Judges: JOHN CORNYN, Attorney General of Texas
Filed Date: 11/20/2002
Status: Precedential
Modified Date: 7/6/2016
Office of the Attorney General — State of Texas John Cornyn The Honorable Tom O'Connell Collin County Criminal District Attorney 210 South McDonald, Suite 324 McKinney, Texas 75069
Re: Whether the testimony of a non-English speaking or deaf or hearing-impaired witness before a grand jury requires the appointment of a certified or licensed court interpreter under section
Dear Mr. O'Connell:
You have asked this office whether the requirement for certified or licensed interpreters for non-English speaking or deaf or hearing-impaired individuals mandated by the Seventy-seventh Texas Legislature in chapter 57 of the Government Code applies to grand jury proceedings.1 In particular, you ask whether a grand jury proceeding is a "criminal proceeding" within the meaning of section
The Seventy-seventh Texas Legislature added chapter 57 concerning court interpreters to the Government Code. See Act of May 22, 2001, 77th Leg., R.S., ch. 1139, 2001 Tex. Gen. Laws 2537. Chapter 57 requires, inter alia, that:
(a) A court shall appoint a certified court interpreter or a licensed court interpreter if a motion for the appointment of an interpreter is filed by a party or requested by a witness in a civil or criminal proceeding in the court.
(b) A court may, on its own motion, appoint a certified court interpreter or a licensed court interpreter.
(c) In a county with a population of less than 50,000, a court may appoint a spoken language interpreter who is not a certified or licensed court interpreter and who:
(1) is qualified by the court as an expert under the Texas Rules of Evidence;
(2) is at least 18 years of age; and
(3) is not a party to the proceeding.
Tex. Gov't Code Ann. §
Chapter 57 is intended to establish standards for interpreters who assist those participants in court proceedings who either do not speak or understand English, or who are deaf or hearing-impaired. See Office of House, Bill Analysis, Tex. H.B. 2735, 77th Leg., R.S. (2001). To that end, it grants authority to the Texas Commission for the Deaf and Hard of Hearing to set standards for the certification of interpreters for the deaf or hearing-impaired, see Tex. Gov't Code Ann. §§
You inform us that "a recurring practice utilized prior to the promulgation" of chapter 57 was for "a Spanish-speaking investigator with [your county's] District Attorney's office [to] volunteer any necessary interpretation" for a Spanish-speaking witness other than the accused. Request Letter, supra note 1, at 1. We presume from the context of your question that such investigators were not licensed interpreters. You are uncertain whether such a practice can continue, given the criminal penalties listed in chapter 57. See id. at 1-2. Accordingly, you ask whether a grand jury is a criminal proceeding for the purpose of section 57.002(a). See id. We conclude that it is.
The meaning of "criminal proceeding" for the purpose of this statute appears to be a matter of first impression. While, as you note, criminal prosecutions have been said for Sixth Amendment purposes to be "initiated . . . by way of formal charge, preliminary hearing, indictment, information, or arraignment,"see Griffith v. State,
While we have found no Texas cases on the question of whether a grand jury session constitutes a criminal proceeding, a majority of the cases we have discovered from other jurisdictions discussing the issue hold that it does. See Kinamon v. UnitedStates,
The legislative history of chapter 57 also argues strongly for a liberal reading of "proceeding" in this context. As the bill analysis makes clear:
Prior to the 77th Legislature, in Texas there were over 400 district courts and 800 county courts at law in which some participants in the court process did not speak or fully comprehend English or were deaf or hearing[-]impaired. Such a situation hindered an individual's ability to understand the actions of the court, the questions asked and answered, and the import of the proceedings.
Office of the House, Bill Analysis, Tex. H.B. 2735, 77th Leg., R.S. (2001). At the public hearing of the Senate Committee on Jurisprudence of May 11, 2001, Senator J.E. "Buster" Brown explained that the legislation was intended "to protect a person's right to fully understand the actions of the court, the questions asked and answered, and the import of any and all proceedings." Hearings on Tex. H.B. 2735 Before the Sen. Comm. onJurisprudence, 77th Leg., R.S. (May 11, 2001) (emphasis added).
Testimony before a grand jury is by no means trivial, and we can discern no basis for a supposition that it is less necessary that a witness in such a matter understand what is going on, or that the panel understand him or her, with the same clarity as in any other proceeding. As the United States Court of Appeals for the Ninth Circuit said in Bacon v. United States:
The grand jury carries out its investigative function with the specific purpose of determining whether probable cause exists to institute criminal prosecutions. Its decision to return an indictment throws the full weight of the criminal process against persons suspected of crime. It is incongruous to say that a proceeding before the body charged by the Constitution with initiating criminal prosecutions does not amount to a proceeding in a criminal case prior to verdict.
Bacon,
You suggest that the secrecy of grand jury proceedings offers another reason that properly trained translators or interpreters ought not to be in the grand jury room. However, the Code of Criminal Procedure specifically permits their presence during the proceedings. Tex. Code Crim. Proc. Ann. art.
Yours very truly,
JOHN CORNYN Attorney General of Texas
HOWARD G. BALDWIN, JR. First Assistant Attorney General
NANCY FULLER Deputy Attorney General — General Counsel
SUSAN DENMON GUSKY Chair, Opinion Committee
James E. Tourtelott Assistant Attorney General, Opinion Committee
United States v. Jerome G. Beery , 678 F.2d 856 ( 1982 )
United States v. Roland E. Thompson , 319 F.2d 665 ( 1963 )
Harry I. Schwimmer v. United States , 232 F.2d 855 ( 1956 )
In the Matter of the Petition of Leslie Bacon for Writ of ... , 449 F.2d 933 ( 1971 )
In Re Grand Jury Proceedings. David Kinamon v. United States , 45 F.3d 343 ( 1995 )
United States v. Lawson , 255 F. Supp. 261 ( 1966 )
State v. Carroll , 83 Wash. 2d 109 ( 1973 )
Griffith v. State , 55 S.W.3d 598 ( 2001 )