Does a Texas grand jury have to use a licensed court interpreter for a deaf or non-English-speaking witness?

Plain-English summary

The Collin County Criminal District Attorney asked whether chapter 57 of the Government Code, which the Legislature enacted in 2001 to require qualified interpreters for non-English-speaking, deaf, or hearing-impaired people in court, applies to grand jury proceedings. The specific question: is a grand jury session a "criminal proceeding" under section 57.002, so that a witness who cannot understand English (or is deaf or hearing-impaired) must be given a certified or licensed court interpreter? The DA noted that before chapter 57, his office had let a Spanish-speaking investigator volunteer to interpret for witnesses, and he was unsure whether that practice could continue given the statute's criminal penalties.

The Attorney General concluded that a grand jury hearing is a "criminal proceeding" for purposes of section 57.002, so a properly qualified interpreter must be appointed. The opinion acknowledged that "criminal proceeding" can be read narrowly in some contexts (for example, Sixth Amendment cases describe prosecution as beginning at formal charge or indictment, after the grand jury), but said the meaning depends on context, and the Court of Criminal Appeals has read "proceeding" broadly when the criminal context called for it. Given chapter 57's remedial purpose and its legislative history, the opinion read the phrase liberally. It also noted that most courts in other jurisdictions that have addressed the question treat grand jury sessions as criminal proceedings, reasoning that the body charged with deciding whether to indict is squarely part of the criminal process. The opinion added that grand jury secrecy is no obstacle, because the Code of Criminal Procedure expressly allows interpreters in the grand jury room when necessary. The small-county exemption in section 57.002(c) (counties under 50,000) did not apply to Collin County.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Collin County Criminal District Attorney (what the opinion held): The opinion answered that a grand jury hearing is a "criminal proceeding" under section 57.002, so a qualified interpreter must be appointed for a deaf, hearing-impaired, or non-English-speaking witness. By implication, the prior practice of using an unlicensed bilingual investigator would not meet the statute's standard.

Prosecutors and courts in larger counties (what the opinion held): The opinion treated the certified/licensed-interpreter requirement as applying in the grand jury room, subject to the same standards as other proceedings under section 57.002. The reduced flexibility in section 57.002(c) is available only in counties under 50,000.

Witnesses who are deaf, hearing-impaired, or non-English-speaking (what the opinion held): The opinion read chapter 57 to protect such a witness's ability to understand and be understood in a grand jury session, and noted the Code of Criminal Procedure permits interpreters to be present despite grand jury secrecy.

Common questions

Is a grand jury proceeding a "criminal proceeding" for interpreter purposes in Texas?
Under this opinion, yes. The Attorney General concluded that, for purposes of Government Code section 57.002, a grand jury hearing is a criminal proceeding requiring appointment of a certified or licensed court interpreter for a qualifying witness.

Can an unlicensed bilingual staffer interpret for a grand jury witness?
The opinion's reasoning indicates no, at least outside the small-county exemption. Section 57.002 requires a certified or licensed court interpreter, and chapter 57 makes acting as such an interpreter without certification or a license a Class A misdemeanor.

Does grand jury secrecy keep interpreters out of the room?
No. The opinion pointed to the Code of Criminal Procedure, which expressly lists "interpreters if necessary" among those who may be present in the grand jury room.

Are smaller counties treated differently?
Yes. Section 57.002(c) lets a court in a county with fewer than 50,000 people appoint a non-certified, non-licensed spoken-language interpreter who meets certain conditions. That exemption did not apply to Collin County, whose 2000 population was 491,675.

Background and statutory framework

The 77th Legislature added chapter 57 to the Government Code in 2001 to set standards for interpreters who assist court participants who do not speak English or who are deaf or hearing-impaired. Section 57.002(a) requires a court to appoint a certified or licensed court interpreter when a party moves for one or a witness requests one in a civil or criminal proceeding; subsection (b) allows appointment on the court's own motion; and subsection (c) allows a limited exemption in counties under 50,000. Tex. Gov't Code Ann. § 57.002 (Vernon Supp. 2002); § 57.002(c). The chapter empowers the Texas Commission for the Deaf and Hard of Hearing and the Texas Department of Licensing and Regulation to certify and license interpreters, limits the title to certified or licensed interpreters, and makes violations Class A misdemeanors. Id. §§ 57.021-.027; §§ 57.041-.051; §§ 57.026, .049; §§ 57.027(a), .050(a).

The opinion treated the meaning of "criminal proceeding" as a matter of first impression turning on context. It noted that for Sixth Amendment purposes prosecution begins at formal charge or indictment, after the grand jury. Griffith v. State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001). But the Court of Criminal Appeals has read "proceeding" broadly elsewhere, calling it "a very broad nomenclature" covering "all possible steps in an action from its commencement to its execution." Tigner v. State, 928 S.W.2d 540, 543-44 (Tex. Crim. App. 1996); Howland v. State, 990 S.W.2d 274, 276-77 (Tex. Crim. App. 1999). Remedial statutes are construed liberally. Davis v. Ector County, 40 F.3d 777, 785 (5th Cir. 1994). The opinion observed that most out-of-state courts addressing the question treat grand jury sessions as criminal proceedings. Kinamon v. United States, 45 F.3d 343, 347-48 (9th Cir. 1995); United States v. Bery, 678 F.2d 856, 860 (10th Cir. 1982); In re Grand Jury Empaneled, 597 F.2d 851, 856-57 (3rd Cir. 1978); Bacon v. United States, 449 F.2d 933, 939 (9th Cir. 1971); Schwimmer v. United States, 232 F.2d 855, 860 (8th Cir. 1956); United States v. Lawson, 255 F. Supp. 261, 263 (D. Minn. 1966); State v. Carroll, 515 P.2d 1299, 1302 (Wash. 1973); People v. McCloskey, 238 N.Y.S.2d 676, 680 (N.Y. App. Div., 1st Dept. 1963); People v. Feinberg, 193 N.Y.S.2d 937, 941 (N.Y. Gen. Sess. 1959); but see United States v. Thompson, 319 F.2d 665, 669-70 (2d Cir. 1963). Finally, the Code of Criminal Procedure permits interpreters in the grand jury room when necessary. Tex. Code Crim. Proc. Ann. art. 20.011(a)(5) (Vernon Supp. 2002).

Citations

Statutes:

• Tex. Gov't Code Ann. § 57.002 (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 57.002(c)
• Tex. Gov't Code Ann. §§ 57.021-.027 (Vernon Supp. 2002)
• Tex. Gov't Code Ann. §§ 57.041-.051
• Tex. Gov't Code Ann. §§ 57.026, .049
• Tex. Gov't Code Ann. §§ 57.027(a), .050(a)
• Tex. Code Crim. Proc. Ann. art. 20.011(a)(5) (Vernon Supp. 2002)

Cases:

• Griffith v. State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001)
• Howland v. State, 990 S.W.2d 274, 276-77 (Tex. Crim. App. 1999)
• Tigner v. State, 928 S.W.2d 540, 543-44 (Tex. Crim. App. 1996)
• Davis v. Ector County, 40 F.3d 777, 785 (5th Cir. 1994)
• Kinamon v. United States, 45 F.3d 343, 347-48 (9th Cir. 1995)
• United States v. Bery, 678 F.2d 856, 860 (10th Cir. 1982)
• In re Grand Jury Empaneled, 597 F.2d 851, 856-57 (3rd Cir. 1978)
• Bacon v. United States, 449 F.2d 933, 939 (9th Cir. 1971)
• Schwimmer v. United States, 232 F.2d 855, 860 (8th Cir. 1956)
• United States v. Lawson, 255 F. Supp. 261, 263 (D. Minn. 1966)
• State v. Carroll, 515 P.2d 1299, 1302 (Wash. 1973)
• People v. McCloskey, 238 N.Y.S.2d 676, 680 (N.Y. App. Div., 1st Dept. 1963)
• People v. Feinberg, 193 N.Y.S.2d 937, 941 (N.Y. Gen. Sess. 1959)
• United States v. Thompson, 319 F.2d 665, 669-70 (2d Cir. 1963)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0579
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0579.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN

November 20, 2002

The Honorable Tom O'Connell Opinion No. JC-0579
Collin County Criminal District Attorney
210 South McDonald, Suite 324 Re: Whether the testimony of a non-English
McKinney, Texas 75069 speaking or deaf or hearing-impaired witness
before a grand jury requires the appointment of a
certified or licensed court interpreter under section
57.002 of the Government Code (RQ-0554-JC)

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. In particular, you ask whether a grand jury proceeding is a "criminal proceeding" within the meaning of section 57.002 of the Government Code, "thereby requiring appointment of a licensed court interpreter to translate for witnesses who do not understand the English language." Request Letter, supra note 1, at 1; see also TEX. GOV'T CODE ANN. § 57.002 (Vernon Supp. 2002). We conclude that such a proceeding does require the appointment of a licensed or certified interpreter.

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. § 57.002 (Vernon Supp. 2002) (emphasis added). Section 57.002(c), which allows some limited exemption from the strictures of the statutory scheme in counties of fewer than 50,000, is inapplicable to Collin County, which according to the 2000 census has a population of 491,675. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 2000 CENSUS OF POPULATION, available at http://www.census.gov/.

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. §§ 57.021-.027 (Vernon Supp. 2002), and to the Texas Department of Licensing and Regulation to license interpreters for persons who can hear but do not communicate in English, see id. §§ 57.041-.051. Only certified or licensed interpreters may hold themselves out or act as such. See id. §§ 57.026, .049. Violations of the statute are Class A misdemeanors. See id. §§ 57.027(a), .050(a).

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, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001) (en banc), and thus to begin after grand jury hearings have been held, the meaning of "criminal proceeding" will depend upon context. See Howland v. State, 990 S.W.2d 274, 276-77 (Tex. Crim. App. 1999); Tigner v. State, 928 S.W.2d 540, 543-44 (Tex. Crim. App. 1996) (en banc). On at least two occasions, when the question of interpreting the word "proceeding" in the criminal context has arisen, the Court of Criminal Appeals has chosen a broad, rather than a narrow, construction. In Tigner v. State, the court noted that, "[t]he term 'proceeding' is a very broad nomenclature." Tigner, 928 S.W.2d at 543. It further noted that Black's Law Dictionary defines proceeding as "'all possible steps in an action from its commencement to its execution.'" Id. (citing BLACK'S LAW DICTIONARY 1204 (6th ed. 1990)). Similarly, in Howland the court found that extrinsic offense evidence permissible in any "proceeding" after the effective date of a statute could be admitted in any such "proceeding" in the sense of any step required in the course of an action. See Howland, 990 S.W.2d at 276-77. We believe that, in light of the remedial purpose of chapter 57 and its legislative history, a court would in this instance liberally interpret the phrase to accomplish the statute's purpose. See, e.g., Davis v. Ector County, 40 F.3d 777, 785 (5th Cir. 1994) (remedial statute to be liberally construed). We emphasize that this conclusion is limited to the interpretation of the phrase in section 57.002.

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. United States, 45 F.3d 343, 347-48 (9th Cir. 1995); United States v. Bery, 678 F.2d 856, 860 (10th Cir. 1982); In re Grand Jury Empaneled, 597 F.2d 851, 856-57 (3rd Cir. 1978); Bacon v. United States, 449 F.2d 933, 939 (9th Cir. 1971); Schwimmer v. United States, 232 F.2d 855, 860 (8th Cir. 1956); United States v. Lawson, 255 F. Supp. 261, 263 (D. Minn. 1966); State v. Carroll, 515 P.2d 1299, 1302 (Wash. 1973); People v. McCloskey, 238 N.Y.S.2d 676, 680 (N.Y. App. Div., 1st Dept. 1963); People v. Feinberg, 193 N.Y.S.2d 937, 941 (N.Y. Gen. Sess. 1959); but see United States v. Thompson, 319 F.2d 665, 669-70 (2d Cir. 1963) (grand jury investigation not "criminal proceeding" for purpose of federal statute giving district court power to issue subpoenas to witnesses outside United States).

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. on Jurisprudence, 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, 449 F.2d at 939-40 (citation omitted). Accordingly, the interpretation offered in a grand jury hearing for deaf, hearing-impaired, or non-English speaking witnesses must be subject to the same standards as in any other hearing governed by section 57.002.

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. 20.011(a)(5) (Vernon Supp. 2002) (among those who may be present in grand jury room are "interpreters if necessary").

SUMMARY

For the purposes of section 57.002 of the Government Code, a grand jury hearing is a "criminal proceeding" requiring the appointment of a properly qualified interpreter for a witness who is either non-English speaking or deaf or hearing-impaired.

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