                           QBfficeof tfp Elttornrp&mral
                                        Sbtate of Qexas
DAN MORALES
 .ATTORSLY
       CESmAL                             August 20,1993


     Ms. Nancy F. Braswell                           opinion No. DM-245
     Smith County Auditor
     Smith County Courthouse                         Re: Whether defendants in criminal cases
     Tyler, Texas 75702                              may be required to reimburse a county for
                                                     the cost of employing interpreters, and
                                                     related questions (RQ-236)

     Dear Ms. Braswell:

             You ask six questions about the payment of interpreters in ckninal cases. You
     explain that, where a defendant was unable to communicatein English, a county court-at-
     law judge has assessed interpreters’fees as costs in some miminalcases and, in others, has
     imposed the repayment of such fees as a condition of probation. The imposition of
     interpreters’fees either as costs in criminal cases or as a condition of probation is not
     expressly authorized by statute.

              You first ask whether a judge is authorized in criminal cases to tax interpreters’
     fees as costs to reimburse the county for the compensation paid to interpreters. Article
     38.30 of the Code of Criminal Procedure governs the appointment and the payment of
     interpreters in criminal cases. Subsections (b) and (c) of article 38.30 require that
     interpreters’compensation be paid out of cou@y iimds, and article 38.30 neither requires
     nor permits the coktion of these fees as costs from dekdants. Cj. Civ. Prac. & Rem.
     Code 5 2 1.OS1 (requirement that S3.OOinterpreter fee be.amessed and collected as cost in
     civil cases and deposited in county’sgenera) fimd);see uko Tex. R Civ. P. 183.

            Furthermore, article 103.002 of the Code of CriminalProcedure requires that wsts
     be expressly authorized by law, as follows:
                     An officer may not impose a cost for a setvice not performed or
                for a service for which a cost is not expressly provided by law.
     Code Grim. Proc. art. 103.002.

             Article 3.03 of the code defmes “officer”to include “both magistratesand peace
     officers.” “h4agistrate”is in turn defined to include. among other judicial ofljcers, county
     judges and judges of the county courts-at-law. Code Grim. F’roc.att. 2.09; Thus, article
      103.002 bars a court from imposing a wst on a miminal defendant unless the cost is
     expressly provided for by law.



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Ms. Nancy F. Braswell - Page 2            (DM-245)




        The wutts also advise that the question of costs in crimbml cases is governed by
statute. On the appeal in Dunn v. Safe, 683 S.W.Zd 729 (Tex. App.-Amarillo 1984. pet.
refd), the defendant attempted to have the court reportds fees for a tmnscription of trial
notes assigned as costs and charged against either the county or the state. Although the
Dunn Mutt cited neither the Code of Criminal Procedure nor any cases, the opinion
unequivocally stated that “[t]he matter of costs in uiminal cases is purely statutory.” Id.
at 730. Having examined the Code of Criminal Procedure and Ming no statutory
provision to authorize such a charge, the wurt overruled the motion to retax the
tmnscription fees. See also Luy v. State, 202 S.W. 729 (Tex. Crim. App. 1918).

        Fiily, chapttr 102 of the Code of Criminal Procedure governs the payment of
costs by defendants in criminal cases. No provision of chapter 102 requires payments of
interprtters’fbes by defbndants or authorizes their assessment against defbndants. We are
aware of no provision of the Code of CriminalProcedure or any other statutory provision
that expressly authorizes the judge of a county court-at-law to assess interpreters’fees
against miminal defendants as wsts of court. Acc&dingly, we conclude, on the basis of
articles 103.002 and 38.30 of the Code of Criminal Procedure and the decision of the
court in Lhmn, that such fees may not be assessed against defwdants in criminal cases
brought in wunty courts-at-law.

       In your second question, you ask whether a judge is authorized to require, as a
wndition of probation, that a miminal defbndant reimburse the county for interpreters’
fees. We believe that such a condition of probation is unauthorized. Section 11. article
42.12 of the Code of Criminal Procedure lists the basic conditions of probation.
Subsection 1l(t) of that article reads as follows:
                A wmt may not order a probationer to make any payments as a
           term and condition of probation, except for fmes, court costs,
           restitution of the victim, jmynent to a local crime slopper program
           under Subsection (?I)of this secrion, and other terms and conditions
           expressly authorized by statute.
Code Crim. Proc. art. 42.12, 8 1l(e) (emphasis added); see u&o id. 8 1l@).r



        ‘Subsenion1l(b)ofmiclc42.12rcadsasfollmvs:

              AcourtmaynotordaapmbationatomsLcmypaymmtraratermor
           amditionofprdaion, wspl forfines,cmn cosls,rcnitutiw to the viclim,and
           other terms m ceaditionsr&ted pe~nally tc the rehabilitationet the
           probationeror othemimexpmslyauthor&dby law. The annl rball wnsidcr
           the abilityof the probationer
                                       to makepaymmtsin orderingthe probationer
                                                                              to
           makepaymentsunderthisarticle.
CockGrim.Rot. an. 42.12, g I I(b).



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Ms. Nancy F. Braswell - Page 3             (DM-245)




        Attorney General Opiion IM-853 (1988) examined subsection (t) prior to the
inclusion of the emphasized language and determined that the provision is mandatory and
“operates as a blanket prohiiion, subject to the stated exceptions.” Attorney General
Opiion TM-853at 2. As indicated above, we are unaware of any statute that authorizes
the assessment of interpreted fees against wiminal defendants.

        In addition to those monetary payments that are expressly recognized in section
II(e) as suitable for probationary payments, article 42.12 enumerates other payments
“expressly authorized by statute.“s Of particular interest here is the section 1l(a)(ll)
provision allowing a probationary condition that the defendant reimburse the county for
court appointed wunse.l. This expense is analogous to the wst of an interpreter inasmuch
asitisnecessitatedbythe cirwmstances of the defendant, and its inclusion reinforces our
conclusion that repayment of the costs of an interpxter is not an allowable condition of
probation.

       Your third question asks whether the equal protection clause of the United States
Constitution prohibits a requirementthat a defendantwho doesn’tspeak English reimburse
the county for compensationpaid to interpreters in a criminalcase. ln light of our answers
to your previous questions, we need not address the wwtitutional issues

         Your fourth and fitlh questions ask what you, as wunty auditor, should do with
the funds that have been wUected either as costs or as conditions of probation. We find
no special statutory method for the treatment of tbnds that have been erroneously
~llecttd   from criminal defendants and believe that you should treat them as you do
authorized wlltctions. See Code Grim. Proc. art. 103.008(a) (defendant to 6lt a petition
for wrrection of costs). We believe, however, that as wunty auditor you have authority
to establish a suspense acwunt for the deposit of these funds. See Local Gov’t Code
0 112.001.




       zCodeGrim.Roe. ti 42.12. $5 11(a)(9)(sapponofkpebnts), ll(a)(ll) (reimbmscanuny
for compeamtionpaid to abmtappointedattorney),,
                                             11(c)(as addedby Acts 1991. 72d Leg.. ch. 202)
(mimbamccrime victim’scompaamtioafund), 11(c) (as addedPy Acts 1991, 72d Leg., ch. 285)
(miNhonc law eaforwmcntagwcy for czltain expeasmrelatedto drag offenses)),11(f) (paymentof
aamsehg madewwasaryforvictimof certainoffcases), 1l(h) (as addedby Acts 1989,Iln kg.. ch.
86) @ymcnt to crime noplrn pm8ram),22 @aymwtfor opamtionof a axnmunityamxtions
depanmcnt).
      3Forthe same reason,WCnead not aanveryour last qucnios which was pmmimdon the
assumptionthat the judge of a wmtty court-at-lawcould assess iNerpICtcrs’fees againsta criminal
ddwdant.



                                          p. 1261
MS. Nancy F. Braawell - Page 4           (DM-245)




                                 SUMMARY

               A&It     38.30 of the Code of Criminal Procedure requires
          interpreters in uiminal cases to be paid from county kids. A judge
          of a wunty court-at-law may not assess interpreters’fees either as
          ~4s or require payment as a condition of probation.




                                                    DAN      MORALES
                                                    Attorney General of Texas

WILL PRYOR
First As&ant Attorney General

MARYKELLER
Deputy Attorney General for Litigation

PEIUEAHICKS
Statesolicitor

MADELEINE B. JOHNSON
Chair, opinion Committee

Prepared by Steve Arag&
Assistant Attorney Gtntral




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