Can a Texas criminal defendant be made to pay back the county for the court interpreter's fee?

Plain-English summary

When someone charged with a crime in Texas cannot speak English, the court appoints an interpreter so the case can proceed fairly. A county auditor noticed that a local judge had been making defendants foot the interpreter's bill, sometimes by adding it to the court costs, sometimes by ordering repayment as a string attached to probation. She asked the Attorney General whether that was allowed.

The Attorney General said it was not. The starting point is a clear statute: interpreters in criminal cases get paid from county funds. On top of that, Texas law says a court cannot charge a defendant a "cost" unless some statute specifically authorizes that cost, and there is no statute authorizing an interpreter charge. Texas courts have long treated the question of criminal-case costs as purely a matter of statute, so a judge cannot invent one. That settled the cost question: the interpreter fee cannot be taxed against the defendant.

The probation route failed for a parallel reason. The probation statute lists exactly what payments a court can require, fines, court costs, victim restitution, and a few others expressly authorized by law, and treats that list as a ceiling. An interpreter fee is not on the list. The Attorney General pointed out that the Legislature did specifically allow making a defendant repay the cost of an appointed lawyer, which is a similar kind of expense; the fact that it spelled that one out, but not interpreters, confirmed interpreters are off-limits. Because the fees could not be charged either way, the Attorney General did not need to reach the constitutional question about singling out non-English speakers. As for money the county had already collected, the auditor was told to treat it like other collections, let defendants petition to correct their costs, and she could park the funds in a suspense account.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Code of Criminal Procedure provisions on interpreters, court costs, and probation (community supervision) have been amended and renumbered since 1993 (former article 42.12 community-supervision rules in particular); confirm current law before relying on anything described here.

Background and statutory framework

Article 38.30 of the Code of Criminal Procedure governs appointing and paying interpreters in criminal cases; subsections (b) and (c) require that interpreters' compensation be paid out of county funds, and the article neither requires nor permits collecting these fees as costs from defendants. (Compare Civil Practice and Remedies Code section 21.051, which requires a $3 interpreter fee to be assessed and collected as a cost in civil cases.) Article 103.002 provides that an officer may not impose a cost for a service for which a cost is not expressly provided by law, and "officer" includes magistrates such as county judges and county court-at-law judges (arts. 2.09, 3.03). The Attorney General noted that courts treat the matter of costs in criminal cases as purely statutory (Dunn v. State; Lay v. State), and that chapter 102 does not authorize charging interpreters' fees to defendants. The AG therefore concluded such fees may not be assessed against criminal defendants in county courts-at-law.

On the probation question, article 42.12, section 11 bars a court from ordering a probationer to make any payments as a condition of probation except fines, court costs, restitution to the victim, payment to a local crime-stoppers program, and other terms and conditions expressly authorized by statute. Attorney General Opinion JM-853 (1988) read the provision as a blanket prohibition subject to the stated exceptions. The article separately authorizes specific payments, including section 11(a)(11) reimbursement for court-appointed counsel, an expense analogous to an interpreter's cost; its express inclusion reinforced the conclusion that interpreter costs are not an allowable condition of probation.

Because the fees could not be charged as costs or required as a probation condition, the AG did not reach the equal-protection question or the final question. On funds already collected, the AG found no special statutory method, advised treating them as authorized collections (with defendants able to petition for correction of costs under article 103.008(a)), and noted the auditor may establish a suspense account under Local Government Code section 112.001.

Citations

• Code Crim. Proc. art. 38.30 (interpreters in criminal cases paid out of county funds; no collection of fees as costs from defendants)
• Code Crim. Proc. art. 103.002 (officer may not impose a cost not expressly provided by law); arts. 2.09, 3.03 (definitions of "magistrate" and "officer," including county court-at-law judges)
• Code Crim. Proc. art. 42.12, § 11 (limits on payments a court may order as conditions of probation; § 11(a)(11) reimbursement for court-appointed counsel)
• Code Crim. Proc. art. 103.008(a) (petition for correction of costs)
• Civ. Prac. & Rem. Code § 21.051 ($3 interpreter fee assessed as cost in civil cases)
• Local Gov't Code § 112.001 (county auditor may establish a suspense account)
• Dunn v. State, 683 S.W.2d 729, 730 (Tex. App.-Amarillo 1984, pet. ref'd) (matter of costs in criminal cases is purely statutory)
• Lay v. State, 202 S.W. 729 (Tex. Crim. App. 1918)

Common questions

Can a Texas judge make a defendant pay the court interpreter's fee?
Under this opinion, no. The Attorney General concluded that interpreters in criminal cases are paid from county funds and that a county court-at-law judge may not assess those fees as court costs against the defendant.

Can repayment be required as a condition of probation instead?
No. The Attorney General concluded that article 42.12, section 11 bars ordering probation payments except for listed items expressly authorized by statute, and interpreter fees are not among them.

Why can't the judge just add it as a cost?
Because article 103.002 says a court cost must be expressly provided by law, and no statute authorizes an interpreter cost against a defendant. Texas courts treat criminal-case costs as purely statutory.

What about money the county already collected from defendants?
The Attorney General found no special method for erroneously collected funds, advised treating them like authorized collections (defendants may petition to correct costs under article 103.008(a)), and noted the auditor could set up a suspense account under Local Government Code section 112.001.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0245
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0245.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

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 criminal cases. You explain that, where a defendant was unable to communicate in English, a county court-at-law judge has assessed interpreters' fees as costs in some criminal cases 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 county funds, and article 38.30 neither requires nor permits the collection of these fees as costs from defendants. Cf. Civ. Prac. & Rem. Code § 21.051 (requirement that $3.00 interpreter fee be assessed and collected as cost in civil cases and deposited in county's general fund); see also Tex. R. Civ. P. 183.

Furthermore, article 103.002 of the Code of Criminal Procedure requires that costs be expressly authorized by law, as follows:

An officer may not impose a cost for a service not performed or for a service for which a cost is not expressly provided by law.

Code Crim. Proc. art. 103.002.

Article 3.03 of the code defines "officer" to include "both magistrates and peace officers." "Magistrate" is in turn defined to include, among other judicial officers, county judges and judges of the county courts-at-law. Code Crim. Proc. art. 2.09. Thus, article 103.002 bars a court from imposing a cost on a criminal defendant unless the cost is expressly provided for by law.

The courts also advise that the question of costs in criminal cases is governed by statute. On the appeal in Dunn v. State, 683 S.W.2d 729 (Tex. App.-Amarillo 1984, pet. ref'd), the defendant attempted to have the court reporter's fees for a transcription of trial notes assigned as costs and charged against either the county or the state. Although the Dunn court cited neither the Code of Criminal Procedure nor any cases, the opinion unequivocally stated that "[t]he matter of costs in criminal cases is purely statutory." Id. at 730. Having examined the Code of Criminal Procedure and finding no statutory provision to authorize such a charge, the court overruled the motion to retax the transcription fees. See also Lay v. State, 202 S.W. 729 (Tex. Crim. App. 1918).

Finally, chapter 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 interpreters' fees by defendants or authorizes their assessment against defendants. We are aware of no provision of the Code of Criminal Procedure or any other statutory provision that expressly authorizes the judge of a county court-at-law to assess interpreters' fees against criminal defendants as costs of court. Accordingly, 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 Dunn, that such fees may not be assessed against defendants in criminal cases brought in county courts-at-law.

In your second question, you ask whether a judge is authorized to require, as a condition of probation, that a criminal defendant 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 11(e) of that article reads as follows:

A court may not order a probationer to make any payments as a term and condition of probation, except for fines, court costs, restitution of the victim, payment to a local crime stoppers program under Subsection (h) of this section, and other terms and conditions expressly authorized by statute.

Code Crim. Proc. art. 42.12, § 11(e) (emphasis added); see also id. § 11(b).

Attorney General Opinion JM-853 (1988) examined subsection (e) prior to the inclusion of the emphasized language and determined that the provision is mandatory and "operates as a blanket prohibition, subject to the stated exceptions." Attorney General Opinion JM-853 at 2. As indicated above, we are unaware of any statute that authorizes the assessment of interpreters' fees against criminal defendants.

In addition to those monetary payments that are expressly recognized in section 11(e) as suitable for probationary payments, article 42.12 enumerates other payments "expressly authorized by statute." Of particular interest here is the section 11(a)(11) provision allowing a probationary condition that the defendant reimburse the county for court appointed counsel. This expense is analogous to the cost of an interpreter inasmuch as it is necessitated by the circumstances of the defendant, and its inclusion reinforces our conclusion that repayment of the costs of an interpreter is not an allowable condition of probation.

Your third question asks whether the equal protection clause of the United States Constitution prohibits a requirement that a defendant who doesn't speak English reimburse the county for compensation paid to interpreters in a criminal case. In light of our answers to your previous questions, we need not address the constitutional issues.

Your fourth and fifth questions ask what you, as county auditor, should do with the funds that have been collected either as costs or as conditions of probation. We find no special statutory method for the treatment of funds that have been erroneously collected from criminal defendants and believe that you should treat them as you do authorized collections. See Code Crim. Proc. art. 103.008(a) (defendant to file a petition for correction of costs). We believe, however, that as county auditor you have authority to establish a suspense account for the deposit of these funds. See Local Gov't Code § 112.001.

SUMMARY

Article 38.30 of the Code of Criminal Procedure requires interpreters in criminal cases to be paid from county funds. A judge of a county court-at-law may not assess interpreters' fees either as costs or require payment as a condition of probation.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Steve Aragón
Assistant Attorney General