    OFFiCE   OF   THE   ATTORNEY   GENERAL   . STATE    OF   TEXAS

   JOHN       CORNYN




                                                       November 26,2002



The Honorable Florence Shapiro                                 Opinion No. JC-0584
Chair, Senate Committee on State Affairs
Texas State Senate                                             Re: Whether chapter 57 of the Government Code
P.O. Box 12068                                                 requires the appointment of licensed court interpreters
Austin, Texas 787 1 l-2068                                     in certain circumstances, and related questions
                                                               (RQ-OSSS-JC)


Dear Senator Shapiro:

         You ask about chapter 57 of the Government Code, a recently enacted statute that establishes
qualifications for court interpreters for hearing-impaired individuals (interpreters for the deaf) and
individuals who do not communicate in English (spoken-language interpreters) and requires courts
to appoint qualified court interpreters. Your questions focus on the appointment of spoken-language
interpreters and the payment of their fees in justice court proceedings.’

         We conclude that chapter 57 applies to a plea in a misdemeanor case in justice court, but that
a court clerk who merely converses with a defendant in a language other than English does not “act
as a licensed court interpreter” within the meaning of chapter 57. In either a civil or criminal
proceeding, whether a party has filed a motion for or a witness has requested the appointment of an
interpreter will depend upon the facts and is a question for the trial court in the first instance. The
court may grant or deny such a motion or request. In a criminal proceeding, a court must also take
into account the defendant’s constitutional right to an interpreter and article 38.30 of the Code of
Criminal Procedure.      Chapter 57 establishes qualifications for interpreters appointed in criminal
cases under the authority of article 38.30. If the only person who is licensed to interpret in a
particular language resides in a distant location, a court in a populous county would be required to
appoint that person. On the other hand, if there is no interpreter licensed to interpret in a particular
language, the appointment of an unlicensed person may be within a court’s inherent power. Finally,
we conclude that chapter 57 does not alter preexisting law on the payment of appointed court
interpreters.  It does not require counties to pay for spoken-language interpreters in civil cases.
Courts retain their authority under the Rules of Civil Procedure and the Civil Practice and Remedies
Code to fix an interpreter’s compensation and to direct how an interpreter will be paid in civil cases.
A county may not require a court to select an interpreter from an interpreter service under contract
with the county, although a court may choose to select such an interpreter.



         ‘Letter fromHonorable Florence Shapiro, Chair, Senate Committee on State Affairs, to Honorable John Comyn,
Texas Attorney General (May 29,2002) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Florence Shapiro            - Page 2               (JC-05 84)




I. Legal Framework

         A. Statutes Predating Government                Code Chapter 57

         Your questions relate not only to chapter 57 but also to numerous other provisions providing
for the appointment and payment of court interpreters. Therefore, before turning to your questions,
we briefly review the legal framework regarding court interpreters. First, we examine a number of
provisions that predate chapter 57. Although your questions deal with chapter 57’s application to
spoken-language    interpreters as opposed to interpreters for the deaf, we include in our review
provisions relating to interpreters for the deaf as those provisions are relevant to our later analysis
of chapter 57.

                   1. Appointment        and Payment of Interpreters in Civil Cases

          With regard to the appointment of interpreters in civil cases generally, Rule 183 of the Texas
 Rules of Civil Procedure provides that a court “may appoint an interpreter of its own selection and
 may fix the interpreter’s reasonable compensation.” TEX. R. CIV. P. 183. Rule 183 is not specific
 as to the type of interpreter and authorizes courts to appoint both spoken-language interpreters and
 interpreters for the deaf This rule is generally applicable in civil cases, including civil matters in
justice court. See TEX. R. CIV. P. 523 (“All rules governing the district and county courts shall also
 govern the justice courts, insofar as they can be applied, except where otherwise specifically
provided by law or these rules.“).

         With respect to payment, Rule 183 further provides that an interpreter’s “compensation shall
be paid out of funds provided by law or by one or more of the parties as the court may direct, and
may be taxed ultimately as costs, in the discretion of the court.” TEX. R. CIV. P. 183. In addition,
section 31.007 of the Civil Practice and Remedies Code authorizes the “judge of any court” to
include interpreter costs in any order or judgment.     See TEX. CIV. PRAC. & REM. CODE ANN. $
3 1.007(b)(3) (V emon 1997); see also TEX. R. CIV. P. 559 (In justice court, “[tlhe successful party
in the suit shall recover his costs, except in cases where it is otherwise expressly provided.“).
Finally, some statutes expressly provide for the payment of court interpreters as costs in specific
matters, such as certain mental-health and probate cases.*

          Subchapter A of chapter 21 of the Civil Practice and Remedies Code requires the
appointment of interpreters for the deaf in civil cases, see TEX. CIV. PRAC. & REM. CODE ANN. 9
2 1.002(a) (Vernon 1997) (“In a civil case or in a deposition, a deaf person who is a party or witness
is entitled to have the proceedings interpreted by a court-appointed interpreter.“), and establishes


           2SeeTEX.HEALTH& SAFETYCODEANN. $571.017(a) (Vernon 1992) (“The court shall order the payment of
reasonable compensation to attorneys, physicians, language interpreters, sign interpreters, and masters appointed under
this subtitle.“), (b) (“The compensation paid shall be taxed as costs in the case.“); TEX. PROB.CODEANN. 0 665A
(Vernon Supp. 2002) (“The court shall order the payment of a fee set by the court as compensation to the attorneys,
mental health professionals, and interpreters appointed under Section 646 or 687 of this code, as applicable, to be taxed
as costs in the case.“).
The Honorable Florence Shapiro      - Page 3            (JC-0584)




qualifications for interpreters for the deaf see id. 9 21.003 (to be eligible for appointment, an
interpreter must hold “a current Reverse Skills Certificate, Comprehensive           Skills 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”). In contrast to Rule 183, subchapter A also provides for the payment
of interpreters with county funds. See id. 9 2 1.006(a) (“The interpreter shall be paid a reasonable
fee determined by the court after considering the recommended fees of the Texas Commission for
the Deaf and Hard of Hearing.“), (c) (“The interpreter’s fee and expenses shall be paid from the
general fund of the county in which the case was brought.“).

        No statute predating chapter 57 of the Government Code requires the appointment      of spoken-
language interpreters in civil cases or addresses their qualifications.

                2. Appointment     of Interpreters in Criminal Matters

         The United States and Texas Constitutions provide defendants in criminal cases with the
right to confront witnesses against them. See U.S. CONST.amend. VI; TEX. CONST. art. I, 0 10. That
right includes the right to have trial proceedings interpreted to a defendant in a language he or she
can understand. See Baltierra v. State, 586 S.W.2d 553, 558 (Tex. Crim. App. 1979).

         Articles 38.30 and 38.3 1 of the Code of Criminal Procedure provide for the appointment of
interpreters in criminal cases. See TEX. CODE GRIM.PROC.ANN. arts. 38.30 (Vernon Supp. 2002)
(spoken-language     interpreters), 38.31 (interpreters for the deaf). Article 38.30 provides for the
appointment of spoken-language interpreters:

                         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 person charged or a witness does not understand
                and speak the English language, an interpreter must be sworn to
                interpret for him.

Id. art. 38.30(a). Article 38.30 has been construed in light of a defendant’s constitutional right to an
interpreter. See Baltierra, 586 S.W.2d at 558. Thus, although article 38.30(a) requires apartyto file
a motion for appointrnent of an interpreter, “[tlhe onus is upon the trial court to inquire whether the
accused’s rights would be safeguarded in the absence of an interpreter when the ability of the
defendant to speak and understand English is raised to some extent.” Cantu v. State, 993 S.W.2d
712,721-22 (Tex. App.-San Antonio        1999, pet. ret? d) (citing Baltiewa, 546 S.W.2d at 558-59 n.9);
see also Vasquez v. State, 819 S.W.2d 932, 938 (Tex. App.-Corpus Christi 1991, pet. ref d). A
defendant waives his right to an interpreter, however, when he does not object or file a motion for
an interpreter, unless the trial court is otherwise aware that he needs one. When a defendant fails
to object or to file a motion at the trial-court level, a reviewing court will examine the record on
appeal to determine whether the trial court should have inquired into the matter on its own. See, e.g.,
Cantu, 993 S.W.2d at 721-22 (reviewing record to evaluate defendant’s claim that his plea was not
voluntary or knowing based on a lack of an interpreter and determining that claim negated by the
The Honorable Florence Shapiro       - Page 4             (JC-0584)




record); Vasquez, 819 S.W.2d at 938 (“In the absence of facts to show that appellant could not
understand English, we find no error. . . .“). If a defendant moves for the appointment of an
interpreter, it is within the trial court’s discretion to determine whether the defendant requires an
interpreter. See Martins v. State, 52 S.W.3d 459, 473 (Tex. App.-Corpus Christi 2001, no pet.)
(“mere fact that a defendant may better express himself in Spanish than English does not require that
the trial court appoint an interpreter even where it has been requested”); see also Tex. Att’y Gen. Op.
No. JM-113 (1983) (concluding that a court has discretion in deciding whether to appoint a language
interpreter for a non-English speaking defendant, but has no discretion in deciding whether to
appoint an interpreter for the deaf).

        Article 38.30 provides for the payment of interpreters with county funds.           See. TEX. CODE
CRIM.PR0C.h-N.a-t. 38.30(b)-(c)(V emon Supp. 2002); see also Tex. Att’y Gen.              Op. No. DM-245
(1993) at 4 (“Article 38.30 of the Code of Criminal Procedure requires interpreters        in criminal cases
to be paid from county funds. A judge of a county court-at-law may not assess             interpreters’ fees
either as costs or require payment as a condition of probation.“).

        Article 3 8.3 1 requires the appointment    of interpreters for the deaf:

                          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 quaZzjied interpreter to interpret the
                proceedings in any language that the deaf person can understand,
                including but not limited to sign language.

TEX. CODE GRIM. PROC.ANN. art. 38.31(a) (Vernon Supp. 2002) (emphasis          added). Article 38.31
uses the same interpreter qualifications prescribed in chapter 2 1, subchapter A of the Civil Practice
and Remedies Code, and has similar payment provisions. See id. art. 38.3 1(f), (g)(2); TEX. CIV.
PRAC. & REM. CODE ANN. 53 21.003, .006 (Vernon 1997). Article 38.3 1 is silent with respect to
how interpreters are paid, but a 1983 opinion of this office concludes that their fees and expenses
are paid from the county general fund. See Tex. Att’y Gen. Op. No. JM-113 (1983).

                3. Provisions Authorizing       the Employment      of Court Interpreters

         The provisions discussed above govern the appointment and payment of court interpreters
in particular cases. A separate category of statutes authorizes certain courts to employ interpreters
on a full-time or part-time basis. Chapter 2 1, subchapter B of the Civil Practice and Remedies Code
provides for the appointment of full-time or part-time Spanish language interpreters in district courts
in certain counties. See TEX. CIV. PRAC. & REM. CODE ANN. $0 21.021-,023 (Vernon 1997).
Subchapter C provides for the appointment of “official interpreters” in county courts at law. See id.
$5 2 1.03 l-.032. In addition, local laws provide for the appointment of court interpreters in specific
The Honorable Florence Shapiro              - Page 5               (JC-0584)




court~.~ Unlike subchapter A, which establishes a party’s “entitlement” to an interpreter for the deaf,
these provisions do not address when interpreters must be used in particular cases.

          Section 152.903 of the Local Government Code governs the compensation of interpreters
employed by district courts: “[Tlhe commissioners court of a county may set the compensation
of interpreters employed by the district courts in the county.” TEX. LOC. GOV’T CODE ANN.
0 152.903(a) (V emon 1999); see also id. 8 152.903(b) (“The salary of an interpreter shall be paid
on warrants issued by the district court or the clerk of the court in favor of the interpreter.“). Section
152.903 also provides that the salary of a Spanish language interpreter appointed under Civil Practice
and Remedies Code chapter 2 1, subchapter B “is payable in equal monthly payments or by any other
distribution at the option of the county.” See id. 9 152.903(c). The compensation of interpreters
employed by other county courts is governed by subchapter B of chapter 152, which governs the
setting of county employee salaries generally. See id. Revisor’s Note; see also id. tj 152.011 (“The
commissioners     court of a county shall set the amount of the compensation, office and travel
expenses, and all other allowances for county and precinct officers and employees who are paid
wholly from county funds.“). Section 152.903 “does not apply to interpreters for deaf or deaf-mute
persons appointed under Subchapter A, Chapter 21, Civil Practice and Remedies Code, or Article
38.31, Code of Criminal Procedure.” Id. 0 152.903(d).

         Civil Practice and Remedies Code chapter 2 1, subchapter D provides for the collection of
an interpreter fee as a court cost in civil cases. See TEX. CIV. PRAC. & REM. CODE ANN. 4 21.051
(Vernon 1997) (“The clerk of the court shall collect an interpreter fee of $3 as a court cost in each
civil case in which an interpreter is used. The clerk shall collect the fee in the manner provided for
other court costs and shall deposit the fee to the credit of the general fund of the county.“).
Presumably, this fee is used by counties to defray the salaries of interpreters who are employed by
the courts and paid by the county. And presumably, this fee is not collected in cases involving
interpreters who are appointed by a court to interpret on a one-time basis and who are paid by the
parties.

         B. Government          Code Chapter 57

       Now we turn to chapter 57 of the Government Code, the new law that is the focus of your
query.  It generally requires the appointment of a certified or licensed court interpreter, see TEX.
GOV’T CODE ANN. 6 57.002 (Vernon Supp. 2002), and provides for certification and licensing. It
does not address the payment of interpreters.



          3See, e.g., TEX. GOV’T CODE ANN. $8 24.207(c) (V emon 1988) (“The judge [of the 105th Judicial District],
with the approval of the commissioners court, may appoint an official interpreter of the court in Nueces County who
serves at the will of the judge.“), 25.1102(g) (Vernon Supp. 2002) (“The official interpreter of the district courts of
Hidalgo County serves as official interpreter of each county court at law. If the official interpreter is not available, the
judge of a county court at law may appoint a temporary interpreter. The temporary interpreter shall be compensated at
an amount not to exceed $5 a day paid out of the county’s general fund on certificate of the judge. Subject to the
commissioners    court approval, the judge of a county court at law may appoint an official interpreter for the court as
provided by law.“).
The Honorable Florence Shapiro       - Page 6            (JC-0584)




         For purposes of chapter 57, a “certified court interpreter” is an interpreter for the deaf “who
is a qualified interpreter as defined in Article 3 8.3 1, Code of Criminal Procedure, or Section 2 1.003,
Civil Practice and Remedies Code, or certified under Subchapter B by the Texas Commission for
the Deaf and Hard of Hearing to interpret court proceedings for a hearing-impaired individual.” Id.
8 57.001(l). A “licensed court interpreter” is a spoken-language interpreter who is “licensed under
Subchapter C by the Texas Commission of Licensing and Regulation to interpret court proceedings
for an individual who can hear but who does not comprehend English or communicate in English.”
Id. 0 57.001(5). Subchapter B provides for the certification of court interpreters to interpret court
proceedings for hearing-impaired      individuals by the Texas Commission for the Deaf and Hard of
Hearing. See id. $0 57.021-.025. And subchapter C provides for the Commission of Licensing and
Regulation to license spoken-language           court interpreters to interpret court proceedings     for
individuals who do not communicate in English. See id. $5 57.041-.048.                A person who was
practicing as a court interpreter prior to chapter 57’s effective date may be licensed or certified
without examination by submitting to the relevant commission the required fees and proof of the
person’s experience. See Act ofMay28,2001,77th             Leg., R.S., ch. 1139,§ 5,200l Tex. Gen. Laws
2537,254l.

         It is an offense under chapter 57 for an uncertified or unlicensed person to hold one’s self out
as or to act as a certified or licensed court interpreter. See TEX. GOV’T CODE ANN. 88 57.026
(Vernon Supp. 2002) (“A person may not advertise, represent to be, or act as a certified court
interpreter unless the person holds an appropriate certificate under this subchapter.“), 57.049 (“A
person may not advertise, represent to be, or act as a licensed court interpreter unless the person
holds an appropriate license under this subchapter.“). A person who commits this offense is subject
to administrative penalties and to prosecution for a Class A misdemeanor. See id. $8 57.027(a) (“A
person commits [a Class A misdemeanor] offense if the person violates this subchapter or a rule
adopted under this subchapter.“), (b) (“A person who violates this subchapter or a rule adopted under
this subchapter is subject to an administrative penalty assessed by the [Commission for the Deaf and
Hard of Hearing].“), 57.050(a) (“A person commits [a Class A misdemeanor offense] if the person
violates this subchapter or a rule adopted under this subchapter.“), (b) (“A person who violates this
subchapter or a rule adopted under this subchapter is subject to an administrative penalty assessed
by the [Commission of Licensing and Regulation] as provided by Subchapter F, Chapter 5 1,
Occupations Code.“).

         Significantly, section 57.002 requires a court to appoint        a certified   or licensed   court
interpreter upon the motion of a party or the request of a witness:

                     (a) A court shall appoint a certified court interpreter or a licensed
                court interpreter if a motion for the appointment of an interpreter is
                filed by a party or requested by a witness in a civil or criminal
                proceeding in the court.

Id. 8 57.002(a). In addition, a court may, on its own motion, appoint a certified court interpreter or
a licensed court interpreter. Id. 8 57.002(b). Under subsection (c) of this provision, smaller counties
have more flexibility with regard to the qualifications of spoken-language interpreters (but not with
The Honorable    Florence Shapiro   - Page 7            (JC-0584)




regard to interpreters for the deaf): “In a county with a population of less than 50,000, a court may
appoint a spoken language interpreter who is not a certified or licensed court interpreter and who:
(1) is qualified by the court as an expert under the Texas Rules of Evidence; (2) is at least 18 years
of age; and (3) is not a party to the proceeding.” Id. 0 57.002(c).

         Although section 57.002 clearly modifies the authority of ‘a court to determine the
qualifications of an interpreter, we do not construe section 57.002 to strip a court of its authority to
determine whether a party or witness is able to communicate in English and requires an interpreter.
Section 57.002(a) provides that “[a] court shall appoint a certified court interpreter or a licensed
court interpreter if a motion for the appointment of an interpreter is filed by a party or requested by
a witness.” Id. 5 57.002(a) (emphasis added). The word “shall” generally imposes a mandatory duty,
see id. 0 311.016(c) (V emon 1998) (Code Construction Act), but we must look at a statute as a
whole to determine the nature of that duty. See D. R. v. J.A. R., 894 S.W.2d 91’95 (Tex. App.-Fort
Worth 1995, writ denied) (noting that while the word “shall” is generally construed to be mandatory,
Lb[tlhere is no absolute test by which it may be determined whether a statutory provision is mandatory
or directory. . . . In determining whether the Legislature intended the particular provision to be
mandatory or merely directory, consideration should be given to the entire act, its nature and object,
and the consequences that would follow from each construction.“). We construe section 57.002(a)
to impose on a court the mandatory duty to appoint a certzJied or licensed interpreter when the court
appoints an interpreter. See TEX. GOV’T CODE ANN. 9 57.002(a) (Vernon Supp. 2002) (“[a] court
shall appoint a certified court interpreter or a licensed court interpreter”) (emphasis added).
However, we believe section 57.002(a)‘s conditional clause - “if a motion for the appointment of
an interpreter is filed by a party or requested by a witness,” id. 9 57.002(a) (emphasis added) -
indicates that the legislature intended for courts to have discretion to determine whether the party
or witness requires an interpreter. See D. R., 894 S.W.2d at 94-95 (in statute providing that “[i]f the
court finds that a motion to modify under Section 14.08 1 . . . is filed frivolously or is designed to
harass a party, the court shall tax attorney’s fees as costs against the offending party as provided by
Section 11.18 of this code,” the word “shall” merely directs the trial court to award the attorney fees
as costs under section 11.18 but does not make the awarding of attorney fees mandatory).
Furthermore, it would not be reasonable to construe section 57.002 to require a court to grant every
motion or request for an interpreter. For example, the legislature would not have intended to require
courts to appoint interpreters when the witness or party clearly does not require one or has requested
the appointment of an interpreter in bad faith. See TEX.GOV’T CODEANN. 0 3 11.02 1 (Vernon 1998)
(in enacting a statute, it is presumed that “a just and reasonable result is intended” and “a result
feasible of execution is intended”) (Code Construction Act).

II. Questions

        Your questions deal with spoken-language interpreters as opposed to interpreters for the deaf.
Thus, we do not consider whether the right to the appointment of a interpreter for the deaf under the
Civil Practice and Remedies Code or the Code of Criminal Procedure is broader than the right to a
The Honorable Florence Shapiro               - Page 8                (JC-0584)




certified interpreter under chapter 57 of the Government Code.4 Nor do we address any issues raised
by the interplay between Texas law on the appointment and payment of interpreters for the deaf and
theFederal Americans WithDisabilities Act, 42U.S.C. $3 12101-12213 (2000). SeeTex. Att’y Gen.
Op. No. DM-411 (1996) at 9 (concluding that to the extent interpreter services are required to make
court mandated services available to deaf or hearing-impaired persons on a non-discriminatory basis
as required by the Americans with Disabilities Act, the costs of such services may not be imposed
on those persons by taxing them as court costs).

        All of your questions appear to pertain to the appointment of interpreters in justice courts.
Because you mention Dallas County specifically, we assume that you are not asking about courts in
counties with populations of less than 50,000 that have more flexibility with respect to the
appointment of spoken-language interpreters under chapter 57. See TEX. GOV’T CODE ANN. 6
57.002(c) (Vernon Supp. 2002) (exception for less populous counties). Given your interest in how
court interpreters will be paid, we also assume that you do not ask about interpreters who are
employed by courts on a full- or part-time basis and whose salaries are paid with county funds under
chapter 152 of the Local Government Code. See discussion supra pp. 4-5.

         To the extent your questions require us to interpret statutes, we must attempt to give effect
to the legislature’s intent. See TEX. GOV’T CODE ANN. $0 3 11.021, .023 (Vernon 1998); Mitchell
Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997). To do so, we construe a statute
according to its plain language. See RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605,
607-08 (Tex. 1985); Bouldin v. Bexar County Sherzf’s Civil Serv. Comm iz, 12 S.W.3d 527, 529
(Tex. App.-San Antonio 1999, no pet.). Words and phrases that have acquired a technical or
particular meaning, by legislative definition or otherwise, must be construed accordingly. See TEX.
GOV’T CODE ANN. $ 311.011(b) (V emon 1998). Otherwise, words and phrases must be read in
context and construed according to the rules of grammar and common usage. Id. 6 3 11 .Ol l(a).
Finally, when a statute is ambiguous, we may consider, among other things, the object sought to be
attained, the circumstances     under which a statute was enacted, legislative history, and the
consequences of a particular construction. See id. 6 3 11.023; see also id. 8 3 11.02 1 (in enacting a
statute, it is presumed that “a just and reasonable result is intended” and “a result feasible of
execution is intended”).




           4Compare TEX.Crv. PMC. &REM. CODEANN. $2 1.002(a) (Vernon 1997) (“In a civil case or in a deposition,
a deaf person who is a party or witness is entitled to have the proceedings interpreted by a court-appointed interpreter.“)
(emphasis added) and TEX.CODEGRIM. PROC.ANN. art. 38.31(a) (Vernon Supp. 2002) (“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, examinin g trial, or trial, the court shall appoint a qualified interpreter”) (emphasis
added), with TEX. GOV’T CODEANN. 0 57.002(a) (Vernon Supp. 2002) (“A court shall appoint a certified court
interpreter or a licensed court interpreter ifQ motion for the appointment of an interpreter isfired by aparty or requested
by a witness in a civil or criminal proceeding in the court.“) (emphasis added).
The Honorable Florence Shapiro       - Page 9            (JC-0584)




        A. Appointment      of Interpreter for Plea in a Misdemeanor        Case

        First, you ask a multi-part question about chapter 57’s application when a defendant enters
a plea in a misdemeanor case:

                         What is a “proceeding in the court”? If an individual who
                appears to enter a plea in a misdemeanor case in a justice court (most
                pleas in justice courts are made at the counter by having the defendant
                fill out a plea sheet) and who does not speak English asks for
                assistance from a clerk of the court, is this a proceeding in the court
                and would the court be required to appoint a licensed interpreter
                under the provisions of Ch. 57 Texas Government Code?

Request Letter, supra note 1, at 2 (question l(a)). You also ask whether “a clerk of the court
assisting such an individual [would] be in violation of this law if the clerk is not licensed or certified
as an interpreter” and whether “the court [would] be in jeopardy of violating the law by allowing a
clerk under these circumstances to assist an individual?” Id. (question l(b)). Your query goes to
several different issues - what constitutes a “criminal proceeding in the court”; when chapter 57’s
appointment and criminal provisions apply; what constitutes a motion for the appointment of an
interpreter; and the relationship between chapter 57’s requirements and article 38.30 of the Code of
Criminal Procedure.

          A defendant’s plea in a criminal misdemeanor case is a step in a “criminal proceeding in the
 court” subject to chapter 57. Section 57.002(a) provides that “[a] court shall appoint a certified court
 interpreter or a licensed court interpreter if a motion for the appointment of an interpreter is filed by
 a party or requested by a witness in a civil or criminalproceeding         in the court.” TEX. GOV’T CODE
 ANN. fj 57.002(@ (V emon Supp. 2002) (emphasis added). A misdemeanor action in justice court
 is a criminal proceeding.      See TEX. CONST. art. V, 0 19 (“Justice of the peace courts shall have
 original jurisdiction in criminal matters of misdemeanor cases punishable by fine only, exclusive
jurisdiction in civil matters where the amount in controversy is two hundred dollars or less, and such
 other jurisdiction as may be provided by law.“) (emphasis added). We construe the language “in the
 court” not to require that the proceeding occur in the courtroom but rather that the particular
proceeding be before the court to which the motion or request for appointment of an interpreter is
made. In Attorney General Opinion JC-0579 (2002), this office concluded that chapter 57 requires
the appointment of interpreters in grand jury proceedings, proceedings that take place outside a
 courtroom, see TEX. CODE GRIM. PROC.ANN. arts. 20.01 (Vernon 1997) (grand jury room), 20.011
 (Vernon Supp. 2002) (limiting who may attend grand jury proceedings in grand jury room), but that
 are subject to a court’s jurisdiction, see, e.g., id. arts. 19.07,19.22,19.26 (Vernon Supp. 2002), 19.35
 (Vernon 1997), 20.06,20.21-.22         (Vernon Supp. 2002). In light of the statute’s remedial purpose,
we adopted a broad interpretation of the phrase “criminal proceeding” to include “all possible steps
in an action from its commencement to its execution.” Tex. Att’y Gen. Op. No. JC-0579 (2002)
 at 2-3. This broad reading would include the taking of a plea.
The Honorable Florence Shapiro      - Page 10           (JC-0584)




         But our conclusion that a plea in a misdemeanor case is within the scope of section 57.002(a)
does not mean that a court clerk who assists a defendant in filing a plea by conversing with the
defendant in a language other than English necessarily violates chapter 57. Chapter 57 does not
preclude a court clerk from conversing with a defendant in another language, provided that the clerk
is not acting as a translator between the defendant and a third person. Under the relevant criminal
provision, section 57.049, a person may not “advertise, represent to be, or act as a licensed court
interpreter unless the person holds an appropriate license under this subchapter.” TEX. GOV’T CODE
iiNN. 8 57.049 (Vernon Supp. 2002). Chapter 57 defines the term “licensed court interpreter,” see
id. 0 57.001(5), but it does not define what it means to act as a licensed court interpreter. Under the
Code Construction Act, “[wlords and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly.” Id. 9 3 11 .Ol 1(a)
(Vernon 1998). “Court interpreter,” or “interpreter,” is a technical legal term that refers to a person
“sworn at a tial to accurately translate the testimony of a witness who is deaf or who speaks a
foreign language.” BLACK’S LAW DICTIONARY824 (7th ed. 1999). The duties of a court interpreter
are also spelled out by statutes requiring interpreters for the deaf to take an oath that they will make
a true translation to the deaf person of the proceedings and repeat the deaf person’s answers to
questions to counsel, court, and jury using the interpreter’s “best skill and judgment.” TEX. CIV.
PRAC. &REM. CODE ANN. 0 21.005(a) (V emon 1997); TEX. CODE CRIM.PROC.ANN. art. 38.31(e)
(Vernon Supp. 2002); see also TEX. R. EVID. 604 (“An interpreter is subject to the provisions of
these rules relating to qualification as an expert and the administration of an oath or affirmation to
make a true translation.“). Thus, to “act as a court interpreter” means to translate proceedings for
a party or witness or to translate a party’s or witness’s testimony to others in the proceedings, serving
as a conduit of information between the party or witness and other parties to the proceedings. This
is the conduct for which chapter 57 requires a person to have a license or certificate. Section 57.049
does not apply when a court clerk merely converses with a defendant in another language, even if
the clerk assists the defendant, provided that the clerk is not acting as a translator between the
defendant and the court or another third person.

          You also ask what constitutes a motion under section 57.002 in the context of a misdemeanor
action in justice court. According to the plain language of section 57.002, the defendant, who is a
party to the proceeding, must move for the appointment of an interpreter in order for chapter 57’s
appointment requirement to apply. See TEX. GOV’T CODEANN. 0 57.002(a) (Vernon Supp. 2002)
(requiring the appointment of an interpreter “if a motion for the appointment of an interpreter isfiled
by a party or requested by a witness”) (emphasis added). In criminal proceedings in justice court,
“[a]11 pleading of the defendant . . . may be oral or in writing as the court may direct.” TEX. CODE
CRIM. PROC. ANN. art. 45.021 (Vernon Supp. 2002). Thus, whether or not a defendant in justice
court “who does not speak English” and who “asks for assistance from a clerk of the court” to enter
a plea has moved for appointment of an interpreter will depend upon the circumstances and, in the
first instance, is a matter for the court taking the plea. And, as we have noted, the court may grant
or deny a motion for an interpreter based on the court’s assessment of the defendant’s ability to
communicate in English. See discussion supra p. 7.

       In the situation you describe, a court must also consider the requirements of article 38.30 of
Code of the Criminal Procedure and the defendant’s constitutional rights. As provisions providing
The Honorable    Florence Shapiro     - Page 11          (JC-0584)




for the appointment   of interpreters fall under the general rubric of evidentiary rules, see TEX. CODE
GRIM. PROC.ANN. ch. 38 (Vernon Supp. 2002) (entitled “Evidence in Criminal Actions”); TEX. R.
EVID. 604 (“An interpreter is subject to the provisions of these rules relating to qualification as an
expert and the administration of an oath or affirmation to make a true translation.“), article 38.30
applies in criminal proceedings in justice court, see TEX. CODE CRIM. PROC. ANN. art. 45.011
(Vernon Supp. 2002) (“The rules of evidence that govern the trials of criminal actions in the district
court apply to a criminal proceeding in a justice or municipal court.“).

         Article 38.30 requires the appointment of a spoken-language            interpreter when “it is
determined that a person charged or a witness does not understand and speak the English language.”
Id. art. 38.30(a). Ii-r addition, given a defendant’s constitutional right to confront witnesses and
understand the proceedings, a court must appoint an interpreter if the court is aware that the
defendant does not speak English and cannot understand the proceedings, unless the defendant
waives that right. See cases cited supra pp. 3-4. A defendant who enters a guilty plea waives the
right to confront witnesses. Thus, when taking a guilty plea, the court must consider whether the
defendant requires an interpreter in order to intelligently and voluntarily waive his right to
confrontation. See Briones v. State, 595 S.W.2d 546,547-48 (Tex. Crim. App. 1980) (“The question
involved in the case at bar is not whether the failure to appoint an interpreter denied the appellant’s
right to confrontation. Rather the question is whether the failure to appoint an interpreter prevented
the appellant from intelligently and voluntarily waiving his right to confi-ontation and entering a plea
of nolo contendere.“). Whether a defendant requires the assistance of an interpreter to enter a guilty
plea is a question of fact for the trial court in the first instance.

         Finally, your first question raises the relationship between article 38.30 of the Code of
Criminal Procedure and chapter 57 of the Government Code. When a court appoints a spoken-
language interpreter in a criminal case, we conclude that chapter 57 establishes the requisite
interpreter qualifications.  Therefore, the interpreter must be licensed under chapter 57 unless the
section 57.002(c) exception applies.

         Unlike article 38.3 1, which establishes qualifications for interpreters for the deaf, article
38.30 does not establish qualifications for spoken-language interpreters. Compare TEX.CODEGRIM.
PROC. ANN. art. 38.30(a) (Vernon Supp. 2002) (“Any person may be subpoenaed, attached or
recognized in any criminal action or proceeding, to appear before the proper judge or court to act as
interpreter therein, under the same rules and penalties as are provided for witnesses.“), with id. art.
38.3 l(g)(2) (specific qualifications for interpreters for the deaf). Prior to the enactment of chapter
57, a spoken-language interpreter appointed in a criminal case was “not required to have specific
qualifications or training.” Kan v. State, 4 S.W.3d 38,41 (Tex. App.-San Antonio 1999, pet. ref d)
(“The competency of an individual to act as an interpreter is a question for the trial court, and absent
a showing of abuse of discretion, that determination will not be disturbed on appeal.“).

         While chapter   57 does not expressly state that spoken-language interpreters appointed under
article 38.30 must be    licensed interpreters, we construe chapter 57 to govern the qualifications of
interpreters appointed     under article 38.30 because the legislature intended chapter 57’s licensing
requirements to apply    in all civil and criminal proceedings. Section 57.049, which provides that “[a]
The Honorable Florence Shapiro       - Page 12           (JC-0584)




person may not advertise, represent to be, or act as a licensed court interpreter unless the person
holds an appropriate license under this subchapter,” TEX.GOV’TCODEANN. 9 57.049 (Vernon Supp.
2002); see also id. 6 57.050, indicates that the legislature intended chapter 57’s licensing
requirements to apply to anyone who acts as a spoken-language court interpreter in a civil or criminal
proceeding in Texas. This intent is also evident in the special provision for the certification or
licensing of persons acting as court interpreters prior to chapter 57’s effective date. See Act of May
28,2001,77th      Leg., R.S., ch. 1139, 6 5,200l Tex. Gen. Laws 2537,254l.          Furthermore, chapter
57’s qualifications for interpreters for the deaf are consistent with the qualifications for interpreters
for the deaf appointed under chapter 2 1 of the Civil Practice and Remedies Code and article 38.3 1
of the Code of Criminal Procedure. See TEX. GOV’T CODEANN. 6 57.001( 1) (Vernon Supp. 2002)
(A “[clertified court interpreter” is an interpreter for the deaf “who is a qualified interpreter as
defined in Article 38.3 1, Code of Criminal Procedure, or Section 21.003, Civil Practice and
Remedies Code, or certified under Subchapter B by the Texas Commission for the Deaf and Hard
of Hearing to interpret court proceedings for a hearing-impaired individual.“). The legislative history
of chapter 57 indicates that the legislature intended to standardize qualifications for both interpreters
for the deaf and spoken-language interpreters throughout the Texas judicial system. See HOUSE
COMM. ON JUDICIALAFFAIRS,BILL ANALYSIS, Tex. H.B. 2735,77th Leg., R.S. (2001) (“House Bill
2735 provides a program for certification of court interpreters to aid non-English speaking and
hearing-impaired     individuals.“); SENATE COMM. ON JURISPRUDENCE,          BILL ANALYSIS, Tex. H.B.
2735, 77th Leg., R.S. (2001) (“The Texas judicial system does not have a statewide standard for
interpreters who assist these participants. H.B. 2735 sets forth provisions for the establishment and
administration of programs for the certification of court interpreters to aid non-English speaking and
hearing-impaired individuals within the judicial system.“).

        B. Appointment      of Interpreter in Certain Juvenile Proceedings

          You also ask about the appointment of interpreters for parents in proceedings involving
juveniles under article 45.0215 and article 45.054 of the Code of Criminal Procedure. Under article
45.0215, a justice of the peace must issue a summons to compel a juvenile defendant’s parent,
guardian, or managing conservator to be present during the taking of the defendant’s plea and other
proceedings. See TEX. CODECRIM.PROC.ANN. art. 45.0215(a)(2) (Vernon Supp. 2002). Ifthe court
is not able to secure the appearance of the defendant’s parent, guardian, or managing conservator,
“the court may. . . take the defendant’s plea and proceed against the defendant.” Id. art. 45.0215(b).
Article 45.054 authorizes a justice court that makes a finding that an individual has failed to attend
 school under section 25.094 of the Education Code to enter an order that imposes certain conditions
 on the individual’s parents and to require the parents’ attendance at a hearing. See id. fj 45.054(a)(3)
 (authorizing order that individual and parent attend class), (b) (p roviding that order under subsection
 (a)(3) enforceable by contempt), (c) (authorizing court to summon parent to hearing), (d) (parent who
 fails to attend hearing after receiving notice commits class C misdemeanor).        In light of these two
provisions you ask:

                         If the parent or guardian, who may or may not be a witness but
                is required to be in attendance and subject to sanctions, cannot speak
The Honorable Florence Shapiro       - Page 13            (JC-0584)




                English must the court appoint a licensed interpreter              before
                proceeding with the respondent juvenile’s hearing?

Request Letter, supra note 1, at 2 (question l(c)). Our answer to this question assumes that the
parent cannot communicate in English and requires an interpreter.

         Again, chapter 57 requires a justice court to appoint “a licensed court interpreter if a motion
for the appointment of an interpreter is filed by a party or requested by a witness in a civil or criminal
proceeding in the court.” TEX. GOV’T CODE ANN. 0 57.002(a) (Vernon Supp. 2002). A juvenile
proceeding under chapter 45 of the Code of Criminal Procedure constitutes a criminal proceeding
within the meaning of chapter 57. See Tex. Att’y Gen. Op. No. JC-0579 (2002) at 2-3.

         A court must appoint a licensed interpreter for a parent who is a witness in a proceeding and
who requests the appointment of a spoken-language interpreter. See TEX. GOV’T CODE ANN. 8
57.002(a) (Vernon Supp. 2002) . A court also must appoint a licensed interpreter for a parent under
chapter 57 if the parent is a party to the proceeding and he or she files a motion for the appointment
of a spoken-language    interpreter. See id. Unless the court has specifically named the parent as a
party, a parent does not appear to be a party to the proceedings about which you ask. Chapter 57
does not define the term “party.” The term “party” is a technical legal term that refers to “[o]ne by
or against whom a lawsuit is brought.” BLACK’S LAW DICTIONARY 1144 (7th ed. 1999); see also
TEX. GOV’T CODE ANN. 8 311.01 l(b) (Vernon 1998) (“Words and phrases that have acquired a
technical or particular meaning, whether by legislative definition or otherwise, shall be construed
accordingly.“).   This office construed the term “party” in section 21.002 of the Civil Practice and
Remedies Code, which requires the appointment of an interpreter in a civil case for a party who is
deaf, to include only a person who has been named as a party by the court or who is deemed a party
by statute. See Tex. Att’y Gen. Op. No. DM-411 (1996) at 9 (concluding that “[a] custodial relative
not included within [Family Code] section 5 1.02( 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 section 21.002
of the Civil Practice and Remedies Code).

         Unlike the Family Code’s juvenile justice provisions, which expressly define the term “party’
to include a juvenile’s parent, see TEX. FAM. CODEANN. 6 5 1.02( 10) (Vernon 2002) , chapter 45 of
the Code of Criminal Procedure does not define the term. And neither of the two provisions you ask
about names a juvenile’s parent as a party to the proceeding. However, while article 45.02 15 merely
requires that a court summon a parent to attend a proceeding involving his or her child, article 45.054
authorizes a court to impose conditions and sanctions against a parent. If a court contemplates
imposing conditions or sanctions against a parent, then we believe the court should treat the parent
as a witness or a party. As noted above, spoken-language interpreters appointed for parties or
witnesses under article 38.30 of the Code of Criminal Procedure are paid with county funds. See
TEX. CODE GRIM. PROC.ANN. art. 38.30(b) (Vernon Supp. 2002); see also id. art. 38.30(a) (“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 person charged or a witness does not understand and
speak the English language, an interpreter must be sworn to interpretfor him.“) (emphasis added).
The Honorable Florence Shapiro       - Page 14           (JC-0584)




        C. Appointment of Interpreter When there is No Person Licensed to Interpret
           in a Particular Language

         In a related question, you ask what a court may do when a spoken-language interpreter in a
particular language is not available or there is no individual licensed to interpret in that language:

                         What may a court do when a court is required to appoint a
                licensed interpreter and no licensed interpreter for the needed
                language exists in Texas? To what lengths must a court go to find
                and appoint a licensed interpreter?        As an example, if the only
                licensed interpreter for a particular language lives in El Paso, would
                a court in Dallas be required under this law to appoint that interpreter
                and pay or require the parties to a civil suit to pay for the interpreter’s
                costs? If no licensed interpreter for a particular language exists in
                Texas, could a court allow a non licensed individual to interpret? Or,
                would the individual interpreting be in violation of Chapter 57 and
                possibly be committing a Class A misdemeanor?

Request Letter, supra note 1, at 3 (question 3).

         Chapter 57 of the Government Code, in requiring the appointment of a licensed interpreter,
modifies a court’s authority under Rule 183 of the Rules of Civil Procedure or article 38.30 of the
Code of Criminal Procedure to select a spoken-language        interpreter.  Significantly, chapter 57
requires the appointment of a licensed interpreter, with only one exception. See TEX. GOV’T CODE
ANN. fj 57.002(a), (c) (V emon Supp. 2002). That exception specifically permits the appointment
of an unlicensed interpreter, but only in a county with a population of less than 50,000. See id. 4
57.002(c). Thus, if the only person who is licensed to interpret in a particular language under
Government Code chapter 57, subchapter C resides in a distant location, a court in a populous county
would still be required to appoint that person. As discussed more extensively below, see infra Part
lI.F, a court in a civil case would direct payment of the interpreter under the Civil Practice and
Remedies Code and the Rules of Civil Procedure or other applicable law.

         On the other hand, if there is no interpreter licensed under subchapter C to interpret in a
particular language, a court will have no option other than to appoint an interpreter who is not
licensed. Indeed, such a course may be necessary in order to protect the rights of a party or witness
to a proceeding and thus within a court’s inherent power. See TEX. GOV’T CODE ANN. 0 21.001
(Vernon Supp. 2002) (inherent power and duty of courts). We presume that an unlicensed person
who acts as an interpreter pursuant to an appointment under the section 57.002(c) exception (and
who does not hold him- or herself out as a licensed court interpreter) does not violate chapter 57, see
id. $ 57.049 (“A person may not advertise, represent to be, or act as a licensed court interpreter
unless the person holds an appropriate license under this subchapter.“) (emphasis added), even
though this exception is not expressly referenced in section 57.049, see id. By analogy, we believe
that if a court makes a finding that there is no interpreter licensed under subchapter C to interpret in
a particular language and if the person who is appointed to interpret in these circumstances does not
The Honorable    Florence Shapiro    - Page 15           (JC-0584)




represent him- or herself to be a licensed interpreter, that person would not violate section 57.049.
See id.

        D. What Constitutes      a Motion or Request for an Interpreter in a Civil Proceeding

        You ask whether, in a civil proceeding, a party’s or witness’s statement in court that “I don’t
speak English” “constitute[s] a motion or request for purposes of Ch. 57.002(a) Texas Government
Code?” Request Letter, supra note 1, at 2 (question 2(b)). While we can provide some guidance
with respect to this question, whether a witness has requested the appointment of an interpreter or
a party has filed a motion for the appointment of an interpreter is ultimately a question that must be
resolved by the court.

         In the context of a civil action, chapter 57 appears to require that a party file a written motion
for the appointment of an interpreter. Again, section 57.002 requires the appointment of a licensed
court interpreter “if a motion for the appointment of an interpreter isfiled by a party.” TEX. GOV’T
CODE ANN. 8 57.002(a) (Vernon Supp. 2002) (emphasis added). In using the terms “motion” and
“filed,” section 57.002 appears to contemplate written motions. In justice court, however, “pleadings
shall be oral, except where otherwise specially provided.” TEX. R. CIV. P. 525. Furthermore,
nothing precludes a court from granting a party’s oral motion or request for appointment of an
interpreter, or from appointing an interpreter on its own motion. See TEX. GOV’T CODE ANN. 8
57.002(b) (V emon Supp. 2002) (“A court may, on its own motion, appoint . . . a licensed court
interpreter.“); see also TEX. R. CIV. P. 183 (authorizing a court to appoint an interpreter).

          A witness may request the appointment of an interpreter in an oral statement. With respect
to witnesses, section 57.002’s appointment requirement is triggered “if. . . requested by a witness.”
TEX. GOV’TCODEANN. 8 57.002(a) (Vernon Supp. 2002). In contrast to a “motion,” which is“filed”
by a party, see id., the term “request” does not appear to specify a written pleading. Whether a
witness’s statement in court that “I don’t speak English” constitutes a request for the appointment
of an interpreter will depend upon the circumstances and must be determined by the trial court in the
first instance.

         In either case, the court may grant or deny a motion or request for the appointment of an
interpreter based on the court’s assessment of the party’s or witness’s ability to communicate in
English. See discussion supra p. 7.

        E. Appointment      of Interpreter Requested by Parties in a Civil Case

         With respect to civil proceedings, you also ask whether a court may “appoint a licensed
interpreter who the parties . . . have agreed upon and who [the parties] have made arrangements for
the payment of’ when the parties “submit the interpreter’s name to the court for appointment of the
interpreter by the court.” Request Letter, supra note 1, at 3 (question 2(f)).

        A court may appoint a licensed interpreter who has been agreed upon and requested by the
parties in a civil case and whom the parties have arranged to pay. Rule 183 of the Rules of Civil
The Honorable Florence Shapiro       - Page 16            (JC-0584)




Procedure authorizes a court to appoint an interpreter of its own selection and to direct payment of
the interpreter. Section 57.002 of the Government Code modifies that authority by requiring a court
to appoint a licensed interpreter. Neither the statute nor the rule preclude a court from choosing to
appoint a licensed interpreter requested by the parties whom the parties have arranged to pay.

        F. Payment of Interpreters

        Finally, we address your questions about payment of interpreters under chapter 57. You ask
several general questions about payment of spoken-language interpreters in civil proceedings:

                         In civil proceedings, when “a motion for the appointment of
                an interpreter is filed by a party or requested by a witness” may the
                court require the movant or the requesting party to pay an amount to
                the court as security for the cost of the interpreter which the court will
                appoint? Does it make a difference if the movant or the requesting
                party is a defendant or witness for the defendant or a plaintiff or
                witness for the plaintiff?

                         If a defendant movant or witness for the defendant who
                requests an interpreter in a civil matter declares an inability to pay the
                costs, is the County responsible for the costs of an interpreter? Or
                may the court require the plaintiff to pay for an interpreter’s services
                as costs of court and leave it to the plaintiff to collect from the
                defendant should the plaintiff prevail?

                         If a plaintiff movant or witness for plaintiff who requests an
                interpreter in a civil matter declares an inability to pay the costs, is the
                County responsible for the costs of an interpreter?

Request Letter, supra note 1, at 2 (question 2(c)-(e)). As noted above, we assume you intend to ask
about interpreters appointed to serve in particular cases and not interpreters who are employed by
the county and paid by the county under chapter 152 of the Local Government Code.

         Chapter 57 of the Government Code modifies the law with respect to when an interpreter
must be appointed and prescribes interpreter qualifications, but it does not address the payment of
interpreters. The law in this area is unchanged. A court retains its authority under the Rules of Civil
Procedure and the Civil Practice and Remedies Code to fix an interpreter’s compensation and to
direct how an interpreter will be paid. Rule 183 of the Texas Rules of Civil Procedure provides that
66[t]he compensation [of an interpreter] shall be paid out of funds provided by law or by one or more
of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the
court.” TEX.R. CIV. P. 183. In addition, the Civil Practice and Remedies Code authorizes the “judge
of any court” to “include in any order or judgment all costs, including . . . interpreters . . . and . . .
such other costs and fees as may be permitted by these rules and state statutes.” TEX. CIV. PRAC. &
REM. CODE ANN. $ 3 1.007 (Vernon 1997). A special justice court rule provides that “[tlhe
The Honorable Florence Shapiro       - Page 17          (JC-0584)




successful party in the suit shall recover his costs, except in cases where it is otherwise   expressly
provided.” TEX. R. CIV. P. 559.

         Whether a county may ultimately be responsible for paying an interpreter’s fees will depend
upon the nature of the civil action. As a general matter, counties are not responsible for paying
spoken-language     interpreters’ fees in civil actions. Chapter 57 does not expressly impose this
obligation on counties, and the legislative history does not indicate that the legislature intended
chapter 57 to have that effect. See FISCAL NOTE, Tex. H.B. 2735, 77th Leg., R.S. (2001) (“NO
significant fiscal implication to units of local government is anticipated.“). We note, however, that
specific provisions that predate chapter 57 may require a county to pay interpreter fees as costs in
certain kinds of actions in particular situations. See, e.g., TEX. HEALTH& SAFETY CODE ANN. $3
571.017 (Vernon 1992), .018 (Vernon Supp. 2002) (mental health proceedings); TEX. PROB. CODE
ANN. 8 665A (Vernon Supp. 2002) (“If after examining the proposed ward’s assets the court
determines the proposed ward is unable to pay for services provided by an attorney, a mental health
professional, or an interpreter appointed under Section 646 or 687 of this code, as applicable, the
county is responsible for the cost of those services.“).

         With respect to payment, you also ask a question about a specific situation. You explain that
justice courts in Dallas County “have been instructed by the Dallas County Commissioners Court
to use interpreters from the County’s contract vendor which provides language interpreters for the
courts.” Request Letter, supra note 1, at 2. You also state that “[blecause of this contractual
relationship with the County, this vendor will always look to the County for payment when its
interpreters are requested.” Id. You ask, “[i]n light of the language contained in Rule 183, can a
court be required by a commissioners court to only appoint interpreters under a contract between the
county and an interpreter service?” Id. (question 2(a)). Again, we assume you do not intend to ask
about the payment of interpreters who are court employees and whose salaries are paid by the county.

        In short, we conclude that a commissioners court is not authorized to require a court to
appoint interpreters from an interpreter service under contract with the county. A commissioners
court’s authority is limited to exercising “such powers and jurisdiction over all county business” as
is conferred by the constitution and statutes. TEX. CONST. art. V, 0 18(b). The authority of the
commissioners court to contract on behalf of the county is limited to that conferred either expressly
or by necessary implication by the constitution and laws of this state. See Jack v. State, 694 S.W.2d
391, 397 (Tex. App.-San Antonio 1985, writ ref d n.r.e.) (citing Childress County v. State, 92
S.W.2d 1011, 1016 (Tex. 1936); Wilson v. County of Calhoun, 489 S.W.2d 393, 397 (Tex. Civ.
App.-Corpus Christi 1972, writ ref d n.r.e.)). Again, chapter 57 of the Government Code does not
address the payment of interpreters. Rule 183 of the Rules of Civil Procedure and article 38.30 of
the Code of Criminal Procedure control.

         In the civil context, Rule 183 of the Texas Rules of Civil Procedure expressly provides that
a court may appoint an interpreter of its own selection. See TEX. R. CIV. P. 183 (“The court may
appoint an interpreter of its own selection and may fix the interpreter’s reasonable compensation.“).
No statute gives a commissioners court the authority to direct a court to appoint a specific interpreter
or to otherwise limit a court’s discretion to appoint an interpreter of its own selection in civil cases
The Honorable Florence Shapiro      - Page 18          (JC-0584)




generally. We also note that Rule 183 does not, as a general matter, provide that a county will pay
the costs of an interpreter. See id. (“The compensation shall be paid out of funds provided by law
or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the
discretion of the court.“). But see statutes cited supra p. 17.

         In the criminal context, article 38.30(a) of the Code of Criminal Procedure does not expressly
state that a court may select a spoken-language interpreter of its own choosing, see TEX. CODE GRIM.
PROC.ANN. art. 38.30(a) (Vernon Supp. 2002)’ but we conclude that it gives a court this authority.
First, subsection (a)‘s statement that “[alnyperson may be subpoenaed, attached or recognized in
any criminal action or proceeding, to appear before the proper judge or court to act as interpreter
therein,” id. (emphasis added), suggests that judges have the discretion to select interpreters. In
addition, although subsection (b) of article 38.30 provides that interpreters will be paid from county
general funds, it gives a commissioners          court no authority with respect to the selection of
interpreters. See id. art. 38.30(b). It also establishes that an interpreter shall be paid not less than
$15 nor more than $100 a day “at the discretion of the judge presiding.” Id. Furthermore, subsection
(c), which authorizes a commissioners court to set a payment schedule and to expend funds for the
services of court interpreters in excess of the range established by subsection (b), does not authorize
a commissioners court to select interpreters. Accordingly, we conclude that article 38.30 vests a
court with the discretion to select an interpreter in a criminal case and requires a county to pay an
interpreter selected by a court.

         Finally, we note that neither Rule 183 nor article 38.30 precludes a court from selecting an
interpreter from an interpreter service under contract with the county if the court chooses to do so.
In either case, the appointment must comply with chapter 57 of the Government Code.
The Honorable   Florence Shapiro    - Page 19          (JC-0584)




                                        SUMMARY

                         Chapter 57 of the Government Code applies to a plea in a
                misdemeanor      case in justice court. A court clerk who merely
                converses with a defendant in a language other than English does not
                “act as a licensed court interpreter” within the meaning of chapter 57.
                In either a civil or criminal proceeding, whether a party has filed a
                motion for or a witness has requested the appointment            of an
                interpreter will depend upon the facts and is a question for the trial
                court in the first instance. The court may grant or deny such a motion
                or request. In a criminal proceeding, a court must also take into
                account the defendant’s constitutional right to an interpreter and
                article 38.30 of the Code of Criminal Procedure.           Chapter 57
                establishes qualifications for spoken-language interpreters appointed
                in criminal cases under the authority of article 38.30.

                        If the only person who is licensed to interpret in a particular
                language resides in a distant location, a court in a populous county
                would be required to appoint that person. On the other hand, if there
                is no interpreter licensed to interpret in a particular language, the
                appointment of an unlicensed person may be within a court’s inherent
                power.

                         Chapter 57 does not alter preexisting law on the payment of
                appointed court interpreters. It does not require counties to pay for
                spoken-language    interpreters in civil cases. Courts retain their
                authority under the Rules of Civil Procedure and the Civil Practice
                and Remedies Code to fix an interpreter’s compensation and to direct
                how an interpreter will be paid in civil cases. A county may not
                require a court to select an interpreter from an interpreter service
                under contract with the county, although a court may choose to do so.




                                                Attorney General of Texas
The Honorable Florence Shapiro     - Page 20    (JC-0584)




HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
