                            QBfficeof the Plttornep di3eneral
                                          &ate of Z!Cexae
DAN MORALES
 hTT”RSEYGENERAL                            August 28, 1996

       Mr. David W. Myers                             Qpiion No. DM-411
       Executive Director
       Texas Commission for the Deaf                  Re: Use of an interpreter for deaf and
     ‘. and Hearing Impaired                          hearing-impaired persons in administrative
       P.O. Box 12904                                 and judicial proceedings (RQ-786 )
       Austin, Texas 78711

      Dear Mr. Myers:

               You have asked this 050s to consider certain questions regarding the use of an
      interpreter for deaf and hearing-impaired persons in administrative and judicial
      proceedings. Your particular concerns relate to three issues: who may receive such
      services, what qualiications are required for one who provides such services, and who
      must pay for the provision of court-mandated services.

              Your questions center on two incidents, and this opinion will therefore respond to
     your request in that context. You first ask about the provision of an interpreter who was
      not a qualiied interpreter within the meaning of section 21.003 of the Civil Practice and
     Remedies Code to the deaf uncle of a child involved in a juvenile detention hearing. You
      ask in the second instance about the provision of an interpreter to a grand juror. We
     conclude that the Americans with Disabilities Act, 42 U.S.C. $4 12101 through 12213,
     would most likely be construed by a court to require that a deafor hearing-impaired grand
     juror be provided with a qualified interpreter as defmed by article 38.31(g)(2) of the Code
     of Criminal Procedure. On the other hand, we conclude that whether a deaf custodial
     relative not included within the list of parties to a juvenile hearing pursuant to section
      51.02( 10) of the Family Code was entitled to a qualified interpreter would present a closer
     question.

               The Americans with Disabilities Act (the “ADA”), 42 USC. $4 12101 through
      12213, provides, in relevant part, that “no qualified individual with a disabiity shah, by
      reason of such disabiity, be excluded from participation in or be denied the benefits of the
      services, programs, or activities of a public entity, or be subjected to discrimination by any
      such entity.” 42 USC. 5 12132, “Qualified individual” is defined in the statute as “an
      individual with a disability, who, with or without reasonable modifications to rules.
      policies, or practices, the removal of architectural, communication, or transportation
Mr. David W. Myers - Page 2                (DM-411)




barriers, or the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities
provided by a public entity.” Id. 8 12131(2).

         Cases t%om a variety of jurisdictions make plain that the court system is a public
entity to which, under the ADA, handicapped persons who can reasonably be
accommodated must be allowed access. Gallowcry v. Supenor Court, 8 16 F. Supp. 12, 19
(D.D.C. 1993); see also New York v. Caldwell, 603 N.Y.S.2d 713, 714 (N.Y. Crim. Ct.
1993); New York v. Green, 561 N.Y.S.2d 130, 133 (Westchester Cty. Ct. 1990). The
crucial question for both the situations about which you ask, then, is whether Texas law
sufficiently accommodates the disabled persons involved in them to permit those persons
the level of access required by the ADA

         In the first instance, we must consider whether a qualified interpreter must be
provided for the custodial relative of a child involved in a juvenile detention hearing. Such
a hearing is civil rather than criminal in nature. In re VR.S., 512 S.W,Zd 350,355 (Tex.
App.-Amarilio, 1974 no writ). Accordiigly, it is governed by the Civil Practice and
Remedies Code. By the terms of section 21.002 of the Civil Practice and Remedies Code,
“a deaf person who is a party or witness Ii a civil case] is entitled to have the proceedings
interpreted by a court appointed interpreter.” In answer to the question of quahiications,
such an interpreter “must hold a current Reverse Shills Certificate, Comprehensive Shills
Certificate, Master’s Comprehensive Skills Certificate, or Legal Skills Certificate issued by
the National Registry of Interpreters for the Deaf or a current Level III, Iv, or V
Certificate issued by the Board for Evaluation of Interpreters.” Civ. Prac. & Rem. Code
$21.003.

        For the purposes of a juvenile detention hearing, “‘Party’ means the state, a child
who is the subject of proceedings . . , or the child’s parent, spouse, guardian, or guardian
ad iitem.” Fam. Code 5 51.02(10). “A basic principle of the code is that every child who
appears before the juvenile court must have the assistance of some friendly, competent
adult who can supply the child with support and guidance.” Turner v. Stute, 796 S.W.2d
492, 496 (Tex. Civ. App.-Dallas 1990, no writ); see also In re Honsaker, 539 S.W.2d
198, 200-01 (Tex. Civ. App.-Dallas 1976, writ ref d n.r.e.).

        The hearing-impaired uncle of the juvenile in the instant case, so far as we can
determine from the documentation you provide, was not calied as a witness in the hearing.
He was apparently not the child’s guardian. Nor, so far as it appears, was he appointed
the child’s guardian ad litem, though that is the remedy the Family Code provides when a
parent or guardian is not available as the “friendly, competent adult” it contemplates.
Turner v. State, 796 S.W.2d at 496; In re Honsaker, 539 S.W.2d at 201. Had he been
Mr. David W. Myers - Page 3                @M-41 1)




either a witness or, as the guardian or guardian ad litem, a party, the uncle would clearly
have been entitled under section 21.002 of the Civil Practice and Remedies Code to a
qualified interpreter.

         Since the uncle in this case was neither a witness nor the guardian of the child, it
has been suggested that this office either deem him a party by reading the definition of
“party” in section 51.02(10) ofthe Family Code to include those persons who are required
to receive notice of such hearings under section 53.06 of the Family Code, or in the
alternative find that failure to provide him with a qualhied signer as defined by section
21.003 of the Civil Practice and Remedies Code violates the Americans with Disabiities
Act.

         Section 53.06 of the Family Code requires the court to issue sunnnons to a
juvenile detention hearing to “(1) the child named in the petition; (2) the child’s parent,
guardian, or custodian; (3) the child’s guardian ad litem; and (4) any other person who
appears to the court to be a proper or necessary party to the proceeding.” It has been
 suggested to us that we read the list of persons here as expanding the meaning of “party’
in section 51.02(10), apparently because of the reference to “custodii” and to “a proper
or necessary party.”

        We do not think that section 53.06 can reasonably be enlarged to hold that the
“custodian” of a child is always a “proper or necessary party” to a detention hearing. Nor
do we read the case cited to us in support of this proposition, Adair v. Kupper, 890
S.W.2d 216 (Tex. App.-Amarillo 1994, no writ), as requiring this result.

        In Adair the issue was not whether the parents of the minor child involved in the
hearing were necessary parties. The state conceded as much. 890 S.W.Zd at 218. Indeed,
the state conceded that the parents were parties under section 51.02(10). Id. The sole
issue was whether people who had been hailed into court and told that the proceedings
would affect their rights had a right to be heard through their counsel. Neither Adair nor
section 53.06 represents an expansion of the familiar meaning of the notion of “proper or
necessary party,” as set forth in, for example, Texas Jurispmdence:

           All persons having or claiming a direct interest in the object and
           subject matter of a suit, and whose interest will necessarily be
           affected by any judgment rendered therein, are not only proper
           parties, but are necessary, and may be indispensable, parties.
           Necesscny parries are those persons who have such an interest in the
           controversy that afiMIjudgment or decree cannot be made without
           affecting their interests or leaving the controversy in such a
Mr. David W. Myers - Page 4                 @M-411)




           condition that itsfinal &judication may be wholly inconsistent with
           equity and good conscience.

57 TEX. JUR. 3D Parties 5 39 (emphasis added).

         Though, as we have said, we lack sutticient factual information to judge what was
the case in the particular incident to which you refer, it may be that in that case the
custodial uncle ought to have been regarded as a proper or necessary party. However,
even were that the case, that would not mean as a matter of law that all persons similarly
situated were proper or necessary parties to juvenile detention hearings. Only such
parties, or witnesses, are entitled to qualified interpreters under section 21.002 of the Civil
Practice and Remedies Code. The court, under section 53.06, is given the authority to
deem any person a proper or necessary party. If it does so, that person is entitled to a
qualilied interpreter; if it does not, and that person is not a party under section 21.002, he
or she is not so entitled.

         In the event that we do not view a custodial uncle in the situation presented to be a
party for the purposes of section 21.002, we have been asked to find that the statutory
restriction of qualiied interpreters to participants in the hearing violates the Americans
with Disabilities Act. It is suggested that failing to provide a qualified interpreter to a
custodial relative who is not a party to the proceeding violates that person’s right of
access to the court system.

        One brief we have received argues that a spectator at a court proceeding enjoys
under the ADA “a right of lid1 access for. . . public trials and hearings,” which right-it
suggests without directly so stating-would require the availability of interpreters for deaf
or hearing-impaired spectators. We are, however, unaware of any court’s having held that
the ADA requires the routine availability of interpreters for deaf or hearing-impaired
spectators, and absent such authority we decline to read the act so broadly.

        Having declined to read the ADA so as to require the provision of interpreters to
spectators, we believe that the statutory scheme already in place su5ces to insure that
actual participants in legal controversy--parties and witnesses, in this instance-will have
the Roll access to the courts which 42 U.S.C. 5 12132 requires. That statutory scheme
may, of course, be misapplied in particular instances. But we are charged to consider not
whether such misapplications may occur, but whether the scheme itself enables citizens to
exercise their personal right of access to the courts.

       In this case, the relevant parties to the proceeding are defined by section 51.02(10)
of the Family Code--the state, the child, the parents, the gusrdian, and the guarihsn ah
Mr. David W. Myers - Page 5                 @M-411)




  litem. All such parties, under section 2 1.002 of the Civil Practice and Remedies Code, are
  legally entitled to an interpreter appointed by the court. The skills and qualifications of
  such an interpreter are defined by section 21.003 of the Civil Practice and Remedies Code.
  Such an interpreter must be afforded to any “proper or necessary party” under section
  53.06 of the Family Code whose rights may be aflbcted by the proceeding. We believe
  that the scheme we have outlined here is adquate as a matter of law to protect the rights
  of all participants in the proceeding to access to the court system as required by the
  Americans with Disabilities Act. We do not believe that a custodial relative who is not a
: patty or witness to such a proceediig as this under the statute must, as a matter of law, be
  provided with an interpreter whose qualiiications are defined by section 21.003 of the
  Civil Practice and Remedies Code.

        The legislature may, of course, take the view that the aim of access to the courts
would be better served by including custodial relatives within the list of parties to a
juvenile detention hearing to be found at section 51.02(10) of the Family Code. Such a
decision is constitutionally delegated to that body. This office is only empowered to say
that such a decision is not, in our view, compelled by the Americans with Disabilities Act.


       On the other hand, we do believe that a court would be likely to hold that, even
though Texas law may not now require it, a grand juror must, under the terms of the
ADA, be provided with the service of an interpreter whose qualifications were the same as
those mandated for a deaf defendant or witness by article 38.31(g)(2) of the Code of
Criminal Procedure.

        A number of cases have dealt with the rights of handicapped citizens under the
ADA to participate in the justice system as jurors. In Gollowqy v. Superior Court, 816 F.
Supp. at 19, the federal district court struck down the policy of excluding all blind persons
from jury duty followed by the District of Columbia Superior Court on the grounds that it
violated both the ADA and the Rehabilitation Act of 1973,29 U.S.C. @794. In New York
v. Caldwell, 603 N.Y.S.2d at 714, the Criminal Court ofthe City ofNew York found that
the lower court had an obligation under the ADA to “‘reasonably accommodate” a juror
with limited vision, and that the participation of that juror in the trial did not deny the
defendant due process. In New York v. Green, 561 N.Y.S.Zd at 133, the court noted that
the ADA, though not effective as of the instant date, counseled against a peremptory
strike of a juror who was hearing-impaired.

        On the basis of these cases, we believe that a court faced with the issue of whether
a deaf or hearing-impaired person must be provided with a qualiied interpreter would
most likely hold both that such a person must be allowed access to the court system and
the right to serve as a juror, as required by 42 U.S.C. 5 12132, and that the provision of a
Mr. David W. Myers - Page 6                  @M-411)




qualified interpreter would be the provision of the sort of “auxiliary aids and setices”
contemplated by 42 U.S.C. 5 12131(2). We believe that such a court would take into
account the provisions of Texas law which provide for the finnishing of interpreters to
witnesses and defendants in criminal proceedings, Code of Criminal Procedure, article
38.31(a), and which govern the qualifications of such interpreters, Code of Criminal
Procedure article 38.31(g)(2). We believe that the court, having done so, would find that
article 38.3l(g)(2)‘s specifications ought to govern the qualifications for interpreters for
grand jurors as well.

         We note that the cases we have cited deal with the issue of access to petit rather
than grand juries. Our research has not disclosed, nor have we been apprised of, any post-
ADA cases involving the right of handicapped citizens to participate on the grand jury.
But see E&stein v. Kirby, 452 F. Supp. 1235 (E.D. Ark. 1978) (pre-ADA case holding
that Arkansas statute disqualifyng deaf citizens from service on petit and grand juries did
not violate Due Process or Equal Protection Clause of Fourteenth Amendment); Cooligun
v. CeIli, 492 N.Y.S.2d 287 (NY. App. Div. 1985) @e-ADA case holding that deaf
person could be prohibited from serving on grand jury because of New York statute
petitting only grand jurors in grand jury room). However, we know of no distinction in
principle between grand and petit juries which would permit the conclusion that citizens
have a right to serve on the latter, but not the former.

        We note that Texas statutes do not purport to disqualify deaf or hearing-impaired
citizens from service on the grand jury. The qualifications for grand juror are laid down in
article 19.08 of the Code of Criminal Procedure. They require that to qual$ as a grand
juror, a person must be a citizen of Texas and the county in which he is to serve, qualified
to vote in that county, able to read and write, not convicted of any felony nor under
indictment for theft or any felony, not related within a certain degree to any other grand
juror, not have served as a grand juror or jmy commissioner within the year, and not be a
complainant before the grand jury. Nothing in these qualifications precludes a deaf or
hearing-impaired person from service on a grand jury.

        We do note, however, one area of potential confiict between the Texas statutes,
particularly article 20.01 l(b) of the Code of Criminal Procedure, added by the Seventy-
fourth Legislature, and this interpretation of the ADA See Act of May 24, 1995. 74th
Leg., R.S., ch. 1011, 5 1, 1995 Tex. Sess. Law Serv. 5066, 5066. Article 20.011(b)
provides that “Only a grand juror may be in a grand jury room while the grand jury is
deliberating.” There may be cases in which a deafor hearing-impaired grand juror must be
assisted by an interpreter in participating in deliberations. If that is the case, and there is a
clash between the requirements of the federal statute and article 20.011(b), the ADA
requirements must, under the Supremacy Clause, prevail. See U.S. Const. art. VI, cl. 2.
Mr. David W. Myers - Page 7                 @M-411)




          For the same reasons that we found in a recent opinion, DM-392 (1996), that the
 presence of an interpreter who had been sworn not to interfere in nor violate the secrecy
 of petit jury deliberations would not violate the due process rights of a &mitral defendant,
 we believe that the presence of an interpreter similarly sworn in the grand jtny room will
 not violate the due process rights of any subject of grand jury investigation. So long as
 these constitutional rights are properly protected, we believe that a grand juror who
 requires the services of an interpreter to participate in deliberations must be provided with
 those services, even if such provision contlicts with article 20.01 l(b). Of course, in those
 .
~mstances in which a deaf or hearing-impaired juror- could fully participate in the
 deliberations of the grand jury without the presence of his or her interpreter, article
 20.011(b) would remain in full effect. This question is within the discretion of the
 presiding judge.

        You ask, Snally, who must bear the cost for “interpreters required in the provision
of court mandated services.” Under the regulations adopted pursuant to the ADA, in
particular title 28 of the Code of Federal Regulations, section35.130(f),

                [a] public entity may not place a surcharge on a particular
           individual with a disability or any group of individuals with
           disabilities to cover the costs of measures, such as the provision of
           auxiliary aids or program accessibiity, that are rquired to provide
           that individual or group with the nondisuiminatory treatment
           required by the Act or this part.

The gloss placed upon this regulation by the Equal Employment Opportunity Commission
and Department of Justice’s analysis in the Americans with Disabilities Act Handbook is
as follows:

                Several commenters asked for clarification that the costs of
           interpreter services may not be assessed as an element of ‘court
           costs.’ The Department has already recognized that imposition of
           the cost of courtroom interpreter services is impermissible under
           section 504 [of the Rehabilitation Act]. The preamble to the
           Department’s section 504 regulation for its federally assisted
           programs states that where a court system has an obligation to
           provide qualified interpreters, ‘it has the corresponding responsibility
           to pay for the services of the interpreters.’ .          . Accordingly,
           recouping the costs of interpreter services by assessing them as part
           of court costs would also be prohibited. [Citation omitted].
Mr. David W. Myers - Page 8              @M-41 1)




EQUAL EMPLOYMENTOPPORTLJNITYCOMM’N& U.S. DEP’T OF JUSTICE, AMERICANS
WITHDIS~~TIES ACT HANDBOOK
                         II-45 (1991).

         To the extent, therefore, that interpreter services are required to make court
mandated services available to deaf or hearing-impaired persons on a non-discriminatory
basis, the costs of such services may not be imposed on those persons by taxing them as
court costs.’




      ‘We do not considerherethe questionof whethera courtmaytax a non-disabled
                                                                              partywith,fo1
example,thecostsof an interpreter
                                for a deafor lteari@mpakd witness.
Mr. David W. Myers - Page 9               (DM-411)




                                  SUMMARY

               Parties and witnesses to juvenile detention hearings who are deaf
         or hearing-impaired, like all such parties and witnesses in civil cases,
         are entitled under section 21.002 of the Civil Practice and Remedies
         Code to the services of a qualified interpreter, as detined by section
         21.003 of the Civil Practice and Remedies Code. For the purposes
         of a juvenile detention hearing, section 5 1.02(10) of the Family Code
         defines “party” as including “the state, a child.who is the subject of
         proceedmgs        , the child’s parent, spouse, guardian, or guardian ad
         litem.” A custodial relative not included within section 51.02(10)‘s
         list of parties who is not a witness to the proceedings is not entitled
         as a matter of law to the services of an interpreter under Texas
         statutes, nor does the Americans with Disabilities Act, 42 U.S.C.
         $5 12101 through 12213, require the provision of an interpreter to
         such a person.

             A grand juror must be provided with the services of an
        interpreter whose qualifications are the same as those mandated for
        an interpreter for a deaf defendant or witness by article 38.3 l(g)(2)
        of the Code of Criminal Procedure, in order to guarantee the grand
        juror the right of access mandated by 42 U.S.C. $ 12132.

              In the event that the services of the interpreter are necessary to
         aid the grand juror in deliberation, the Americans with Disabilities
         Act would require the provision of such services in the grand jury
         room despite the strictures of article 20.011(h) of the Code of
         Criminal Procedure.

              To the extent that interpreter services are required in order to
         make court-mandated serices available to deaf or hearing-impaired
         persons on a nondiscriminatory basis, the costs of such services may
         not be imposed on such persons by taxing them as court costs.




                                             DAN MORALES
                                             Attorney General of Texas
Mr. David W. Myers - Page 10      @M-41 1)




JORGE VEGA
Fist Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by James E. Tourtelott
Assistant Attorney General
