.- .

JIMMATTOX Attorney

General

Suoreme Court Buildina P. b. Box 12546 - Austin. TX. 76711- 2546 51214752501 Telex 9101674-1367 Telecopier 5121475.0266

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

December 30, 1983

Mr. Fred R. Tammen ExecutiveDirector Texas Conrmission

for theDeaf P. 0. Box 12904,Capitol Station Austin, Texas 78711 OpinionNo. ~~-113

Re: Meaning of "deaf person" under the Code of Criminal Procedure

DearMr. Tammen:

You have asked severalquestionsrelating to specificarticles of the Code of CriminalProcedure thatpertain to theuse of interpreters fordeaf persons.
You firstask whether the term "deafperson" in article 38.22 of that codemeans the sameas the definitionof "deafperson" 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 38.31provides:

In thisCode:
(1) 'Deaf person' means a person who has a hearing impairment, regardless of whether the person alsohas a speech impairment,that inhibits the person's comprehension of the proceedings or communicationwith 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 definedby article 38.31. We believe that article 38.30 applies to non-English speaking persons who do not comprehendthe languageof the forumand that article 38.31applies 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 interpretationof proceedings in amanner 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 personswho do not have sufficientknowledge of the

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English language and article 38.31 to apply to persons with hearing impairments,effect andmeaning is givento both articles and neither article is redundantor superfluous.

You next inquire if a court,when notifiedby a party thata deaf person is appearing as a defendant or witness, has any discretion **as** towhether 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 interpreterwill be appointed,but does have discretion as to whether it will appoint a person to interpretby the use of sign language or by the use of an alternative method of communication that is more appropriateto a specificdeafperson.
The constitutionalguarantees of due process in criminal trials include the right of a defendant to confrontwitnesses againsthim and the right to assist in his own defense. See U.S. Const. amend. 6; Tex. Const. art. I, $10; PointerV. Texas,xS.Ct. 1065 (1965). In FerrellV. 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 communicatewithya deaf witness. The Fifth Circuit concluded that the trial judge has the task of insuring the minimum understanding necessary to the protection of those constitutionalrights and has the duty to explore alternativemethods of communicationthatare appropriatefor eachperson and thatprovide understandingin amanner that is reasonableand not disruptiveto the proceedings. Such alternativemethods 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 thedifferent systemsof communication.

It appears that the legislature incorporated the Fifth Circuit decision into the Code of Criminal Procedure. Prior to Ferrell v. Estelle.article 38.31provided that all deaf defendantswere entitled to a qualified interpreter in a criminalprosecution. The following year, 1979. article 38.31was 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 shallappointa qualified interpreterto interpret the proceedings in 9 language that the deaf person can understand, including but not limited to sign language. (Emphasisadded).

p. 474,TP I

**Mr.** Fred R. Tammen - Page 3 (JM-113)

See 34 SouthwesternL.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 alreadyhave 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 interpreterwhere 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,nowrit).

In 1979, Senate Bill No. 548 of the Sixty-sixth Legislature amended article 38.30 toprovide, inpart, **that**

When amotion for appointmentof an interpreteris 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 speaksthe English language, an interpreter must be sworn to interpretforhim.
The same bill added subdivision (10) to article 28.01 of the Code of CriminalProcedure, toprovide, in part, that

The court may set any criminal case for a pre-trialhearingbefore it is set for trialupon itsmerits

. . . . The pretrial hearing shallbe todetermine any of the followingmatters:

. . . (10) Motion for appointmentof interpreter.
The Sixty-sixthLegislature clearly authorized the court to conduct a pretrial hearing for determinationof a motion for appointment of an interpreterfor a personwho does not understandand speak the English language. The same session of the legislatureamended article 38.31 in a manner that requires appointment of an interpreter for a deaf personwhen the court is notifiedby a party that the deafpersonwill be present and made **no** provision for a motion to determine if the defendantorwitness is, in fact,a deaf person.
Your next question concernsthe responsibilityforpayment of the fees and expenses of sign language interpretersappointedby 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. 475Mr. 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 deafappointed under article 38.31 are entitled to a reasonablefeedeterminedby the court after consideringthe recolonendations of the Commission for the Deaf. Also, all the actual expenses of travel, lodging, and meals incurredby the interpreterpertaining 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 expresslyprovide 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 expresslyprovides that the fees and expenses "shallbe 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 appointan interpreteras requiredby that article. Article 38.31(d)provides:

(d) A proceeding for which an interpreter is required to be appointed under this Article may not commenceuntil theappointed interpreteris in a positionnot exceeding ten feet fromand in full view of the deafperson.
As we have previously indicated,a basic reason that the statutes provide for interpreters is the guarantee of the right of confrontationunder 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 BaltierraV. 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. 476Mr. 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 interpreterwill be appointed but does have discretion as to an appropriatemethod of communicationfor a specific deaf person. The statutesdo not provide for a hearing to determine if a defendant or witness is, in fact, a deaf person. Interpretersappointedby the courts for deaf persons are entitled to reasonable fees determinedby the court and actual expenses to be paid from the general fund of the county. Failure to comply with the statutes for interpreters for

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AttorneyGeneralof Texas
TOM GREEN FirstAssistantAttorneyGeneral

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Nancy Sutton AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE
Rick Gilpin, Chairman Jon Bible David Brooks Colin Carl SusanGarrison JimMoellinger Nancy Sutton

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