Untitled Texas Attorney General Opinion

QBfficeof tfp Elttornrp&mral Sbtate of Qexas DAN MORALES .ATTORSLY CESmAL August 20,1993

Ms. Nancy F. Braswell opinion No. DM-245 Smith County Auditor Smith County Courthouse Re: Whether defendants in criminal cases Tyler, Texas 75702 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 communicatein English, a county court-at- law judge 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 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.OS1 (requirement that S3.OOinterpreter fee be.amessed and collected as cost in civil cases and deposited in county’sgenera) fimd);see uko Tex. R Civ. P. 183.

Furthermore, article 103.002 of the Code of CriminalProcedure 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 magistratesand 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.

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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 CriminalProcedure 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 1l(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 1l(e) (emphasis added); see u&o id. 8 1l@).r

‘Subsenion1l(b)ofmiclc42.12rcadsasfollmvs:

AcourtmaynotordaapmbationatomsLcmypaymmtraratermor amditionofprdaion, wspl forfines,cmn cosls,rcnitutiw to the viclim,and other terms m ceaditionsr&ted pe~nally tc the rehabilitationet the probationeror othemimexpmslyauthor&dby law. The annl rball wnsidcr the abilityof the probationer to makepaymmtsin orderingthe probationer to makepaymentsunderthisarticle. CockGrim.Rot. an. 42.12, g I I(b).

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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-853at 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 1l(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 requirementthat a defendantwho doesn’tspeak English reimburse the county for compensationpaid 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) (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.

zCodeGrim.Roe. ti 42.12. $5 11(a)(9)(sapponofkpebnts), ll(a)(ll) (reimbmscanuny for compeamtionpaid to abmtappointedattorney),, 11(c)(as addedby Acts 1991. 72d Leg.. ch. 202) (mimbamccrime victim’scompaamtioafund), 11(c) (as addedPy Acts 1991, 72d Leg., ch. 285) (miNhonc law eaforwmcntagwcy for czltain expeasmrelatedto drag offenses)),11(f) (paymentof aamsehg madewwasaryforvictimof certainoffcases), 1l(h) (as addedby Acts 1989,Iln kg.. ch. 86) @ymcnt to crime noplrn pm8ram),22 @aymwtfor opamtionof a axnmunityamxtions depanmcnt). 3Forthe same reason,WCnead not aanveryour last qucnios which was pmmimdon the assumptionthat the judge of a wmtty court-at-lawcould assess iNerpICtcrs’fees againsta criminal ddwdant.

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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

PEIUEAHICKS Statesolicitor

MADELEINE B. JOHNSON Chair, opinion Committee

Prepared by Steve Arag& Assistant Attorney Gtntral

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