DAN MORALES 

.ATTORSLY CESmAL 

QBffice of tfp Elttornrp &mral 

Sbtate of Qexas 

August 20,1993 

Ms. Nancy F. Braswell 

Smith County Auditor 

Smith County Courthouse 

Tyler, Texas 75702 

opinion No. DM-245 

Re: Whether defendants in criminal cases 

may be required to reimburse a county for 

the cost of employing interpreters, and 

related questions (RQ-236) 

Dear Ms. Braswell: 

You ask six questions about the payment of interpreters in ckninal cases. You 

explain that, where a defendant was unable to communicate in English, a county court-atlaw judge has assessed interpreters’ fees as costs in some miminal cases and, in others, has 

imposed the repayment of such fees as a condition of probation. The imposition of 

interpreters’ fees either as costs in criminal cases or as a condition of probation is not 

expressly authorized by statute. 

You first ask whether a judge is authorized in criminal cases to tax interpreters’ 

fees as costs to reimburse the county for the compensation paid to interpreters. Article 

38.30 of the Code of Criminal Procedure governs the appointment and the payment of 

interpreters in criminal cases. Subsections (b) and (c) of article 38.30 require that 

interpreters’ compensation be paid out of cou@y iimds, and article 38.30 neither requires 

nor permits the coktion of these fees as costs from dekdants. Cj. Civ. Prac. & Rem. 

Code 5 2 1 .OS 1 (requirement that S3 .OO interpreter fee be. amessed and collected as cost in 

civil cases and deposited in county’s genera) fimd); see uko Tex. R Civ. P. 183. 

Furthermore, article 103.002 of the Code of Criminal Procedure requires that wsts 

be expressly authorized by law, as follows: 

An officer may not impose a cost for a setvice not performed or 

for a service for which a cost is not expressly provided by law. 

Code Grim. Proc. art. 103.002. 

Article 3.03 of the code defmes “officer” to include “both magistrates and peace 

officers.” “h4agistrate” is in turn defined to include. among other judicial ofljcers, county 

judges and judges of the county courts-at-law. Code Grim. F’roc. att. 2.09; Thus, article 

103.002 bars a court from imposing a wst on a miminal defendant unless the cost is 

expressly provided for by law. 

p. 1259 
Ms. Nancy F. Braswell - Page 2 (DM-245) 

The wutts also advise that the question of costs in crimbml cases is governed by 

statute. On the appeal in Dunn v. Safe, 683 S.W.Zd 729 (Tex. App.-Amarillo 1984. pet. 

refd), the defendant attempted to have the court reportds fees for a tmnscription of trial 

notes assigned as costs and charged against either the county or the state. Although the 

Dunn Mutt cited neither the Code of Criminal Procedure nor any cases, the opinion 

unequivocally stated that “[t]he matter of costs in uiminal cases is purely statutory.” Id. 

at 730. Having examined the Code of Criminal Procedure and Ming no statutory 

provision to authorize such a charge, the wurt overruled the motion to retax the 

tmnscription fees. See also Luy v. State, 202 S.W. 729 (Tex. Crim. App. 1918). 

Fiily, chapttr 102 of the Code of Criminal Procedure governs the payment of 

costs by defendants in criminal cases. No provision of chapter 102 requires payments of 

interprtters’ fbes by defbndants or authorizes their assessment against defbndants. We are 

aware of no provision of the Code of Criminal Procedure or any other statutory provision 

that expressly authorizes the judge of a county court-at-law to assess interpreters’ fees 

against miminal defendants as wsts of court. Acc&dingly, we conclude, on the basis of 

articles 103.002 and 38.30 of the Code of Criminal Procedure and the decision of the 

court in Lhmn, that such fees may not be assessed against defwdants in criminal cases 

brought in wunty courts-at-law. 

In your second question, you ask whether a judge is authorized to require, as a 

wndition of probation, that a miminal defbndant reimburse the county for interpreters’ 

fees. We believe that such a condition of probation is unauthorized. Section 11. article 

42.12 of the Code of Criminal Procedure lists the basic conditions of probation. 

Subsection 1 l(t) of that article reads as follows: 

A wmt may not order a probationer to make any payments as a 

term and condition of probation, except for fmes, court costs, 

restitution of the victim, jmynent to a local crime slopper program 

under Subsection (?I) of this secrion, and other terms and conditions 

expressly authorized by statute. 

Code Crim. Proc. art. 42.12, 8 1 l(e) (emphasis added); see u&o id. 8 1 l@).r 

‘Subsenion 1l(b)ofmiclc42.12rcadsasfollmvs: 

AcourtmaynotordaapmbationatomsLcmypaymmtraratermor 

amdition ofprdaion, wspl for fines, cmn cosls, rcnitutiw to the viclim, and 

other terms m ceaditions r&ted pe~nally tc the rehabilitation et the 

probationer or othemim expmsly author&d by law. The annl rball wnsidcr 

the ability of the probationer to make paymmts in ordering the probationer to 

make payments under this article. 

Cock Grim. Rot. an. 42.12, g I I(b). 

p. 1260 
Ms. Nancy F. Braswell - Page 3 (DM-245) 

Attorney General Opiion IM-853 (1988) examined subsection (t) prior to the 

inclusion of the emphasized language and determined that the provision is mandatory and 

“operates as a blanket prohiiion, subject to the stated exceptions.” Attorney General 

Opiion TM-853 at 2. As indicated above, we are unaware of any statute that authorizes 

the assessment of interpreted fees against wiminal defendants. 

In addition to those monetary payments that are expressly recognized in section 

II(e) as suitable for probationary payments, article 42.12 enumerates other payments 

“expressly authorized by statute.“s Of particular interest here is the section 1 l(a)(ll) 

provision allowing a probationary condition that the defendant reimburse the county for 

court appointed wunse.l. This expense is analogous to the wst of an interpreter inasmuch 

asitisnecessitatedbythe cirwmstances of the defendant, and its inclusion reinforces our 

conclusion that repayment of the costs of an interpxter is not an allowable condition of 

probation. 

Your third question asks whether the equal protection clause of the United States 

Constitution prohibits a requirement that a defendant who doesn’t speak English reimburse 

the county for compensation paid to interpreters in a criminal case. ln light of our answers 

to your previous questions, we need not address the wwtitutional issues 

Your fourth and fitlh questions ask what you, as wunty auditor, should do with 

the funds that have been wUected either as costs or as conditions of probation. We find 

no special statutory method for the treatment of tbnds that have been erroneously 

~llecttd from criminal defendants and believe that you should treat them as you do 

authorized wlltctions. See Code Grim. Proc. art. 103.008(a) (defendant to 6lt a petition 

for wrrection of costs). We believe, however, that as wunty auditor you have authority 

to establish a suspense acwunt for the deposit of these funds. See Local Gov’t Code 

0 112.001. 

zCode Grim. Roe. ti 42.12. $5 11(a)(9) (sappon ofkpebnts), ll(a)(ll) (reimbmsc anuny 

for compeamtion paid to abmt appointed attorney),, 11(c) (as added by Acts 1991. 72d Leg.. ch. 202) 

(mimbamc crime victim’s compaamtioa fund), 11(c) (as added Py Acts 1991, 72d Leg., ch. 285) 

(miNhonc law eaforwmcnt agwcy for czltain expeasm related to drag offenses)), 11(f) (payment of 

aamsehg made wwasary for victim of certain offcases), 1 l(h) (as added by Acts 1989,Iln kg.. ch. 

86) @ymcnt to crime noplrn pm8ram), 22 @aymwt for opamtion of a axnmunity amxtions 

depanmcnt). 

3For the same reason, WC nead not aanver your last qucnios which was pmmimd on the 

assumption that the judge of a wmtty court-at-law could assess iNerpICtcrs’ fees against a criminal 

ddwdant. 

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

SUMMARY 

A&It 38.30 of the Code of Criminal Procedure requires 

interpreters in uiminal cases to be paid from county kids. A judge 

of a wunty court-at-law may not assess interpreters’ fees either as 

~4s or require payment as a condition of probation. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First As&ant Attorney General 

MARYKELLER 

Deputy Attorney General for Litigation 

PEIUEA HICKS 

State solicitor 

MADELEINE B. JOHNSON 

Chair, opinion Committee 

Prepared by Steve Arag& 

Assistant Attorney Gtntral 

p. 1262