.- . 

JIM MATTOX 

Attorney General 

Suoreme Court Buildina 

P. b. Box 12546 - 

Austin. TX. 76711- 2546 

51214752501 

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,- 

,001 Texas. Suite 700 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

December 30, 1983 

Mr. Fred R. Tammen 

Executive Director 

Texas Conrmission for the Deaf 

P. 0. Box 12904, Capitol Station 

Austin, Texas 78711 

Opinion No. ~~-113 

Re: Meaning of "deaf person" 

under the Code of Criminal 

Procedure 

Dear Mr. Tammen: 

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. 

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 

the entire Code of Criminal Procedure unless specifically provided 

otherwise. Subsection (g) of article 38.31 provides: 

In this Code: 

(1) 'Deaf person' means a person who has a 

hearing impairment, regardless of whether the 

person also has a speech impairment, that inhibits 

the person's comprehension of the proceedings or 

communication with others. 

You also ask whether the phrase "a witness who does not 

understand and speak the English language" as used in article 38.30 

refers to a deaf person as defined by article 38.31. We believe that 

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 

proceedings and communications with others. Watson V. State, 596 

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. 

v. Calvert, 

1963); Eddins-Walcherxane Company 

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 crossexamination 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 communication, 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 
,TP 

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 

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 

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 recolonendations of 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