   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                               December 3,200l




Mr. David W. Myers, Executive Director                    Opinion No. JC-0437
Texas Commission for the Deaf
 and Hard of Hearing                                      Re: Whether the Texas Commission for the Deaf
4800 North Lamar, Suite 3 10                              and Hard of Hearing may pay members of the
Austin, Texas 78711                                       Board for Evaluation of Interpreters to evaluate
                                                          interpreters, and related questions (RQ-0393-JC)


Dear Mr. Myers:

        On behalf of the Texas Commission for the Deaf and Hard of Hearing (“TCDH”), you ask
whether the commission may contract with members of the Board for Evaluation of Interpreters
(“BE,“) to evaluate candidates for certification as interpreters and compensate them as “contracted
evaluators.” We conclude that the BE1 has a responsibility under the statute to evaluate candidates
and that BE1 members may not serve as evaluators under contract with the TCDH. Pursuant to
commission rule, BE1 members are entitled to receive expenses for carrying out official duties, but
they may not receive compensation.

          The TCDH, established by chapter 8 1 of the Human Resources Code, is governed by a board
appointed by the Governor with the advice and consent of the Senate. See TEX. HUM. RES. CODE
ANN. 89 8 1.OOl-.020 (Vernon 2001); see id. $0 8 1.002(a) (appointment and composition of
commission); .006 (dutiesand powers of the commission). Section 8 1.007 of the Human Resources
Code provides that the commission “may establish a program in accordance with this section for the
certification of interpreters” who are proficient in communication skills necessary to communicate
with individuals who are deaf or hard of hearing. Id. § 81.007(a). If it decides to establish a
certification program, the “commission shall appoint” a seven-member Board for Evaluation of
Interpreters “to administer the certification program.” Id. $ 8 1.007(b). BE1 members are “usually
experienced interpreters who also have extensive experience performing evaluations of candidates
for certification.“* Members of the BE1 are not paid for their service on that board, see 40 TEX.
ADMIN. CODE § 183.19 (2001), but the TCDH has contracted with members of the BE1 to evaluate




          ‘Letter from Mr. David W. Myers, Executive Director, Texas Commission for the Deaf and Hard of Hearing,
to Honorable John Cornyn, Texas Attorney General, at 3 (June 13,200l) (on file with Opinion Committee) [hereinafter
Request Letter].
Mr. David W. Myers      - Page 2                    (JC-0437)




interpreter candidates and has paid them for performing this service. See generaZZy Request Letter,
supra note 1. In a recent audit, the Comptroller questioned the commission’s practice of employing
BE1 members as “contracted evaluators,” persons who are responsible for evaluating and scoring the
interpreting and transliterating skills of interpreter candidates. See id. (attachment from Comptroller
“Detailed Findings-Purchase”);    see also 40 TEX.ADMIN.CODE9 183.29 (2001) (duties of contracted
evaluators).   According to the Comptroller, “the commission paid BE1 members for evaluator
services that the members are required to perform per statute.” Request Letter, supra note 1
(attachment from Comptroller “Detailed Findings-Purchase”).         The commission disagrees and asks
the following question:

                          Are members of the Board for Evaluation of Interpreters
                (BEI) required to perform, without compensation and as a part of
                their statutory     responsibility, evaluations of candidates   for
                certification as interpreters?

Request Letter, supra note 1, at 1,4.

         We address your question by reviewing the statutes and rules applicable to the BE1 and to
the certification of interpreters. Both the TCDH and the BE1 have authority and duties under statute
for the evaluation and certification of interpreters. Section 8 1.007 of the Human Resources Code
authorizes TCDH to establish a certification program and provides that the BE1 appointed by the
commission will “administer the certification program.” TEX. HUM. RES. CODEANN. 5 81.007(a),
(b) (Vernon 2001).

          Section 81.007 sets out the commission’s         responsibilities.     It is required to “use the
recommendations        of the board in compiling a statewide registry of interpreters by skill level”; to
 charge fees for an application for certification, the administration of an examination, and the renewal
 of a certificate; to adopt rules stating the grounds for denying, suspending, or revoking an
 interpreter’s certificate; to determine how frequently it will conduct the interpreter examinations; to
recognize, prepare, or administer continuing education programs for certificate holders; and to
 “compensate an evaluator based on a fee schedule as determined by commission rule.” See id. §
 81.007(d), (4, u-0, (i),(k), (1); see also id. $5 8 1.007(f) (reco g r-u
                                                                        ‘t’
                                                                          ion of certificates issued by other
jurisdictions); .007(g) ( commission’s authority to provide for expiration of certificates on various
 dates during year). The commission also has authority to adopt rules “necessary to implement this
 chapter,” including section 8 1.007 of the Human Resources Code. See id. 5 8 1.006(b)(3).

         The statute grants TCDH authority over many aspects ofthe certification program, but it also
grants authority and responsibilities to the BEI. “The commission, on the recommendation        of the
Board for Evaluation of Interpreters, shall revoke or suspend a certificate, place on probation a
person whose certificate has been suspended, or reprimand an interpreter certified by the commission
for a violation of a rule of the commission.” Id. 8 81.0072(a). Legislative history relating to this
provision states that the TCDH may not discipline a certified interpreter unless it has received the
Mr. David W. Myers      - Page 3                 (JC-0437)




recommendation     of the BE1 to do so. See HOUSE F&SEARCHORGANIZATION,BILL ANALYSIS, Tex.
H.B. 2859,74th    Leg., R.S. (1995) at 2.

         As already noted, the BE1 will “administer the certification program.” TEX. HUM. RES. CODE
ANN. tj 81.007(b) (V emon 2001). It thus has administrative duties delegated by the legislature.
Section 8 1.007(c) provides that, “[slubject to approval of the commission, the board shall prescribe
qualifications for each of several levels of certification based on proficiency and shall evaluate and
certify interpreters using these qualifications.” Id. § 81.007(c). We read this provision as making
the BE1 responsible for establishing qualifications for the levels of certification, subject to the
commission’s      approval, and for evaluating and certifying interpreters, again subject to the
commission’s approval of its decisions. The BE1 could assign these duties to its own members, to
staff, or to persons under contract with the commission. See generally id. 5 8 1.007(k). According
to a Sunset Advisory Commission report issued in 1998:

                 The Board for Evaluation of Interpreters (BEI) was created in 1980
                 and is composed of seven licensed interpreters who, together with a
                 staff of two agency employees,        administer the licensing of
                 interpreters in Texas and advise the agency on related matters.

SUNSETADVISORY COMM’N, TEX. COMM’N FORTHEDEAF AND HARDOFHEARING, STAFF REPORT, at
38 (1998); see also TEX. COMM’N FORTHEDEAF AND HARDOFHEARING,SELFEVALUATIONREPORT
TOTHETEX. SUNSETADVISORY COMM’N,       at 10 (1997) (BE1 staff functions include testing candidates,
development and revision of testing materials and administering a complaint resolution process).

         In our opinion, the BE1 is responsible for evaluating interpreter candidates, whether the
evaluations are performed by the board members themselves, by staff, or by contracted evaluators
working under the board’s supervision. See 40 TEX.ADMIN.CODE$9 183.17 (each hearing member
of BE1 “may be an evaluator and may evaluate as needed”); .18 (ethical standards applicable to
board members in evaluating applicants and participating in board proceedings regarding applicants);
.29 (qualifications and responsibilities of contracted evaluators) (2001). The BE1 is responsible for
the evaluation of applicants, and it has statutory authority to perform such evaluations without
contracts between its members and the TCDH.

        Moreover, the TCDH rule governing contracted evaluators suggests that BE1 members may
not be contracted evaluators. This rule provides in part:

                         Contracted evaluators will be composed of interpreters who
                 have been interviewed, selected, trained by the board, and appointed
                 by the commission.

Id. 8 183.29 (emphasis added). Although contracted evaluators are appointed by the TCDH, they
are interviewed, selected, and trained by the BEI. Thus, the rule treats the evaluators as different
persons from board members.      This can also be seen in a prior version of this rule:
Mr. David W. Myers - Page 4                       (JC-0437)




               Advisory Committee on Evaluation.          The advisory committee on
               evaluation will be composed of interpreters who have applied to be
               evaluators [members of the committee] and have been interviewed,
               tested, evaluated, trained, and appointed by the board and approved
               by the commission for the purpose of conducting evaluations of
               interpreting skills to determine the qualifications of interpreters. The
               contract evaluators [committee] function[s] under the supervision of
               the board.

18 Tex. Reg. 85 ll(l993)   (proposing amendment to 40 TEX. ADMIN. CODE 5 183.29) (proposed Oct.
22, 1993).

          A commission rule identifies the BE1 as an “advisory committee.” See 40 TEX. ADMIN. CODE
8 183.11 (2001); but see id. § 183.9(2) (BE1 is the certifying board for the evaluation of interpreters
under the commission).      The commission’s designation of the board as an “advisory committee”
does not take away its non-advisory responsibilities delegated by the legislature. The commission’s
rule does not change our conclusion as to the board’s statutory authority to evaluate applicants for
certification as interpreters. We conclude that members of the BE1 are authorized by statute to
evaluate such applicants and may not do so as contracted evaluators.

         You have also asked whether the commission’s contracting with BE1 members for interpreter
evaluations violates the common-law conflict-of-interest rule. This common-law rule helps insure
the integrity of public contracts by prohibiting a governmental body from entering into a contract
in which one of its members has a personal pecuniary interest. See Tex. Att’y Gen. Op. Nos. DM-18
(1991); JM-671 (1987); MW-179 (1980) (common-law conflict-of-interest          rule applies to state
agencies). The court in Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App.-Eastland      1925, no writ)
stated this rule as follows:

                If a public official directly or indirectly has a pecuniary interest in a
                contract, no matter how honest he may be, and although he may not
                be influenced by the interest, such a contract so made is violative of
                the spirit and letter of our law, and is against public policy.

Meyers, 276 S.W. at 307. We have concluded that BE1 members may not contract with the TCDH
to perform interpreter evaluations as contract evaluators. Because such contracts would not be valid
in any case, we need not decide whether they would also violate the common-law conflict-of-interest
rule.

        You ask whether or not board members who perform evaluations as a statutory responsibility
may receive compensation for this service. The commission’s rules provide that board members
shall not receive any compensation for performing the duties of the office, but may receive
reimbursement for expenses in performing the duties of the office, subject to current funding patterns
Mr. David W. Myers     - Page 5                 (JC-0437)




of the cornmission. See 40 TEX.ADMIN.CODE9 183.19 (2001). You suggest, however, that section
81.007(k) of the Human Resources Code authorizes the cornmission to pay board members for
performing evaluations.     Section 81.007(k) provides that the commission “shall compensate an
evaluator,” according to a statutory schedule that bases the amount of compensation on the level of
certification for which the candidate is evaluated. TEX. HUM. RES.CODEANN. 8 8 1.007(k) (Vernon
2001).

        The legislative history of section 8 1.007(k) shows that “evaluators” are persons who are not
members of the BE1 or TCDH. This provision was adopted in 1993 as Senate Bill 1117 of the
Seventy-third Legislature. See Act of May 26, 1993,73d Leg., R.S., ch. 722, 5 1, 1993 Tex. Gen.
Laws 2828,2829.       A bill analysis states that competency testing for interpreters is provided

               through the Board for Evaluation of Interpreters (BEI) under the
               Texas Commission for the Deaf and Hearing Impaired. The BE1 has
               approximately 40 evaluators statewide. Currently, these evaluators
               are “volunteers” and have been donating their services since the BE1
               was established in 1979.

SENATERESEARCHCENTER,BILLANALYSIS,Tex.             S.B. 1117,73d Leg., R.S. (1993). The bill analysis
also states that evaluators are reimbursed for their expenses, but receive no compensation for their
services. See id. “The majority of evaluators hold full-time jobs and now must give up one or more
days’ pay each time they participate in candidate evaluations. Some feel it is unrealistic to expect
these evaluators to continue to volunteer their services indefinitely.” Id. The fiscal note, moreover,
states that “[tlhe bill would direct the commission to compensate, based on a designated fee
schedule, individuals who conduct evaluations of interpreting skillsfor the Board for Evaluation of
Interpreters.”   FISCALNOTE, Tex. S.B. 1117, 73d Leg., R.S. (1993) (emphasis added).               The
legislature did not intend BE1 members to receive compensation under section 81.007(k).

         We point out that the TCDH appropriation for the years ending August 3 1,2000, and August
3 1, 2001, provides for reimbursing the expenses of BE1 members pursuant to Government Code
section 2110.004, which relates to the expenses of advisory board members.             See General
Appropriations Act, 76th Leg., R.S., ch. 1589, art. II, 1999 Tex. Gen. Laws 5446,5578; TEX. GOV’T
CODE ANN. $8 21 lO.OOl-.008 (Vernon 2000) (chapter 2110 relating to state agency advisory
committees); see also General Appropriations Act, 77th Leg., R.S., S.B. 1, II-18 (available at
Legislative Reference Library). Details about permissible expenses are set out in the General
Appropriations Act. See General Appropriations Act, 76th Leg., R.S., ch. 1589, art. IX, pt. 5,1999
Tex. Gen. Laws 5446,6269-6275 (travel regulations); see also TEX. GOV’T CODEANN. $5 660.001-
.055 (Vernon 1994 & Supp. 2001) (chapter 660 relating to Travel Regulations Act). Accordingly,
pursuant to TCDH rules, members of the BE1 may not receive compensation for carrying out
statutory duties, such as performing evaluations, but may receive expenses. See 40 TEX. ADMIN.
CODE$8 183.11, .19 (2001).
Mr. David W. Myers    - Page 6                  (JC-0437)




                                       SUMMARY

                        Members of the Board of Evaluators for Interpreters have
               statutory authority under section 81.007 of the Human Resources
               Code to evaluate applicants for certification as interpreters for the
               deaf and hard of hearing.       Board members may not serve as
               evaluators pursuant to contract with the Commission for the Deaf and
               Hard of Hearing. Pursuant to commission rule, board members may
               not receive compensation for their service, but are entitled to receive
               expenses.




                                                     N CORNYN
                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General-General     Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
