       .-       .




                                      The Attorney        General of Texas
                                                   December 30, 1983
     JIM MATTOX
     AttorneyGeneral


     Suoreme Court Buildina         Mr. Fred R. Tammen                      Opinion No. ~~-113
     P. b. Box 12546          -     Executive Director
     Austin. TX. 76711- 2546
     51214752501
                                    Texas Conrmissionfor the Deaf           Re: Meaning of "deaf person"
     Telex 9101674-1367             P. 0. Box 12904, Capitol Station        under the Code of Criminal
     Telecopier  5121475.0266       Austin, Texas   78711                   Procedure

                                    Dear Mr. Tammen:
     714 Jackson, Suite 700
     Dallas, TX. 75202.4506
     2141742.6944                        You have asked several questions relating to specific articles of
                                    the Code of Criminal Procedure that pertain to the use of interpreters
                                    for deaf persons.
     4624 Alberta Ave., Suite 160
     El Paso, TX. 799052793
     915/533-3464
                                         You first ask whether the term "deaf person" in article 38.22 of
                                    that code means the same as the definition of "deaf person" in article
,-                                  38.31. We conclude that the definition in article 38.31 applies to
     ,001 Texas. Suite 700          the entire Code of Criminal Procedure unless specifically provided
     Houston, TX. 77002.3111        otherwise. Subsection (g) of article 38.31 provides:
     713/223-5666

                                              In this Code:
     606 Broadway, Suite 312
     Lubbock, TX. 79401.3479                     (1) 'Deaf person' means a person who has a
     6061747-5236                             hearing impairment, regardless of whether the
                                              person also has a speech impairment, that inhibits
     4309 N. Tenth. Suite B
                                              the person's comprehension of the proceedings or
     McAllen. TX. 76501-1665                  communication with others.
     5121662.4547
                                         You also ask whether the phrase "a witness who does not
     200 Main Plaza, Suite 400
                                    understand and speak the English language" as used in article 38.30
     San Antonio, TX. 76205.2797
                                    refers to a deaf person as defined by article 38.31. We believe that
     5121225-4191                   article 38.30 applies to non-English speaking persons who do not
                                    comprehend the language of the forum and that article 38.31 applies to
                                    persons with hearing impairments that inhibit their comprehension of
     An Equal Opportunity/
                                    proceedings and communications with others. Watson V. State, 596
     Affirmative Action Employer
                                    S.W.2d 867, 872 (Tex. Grim. App. 1980); Ferrell v. State, 479 S.W.2d
                                    916, 917 (Tex. Grim. App. 1972). Article 38.30 refers to the
                                    interpretation of language other than the English language, and
                                    article 38.31 refers to interpretation of proceedings in a manner that
                                    a deaf person can understand, including but not limited to sign
                                    language. Statutes should not be construed in a manner that renders
                                    some language in a code redundant and superfluous. See Perkins V.
                                    State, 367 S.W.2d 140, 146 (Tex. 1963); Eddins-Walcherxane     Company
                                    v. Calvert, 298 S.W.2d 93, 96 (Tex. 1957). By construing article
                                    38.30 to apply to persons who do not have sufficient knowledge of the



                                                         p. 473
Mr. Fred R. Tammen - Page 2   (JM-113)




English language and article 38.31 to apply to persons with hearing
impairments, effect and meaning is givento both articles and neither
article is redundant or superfluous.

     You next inquire if a court, when notified by a party that a deaf
person is appearing as a defendant or witness, has any discretion as
to whether a sign language interpreter for the deaf will be appointed
to interpret the proceedings.        We conclude that, under such
circumstances, a court does not have any discretion as to whether an
interpreter will be appointed, but does have discretion as to whether
it will appoint a person to interpret by the use of sign language or
by the use of an alternative method of communication that is more
appropriate to a specific deaf person.

     The constitutional guarantees of due process in criminal trials
include the right of a defendant to confront witnesses against him and
the right to assist in his own defense. See U.S. Const. amend. 6;
Tex. Const. art. I, $10; Pointer V. Texas,xS.Ct.      1065 (1965). In
Ferrell V. Estelle, 568 F.2d 1128 (5th Cir. 1978). the Fifth Circuit
agreed that a defendant CS" not exercise the right of cross-
examination unless in some manner he is afforded knowledge of the
testimony of the witness. We believe that the right to due process
also requires the ability to communicate withy a deaf witness. The
Fifth Circuit concluded that the trial judge has the task of insuring
the minimum understanding necessary to the protection of those
constitutional rights and has the duty to explore alternative methods
of communication that are appropriate for each person and that provide
understanding in a manner that is reasonable and not disruptive to the
proceedings. Such alternative methods may, for instance, include the
use of sign language, finger spelling, lip reading, written communica-
tion, or stenographers to provide simultaneous transcriptions, or a
combination of those methods, depending on a person's proficiency in
the different systems of communication.

     It appears that the legislature incorporated the Fifth Circuit
decision into the Code of Criminal Procedure. Prior to Ferrell v.
Estelle. article 38.31 provided that all deaf defendants were entitled
to a qualified interpreter in a criminal prosecution. The following
year, 1979. article 38.31 was amended to provide, among other things,
that

          [if] the court is notified by a party that the
          defendant is deaf and will be present at an
          arraignment, hearing, examining trial, or trial,
          or that a witness is deaf and will be called at a
          hearing, examining trial, or trial, the court
          shall appoint a qualified interpreter to interpret
          the proceedings in 9      language that the deaf
          person can understand, including but not limited
          to sign language. (Emphasis added).




                              p. 474
      I




          Mr.   Fred R. Tammen - Page 3   (JM-113)




          -See 34 Southwestern L.J. 57, 545 (1980).
               You also ask if it is within the court's discretion to have a
          hearing based on article 38.31(a) in which the issue is whether the
          defendant or witness is a deaf person. As we already have stated, we
          believe that, under article 38.31(a), a court does not have any
          discretion whether to appoint an interpreter when the court is
          notified by a party that a deaf person will appear as a defendant or
          witness in a criminal proceeding. This differs from the appointment
          of a language interpreter where the court has discretion to determine
          if the person can understand and speak English when a motion for
          appointment is filed under article 38.30. See Syed V. State, 642
          S.W.2d 200, 201 (Tex. Civ. App. - Houston [14aist.] 1982, no writ);
          Vargas V. State, 627 S.W.2d 785, 787 (Tex. Civ. App. - San Antonio
          1982, no writ).

               In 1979, Senate Bill No. 548 of the Sixty-sixth Legislature
          amended article 38.30 to provide, in part, that

                     When a motion for appointment of an interpreter is
                     filed by any party or on motion of the court, in
                     any criminal proceeding, it is determined that a
,T-                  person charged or a witness does not understand
                     and speaks the English language, an interpreter
                     must be sworn to interpret for him.

          The same bill added subdivision (10) to article 28.01 of the Code of
          Criminal Procedure, to provide, in part, that

                      The court may set any criminal case for a
                      pre-trial hearing before it is set for trial upon
                      its merits . . . . The pretrial hearing shall be
                      to determine any of the following matters:

                         .   .   .

                         (10) Motion for appointment of interpreter.

          The Sixty-sixth Legislature clearly authorized the court to conduct a
          pretrial hearing for determination of a motion for appointment of an
          interpreter for a person who does not understand and speak the English
          language. The same session of the legislature amended article 38.31
          in a manner that requires appointment of an interpreter for a deaf
          person when the court is notified by a party that the deaf person will
          be present and made no provision for a motion to determine if the
          defendant or witness is, in fact, a deaf person.

               Your next question concerns the responsibility for payment of the
P
          fees and expenses of sign language interpreters appointed by a court.
          The Texas Commission for the Deaf is directed to adopt a schedule of
          reasonable fees recommended for the payment of interpreters that are



                                          p. 475
Mr. Fred R. Tammen - Page 4    (JM-113)




required by law to be provided in court proceedings. See Human
Resources Code, 281.0061. All interpreters for the deaf appointed
under article 38.31 are entitled to a reasonable fee determined by the
court after considering the recolonendationsof the Commission for the
Deaf. Also, all the actual expenses of travel, lodging, and meals
incurred by the interpreter pertaining to the case he is appointed to
serve shall be paid at the same rate applicable to state employees.
See art. 38.31(f). Article 38.31 does not expressly provide the fund
from which those payments will be made. Article 38.30, however,
expressly provides that language interpreters appointed under that
article will be paid fees and expenses "from the general fund of the
county."   Also, article 3712=(d), V.T.C.S., which relates to
interpreters for deaf persons in civil cases, contains the identical
provisions as article 38.31(f) for the payment of fees and expenses
for interpreters for deaf persons, except that article 3712=(d) also
expressly provides that the fees and expenses "shall be paid from the
general fund of the county in which the case was instituted."
Therefore, we believe that the statutes, when read together,     imply
that interpreters appointed by the court under article 38.31 to
interpret for deaf persons in criminal proceedings are entitled to
receive payment of their fees and expenses from the general fund of
the county.

     Your last question asks the effect under article 38.31(d) of a
court's failure to appoint an interpreter as required by that article.
Article 38.31(d) provides:

             (d) A proceeding for which an interpreter is
          required to be appointed under this Article may
          not commence until the appointed interpreter is in
          a position not exceeding ten feet from and in full
          view of the deaf person.

     As we have previously indicated, a basic reason that the statutes
provide for interpreters is the guarantee of the right of
confrontation under the Texas and United States Constitutions. Every
person accused of crime is entitled to be tried in accordance with
law. Strict conformity with the statutes and constitutions is the
only safe guide for a court or magistrate in the protection of such a
constitutional right. A failure to comply with any provision of
article 38.31 may constitute a denial of the constitutional right of
confrontation and, unless the right is knowingly and intelligently
waived, may result in reversible error. See Baltierra V. State, 586
S.W.2d 553 (Tex. Grim. App. 1979); Bell v.State, 24 S.W. 418 (Tex.
Grim. App. 1893).

                              SUMMARY

             The definition of "deaf person" in article
          38.31 applies to the entire Code of Criminal
          Procedure. A person who does not understand and


                              p. 476
Mr. Fred R. Tammen - Page 5    (JM-113)




          speak the English language as used in article
          38.30 does not refer to a deaf person as defined
          by article 38.31. A court, when notified by a
          party that a deaf person is appearing as a
          defendant or witness, does not have discretion as
          to whether an interpreter will be appointed but
          does have discretion as to an appropriate method
          of communication for a specific deaf person. The
          statutes do not provide for a hearing to determine
          if a defendant or witness is, in fact, a deaf
          person. Interpreters appointed by the courts for
          deaf persons are entitled to reasonable fees
          determined by the court and actual expenses to be
          paid from the general fund of the county. Failure
          to comply with the statutes for interpreters for

                         r~Z3TsJ/~&




                                       Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Nancy Sutton
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




                              p. 477
