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 explainthat, where a defendantwas unable to communicate in English, a county court-atlawjudge has assessed interpreters’ fees as costs in some miminalcases and, in others, has imposed the repayment of such fees as a condition of probation. The imposition of interpreters’ fees either as costs in criminal cases or as a condition of probation is not expressly authorizedby statute. You first ask whether a judge is authorized in criminal cases to tax interpreters’ fees as costs to reimburse the county for the compensationpaid to interpreters. Article 38.30 of the Code of CriminalProcedure governs the appointment and the payment of interpreters in criminal cases. Subsections (b) and (c) of article 38.30 require that interpreters’compensationbe paid out of cou@yiimds, 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 (requirementthat S3.OO

interpreterfee 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 103.002of the Code of Criminal Procedure requires that wsts be expressly authorizedby 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 expresslyprovided by law. Code Grim.Proc. art. 103.002. Article 3.03 of the code defmes “officer”to include “both magistratesand peace officers.” “h4agistrate”is in turn definedto include. among otherjudicial ofljcers, county judges andjudges 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. 1259Ms. 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.Zd729 (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 defbndantsor authorizes their assessment against defbndants. We are aware of no provision of the Code of CriminalProcedure or any other statutory provision that expressly authorizes the judge of a county court-at-law to assess interpreters’ fees against miminaldefendants 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) (emphasisadded); see u&o id. 8 1l@).r

‘ Subsenion

1l(b)ofmiclc42.12rcadsasfollmvs: AcourtmaynotordaapmbationatomsLcmypaymmtraratermor amdition ofprdaion, wspl forfines,cmn cosls,rcnitutiwto theviclim, and other terms m ceaditionsr&ted pe~nally tc the rehabilitation et the probationer

or othemim

expmslyauthor&d

by law. Theannl rballwnsidcr the ability

of the probationer

to make paymmts in ordering

the probationer

to make payments under thisarticle. Cock Grim. Rot. an. 42.12,g II(b).

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

Attorney General Opiion IM-853 (1988) examined subsection (t) prior to the inclusionof the emphasizedlanguage and determinedthat the provision is mandatory and

“operates as a blanket prohiiion, subject to the stated exceptions.” Attorney General Opiion TM-853at 2. As indicated above, we are unaware of any statute that authorizes the assessmentof interpreted fees againstwiminaldefendants. In addition to those monetary payments that are expressly recognized in section II(e) as suitable for probationary payments, article 42.12 enumerates other payments
“expressly authorized by statute.“s Of particular interest here is the section 1l(a)(ll) provision allowing a probationary condition that the defendant reimburse the county for court appointed wunse.l. This expenseis analogousto the wst of an interpreter inasmuch asitisnecessitatedbythe cirwmstances of the defendant, and its inclusionreinforces our conclusion that repaymentof the costs of an interpxter is not an allowable condition of probation. Your third question asks whether the equal protection clause of the United States Constitution prohibits a requirementthat a defendantwho doesn’ tspeak Englishreimburse the county for compensation paid to interpreters in a criminalcase. ln light of our answers to your previous questions,we need not address the wwtitutional issues Your fourth and fitlh questions ask what you, as wunty auditor, should do with the funds that have been wUected either as costs or as conditions of probation. We find no special statutory method for the treatment of tbnds that have been erroneously ~llecttd from criminal defendants and believe that you should treat them as you do authorized wlltctions. See Code Grim.Proc. art. 103.008(a) (defendantto 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

paidto abmt

appointed attorney),, 11(c)(as added

by Acts 1991.72d Leg..ch. 202) (mimbamc

crimevictim’s

compaamtioa

fund), 11(c) (as added

Py Acts 1991, 72d Leg., ch. 285) (miNhonclaw eaforwmcnt agwcy for czltainexpeasm related to dragoffenses)),

11(f) (payment

of aamsehg made

wwasary forvictim of certain offcases),1

l(h) (asadded

byActs 1989,Iln kg.. ch. 86) @ymcnt to crime noplrn pm8ram), 22 @aymwt

for opamtion

of a axnmunity

amxtions depanmcnt). 3Forthe samereason,

WC nead **not** aanver

yourlast qucnios which was pmmimd on the assumption

that thejudge of a wmttycourt-at-law couldassess iNerpICtcrs’ fees against a criminal ddwdant.

p. 1261MS.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 conditionof probation.

DAN MORALES Attorney General of Texas WILL PRYOR First As&ant Attorney General MARYKELLER Deputy Attorney Generalfor Litigation PEIUEA HICKS State solicitor MADELEINEB. JOHNSON Chair, opinion Committee Prepared by Steve Arag& Assistant Attorney Gtntral

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