Who pays a court interpreter for an indigent defendant in Tennessee, the county or the state's indigent defense fund?

Plain-English summary

A trial court can appoint an interpreter for an indigent criminal defendant who needs one. The cost of that interpreter is one of the expenses the State of Tennessee pays through the indigent defense fund, administered by the Administrative Office of the Courts (AOC) under Tennessee Supreme Court Rule 13. Rep. Eric Watson asked two practical questions about how that payment works: (1) does the county pay the interpreter and then get reimbursed, or does the interpreter bill the AOC directly? (2) if the county does pay first, can it hold off paying the interpreter until the AOC sends the money?

The AG answered each by reading Tenn. Sup. Ct. R. 13, § 4(d). The rule actually has two paths, depending on whether the county has chosen to maintain its own credentialed interpreter staff.

Path 1 (default): Interpreter bills the AOC directly. Under Rule 13, § 4(d)(9), claims for compensation of interpreters and translators are "submitted by interpreters to the AOC on forms provided by the AOC." The forms must be signed by either the court or counsel and must include a copy of the order appointing the interpreter. The interpreter is paid directly out of the indigent defense fund.

Path 2 (optional, county-administered): County employs interpreters and is reimbursed. Under Rule 13, § 4(d)(10), to facilitate efficient disposition of cases involving people with limited English proficiency, "counties may wish to utilize credentialed interpreters on a full-time basis." If a county does this, the AOC will reimburse the county for the interpreters' services up to the rates provided in the rule. The county and the AOC enter into an agreement on the method and amount of reimbursement. Under this path, the county pays its interpreter (who may be a county employee or contractor) and then gets reimbursed from the indigent defense fund.

The AOC is given discretion in the rule to determine "in what amounts and by what method said reimbursement shall be made." That means each county's Path 2 arrangement is governed by its specific AOC agreement, not by a one-size-fits-all rule.

The Question 2 answer follows. Whether a county can withhold pay from its own interpreter while waiting for AOC reimbursement depends on (i) the agreement between the county and the AOC and (ii) the agreement between the county and the interpreter. The interpreter's status matters: a full-time county employee is paid like any other county employee (typically on the county's regular payroll); a part-time employee or independent contractor may be paid on different terms. Without knowing the specific arrangements, the AG declined to give a general answer.

In sum, as the AG read the 2010 version of the rule: a county that had not entered a Path 2 arrangement with the AOC had no role in paying interpreters or seeking reimbursement, because the interpreter billed the AOC directly. A county that had entered a Path 2 arrangement was governed by the specific terms of its AOC agreement. Because Rule 13 has been amended several times since (see the currency note), anyone with a current question should read the rule as it stands now rather than rely on this 2010 reading.

Currency note

This opinion was issued in 2010. 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.

Tennessee Supreme Court Rule 13 has been amended multiple times since 2010, including changes to the indigent defense fund procedures and interpreter compensation provisions. The AOC's reimbursement practices have also evolved. Any current Tennessee question about court interpreter compensation should be checked against the current text of Rule 13 and current AOC procedures.

Common questions

Q: When does an indigent defendant get an appointed interpreter in Tennessee?
A: Under Tenn. R. Crim. P. 28 and Tennessee Supreme Court Rule 42, § 3, a trial court can appoint an interpreter for a criminal defendant when the defendant needs one to understand the proceedings. Indigent defendants in proceedings where they have a statutory or constitutional right to appointed counsel get the interpreter at no cost to them; the costs are paid out of the State's indigent defense fund under Tenn. Sup. Ct. R. 13, § 4(d).

Q: Who is the AOC?
A: The Administrative Office of the Courts. It is the administrative arm of the Tennessee judicial branch, responsible for processing indigent-defense claims (counsel, expert witnesses, interpreters, etc.) and administering the indigent defense fund. The AOC operates under the supervision of the Tennessee Supreme Court.

Q: Does the county ever have to pay an appointed interpreter from county funds?
A: Only if the county has chosen to set up a Path 2 arrangement with the AOC for credentialed interpreters. In the default Path 1, the interpreter bills the AOC directly and the county is not involved.

Q: Why might a county prefer Path 2?
A: Counties with substantial limited-English-proficiency populations (Davidson County / Nashville, Shelby County / Memphis, Knox County / Knoxville, Rutherford County, Hamilton County, etc.) may find it more efficient to maintain in-house credentialed interpreter staff than to rely on case-by-case appointments. Path 2 lets a county pay its interpreters on a regular payroll basis and then get reimbursed periodically.

Q: What is the cap on interpreter compensation?
A: Tenn. Sup. Ct. R. 13 sets rates of compensation for interpreters. Under § 4(d)(10), even in a Path 2 arrangement, the AOC reimbursement cannot exceed the rates in the rule. Counties can pay their own interpreters more if they want (out of county funds), but the State only pays up to the rule's rates.

Q: Can a county withhold payment from a part-time interpreter until the AOC reimburses?
A: It depends on the contracts. Independent contractors with the county typically have payment terms in their contract (net 30, etc.). Withholding pay beyond those terms could breach the contract. A full-time county employee gets paid on the regular county payroll regardless of when the AOC reimburses; the AOC reimbursement is a separate budget cycle. The AG declined to give a categorical answer because the contracts vary.

Q: What if there is no indigent defense fund money available?
A: The opinion does not address fund-exhaustion scenarios. As a structural matter, the indigent defense fund is funded annually by the legislature; if the legislature underfunds it relative to demand, the AOC's payment timing can lag. That is a separate issue not addressed in the 2010 opinion.

Background and statutory framework

The constitutional and statutory basis. A non-English-speaking criminal defendant has constitutional and statutory rights to understand the proceedings against them. The Sixth Amendment's right to counsel and confrontation has long been interpreted to require effective interpreter services for non-English speakers in criminal cases. Tennessee implements this through court rules rather than detailed statutes; Tenn. R. Crim. P. 28 and Tenn. Sup. Ct. R. 42 provide the procedural framework.

The funding source. When the defendant is indigent and entitled to appointed counsel, the State pays interpreter costs through the indigent defense fund under Tenn. Sup. Ct. R. 13, § 4(d). The AOC administers the fund.

Rule 13, § 4(d)(9) (Path 1). "Claims for compensation of interpreters and translators shall be submitted by interpreters to the AOC on forms provided by the AOC. The forms must be signed by either the court or counsel. The interpreter's submission to the AOC must also include a copy of the court's order appointing the interpreter/translator."

This is the default. The interpreter is appointed, performs the work, and submits a claim directly to the AOC. The AOC pays the interpreter.

Rule 13, § 4(d)(10) (Path 2). "To facilitate the prompt and efficient disposition of proceedings which involve individuals with LEP ['limited English proficiency'], counties may wish to utilize credentialed interpreters on a full-time basis. If a county does so, the AOC will reimburse the county for those services for which an interpreter would be entitled to compensation pursuant to this rule. The rate of compensation will depend upon the rate at which the county routinely compensates the interpreter, but under no circumstances will the compensation exceed the rates provided for in this rule. Counties wishing to be reimbursed for these expenses shall contact the AOC, which will determine in what amounts and by what method said reimbursement shall be made."

This is the opt-in. A county that wants to maintain its own interpreter staff (full-time or part-time) can do so and get reimbursed by the AOC, subject to AOC-set terms.

The interplay between the two paths. A county is not required to opt into Path 2. If a county does not opt in, every interpreter appointment is handled under Path 1: the AOC pays the interpreter directly. If a county does opt in, both paths exist side-by-side: the county's in-house staff handle most appointments under Path 2 and bill the AOC for reimbursement; ad hoc appointments of outside interpreters (when in-house staff are unavailable or unsuited) may still go under Path 1.

The reason for the AG's reluctance on Question 2. The county-to-interpreter relationship is governed by a separate contract or employment relationship. A full-time county employee is paid on the county's payroll system, typically monthly or biweekly, regardless of when the AOC reimburses the county. The AOC reimbursement is a separate budget cycle (often quarterly). For an independent contractor, the county's contract sets the payment terms. The AG could not give a general answer because the answer turns on contractual specifics. The opinion notes that "the requirements with respect to compensation of interpreters utilized by a county will depend upon the nature and terms of the relationship between the county and the interpreter. Most importantly, whether the interpreter is a full-time employee, part-time employee, or an independent contractor will determine the county's obligations."

Citations and references

Statutes and court rules:

• Tenn. R. Crim. P. 28 (interpreters in criminal proceedings)
• Tenn. Sup. Ct. R. 13, § 4(d) (interpreter reimbursement)
• Tenn. Sup. Ct. R. 13, § 4(d)(9) (claims submitted to AOC)
• Tenn. Sup. Ct. R. 13, § 4(d)(10) (full-time county interpreter reimbursement)
• Tenn. Sup. Ct. R. 42, § 3 (court appointment of interpreter)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-064.pdf

Original opinion text

May 6, 2010

Opinion No. 10-64

Compensation for Interpreters for Indigent Criminal Defendants

QUESTIONS

1. If an interpreter is appointed for an indigent defendant, is the county required to pay the interpreter's fee and then seek reimbursement from the indigent defense fund, or does the interpreter file a claim for services directly to the Administrative Office of the Courts as administrator of the indigent defense fund?

2. If the county is required to pay the interpreter directly and then seek reimbursement from the fund, may the county withhold payment from the interpreter until it receives payment from the indigent defense fund?

OPINIONS

1. Generally, claims for compensation of interpreters are submitted by the interpreter directly to the Administrative Office of the Courts (AOC). A county is not required to seek reimbursement from the AOC for interpreter services unless the county decides to "utilize credentialed interpreters on a full-time or part-time basis." If a county chooses to do so, the county must contact the AOC about the method and amount of reimbursement. The AOC will reimburse the county for interpreter services pursuant to that agreement.

2. A county is not required to seek reimbursement from the AOC for interpreter services unless the county decides to "utilize credentialed interpreters on a full-time or part-time basis" and contacts the AOC to determine the method and amount of reimbursement. Questions concerning compensation will depend upon the agreement between the county and the AOC and the agreement between the county and the interpreter. Therefore, this office cannot render a general opinion concerning whether the county may withhold payment from the interpreter until it receives reimbursement from the AOC.

ANALYSIS

1. In a criminal proceeding, an interpreter may be appointed by the trial court pursuant to Tennessee Supreme Court Rule 42, Section 3. See Tenn. R. Crim. P. 28. "Reasonable costs associated with an interpreter's services may be assessed against the indigent defense fund pursuant to Tennessee Supreme Court Rule 13 if the party is indigent and is involved in a proceeding in which he or she has a statutory or constitutional right to appointed counsel." Id.; see Tenn. Sup. Ct. R. 13, § 4(d). The rules governing reimbursement for interpreter services provide:

(9) Claims for compensation of interpreters and translators shall be submitted by interpreters to the AOC on forms provided by the AOC. The forms must be signed by either the court or counsel. The interpreter's submission to the AOC must also include a copy of the court's order appointing the interpreter/translator.

(10) To facilitate the prompt and efficient disposition of proceedings which involve individuals with LEP ["limited English proficiency"], counties may wish to utilize credentialed interpreters on a full-time basis. If a county does so, the AOC will reimburse the county for those services for which an interpreter would be entitled to compensation pursuant to this rule. The rate of compensation will depend upon the rate at which the county routinely compensates the interpreter, but under no circumstances will the compensation exceed the rates provided for in this rule. Counties wishing to be reimbursed for these expenses shall contact the AOC, which will determine in what amounts and by what method said reimbursement shall be made.

Tenn. Sup. Ct. R. 13, § 4(d)(9) and (10). Under these rules, depending upon the circumstances of a particular case, claims for compensation of interpreters may be submitted by the interpreter directly to the AOC or claims may be submitted by a county directly to the AOC pursuant to an agreement between the county and the AOC. A county is not required to seek reimbursement from the AOC for interpreter services unless the county decides to "utilize credentialed interpreters on a full-time or part-time basis" and contacts the AOC about the method and amount of reimbursement. If a county chooses to do so, the AOC will reimburse the county for the interpreters' services pursuant to the agreement reached with that county.

2. Pursuant to subsection (d)(10), cited previously, a county may "utilize credentialed interpreters on a full-time or part-time basis" and seek reimbursement for those services from the AOC pursuant to an agreement with the AOC. The rule provides that "[c]ounties wishing to be reimbursed for the expenses shall contact the AOC, which will determine in what amounts and by what method said reimbursement shall be made." Id. Because the rule grants the AOC discretion in determining the amount and method of reimbursement, the requirements imposed upon a county will depend upon the terms of a particular agreement between the county and the AOC. Additionally, the requirements with respect to compensation of interpreters utilized by a county will depend upon the nature and terms of the relationship between the county and the interpreter. Most importantly, whether the interpreter is a full-time employee, part-time employee, or an independent contractor will determine the county's obligations. For these reasons, this office cannot render a general opinion concerning whether the county may withhold payment from the interpreter until it receives reimbursement from the AOC.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

MARK A. FULKS
Senior Counsel

Requested by:

The Honorable Eric Watson
State Representative
209 A, War Memorial Building
Nashville, TN 37243-0122