                          @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
