Does the Texas Court Reporters Certification Board have to certify real-time captioning specialists?

Plain-English summary

The executive director of the Court Reporters Certification Board asked whether section 57.021(d) of the Government Code required the Board to take any action. That subsection lets the Texas Commission for the Deaf and Hard of Hearing maintain a list of persons "certified by the Court Reporters Certification Board as specialists in real-time captioning." The wording assumes the Board certifies such specialists, but the Board found no statute actually giving it that job, and wanted to know whether the provision obligated it to do anything.

The Attorney General answered no. A real-time captioning specialist transcribes the spoken words of a proceeding and projects them on a screen for hearing-impaired participants. The opinion walked through the two relevant chapters. Chapter 52 of the Government Code sets up the Board, which the Texas Supreme Court appoints, to examine and certify court reporters who do shorthand reporting and to register court reporting firms; it does not mention or authorize certifying real-time captioning specialists. Chapter 57 deals with court interpreters: the Department of Licensing and Regulation licenses interpreters for people who can hear but do not understand English, and the Commission for the Deaf and Hard of Hearing certifies interpreters for hearing-impaired people. Section 57.021(d) sits in that chapter and only permits the Commission to keep and share a list; it does not require the list, and it speaks to the Commission's authority, not the Board's.

That left only the possibility that the Board had to certify the specialists. But a state administrative agency has only the powers a statute expressly grants or those reasonably necessary to carry out its express duties. Neither chapter 52 nor chapter 57 expressly authorizes the Board to certify real-time captioning specialists, and the opinion declined to imply that power from a provision that merely assumes it exists and authorizes someone else to keep a list. The opinion noted that when the Legislature grants licensing or certifying authority, it does so expressly, and that prior opinions had refused to let agencies create and regulate occupational categories without express legislative authority. So section 57.021(d) was insufficient to confer certification authority on the Board, and the Board was not required to act.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Court Reporters Certification Board (what the opinion held): The opinion told the Board it was not required to take any action under section 57.021(d) and did not have authority to certify real-time captioning specialists. The reference to the Board in that subsection did not, by itself, create a certification program the Board had to run.

The Texas Commission for the Deaf and Hard of Hearing (what the opinion held): The opinion read section 57.021(d) as permissive for the Commission too: it may keep and share a list of certified specialists, but is not required to, and the subsection does not create the underlying certification.

Real-time captioning specialists (what the opinion held): The opinion left them without a statutory certification path through the Board. It treated the gap as something only the Legislature could fill with express authority.

Common questions

Did the Board have to start certifying real-time captioning specialists?
No. The opinion concluded that no statute, including section 57.021(d), gave the Board that authority, and that the provision did not require the Board to act.

Why doesn't a law mentioning Board certification create the authority to certify?
Because a state agency only has the powers a statute expressly confers or those reasonably necessary to its express duties. The opinion would not imply a certification program from a provision that just assumes one exists and lets another agency keep a list.

Who certifies court reporters in Texas under this framework?
The opinion explained that the Board examines applicants and certifies their names to the Texas Supreme Court, which certifies them as shorthand reporters. That chapter 52 process does not extend to real-time captioning specialists.

Is the Commission's list of specialists mandatory?
No. Section 57.021(d) says the Commission "may" maintain the list and, on request, "may" send it. The opinion read both as permissive.

Background and statutory framework

Section 57.021(d) of the Government Code authorizes the Texas Commission for the Deaf and Hard of Hearing to maintain a list of persons certified by the Court Reporters Certification Board as specialists in real-time captioning and, on request, to send the list to a person or court. Tex. Gov't Code Ann. § 57.021(d) (Vernon Supp. 2002). Real-time captioning is transcribing the spoken words of an oral proceeding to simultaneously project them on a screen. Tex. Gov't Code Ann. §§ 57.001(6), .002(a) (Vernon Supp. 2002).

Chapter 52 establishes the Board, appointed by the Texas Supreme Court, to administer examinations for certification of court reporters who do shorthand reporting and to register court reporting firms. Tex. Gov't Code Ann. §§ 52.002, .011 (Vernon Supp. 2002); §§ 52.011, .013. Shorthand reporting is making a verbatim record of an oral court proceeding or deposition using written symbols, machine shorthand, or oral stenography. Tex. Gov't Code Ann. § 52.001(5). A person may not act as an official court reporter or engage in shorthand reporting unless certified by the Texas Supreme Court, which certifies applicants after the Board certifies the names of those who passed its examination. Tex. Gov't Code Ann. § 52.021(a)-(b), (e); § 52.024(a) (Vernon 1998). Chapter 52 does not authorize the Board to certify real-time captioning specialists or mention the speciality.

Chapter 57 governs court interpreters. The Department of Licensing and Regulation tests and licenses interpreters for individuals who can hear but cannot comprehend or communicate in English, and the Commission tests and certifies interpreters for hearing-impaired individuals. Tex. Gov't Code Ann. § 57.001(1), (5) (Vernon Supp. 2002); § 57.002(a); §§ 57.043, .046; §§ 57.021-.023. The opinion applied the rule that an administrative agency has only the powers expressly conferred by statute or reasonably necessary to carry out its express responsibilities. Pub. Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001). It observed that when the Legislature grants licensing or certifying authority it does so expressly. Tex. Gov't Code Ann. § 52.013 (Vernon Supp. 2002); § 57.021; § 57.047.

Citations

Statutes:

• Tex. Gov't Code Ann. § 57.021(d) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. §§ 57.001(6), .002(a) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. §§ 52.002, .011 (Vernon Supp. 2002)
• Tex. Gov't Code Ann. §§ 52.011, .013
• Tex. Gov't Code Ann. § 52.001(5)
• Tex. Gov't Code Ann. § 52.021(a)-(b), (e)
• Tex. Gov't Code Ann. § 52.024(a) (Vernon 1998)
• Tex. Gov't Code Ann. § 57.001(1), (5) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 57.002(a)
• Tex. Gov't Code Ann. §§ 57.043, .046
• Tex. Gov't Code Ann. §§ 57.021-.023
• Tex. Gov't Code Ann. § 52.013 (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 57.047

Cases:

• Pub. Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001)

Prior Attorney General opinions referenced: JC-0020 (1999), MW-320 (1981), MJW-2 (1979), H-870 (1976).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0573
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0573.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN

November 5, 2002

Ms. Michele L. Henricks Opinion No. JC-0573
Executive Director
Court Reporters Certification Board Re: Whether any action is required of the Court
P.O. Box 13131 Reporters Certification Board in the
Austin, Texas 78711-3131 implementation of section 57.021(d) of the
Government Code (RQ-0553-JC)

Dear Ms. Henricks:

Section 57.021(d) of the Government Code authorizes the Texas Commission for the Deaf and Hard of Hearing (the "Commission") to "maintain a list of persons certified by the Court Reporters Certification Board as specialists in real-time captioning." TEX. GOV'T CODE ANN. § 57.021(d) (Vernon Supp. 2002). The Court Reporters Certification Board (the "Board") is not authorized to certify specialists in real-time captioning by section 57.021 or another provision. On behalf of the Board, you ask whether section 57.021(d) requires the Board to take any action.[1] Because section 57.021 is insufficient to confer certification authority on the Board, we conclude in the negative.

A specialist in real-time captioning transcribes spoken words of a court proceeding to simultaneously project the words on a screen for the benefit of hearing-impaired individuals involved in the proceedings. See TEX. GOV'T CODE ANN. §§ 57.001(6), .002(a) (Vernon Supp. 2002). Section 57.021(d) of the Government Code suggests or assumes that the Board certifies specialists in real-time captioning.

However, a specialist in real-time captioning is not a court reporter that the Board is authorized to recommend for certification under chapter 52 of the Government Code. Chapter 52 of the Government Code establishes the Board, which is appointed by the Texas Supreme Court. See TEX. GOV'T CODE ANN. §§ 52.002, .011 (Vernon Supp. 2002). The Board is directed to administer examinations for certification of persons as court reporters - persons who engage in shorthand reporting - and to register court reporting firms. See id. §§ 52.011, .013. Shorthand or court reporting is "the practice of shorthand reporting for use in litigation . . . by making a verbatim record of an oral court proceeding, [or] deposition . . . using written symbols in shorthand, machine shorthand, or oral stenography." Id. § 52.001(5). A person may not be appointed an official court reporter or deputy court reporter or engage in shorthand reporting unless the person is certified as a shorthand reporter by the Texas Supreme Court. See id. § 52.021(a)-(b), (e). Persons are certified as shorthand reporters by the court after the Board "certifies" to the court the "name of each qualified applicant who has passed the examination" in shorthand reporting administered by the Board. See id. § 52.024(a) (Vernon 1998). Chapter 52 does not authorize the Board to certify court reporters who are specialists in real-time captioning or even mention such a speciality.

Nor does chapter 57 of the Government Code authorize the Board to certify specialists in real-time captioning. Subchapter A of chapter 57 requires a court, upon the request of a party or witness, to appoint a certified court interpreter - a person qualified to interpret court proceedings for hearing-impaired individuals - or a licensed court interpreter, a person qualified to interpret proceedings for an individual who can hear, but who cannot comprehend or communicate in English. See id. § 57.001(1), (5) (Vernon Supp. 2002); id. § 57.002(a). Subchapters B and C provide for the certification and licensing of court interpreters. Subchapter C requires the Texas Department of Licensing and Regulation (the "Department") to test and license court interpreters to interpret for individuals who can hear, but who cannot comprehend English or communicate in English. See id. §§ 57.043, .046. And subchapter B requires the Texas Commission for the Deaf and Hard of Hearing to test and certify persons to interpret court proceedings for hearing-impaired individuals. See id. §§ 57.021-.023. Subchapter B also includes the provision at issue, which merely permits the Commission to maintain a list of certified specialists in real-time captioning: "The [C]ommission may maintain a list of persons certified by the Court Reporters Certification Board as specialists in real-time captioning and, on request, may send the list to a person or court." Id. § 57.021(d) (emphasis added). "Real-time captioning" is "transcribing the spoken words of an oral proceeding to simultaneously project the words on a screen." Id. § 57.001(6). Chapter 57 contains no other provisions dealing with certification of specialists in real-time captioning.

We do not believe that section 57.021(d) requires the Board to take any action. Initially, we note that section 57.021(d) permits, but does not require, the maintenance or provision of a list of certified specialists in real-time captioning. Additionally, it pertains to the authority of the Commission, not the Board. Thus, the only action that could be required of the Board is certification of the specialists. However, a state administrative agency has only those powers expressly conferred upon it by statute or those implied powers that are reasonably necessary to carry out its express statutory responsibilities. See Pub. Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001). Neither chapter 52 or 57, including section 57.021(d), of the Government Code expressly authorize the Board to certify specialists in real-time captioning. Nor do we believe that power may be implied from section 57.021(d)'s authorization to maintain a list of specialists in real-time captioning and assumption that the Board certifies these specialists. It is unnecessary to carry out express statutory responsibility of the Board imposed elsewhere. Additionally, as apparent from the provisions of chapters 52 and 57 considered here, when the legislature has granted licensing or certifying authority, it has done so expressly and specifically. See e.g., TEX. GOV'T CODE ANN. § 52.013 (Vernon Supp. 2002) (Board); id. § 57.021 (Commission); id. § 57.047 (Department). Finally, several opinions of this office have concluded that a state agency may not establish and regulate occupational or professional categories in the absence of express legislative authority to do so. See Tex. Att'y Gen. Op. No. JC-0020 (1999) at 4-5 (concluding that chapter 366 of the Health and Safety Code does not expressly or impliedly authorize the Texas Natural Resource Conservation Commission to certify site evaluators).[2] In short, section 57.021 is insufficient to confer on the Board the authority to certify specialists in real-time captioning.

SUMMARY

Section 57.021(d) of the Government Code, which authorizes the Texas Commission for the Deaf and Hard of Hearing to "maintain a list of persons certified by the Court Reporters Certification Board as specialists in real-time captioning," does not require the Court Reporters Certification Board to take any action. This provision is insufficient to confer on the Board the authority to certify specialists in real-time captioning. TEX. GOV'T CODE ANN. § 57.021(d) (Vernon Supp. 2002). No other provision of law confers such certification authority on the Board.

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee

[1] Letter from Michele L. Henricks, Executive Director, Court Reporters Certification Board, to Honorable John Cornyn, Texas Attorney General (May 16, 2002) (on file with Opinion Committee) [hereinafter Request Letter].

[2] See also Tex. Att'y Gen. Op. Nos. MW-320 (1981) (determining that Commission on Fire Protection lacked authority to establish certification requirements for additional specialty such as fire inspectors); MJW-2 (1979) (determining that Board of Nurse Examiners could not regulate the specialty practice of advance nurse practitioners); H-870 (1976) (determining that Texas Commission on Alcoholism had no authority to certify alcoholism counselors).