Can you get a free transcript for a Texas driver's license suspension appeal if you can't afford it?

TX AG Opinion GA-0524: Does SOAH owe a free transcript in a license-suspension appeal?

Plain-English summary

The Chief Administrative Law Judge of the State Office of Administrative Hearings (SOAH) asked whether SOAH must furnish a free transcript when a driver appeals an administrative license suspension. SOAH is the independent state forum that runs administrative hearings, including the driver's license suspension hearings under Transportation Code chapters 524 and 724 (for failing or refusing a sobriety or breath/blood test). A driver who loses can appeal to a county court at law or county court. The trigger for the question: a driver appealing his suspension had filed an affidavit of inability to pay costs and asked SOAH for a free transcript, citing Rule 145 of the Texas Rules of Civil Procedure.

The Attorney General concluded SOAH does not have to provide a free transcript. The Transportation Code says a party who appeals must apply to SOAH for a transcript and, on payment of a fee not exceeding actual cost, SOAH "shall promptly furnish both parties" a copy. SOAH's rule (1 Tex. Admin. Code section 159.37(f)) likewise ties the transcript to payment of the fee. The Administrative Procedure Act points the same way: it requires the "agency" to send the record to the reviewing court, and courts have held that "agency" here means SOAH, but the same courts held SOAH's duty to provide the transcript does not arise until the fee is paid. So statute, rule, and case law all make SOAH's transcript duty contingent on payment.

On Rule 145 specifically, the opinion gave two independent reasons it does not force a free transcript here. First, even though the APA treats the administrative transcript charge as a "court cost," Rule 145 by its terms applies "in lieu of paying or giving security for costs of an original action," and review of a license suspension is not an original action; it is an appeal under the substantial-evidence standard, and no court had applied Rule 145 to such an administrative appeal. Second, even if Rule 145 applied, it would not put the cost on SOAH: the rule shifts costs to "another party to the suit" who can pay, and SOAH is not a party to the court appeal (the parties are the driver and the Department of Public Safety). So Rule 145 provides no basis to require a free transcript. Because SOAH had no duty to provide a free transcript, the opinion did not reach the further question whether doing so would violate the Texas Constitution's bar on spending public money for private purposes.

Currency note

This opinion was issued in 2007. 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.

Transportation Code chapters 524 and 724, the Administrative Procedure Act, SOAH's rules, and Rule 145 of the Texas Rules of Civil Procedure have all been amended since 2007 (Rule 145, in particular, was substantially rewritten in later years). Anyone facing a license-suspension appeal today should check the current statutes and rules on transcripts and indigency rather than relying on this opinion.

Who this opinion affected (as of 2007)

SOAH: The opinion confirmed it was not obligated to prepare and hand over a transcript for free, and that its duty to furnish the record arose only after the appealing party paid the fee.

Drivers appealing a license suspension: The opinion meant that filing an affidavit of inability to pay costs did not, by itself, entitle them to a free SOAH transcript, and that they generally had to pay the transcript fee to pursue the appeal.

County courts hearing these appeals: The opinion described the framework: the administrative transcript charge is a court cost the court may assess, but the duty to produce it ran against the paying appellant, not SOAH.

Common questions

If I can't afford it, will SOAH give me a free transcript to appeal my license suspension?
No, according to this opinion. SOAH's duty to furnish a transcript is contingent on payment of a fee, and an affidavit of inability to pay does not change that.

Doesn't Rule 145 let indigent people avoid court costs?
The opinion said Rule 145 most likely does not apply to a license-suspension appeal, because it covers original actions and this is an appeal under the substantial-evidence standard, and no court had applied it to such an administrative appeal.

Even if Rule 145 applied, would SOAH have to pay?
No. The opinion explained that Rule 145 shifts costs to another party who can pay, and SOAH is not a party to the court appeal, so it would not bear the cost.

Did the Attorney General decide the constitutional question?
No. Because SOAH had no duty to provide a free transcript, the opinion did not address whether providing one would violate the constitutional prohibition on spending public money for private purposes.

Background and statutory framework

SOAH is the independent executive-branch forum for administrative adjudications and conducts driver's license suspension hearings under Transportation Code chapters 524 and 724 (Tex. Gov't Code Ann. § 2003.021(a) (Vernon Supp. 2006); Tex. Transp. Code Ann. §§ 524.001-.051, 524.031, .033(a)-(b), .041(a)-(c) (Vernon 1999 & Supp. 2006); §§ 724.011, .047 (Vernon 1999), 724.002, .035(a)(1) (Vernon Supp. 2006)). To obtain a transcript for an appeal, the appealing party must apply to SOAH, and on payment of a fee not exceeding actual cost SOAH must furnish both parties a transcript; SOAH's rule implements this and conditions the duty on payment (Tex. Transp. Code Ann. § 524.044 (Vernon 1999); 1 Tex. Admin. Code § 159.37(f) (2006)).

The Administrative Procedure Act applies to chapter 524 proceedings to the extent consistent and governs SOAH hearings; while it requires SOAH to send decisions to the parties, it is silent on any duty to provide transcripts (Tex. Gov't Code Ann. §§ 2001.001-.902, 2001.058, 2001.058(f)(4) (Vernon 2000 & Supp. 2006); Tex. Transp. Code Ann. § 524.002 (Vernon 1999)). The APA requires the "agency" to send the record to the reviewing court in substantial-evidence appeals, and authorizes agency rules requiring the appellant to pay record-preparation costs; courts construing these provisions held that "agency" means SOAH but that SOAH's duty to provide the transcript arises only after payment of the proper fee (Tex. Gov't Code Ann. §§ 2001.175, 2001.175(b), 2001.177(a)-(b) (Vernon 2000); Tex. Transp. Code Ann. § 524.043(a) (Vernon 1999); Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999); Tex. Dep't of Pub. Safety v. Valdez, 956 S.W.2d 767, 770 (Tex. App.-San Antonio 1997, no pet.); Tex. Dep't of Pub. Safety v. Story, 115 S.W.3d 588, 596 (Tex. App.-Waco 2003, no pet.); City of Bells v. Tex. Dep't of Health, 701 S.W.2d 342, 343-44 (Tex. App.-Austin 1985, no writ)).

Rule 145 of the Texas Rules of Civil Procedure provides an affidavit of inability to pay in lieu of cost security for an original action, but review of a license suspension is an appeal under the substantial-evidence standard, not an original action, and even if Rule 145 applied it would shift costs only to a party who can pay, which SOAH is not (Tex. R. Civ. P. 145(a), (d); Tex. Transp. Code Ann. §§ 524.041, .043(a) (Vernon 1999)). Because SOAH had no duty to provide a free transcript, the opinion did not reach the constitutional public-funds question (Tex. Const. art. XVI, § 6(a)). The Act creating SOAH and the repeal of the predecessor APA provision are noted in the legislative history (Act of May 27, 1991, 72d Leg., R.S., ch. 591, 1991 Tex. Gen. Laws 2127; Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 46(1), 1993 Tex. Gen. Laws 583, 986).

Citations

Constitution, statutes, and rules:

• Tex. Const. art. XVI, § 6(a)
• Tex. Gov't Code Ann. §§ 2001.001-.902, 2001.058, 2001.058(f)(4), 2001.175, 2001.175(b), 2001.177(a)-(b), 2003.021(a) (Vernon 2000 & Supp. 2006)
• Tex. Transp. Code Ann. §§ 524.001-.051, 524.002, 524.031, .033(a)-(b), .041(a)-(c), .043(a), .044 (Vernon 1999 & Supp. 2006)
• Tex. Transp. Code Ann. §§ 724.002, .011, .035(a)(1), .047 (Vernon 1999 & Supp. 2006)
• Tex. R. Civ. P. 145(a), (d)
• 1 Tex. Admin. Code § 159.37(f) (2006)
• Act of May 27, 1991, 72d Leg., R.S., ch. 591, 1991 Tex. Gen. Laws 2127
• Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 46(1), 1993 Tex. Gen. Laws 583, 986

Cases:

• Tex. Dep't of Pub. Safety v. Valdez, 956 S.W.2d 767, 770 (Tex. App.-San Antonio 1997, no pet.)
• Tex. Dep't of Pub. Safety v. Story, 115 S.W.3d 588, 596 (Tex. App.-Waco 2003, no pet.)
• Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999)
• City of Bells v. Tex. Dep't of Health, 701 S.W.2d 342, 343-44 (Tex. App.-Austin 1985, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0524
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0524.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

GREG ABBOTT

March 5, 2007

The Honorable Shelia Bailey Taylor
Chief Administrative Law Judge
State Office of Administrative Hearings
Post Office Box 13025
Austin, Texas 78711-3025

Opinion No. GA-0524

Re: Whether the State Office of Administrative Hearings is required to furnish a free transcript in 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'T CODE ANN. § 2003.021(a) (Vernon Supp. 2006); see generally Pete Schenkkan, Texas Administrative Law: Trials, Triumphs, and New Challenges, 7 TEX. TECH ADMIN. 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. CODE ANN. §§ 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. §§ 724.011, .047 (Vernon 1999), 724.002, .035(a)(1) (Vernon Supp. 2006). A person receiving a notice of suspension may request a hearing, which is conducted by a SOAH administrative law judge. Id. §§ 524.031, .033(a) (Vernon 1999). SOAH must provide for stenographic or electronic recording of the hearing. Id. § 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. § 524.041(a)-(b). A person filing such an appeal must send a copy of the petition to the Department of Public Safety (the "Department") and to SOAH. Id. § 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. § 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. CODE § 159.37(f) (2006) (State Office of Admin. Hearings, Suspension Proceedings).

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'T CODE ANN. §§ 2001.001-.902 (Vernon 2000 & Supp. 2006) (the Administrative Procedure Act). The APA applies to proceedings under chapter 524 of the Transportation Code to the extent they are consistent. See TEX. TRANSP. CODE ANN. § 524.002 (Vernon 1999). Section 2001.058 of the APA governs hearings conducted by SOAH. TEX. GOV'T CODE ANN. § 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. § 2001.058(f)(4).

Section 2001.175 sets out procedures applicable to administrative hearings generally, which would include an appeal of a driver's license suspension matter. See id. § 2001.175. Section 2001.175(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. § 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. § 2001.177(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.). 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. CODE § 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'T CODE ANN. § 2001.175(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 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'T CODE ANN. § 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 "[i]n 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. CODE ANN. §§ 524.041, .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. CODE ANN. § 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).

SUMMARY

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,

GREG ABBOTT
Attorney General of 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

Footnotes

[1] 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].

[2] 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 of the 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. CODE § 159.37(f) (2006) (State Office of Admin. Hearings, Suspension Proceedings).

[3] Section 2001.175 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 CODE ANN. § 2001.175 (Vernon 2000). Administrative license suspension decisions are reviewed under the substantial evidence standard. See TEX. TRANSP. CODE ANN. § 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 of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex. App.-San Antonio 1997, no pet.) (applying section 2001.175 in a driver's license suspension appeal).

[4] Prior to the establishment of SOAH, one court held that similar language in the predecessor to section 2001.175(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 of Bells v. Tex. Dep't of Health, 701 S.W.2d 342, 343-44 (Tex. App.-Austin 1985, no writ) (citing TEX. REV. CIV. STAT. ANN. art. 6252-13a, § 19(d)(1), repealed by Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 46(1), 1993 Tex. Gen. Laws 583, 986). See also Act of May 27, 1991, 72d Leg., R.S., ch. 591, 1991 Tex. Gen. Laws 2127 (Act creating SOAH, current version at TEX. GOV'T CODE ANN. §§ 2003.001-.057).