.- .
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