As a first step to obtaining Special Immigrant Juvenile status for a child client, immigration attorneys must present their case in state court. Often, foreign language documents are used as evidence in the state court hearing. Translations of these documents is required, but not necessarily by a “certified interpreter.” Requesting a “certified” translation is problematic for many reasons, including expense of time and money, but also because this is not a requirement under Texas law. In this post we are hoping to explain why this requirement cannot be found in any of the Texas Codes, Rules of Evidence, or Rules of Civil Procedure. In fact, case law indicates that a “certified interpreter” for translations is not required.
The Texas Rules of Evidence indicate in TRE 1009 that a foreign language document must have a translation with “a qualified translator’s affidavit or unsworn declaration that sets forth the translator’s qualifications and certifies that the translation is accurate.” There is no mention of the translator being “certified” in the rule, only that the translator themselves certifies it is accurate, presumably through the affidavit or unsworn declaration. Nor does the rule indicate what makes a translator qualified.
It is also worthwhile noting the difference between interpreting and translating. The Texas Judicial Branch Certification Commission (JBCC), of the Office of Court Administration (OCA), licenses court interpreters. But they take pains to differentiate interpreters from translators. Their website indicates that “interpreters work in spoken and signed languages, while translators work in written languages.” The JBCC only licenses interpreters, not translators. It would be anachronistic for interpreters to translate written documents and for translators to interpret spoken word. We all know that some interpreters also work as translators, and vice versa but they are distinct skills. CILA staff know several people who consider themselves professional translators but would not ever hold themselves out to be interpreters, as they don’t feel they have the required skill for that.
Nowhere else in the TRE, the Government Code, the Civil Practice and Remedies Code, or the Texas Rules of Civil Procedure is there a requirement for translations to be done by someone certified, let alone a certified interpreter. There are no civil cases directly on point for this question, but there is a criminal case decided by the Appellate Court for the First District of Texas, which includes Houston and would have precedential value for district courts in Harris County, whether civil or criminal. In Castrejon v. State the court specifically stated that:
Rule 1009(a) applies when a party offers a written translation of a foreign language document. It requires that the written translation be coupled with an affidavit by a qualified translator setting forth the translator’s qualifications and certifying that the translation is fair and accurate and that the translation be provided forty-five days in advance of trial. Castrejon v. State, 428 S.W.3d 179, 184 (Tex. App.—Houston [1st Dist.] 2014, no pet.)
In addition, the court found that “[n]either article 38.30 nor Rule 1009 requires an interpreter to be “certified” or “licensed” in order to provide an admissible translation. See Tex.Code Crim. Proc. Ann. art. 38.30(a); Tex.R. Evid. 1009.” Id at 188.
However, the court in Castrejon does go on to indicate that “®he competency of an individual to act as an interpreter is a question for the trial court.” Id. This indicates that the judge has the right to determine if an interpreter is qualified. But there is no mention of translators, and as mentioned above, just because a person is licensed for oral interpretation does not make them also qualified to do written translations.
Don’t forget, the State Bar of Texas offers the Language Access Fund, which helps connect legal aid organizations across the state with much-needed translation and interpretation services for clients with limited English-language proficiency. Legal aid organizations interested in connecting with translation and interpretation services through the Language Access Fund can contact the State Bar to get access.
For a more in-depth discussion of this topic, you can refer to our Practice Pointer, Translation in Texas Family Courts, in the “Additional Resources (Password-Protected)” portion of our website.