Does the State Office of Administrative Hearings handle Court Reporters Certification Board cases?

Plain-English summary

The chairman of the Court Reporters Certification Board asked whether his board has to send its contested cases to the new State Office of Administrative Hearings. In 1991 the Legislature created that office (often called SOAH) to provide a central pool of neutral hearing examiners. The statute, article 6252-13f, says the office "shall conduct all administrative hearings in contested cases under the Administrative Procedure and Texas Register Act" for any agency that does not employ a person whose only job is to preside as a hearings officer. But the law reaches only a "state agency," which it defines as a board, commission, department, or other agency "that is subject to the Administrative Procedure and Texas Register Act," known as APTRA. So the whole question came down to one thing: is the Court Reporters Certification Board subject to APTRA?

The Attorney General concluded it is not, and therefore the SOAH statute does not apply to it. The board met one of the two triggers for article 6252-13f, because it does not employ a full-time hearings officer; instead, the board's chairman or his designee presides at the board's disciplinary hearings. But the other trigger, being subject to APTRA, was missing. APTRA applies only to state agencies, and its definition of "agency" in section 3(1) carves out "the courts." The opinion's task was to decide whether the board falls within that exclusion.

To read the phrase "the courts," the opinion looked at the model administrative procedure acts that Texas drew from. Texas based its 1975 act on the 1961 Model State Administrative Procedure Act, which excludes "the legislature" and "the courts" from the definition of agency. The earlier 1946 model act had excluded entities "in the legislative or judicial branches," broader language; the 1961 act narrowed it to "the courts." The commissioners' comments to the still later 1981 model act stressed that only "the courts" and "the legislature" are excluded, not "the judicial branch" and "the legislative branch," and that exemptions should be construed narrowly. The opinion found nothing in the Texas legislative history showing Texas lawmakers intended that narrower meaning. It then surveyed out-of-state decisions, several of which read "the courts" broadly to mean the whole judicial branch: the Rhode Island Supreme Court held its act did not apply to the state bar association or the court's disciplinary board (Petition of Rhode Island Bar Ass'n; Berberian v. Disciplinary Board of Rhode Island Supreme Court), the Louisiana Supreme Court held its act did not apply to the Judiciary Commission (Babineaux v. Judiciary Commission), and the Connecticut Supreme Court held its act did not apply to a statewide attorney-grievance committee (Sobocinski v. Statewide Grievance Committee), though Connecticut left open just how far the phrase reaches.

In Texas, the opinion found, no court had squarely decided the scope of the exclusion. Cameron v. Greenhill held only that APTRA does not apply to the administrative activities of a court (there, a supreme court order setting a State Bar fee), and Lindsay v. Sterling applied APTRA's substantial-evidence review to a county judge's denial of a beer and wine license because the judge was acting as part of the Alcoholic Beverage Commission's review process, an executive agency. So the opinion reasoned that a Texas court facing the question would likely follow the courts that read "the courts" broadly, if the board is genuinely part of the judiciary. The opinion then walked through the history of court-reporter regulation to show that it is. The 1977 law that created the predecessor Texas Court Reporters Committee was meant, in the words of Justice Jack Pope's testimony, to bring "the court reporting profession into the judiciary of Texas"; the supreme court appointed the members, examined and certified reporters, and could discipline them; the 1983 law that renamed the committee the Court Reporters Certification Board made clear it was a state entity but changed nothing about the supreme court's jurisdiction over it; chapter 52 sits in the "Judicial Branch" title of the statutes; the Legislature funds the board under the judiciary title of the appropriations act; and an active district judge must serve as chairman. From all of this the opinion concluded the board is a disciplinary entity within the judicial branch, that a Texas court would construe APTRA's exclusion for "the courts" to cover it, that APTRA does not apply to the board, and that the board is therefore not subject to article 6252-13f.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. APTRA (former V.T.C.S. art. 6252-13a) was recodified into the Government Code as the Administrative Procedure Act (ch. 2001), the State Office of Administrative Hearings statute (former art. 6252-13f) was recodified into Government Code chapter 2003, and the court-reporter provisions in chapter 52 have been amended since 1992, so confirm the current statutes before relying on anything described here.

Background and statutory framework

In 1991 the Legislature created the State Office of Administrative Hearings by enacting Senate Bill 884. Acts 1991, 72d Leg., ch. 591, at 2127-28; codified as V.T.C.S. art. 6252-13f. Section 2(b) 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." Article 6252-13f applies only to state agencies, V.T.C.S. art. 6252-13f, § 3(a), and section 1(3) defines "state agency" as "a state board, commission, department, or other agency that is subject to the Administrative Procedure and Texas Register Act." The opinion concluded the Court Reporters Certification Board is not subject to APTRA, and consequently that article 6252-13f does not apply to the board.

By its terms, article 6252-13f 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. The board does not employ such a person; instead, the chairman of the board or his designee presides 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. One of the two requirements for application of article 6252-13f was thus satisfied. The remaining requirement was whether the board is subject to APTRA, which required examining the language and legislative history of APTRA and the relevant case law.

APTRA applies only to state agencies. See V.T.C.S. art. 6252-13a, §§ 4(a), 4A, 5(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 APTRA. 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, the opinion turned to its legislative history. APTRA was enacted in 1975 on adoption of Senate Bill 41. Acts 1975, 64th Leg., ch. 61. The section 3(1) definition of "agency" in Senate Bill 41 contained the same exclusion for "the courts" that appears in current law, but the legislative history does not elucidate the scope of the exclusion.

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. Section (1)(1) of the 1961 model act defines "agency" to include "each state board, commission, department or officer, other than the legislature or the courts, authorized by law to make rules or determine contested cases." 15 U.L.A. at 147 (emphasis added). The 1961 act, like the Texas act, contains no definition of "the courts." The 1961 act was the second model act; the first, adopted in 1946, defined "agency" as "any state board, commission, department, or officer authorized by law to make rules or adjudicate contested cases, except those in the legislative or judicial branches." 9C U.L.A. at 179 (emphasis added). The commissioners' comments to the 1946 and 1961 acts do not elaborate on the meaning of the respective phrases, nor do the comments to the 1961 act explain the reason for the change in language. The third and most recent model act, adopted in 1981, defines "agency" in section 1-102 and, like the 1961 act, excludes "the courts." 15 U.L.A. at 10-11. The commissioners' comments to section 1-102 state in part: "The 1961 Revised Model Act also excluded, as does this definition, the legislature and the courts. Note that it is only 'the legislature' and 'the courts' that are excluded, and not 'the legislative branch' and 'the judicial branch,' and that exemptions from the Act are to be construed narrowly." 15 U.L.A. at 12. The opinion found no indication in the Texas legislative history that Texas lawmakers were aware of or intended that narrower meaning, nor any mention of a narrower meaning in early commentary on the Texas act. See, e.g., McCalla, The Administrative Procedure and Texas Register Act, 28 Baylor L. Rev. 445 (1976).

In contrast to the narrow meaning suggested by the model-act change and the 1981 comments, a number of other states' decisions have construed "the courts" more expansively. The Rhode Island and Louisiana Supreme Courts construed the phrase to mean the judicial branch of government. The Rhode Island court held its administrative procedure act inapplicable to the state bar association and to the Disciplinary Board of the Rhode Island Supreme Court. See Berberian v. Disciplinary Bd. of Rhode Island Supreme Court, 427 A.2d 1332 (R.I. 1981); Petition of Rhode Island Bar Ass'n, 374 A.2d 802 (R.I. 1977). In Berberian the court described the disciplinary board as an agency of the court and cited its earlier decision for the proposition that the act did not apply to the judicial branch; the earlier decision had stated that "[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. In Petition of Rhode Island Bar Ass'n, the Rhode Island court relied on the Louisiana Supreme Court's decision in Babineaux v. Judiciary Comm'n, 341 So.2d 396 (La. 1976). Babineaux concerned the adequacy of procedures before the Judiciary Commission in a hearing on the applicability of a judicial canon to ten state judges; the Louisiana court construed the exclusion for "the courts" to mean the judicial branch and held the act did not apply to the commission, "an independent, disciplinary body within the judiciary branch." Id. at 401. The Connecticut Supreme Court, in Sobocinski v. Statewide Grievance Comm., 576 A.2d 532 (Conn. 1990), held its act did not apply to a statewide committee that reviews attorney-misconduct complaints, but it did not expressly equate "the courts" with the entire judicial branch; instead it discussed the inherent authority of courts over attorneys and described the committee as a supervisory arm of the court, leaving open whether only certain disciplinary entities within the judiciary are part of "the courts." Id. at 535-36.

The Texas Supreme Court had not expressly equated APTRA's exclusion for "the courts" with entities within the judicial branch, nor stated that disciplinary entities within the judicial branch are covered. In Cameron v. Greenhill, 582 S.W.2d 775 (Tex. 1979), the court held only that the exclusion excepts from APTRA the administrative activities of the court. The petitioner there had challenged in district court a supreme court order assessing a one-time fee against State Bar members as not in compliance with APTRA; the order had issued under the State Bar Act. See Gov't Code §§ 81.024, 81.054 (rulemaking procedures followed in assessing fees against bar members). The supreme court stated that the Austin appeals court correctly determined "that provisions of the Administrative Procedure Act do not apply to the acts of this Court." Cameron, 582 S.W.2d at 777. The Austin appeals court had relied on the unqualified exemption of "the courts" to conclude that "the courts are entirely exempt from the Act, regardless of the capacity [administrative or judicial] in which they act." Cameron v. Greenhill, 577 S.W.2d 389 (Tex. Civ. App.-Austin 1979). The Texas Supreme Court also addressed APTRA's application to judges in Lindsay v. Sterling, 690 S.W.2d 560 (Tex. 1985), determining that a county judge's denial of a wine and beer license under chapter 61 of the Alcoholic Beverage Code would be reviewed under APTRA's substantial-evidence requirements; though it described the judge's actions as "taken in an administrative, rather than a judicial capacity," the decision turned on the judge's role as part of the review process of the Alcoholic Beverage Commission, a state agency generally subject to APTRA.

Neither Cameron nor Lindsay resolved the board's question. On those decisions, the opinion stated, one can say with certainty only that APTRA will not apply to the administrative activities of a court acting solely as a court, but will apply if the court undertakes activities on behalf of and as part of an executive-branch agency; neither case establishes that "the courts" means the entire judicial branch or includes disciplinary entities within that branch, and neither precludes that construction. The opinion then concluded the board is an entity within the judicial branch that engages in disciplinary activities on behalf of the judiciary, so the issue was whether APTRA applies to such activities; since no Texas court had decided that, the opinion had to predict whether a Texas court would follow the courts that broadly construe the exclusion for "the courts," and it believed the court would.

Turning to the history of chapter 52, the opinion noted that in 1975 the Legislature provided 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, 64th Leg., ch. 319, § 1 (now Gov't Code § 52.046). That did not solve the courts' problem in getting timely records for appeals, so the next session the Legislature adopted Senate Bill 586, establishing the Texas Court Reporters Committee. Acts 1977, 65th Leg., ch. 438 (codified first as V.T.C.S. art. 2324b). The committee members, appointed by the supreme court, were authorized to examine applicants for certification, certify qualified applicants to the supreme court, and revoke certifications of reporters who engaged in prohibited conduct; the committee was charged with the executive functions necessary to effectuate the act, while rules not inconsistent with its examination and disciplinary powers "may be promulgated by the supreme court." Justice Jack Pope, then a member of the Texas Supreme Court, testified about the need to regulate shorthand reporting and to bring "the court reporting profession into the judiciary of Texas," and described the law as the additional legislation the court felt was necessary to implement regulatory control. In 1983 the Legislature amended the 1977 law by Senate Bill 565, Acts 1983, 68th Leg., ch. 541, changing the committee's name to the Court Reporters Certification Board to indicate it was a state entity and not a private association, with no substantive change to the supreme court's jurisdiction over the board; the amended article was later codified as part of chapter 52 of the Government Code. Chapter 52 is part of subtitle D ("Judicial Personnel and Officials") of title 2 ("Judicial Branch") of the statutes, and appropriations to the board appear in the title of the appropriations act devoted to the judiciary.

In summary, the opinion believed a Texas court would construe APTRA's exclusion for "the courts" to cover the board, because the history of the statutory provisions authorizing regulation of shorthand reporting documents the board's status as a disciplinary entity within the judicial branch. It therefore concluded that a Texas court would find APTRA does not apply to the board, and consequently that the board is not subject to article 6252-13f.

Common questions

Does every Texas board with contested cases have to use the State Office of Administrative Hearings?
No. Under this opinion, article 6252-13f reaches only a state agency that is subject to APTRA and lacks a dedicated hearings officer. A body that is not subject to APTRA, like the Court Reporters Certification Board, falls outside it.

Why isn't the Court Reporters Certification Board subject to APTRA?
Because APTRA's definition of "agency" excludes "the courts," and the opinion concluded the board is a disciplinary arm of the judicial branch. Its history ties it to the Texas Supreme Court, it sits in the judicial title of the statutes and the budget, and an active district judge must chair it.

What did Texas cases say about the "courts" exclusion before this opinion?
Not enough to decide the question. Cameron v. Greenhill held APTRA does not apply to a court's administrative acts, and Lindsay v. Sterling applied APTRA to a county judge acting as part of an executive agency's review process. Neither defined how far the "courts" exclusion reaches.

Did the Attorney General rely on other states' decisions?
Yes, as persuasive authority. The opinion pointed to Rhode Island, Louisiana, and Connecticut decisions reading "the courts" to cover disciplinary bodies within the judiciary, and predicted a Texas court would take a similar approach for a body as closely tied to the supreme court as this board.

Citations

• V.T.C.S. art. 6252-13f, §§ 1(3), 2(b), 3(a) (State Office of Administrative Hearings)
• V.T.C.S. art. 6252-13a, §§ 3(1), 3(2), 4(a), 4A, 5(a), 21 (APTRA)
• Gov't Code ch. 52 (Court Reporters Certification Board); §§ 81.024, 81.054 (State Bar Act)
• Alcoholic Beverage Code ch. 61
• Acts 1975, 64th Leg., ch. 61 (S.B. 41); Acts 1977, 65th Leg., ch. 438 (S.B. 586); Acts 1983, 68th Leg., ch. 541 (S.B. 565); Acts 1991, 72d Leg., ch. 591 (S.B. 884)
• Berberian v. Disciplinary Bd. of Rhode Island Supreme Court, 427 A.2d 1332 (R.I. 1981)
• Petition of Rhode Island Bar Ass'n, 374 A.2d 802 (R.I. 1977)
• Babineaux v. Judiciary Comm'n, 341 So.2d 396 (La. 1976)
• Sobocinski v. Statewide Grievance Comm., 576 A.2d 532 (Conn. 1990)
• Cameron v. Greenhill, 582 S.W.2d 775 (Tex. 1979); 577 S.W.2d 389 (Tex. Civ. App.-Austin 1979)
• Lindsay v. Sterling, 690 S.W.2d 560 (Tex. 1985)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0142
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0142.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and several footnotes (notably the long footnote tracing the 1911 court-reporter statutes and the footnote quoting the Senate Bill 565 bill analysis) were too degraded in the scan to reproduce reliably; their substance is summarized in brackets where relevant. Case names and reporter citations are corrected here against the reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 16, 1992

Honorable Merrill L. Hartman
Chairman
Court Reporters Certification Board
P. O. Box 13131
Austin, Texas 78711-3131

Opinion No. DM-142

Re: Whether the Court Reporters Certification Board is subject to article 6252-13f, V.T.C.S., which establishes the State Office of Administrative Hearings (RQ-138)

Dear Judge Hartman:

In 1991, the legislature created the State Office 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 also V.T.C.S. art. 6252-13a, § 3(2) (definition of "contested case"). Article 6252-13f applies only to state agencies. V.T.C.S. art. 6252-13f, § 3(a). Section 1(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 Administrative Procedure and Texas Register Act ("APTRA" or "the act"), and consequently, that article 6252-13f does not apply to the board.[1]

By its terms, article 6252-13f 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 6252-13f 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, §§ 4(a), 4A, 5(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 APTRA. See id. § 21.

[Footnote 1: The legislative history of Senate Bill 884 does not resolve your question. The testimony before the legislature and the bill analyses document only the legislature's intent to conserve state funds by providing a pool of qualified examiners for agencies who previously may have contracted for the services of hearings examiners, and the legislature's desire to ensure the independence of the examiners by having a separate state agency employ their services. See, e.g., Public Hearing on S.B. 884, Senate Comm. on State Affairs (April 5, 1991); House Research Organization Bill Analysis at 74-76 (May 23, 1991).]

[Footnote 2: The chairman and other board members have various statutory duties, including the duty to determine the eligibility of persons applying for certification to engage in shorthand reporting in this state. Gov't Code §§ 52.013, 52.021-.024; see also § 52.011(i) (members receive expense-only reimbursement). Certifications are issued by the supreme court on the board's recommendation. Id. §§ 52.001(2), 52.021. After issuance, the board may revoke or suspend a reporter's certification or reprimand the reporter for certain conduct. Id. §§ 52.029(a)-(b). Disciplinary action may be taken only after notice and an opportunity for a hearing is provided the reporter. Id. § 52.029(a). Appeal of a disciplinary action is by trial de novo in the county of the reporter's residence. Id. § 52.030. By statute, the chairman or his designee must preside at disciplinary hearings that the board conducts. Id. § 52.028(c). The statute also requires an active district judge to serve as the chairman. Id. § 52.011(a)(1).]

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. APTRA was enacted in 1975 on adoption of Senate Bill 41. Acts 1975, 64th Leg., ch. 61. The definition of "agency" in section 3(1) of Senate Bill 41 contained the exclusion for "the courts" that appears in the current law. Id. § 3(1), at 137. The legislative history of Senate Bill 41, however, does not elucidate the scope of the exclusion. See Testimony before the Senate Comm. on Intergovernmental Relations (January 30, 1975) and the House Comm. on Judicial Affairs (March 19, 1975).

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"). McCalla, Proposed Administrative Procedure Act, 37 Tex. B.J. 1163 (1974); see also 15 Uniform Laws Annotated 147 (1990) (includes copy of 1961 model act) (hereinafter "U.L.A."). Section (1)(1) of the 1961 model act defines "agency" to include "each state board, commission, department or officer, other than the legislature or the courts, authorized by law to make rules or determine contested cases." 15 U.L.A. at 147 (brackets deleted and emphasis 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. See generally 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 the legislative or judicial branches." 9C U.L.A. at 179 (brackets deleted and emphasis added).[4] The commissioners' comments accompanying the 1946 and 1961 acts do not elaborate on the meaning of the respective phrases. 9C U.L.A. at 174-78 (1946 act); 15 U.L.A. 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.L.A. 1. Section 1-102 of the 1981 act defines "agency," and like the 1961 act, excludes "the courts." 15 U.L.A. at 10-11. The commissioners' comments to section 1-102 state in part:

  The 1961 Revised Model Act also excluded, as does this definition, the legislature and the courts. Note that it is only "the legislature" and "the 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.L.A. 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." 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, Workshop Guide for the New Administrative Procedure and Texas Register Act (1975); see also F. E. Cooper, 1 State Administrative Law 97-107 (1965) (stating in discussion on 1961 model act definitions that "agency" was purposefully drafted in general terms to accommodate varying state needs).

[Footnote 4: Language similar to the quoted definition was used in the definition of "agency" in article 6252-13, a statute that addressed generally the authority of state agencies to promulgate rules. That statute was repealed by section 22 of Senate Bill 41, the bill that enacted APTRA. Acts 1975, 64th Leg., ch. 61, § 22, at 148; for prior law see Acts 1961, 57th Leg., ch. 274, at 581, as amended by Acts 1962, 57th Leg., 3d C.S., ch. 31, § 1, at 90 ("agency" means "any state board . . . except those in the legislative or judicial branches"). State cases construing article 6252-13 do not address issues pertinent to your question.]

[Footnote 5: As support for this explanation, the comments reference only a 1975 article on the Iowa administrative procedure act by Earl Bonfield. See Bonfield, The Iowa Administrative Procedure Act: Background, Construction, Applicability, Public Access to Agency Law, The Rulemaking Process, 60 Iowa L. Rev. 731, 763-64 (1975). The author, however, 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 availability of alternative procedural safeguards in the courts, that would support a narrower meaning of the phrase.]

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 expansively. 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 Berberian v. Disciplinary Bd. of Rhode Island Supreme Court, 427 A.2d 1332 (R.I. 1981); Petition of Rhode Island Bar Ass'n, 374 A.2d 802 (R.I. 1977). The court in Berberian 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 Petition of Rhode Island Bar Ass'n, the Rhode Island court cited the decision of the Louisiana Supreme Court in Babineaux v. Judiciary Comm'n, 341 So.2d 396 (La. 1976). One of the issues in Babineaux 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 Babineaux construed the exclusion 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. Sobocinski v. Statewide Grievance Comm., 576 A.2d 532 (Conn. 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 discussed 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 act.

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 (Tex. 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 APTRA. The court's order had been issued in accordance with the provisions of the State Bar Act. See Gov't Code §§ 81.024, 81.054 (rulemaking procedures followed in assessing fees 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." Cameron, 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." Cameron v. Greenhill, 577 S.W.2d 389 (Tex. Civ. App.-Austin 1979).

The Texas Supreme Court also addressed the application of APTRA to judges in Lindsay v. Sterling, 690 S.W.2d 560 (Tex. 1985). In Lindsay, 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 county 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 Lindsay, 690 S.W.2d at 562-63 (referring to code provisions providing appeal from judge's decision was against commission alone).

Neither Cameron nor Lindsay 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 Cameron nor Lindsay establishes that the phrase "the courts" means the entire judicial branch or includes along with the courts themselves the disciplinary entities within that branch. 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 authorizing 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 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, 64th Leg., ch. 319, § 1, at 826 (now codified as Gov't Code § 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, 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 law 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, §§ 12, 13, at 1156-58 (now codified as Gov't Code §§ 52.013(a)-(b), 52.023-.024, 52.027-.030). 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 §§ 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 also 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 law "as the additional pieces of legislation that we [the court] felt were necessary to implement" regulatory control by the court. This comment 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 courts, 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 branch.

[Footnote (1911 court-reporter statutes): Since the early 1900s, Texas statutes have authorized certain courts to appoint official court reporters, made those reporters officers of the courts, and required them to take the oath required of officers by the constitution. Tex. Rev. Civ. Stat. arts. 1920-1922 (1911); see Gov't Code §§ 52.041, 52.045 (similar provisions in current law); see also Tex. Const. art. XVI, § 1. The 1911 provisions concerning court reporters were part of a title addressing practice in the state district and county courts; they later became part of title 42 of the 1925 statutes. The 1911 provisions also authorized the appointment of competent stenographers in the district and county courts. As subsequently amended, those provisions were codified as part of chapter 52. Chapter 52 is a part of subtitle D of title 2 of the current statutes. Subtitle D is entitled "Judicial Personnel and Officials," while title 2 is entitled the "Judicial Branch." Appropriations by the legislature to the board also appear in the title of the appropriations act devoted to the judiciary. See, e.g., Tex. H.B. 1, 72d Leg., 1st C.S., ch. 19, at 957. (This footnote was heavily degraded in the scan; the foregoing reproduces its legible substance.)]

The legislature amended the 1977 law in 1983 by enacting Senate Bill 565. Acts 1983, 68th 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. The amended article subsequently was codified as part of chapter 52 of the Government Code.

[Footnote (S.B. 565 § 9): Section 9 of Senate Bill 565 added section 16A to article 2324b, which provided that the supreme court "may promulgate rules, not inconsistent with this Act, governing the certification and conduct of court reporters and persons who engage in the practice of shorthand reporting." Acts 1983, 68th Leg., ch. 541, § 9, at 3168; see Gov't Code § 52.002 (current law). The supreme court's current rules contain detailed provisions for the examination, certification, and disciplinary activities of the board, including provisions addressing the procedures to follow during disciplinary hearings. The bill analysis accompanying Senate Bill 565 contains a statement that the rulemaking requirements of APTRA are inapplicable to the Texas Supreme Court, and cites as support the definition of "agency" in section 3(1) of APTRA. We do not construe the absence of any statement concerning the applicability of APTRA to the disciplinary hearings of the board as dispositive of your question. The statement concerning the inapplicability of the rulemaking requirements of APTRA was included as part of the bill analysis simply to satisfy the House Rule that required the bill analysis accompanying a committee report to contain "a statement generally describing the scope of and the reasons for any rulemaking authority delegated to a state officer, department, [or] agency." See House Rule 4 § 29(c)(4) (1983 rules); House Rule 4 § 33(c)(4) (1991 rules). (This footnote was degraded in the scan; the foregoing reproduces its legible substance.)]

In summary, we believe a Texas court would construe the exclusion for "the courts" in APTRA 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 court 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 6252-13f, V.T.C.S., which establishes the State Office of Administrative Hearings.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Celeste A. Baker
Assistant Attorney General