                                            GREG       A B B O T T




                                                March 5,2007


The Honorable Shelia Bailey Taylor                       Opinion No. GA-0524
Chief Administrative Law Judge
State Office of Administrative Hearings                  Re: Whether the State Office of Administrative
Post Office Box 13025                                    Hearings is required to furnish a free transcript in
Austin, Texas 7871 1-3025                                an administrative driver's license suspension
                                                         appeal (RQ-0522-GA)

Dear Judge Taylor:

        You ask whether the State Office of Administrative Hearings ("SOAH) is required to
furnish a free transcript in an administrative driver's license suspension appeal.'

          SOAH "is a state agency created to serve as an independent forum for the conduct of
adjudicative hearings in the executive branch of state government." TEX. GOV'TCODEANN.
5 2003.02 1(a) (Vernon Supp. 2006); see generally Pete Schenkkan, Texas Administrative Law:
Trials, Triumphs, andNew Challenges, 7 TEX.TECHADMIN.          L. J. 287,323 (2006) ("Unlike all other
state agencies, [SOAH] has no specific substantive regulatory policy responsibilities at all. Instead,
its sole job is to provide judges for most administrative adjudications."). You inform us that SOAH
"conducts administrative driver's license suspension hearings pursuant to" chapters 524 and 724 of
the Texas Transportation Code. Request Letter, supra note 1, at 1.

        Chapter 524 of the Transportation Code concerns administrative proceedings for suspending
the driver's license of a person who fails to pass a sobriety test. See TEX.TRANSP.CODEANN.
$5 524.001-.051 (Vernon 1999 & Supp. 2006). Chapter 724 of the Code, concerning license
suspension for refusal to submit to taking a breath or blood specimen, is also governed by chapter
524. See id. $5 724.01 1, .047 (Vernon 1999), 724.002, .035(a)(l) (Vernon Supp. 2006). A person
receiving a notice of suspension may request a hearing, which is conducted by a SOAH
administrative law judge. Id. $5 524.031, .033(a) (Vernon 1999). SOAH must provide for
stenographic or electronic recording of the hearing. Id. 5 524.033(b). The administrative law
judge's decision sustaining a license suspension may be appealed by filing a petition in the proper
county court at law or county court. Id. 5 524.041(a)-(b). A person filing such an appeal must send


         'See Letter from Honorable Shelia Bailey Taylor, Chief Administrative Law Judge, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (Aug. 10, 2006) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Shelia Bailey Taylor - Page 2                    (GA-0524)



a copy of the petition to the Department of Public Safety (the "Department") and to SOAH. Id.
5 524.041(c). Concerning the transcript for the appeal, section 524.044 provides:
                (a) To obtain a transcript of an administrative hearing, the party who
                appeals the administrative law judge's decision must apply to the
                State Office of Administrative Hearings.

                (b) On payment of a fee not to exceed the actual cost of preparing
                the transcript, the State Office of Administrative Hearings shall
                promptly furnish both parties with a transcript of the administrative
                hearing.

Id. 5 524.044. SOAH has promulgated a rule to implement section 524.044. See Request Letter,
supra note 1, at 1. Administrative Rule 159.37(f) provides that for an appeal of a suspension
decision, SOAH will provide both parties and the reviewing court with the hearing transcript, but
not until the proper fee has been paid. See 1 TEX.ADMIN. CODE5 159.37(f) (2006) (State Office of
Admin. Hearings, Suspension proceeding^).^

        You state that recently a defendant appealing the suspension of his driver's license to county
court filed an affidavit of inability to pay costs and asked SOAH to provide a free transcript of the
administrative hearing, citing Rule 145 of the Texas Rules of Civil Procedure. Request Letter, supra
note 1, at 1; see TEX.R. CIV.P. 145 (setting out procedures for filing affidavit of inability to pay
costs in lieu of cost bond). You ask whether SOAH must provide a free transcript of a driver's
license suspension hearing for the appeal of the administrative law judge's final order when the
appealing party has filed an affidavit of inability to pay costs with the court. Request Letter, supra
note 1, at 1.

       While the Transportation Code sections and the administrative rule set forth above provide
no exception to payment for a party who files an affidavit of inability to pay costs, we must consider
the applicability of the Administrative Procedure Act (the "APA") as it pertains to administrative
hearings and appeals generally. See generally TEX.GOV'TCODEANN.$5 2001.001-.902 (Vernon
2000 & Supp. 2006) (the Administrative Procedure Act). The APA applies to proceedings under


        'Section 159.37(f) provides:

                    A person who appeals a suspension may obtain a transcript of the administrative
                 hearing by sending a written request to the Office within ten days of filing the
                 appeal and paying the applicable fees. The fees shall not exceed the actual cost of
                 preparing or copying the transcript, and upon payment thereof, the Office shall
                 promptly furnish the reviewing court and both parties a certified copy ofthe record.
                 The transcription of the electronic recording made by the Office constitutes the
                 official record for appellate purposes, provided however, that the original recording
                 of proceedings shall be maintained by the Office, and a copy of this recording shall
                 be available for review by the parties or a reviewing court if necessary.

1 TEX.ADMIN.CODE5 159.37(f) (2006) (State Office of Admin. Hearings, Suspension Proceedings).
The Honorable Shelia Bailey Taylor - Page 3                       (GA-0524)



chapter 524 of the Transportation Code to the extent they are consistent. See TEX.TRANSP.CODE
ANN. 5 524.002 (Vernon 1999). Section 2001.058 of the APA governs hearings conducted by
SOAH. TEX.GOV'TCODEANN. 5 2001.058 (Vernon 2000). While section 2001.058 of the APA
expressly imposes a duty on SOAH to send the parties a copy of its decisions that may become final
or a ruling on a motion for rehearing, that section is silent about any duty to provide transcripts. Id.
5 2001.058(f)(4).
         Section 200 1.175 sets out procedures applicable to administrative hearings generally, which
would include an appeal of a driver's license suspension matter. See id. 5 2001 .175.3 Section
200 1.175(b) states that "[a] fter service of the petition on a state agency and within the time permitted
for filing an answer or within additional time allowed by the court, the agency shall send to the
reviewing court the original or a certified copy of the entire record of the proceeding under review."
Id. 5 2001.175(b) (emphasis added). Another provision authorizes an agency to adopt rules requiring
the party appealing a final decision in a contested case to pay all or part of the costs of preparing a
record of the agency proceeding. Id. 5 200 1.177(a).

        In an appeal of an administrative hearing conducted by SOAH, a court has held that the term
"agency" in section 2001.175(b) of the Government Code refers to SOAH, so that it is SOAH that
has a duty to provide the record in an administrative appeal. See Tex. Dep't of Pub. Safety v.
Valdez, 956 S.W.2d 767,770 (Tex. App.-San Antonio 1997, no pet.).4 But because of SOAH's
administrative rule requiring payment of costs, section 159.37(f), the court held that SOAH's duty
to provide the transcript to the reviewing court arises only after payment of a proper fee. Id.
(citing 1 TEX.ADMIN. CODE5 159.37(f) (2006) (State Office of Admin. Hearings, Suspension
Proceedings)). Accord Tex. Dep 't of Pub. Safety v. Story, 115 S.W.3d 588,596 (Tex. App.-Waco
2003, no pet.).

        Thus, section 2001.175(b) of the Government Code and Rule 159.37(f), as construed by the
courts, require SOAH to provide the reviewing court with a transcript, but the duty does not arise
until the proper fee has been paid. See TEX.GOV'TCODEANN.6 200 1.175(b) (Vernon 2000); Story,
115 S.W.3d at 596; Valdez, 956 S.W.2d at 770. The APA is in accord with Transportation Code


          3Section 200 1.175 is entitled "Procedures for Review Under Substantial Evidence Rule or Undefined Scope
of Review," and states that its procedures apply when the manner of review is other than by trial de novo. TEX.GOV'T
CODEANN.5 200 1.175 (Vernon 2000). Administrative license suspension decisions are reviewed under the substantial
evidence standard. See TEX.TRANSP.CODEANN.5 524.043(a) (Vernon 1999); Mireles v. Tex. Dep't of Pub. Safety,
9 S.W.3d 128, 131 (Tex. 1999). Thus, the provisions of section 2001.175 apply to a driver's license suspension matter.
See, e.g., Tex. Dep 't ofpub. Safety v. Valdez, 956 S.W.2d 767,769 (Tex. App.-San Antonio 1997, no pet.) (applying
section 200 1.175 in a driver's license suspension appeal).

        4Prior to the establishment of SOAH, one court held that similar language in the predecessor to section
200 1.175(b) required the administrative agency that was a party to an appeal to provide for a transcript even though the
appealing party had not paid for the transcript's cost as required by agency rule. See City ofBells v. Tex. Dep 't ofHealth,
70 1 S.W.2d 342,34344 (Tex. App.-Austin 1985, no writ) (citing TEX.REV.CIV.STAT.ANN.art. 6252-13a, 5 19(d)(l),
repealed by Act ofMay 4,1993,73d Leg., R.S., ch. 268, 5 46(1), 1993 Tex. Gen. Laws 583,986). See also Act ofMay
27, 1991,72d Leg., R.S., ch. 591,1991 Tex. Gen. Laws 2 127 (Act creating SOAH, current version at TEX.GOV'TCODE
ANN.$ 5 2003.001-.057).
The Honorable Shelia Bailey Taylor - Page 4              (GA-0524)



chapter 524 and SOAH's rule in establishing that SOAH's duty to provide a transcript, whether to
the reviewing court or to the parties, is contingent on the payment of a fee.

         You specifically ask if Rule 145 of the Rules of Civil Procedure requires SOAH to provide
a free transcript. See Request Letter, supra note 1, at 1. According to the APA, a charge for the
administrative hearing transcript is a "court cost" that may be assessed by the court according to the
Rules of Civil Procedure. See TEX.GOV'TCODEANN. tj 2001.177(b) (Vernon 2000). But even
though the administrative transcript is a court cost of the county court proceeding, it is unlikely that
a court would construe Rule 145 as applicable to an appeal of an administrative hearing in a driver's
license suspension matter. Rule 145 provides for an affidavit "[iln lieu of paying or giving security
for costs of an original action." See TEX.R. CIV.P. 145(a) (emphasis added). The review of a
driver's license suspension order is not an original action, but is an appeal under the substantial
evidence standard. See TEX.TRANSP.CODEANN. tj tj 524.04 1, .043(a) (Vernon 1999); Mireles v.
Tex. Dep 't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). Rule 145's only mention of an appeal
is its reference to the statutory provision that expressly authorizes appeals by indigents from small
claims court. See TEX.R. CIV.P. 145(d) (referencing section 28.052 of the Government Code). Not
only is the rule silent about appeals of administrative hearings, but we are also not aware of any
judicial opinion that has considered the question.

         Even if a court determined that Rule 145 is applicable to such an administrative appeal,
however, it would not likely impose costs on SOAH. The rule further provides that if the court
sustains the affidavit and "finds that another party to the suit can pay the costs of the action, the other
party must pay the costs of the action." See TEX.R. CIV.P. 145(d). And as you note, SOAH is not
a party to the court proceeding. See Request Letter, supra note 1, at 2; cf TEX.TRANSP.CODEANN.
5 524.041 (Vernon 1999) (authorizing appeal by "person whose driver's license suspension is
sustained" or by the Department). In short, Rule 145 of the Rules of Civil Procedure does not
provide a basis for requiring SOAH to provide a transcript without payment of a fee.

       Accordingly, we conclude that SOAH is not required to furnish a free transcript in an
administrative driver's license suspension appeal. And because we conclude that SOAH does not
have a duty to provide free transcripts, we do not address your remaining question, as to whether
providing a free transcript would violate the constitutional prohibition against expenditures of public
money for private purposes. Request Letter, supra note 1, at 2 (citing article XVI, section 6(a) of
the Texas Constitution).
The Honorable Shelia Bailey Taylor - Page 5        (GA-0524)



                                    S U M M A R Y

                     The State Office of Administrative Hearings is not required
              to furnish a free transcript in an administrative driver's license
              suspension appeal.

                                            Very truly yours,



                                       A-      REG BBOTT
                                            ~ t t o r n e n e r a of
                                                                  l Texas


KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
