 3.

I.          Background

          By way of background, you inform us that the “Texas Department of Family and Protective
Services        , through the local District Attorney’s Office, filed a suit affecting the parent-child
relationship in which termination of the parent-child relationship was requested.” Id. at 1. You
further inform us that both parents were deemed indigent by the court and were each appointed an
attorney ad litempursuant to section 107.013, Texas Family Code. See id. Several depositions were
conducted and adversarial hearings took place during the pendency~of the suit, “but prior to trial or
a final judgment.” Id. You tell us that court reporters (official court reporters and contract court
reporters) took stenographic notes at these hearings and depositions. See id. In preparing for the
trial, the attorney ad litem for one of the parents requested the court reporters to provide transcripts
of the hearings and depositions.      See id. at 1-2. You inform us that the official court reporter
completed the transcripts and determined the cost to be $2,000.00. See id. at 2. You state that the
requesting attorney refused to pay, claiming that the indigent client was entitled to free transcripts
in preparation for the trial. See id.

II.         Legal Background

         The United States Constitution provides many protections to those~ who are indigent.
Through the protection of the Due Process and Equal Protection Clauses of the Fourteenth
Amendment, indigent criminal defendants have been provided a free trial transcript for appeal,
appointed counsel at trial and on appeal, and certain expert witnesses. See Grz$Tnv. Ill., 351 US.
12 (1956) (appellate transcripts); Gideon v. Wainwvighi, 372 U.S. 335 (1963) (appointed counsel at
trial); Douglas v. Cal., 372 U.S. 353 (1963) (appointed counsel on appeal); Ake v. Okla., 470 U.S.
68 (1985) (expert witnesses). In the context of civil proceedings, indigent individuals have been
afforded access to the courts to pursue a divorce without the imposition of filing and process fees.
See Boddie v. Corm., 401 U.S. 371 (1971).

        The Fourteenth Amendment also affords some protection to indigent parents when the civil
context is a termination proceeding. Specifically, the United States Supreme Court has recognized
that “equal justice” guarantees an indigent parent in a termination proceeding the right to an appeal.
The Honorable Bruce Isaacks - Page 3                     (GA-0461)




See M.L.B. v. S.L.J., 519 U.S. 102,107 (1996)? And borrowing from criminal,jurisprudence,     the
Supreme Court has provided an indigent parent in a termination proceeding the right to counsel in
some circumstances      and held that a “clear and convincing” burden of proof standard is
constitutionally required in parental termination proceedings. See Lass&r v. Dep’t of Sot. Servs.
ofDurham County, MC., 452U.S. IS, 32 (1981) (recognizingrightto       appointment ofcounsel when
warranted by the character and difficulty of the case); Suntosky v. Kramer, 455 U.S. 745, 767-70
(1982) (recognizing right to “clear and convincing” standard).

        Texas provides an indigent parent facing termination of parental rights with a statutory right
to counsel. See TEX. FAM. CODE ANN. 5 107.013(a)(l) (Vernon Supp. 2006). And the Texas
Supreme Court has held that the right to counsel includes the right to effective counsel. See In re
MS., ES,, D.S., S.S., & N.S., 115 S.W.3d 534, 544 (Tex. 2003). One Texas court of appeals has
held that the statutory right to counsel also includes the right to appointment of appellate counsel.
See In re T.V., 8 S.W.3d 448,449-50 (Tex. App.-Waco             1999, no pet.). By statute, an indigent
parent in Texas also has a right to a free trial transcript for an appeal. See TEX. FAM. CODE ANN.
5 109.003(a) (Vernon 2002).

         Despite any protection otherwise given to an indigent parent in a termination proceeding, we
find no case, from Texas or any other state or federal jurisdiction, that considers non-appellate, pre-
trial hearing or deposition transcripts. Similarly, no Texas statute expressly addresses the question.
Consequently, we analyze the issue with reference to applicable constitutional principles.

III.     Legal Analysis

         A.     Provision of non-appellate          transcripts

        The Due Process Clause of the Fourteenth Amendment to the United States Constitution
provides that “[n]o State shall . deprive any person of life, liberty, or property, without due process
of law.” US. CONST. amend. XIV, § 1. Due process requires that a state not deprive an individual
of a protected liberty interest without first providing appropriate procedural safeguards.3 See
Mathews v. Eldridge, 424 U.S. 3 19,332-33 (1976). Once it is determined that due process applies,
the question is what process is due. See Logan v. Zimmerman Brush Co., 455 U.S. 422,428 (1982).

       The most basic requirement of procedural due process is the “opportunity to be heard at
a meaningful time and in a meaningful manner.” Armstrong v. Munzo, 380 U.S. 545,552 (1965).


         ‘The Supreme Court’s “equal justice” principle in the KM.         decision is supported by both due process and
equal protection concerns. See MLB., 519 U.S. at 110, 12CL2-24.

            ‘Texas courts traditionally follow federal due process interpretations of federal due process issues. See Univ.
ofEx. Med. Sch. af Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (“While the Texas Constitution is textually
different in that it refers to ‘due course’ rather than ‘due process,’ we regard these terms as without meaningful
distinction.“).   In addition, Texas courts have applied the MafJzhewsv. EMridge factors to determine whether due cm-se
of law was provided under the Texas Constitution. See Than, 901 S.W.2d at 930; Merritt v. Harris County, 115 S.W.2d
17,21 (TM. App.-Houston            [14th Dist.] 1989, writ denied).
The Honorable Bruce Isaacks - Page 4           (GA-0461)




Procedural due process “unlike some legal rules, is not a technical conception with a fixed content
unrelated to time, place, and circumstances.”    Cafeteria & Rest. Workers Union Local 473 v.
McElroy, 367 U.S. 886,895 (1961). Rather, it is flexible and calls for procedural protections as the
particular situation demands. See Morrissey v. Brewer, 408 U.S. 471,481 (1972); see also Univ. of
Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926,930 (Tex. 1995). Exactly what process is due
is determined by the practical requirements of the circumstances.      To aid in that fact-intensive
inquiry, the United States Supreme Court has established a balancing test to determine the dictates
of procedural due process in each case. See Mathews, 424 U.S. at 335. The three factors for
consideration from Mathews v. Eldridge are:

               First, the private interest that will be affected by the official action;
               second, the risk of an erroneous deprivation of such interest through
               the procedures used, and the probable value, if any, of additional or
               substitute procedural safeguards; and finally, the Govermnent’s
               interest, including the function involved and the fiscal and
               administrative burdens that the additional or substitute procedural
               requirements would entail.

Id. (citing Goldberg v. Kelly, 397 U.S. 254,263-71      (1970)). Though thenMathews case did not
involve a parental termination proceeding, its three-factor balancing test has been used as the test
by which to determine the requirements of procedural due process in termination cases. See
Santosky, 455 U.S. at 757-58; Lassiter, 452 U.S. at 27-34; see also In re MS., E.S., D.S., S.S., &
N.S., 115 S.W.3d at 54647; In re E.L.T., 93 S.W.3d 372, 378 (Tex. App.-Houston           [14th Dist.]
2002, no pet.). While we believe the three-factor balancing test of Mathews and its progeny is the
test to determine whether non-appellate transcripts should be provided at no cost to an indigent
parent, we cannot answer your question. The Mathews balancing test requires consideration and
analysis of the facts and circumstances involved in any given case~and that task is beyond the scope
of the opinion process. See Tex; Att’y Gen. Op. No. GA-0370 (2005) at 7 (stating that resolution
of fact questions is beyond the scope of the opinion process). Moreover, consideration and analysis
ofthe Mathews factors can be conducted only by the court presiding over the termination proceeding,
subject to judicial review.

        B.    Costs of non-appellate   transcripts

         You also ask as part of your first question whether the court reporter is required to produce
the non-appellate transcripts without compensation or wliether the county is obligated to pay the
court reporter’s fees. See Request Letter, supra note 1, at 2. Though they are more specific, most
of your other questions make the same inquiry about the costs of the transcripts. See id. (questions
2-5). Essentially, you want to know who pays for the non-appellate transcripts in the event a court
were to determine that the transcripts should be provided at no cost to the indigent parent. Because
we cannot determine whether an indigent parent in a termination proceeding should even be provided
the non-appellate transcripts, we can answer this cost inquiry only in a hypothetical sense. We will
therefore assume for this opinion that a trial court in a given case does decide an indigent parent
 should be provided the transcripts.
 The Honorable Bruce Isaacks - Page 5                     (GA-0461)




          No statute or judicial opinion directly tells us who bears the costs of the transcripts.
 However, Texas statutes provide limited guidance in resolving the question. When a governmental
 entity initiates a suit to terminate the parent-child relationship, the proceeding occurs under title 5
 of the Texas Family Code. Chapter 107, contained in title 5, provides that an attorney ad litem for
 a parent in a termination proceeding is entitled to “reasonable fees and expenses.” TEX. FAM. CODE
 ANN. 9 107.015(a) (Vernon Supp. 2006). The reasonable fees and expenses are to be paid by the
 parents unless the parents are indigent. See id. If the parents’ indigence is demonstrated to the court,
 the attorney ad litem must be paid the reasonable fees and expenses from the county’s general funds.”
 See id. 5 107.015(c). We believe that section 107.015, though it does not directly address your
 question, places the burden of paying the costs of representing an indigent parent in a termination
 proceeding on the public through the general funds of the county. Where a court determines that the
 indigent parent shouldbe provided the non-appellate transcripts at no cost, we believe the costs of
 the transcripts are a cost of representing the parent. The costs are therefore an expense of the
 proceeding under section 107.015 to be borne by the county rather than by the court reporter.

          C.     County’s obligation for costs of appellate transcripts

          Your final query relates to a county’s responsibility for the costs of appellate transcripts for
  an indigent parent who appeals from a termination proceeding.

           The Family Code provides that “[i]f the party requesting a statement of facts in an appeal of
’ ‘a suit has filed an affidavit stating the party’s inability to pay costs as provided by Rule 20, Texas
   Rules of Appellate Procedure, and the affidavit is approved by the trial court, the trial court may
   order the county       to pay the costs of preparing the statement of facts.” TEX. FAM. CODE ANN. 3
   109.003 (Vernon 2002). Rule 34 of the Texas Rules of Appellate Procedure refers to the “appellate
   record,” which consists of the clerk’s record and the reporter’s record. See TEX. R. APP. P: 34. You
   are concerned with whether the costs shall be borne by the county or the court reporter. See Request
   Letter, supra note 1, at 3-4 (inquiring about obligations of the court reporter). Therefore we
   understand your query about an “appellate transcript” to mean the reporter’s record (formerly known
   as the statement of facts).’


            ‘Payment from the general funds of the county is to be paid “according to the fee schedule that applies to an
  attorney appointed to represent a child in a suit under Title 3 as provided by Chapter 51.” TEX. FAM. CODEANN. 5
  107.015(c) (Vernon Supp. 2006). Title 3 ofthe Family Code is the Juvenile Justice Code. See g~neraily TEX. FM.
  CODE ANN. tit. 3 (Vernon 2002 & Supp. 2006). Section 51.10 provides that a child in a juvenile proceeding may be
  represented at ewy stage ofthe proceeding. See id. 5 51.1 O(a) (Vernon Supp. 2006). And section 51 .lO authorizes the
  court to appoint an attorney for the child in certain circumstances. See id. 5 5 1.10. where the child’s parents are unable
  to pay for the appointed attorney, the attorney “shall be paid from the general fund of the county” according to the
  schedule in article 26.05 ofthe Code of Criminal Procedure. Id. 5 5 1,10(d), (i). The schedule in article26.05 authorizes
  the appointed attorney for indigent criminal defendants to be paid reasonable attorneys fees for specified services under
  the requisite fee schedules developed by the various judges of each county. See TEX. CODEGRIM.PROC.ANN. art.
  26.05(+(b)    (Vernon Supp. 2006). Under article 26.05, the appointed counsel shall also be “reimbursed for reasonable
  andnecessary expenses.” Id. art. 26.05(d).

           ‘“The appkllate record consists ofthe clerk:s record, and ifnecessary to the appeal, the reporter’s record.” TEX.
  R. APP. P. 34.1. The clerk’s record is what used to be called the transcript and the reporter’s record is formerly known
                                                                                                                (continued...)
The Honorable Bruce Isaacks - Page 6                  (GA-0461)




         Rule 20 of the Texas Rules of Appellate Procedure provides that an indigent party who tiles
an uncontested affidavit of indigence and a timely notice of appeal may proceed in an appellate court
“without advance payment of costs.” TEx. R. APP. P. 20.1(a). Where the appellant’s indigence is
established, “the trial court clerk and the court reporter must prepare the appellate record without
prepayment.” Ia’. 20.1(i). Ifthe indigent appellant is later able to pay or makes a partial payment of
the costs of the appeal, Rule 20 provides for the allocation of the payment to the officials to whom
costs are due. See id. 20.1(k)-(I). Section 13.003, Civil Practice andRemedies Code, requires that
the court reporter provide the reporter’s record “without cost” to an indigent appellant whose
affidavit is tiled under the rules of appellate procedure.~ See ‘Ikx. CIV. PRAC. & REM. CODE ANN.
5 13.003(a) (Vernon 2002); see also In re VunDe Water, 966 S.W.2d 730,733-34 (Tex. App.-San
Antonio 1998, no pet.) (construing the predecessor to rule 20 of the Texas Rules of Appellate
Procedure inpuri mater& with section 13.003). Thus, in the ordinary civil appeal the court reporter
does not receive payment for the reporter’s record unless and until the indigent appellant makes a
partial payment or is later able to pay the costs.

         When an appeal is taken from a suit affecting the parent-child relationship under title 5 of
the Family Code, and the appellant has tiled the affidavit of indigence under Texas Rule of Appellate
Procedure 20, “the trial court may order the county in which the trial was held to pay the costs of
preparing the statement of facts.” TEx. FAM. CODE ANN. 5 109.003(a) (Vernon 2002). The word
“may” usually “creates permissive authority or grants permission or a power.” TEx. GOV’T CODE
ANN. 5 3 11 .016 (Vemon2005) (Code Construction Act); see also Tex. Att’y Gen. Op. No. GA-03 19
 (2005) at 3. We find no indication in the statute that the word “may” has a mandatory meaning.
Thus, under section 109.003 a court may, but is not required to, assess the costs of the court
reporter’s record to the county. A county is obligated to pay for the reporter’s record for an indigent
parent’s appeal when it has been ordered to do so by the court.




as the statement of facts.” Shrepee Y. Sfate, No. Ol-96s01386CR,   1998 WL 55283, at * 3 (Tex. App.-Houston   [lst
Dist.] Feb. 12, 1998, pet. refd).
The Honorable Bmce Isaacks - Page 7           (GA-0461)




                                       SUMMARY

                        The three-factor balancing test of Mathews v. Eldridge and its
              progeny is the legal test to determine whether non-appellate
              transcripts should be provided at no cost to an indigent parent in a
              state-initiated proceeding to terminate the parent-child relationship.
              Because of its fact-intensive nature, only the presiding court can
              conduct the appropriate Mathews analysis. In the event that a court
              were to find an indigent parent should be provided the non-appellate
              transcripts, we believe the costs of the transcripts are a cost of
              representing the parent and therefore an expense of the proceeding
              under section 107.0 15, Texas Family Code, to be borne by the county.

                       A county is obligated to pay for the court reporter’s record for
              the indigent parent’s appeal when it has been ordered to do so by the
              court under the Texas Family Code.




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Cornrnittee
