Can Texas pay Board for Evaluation of Interpreters members to evaluate interpreter candidates?

Plain-English summary

The executive director of the Texas Commission for the Deaf and Hard of Hearing asked whether the commission could contract with members of its Board for Evaluation of Interpreters (BEI) to evaluate interpreter candidates and pay them as "contracted evaluators." The question arose after a Comptroller audit questioned the practice, finding that the commission had paid BEI members for evaluation work the members were required to perform by statute. The Attorney General concluded that BEI members may not serve as paid contracted evaluators, and that under commission rule they may receive expense reimbursement but not compensation.

The commission is established under chapter 81 of the Human Resources Code. Section 81.007 lets the commission set up a program to certify interpreters and requires it to appoint a seven-member BEI to administer the certification program. The statute splits responsibilities between the commission and the board. The board, subject to the commission's approval, prescribes the qualifications for each level of certification and evaluates and certifies interpreters. The opinion read that as making the BEI responsible for evaluating candidates, work the board could carry out through its members, through staff, or through people under contract with the commission.

Because evaluating candidates is part of the board's own statutory job, the opinion concluded BEI members could not be hired to do it as contracted evaluators. The commission's rule reinforced this: it describes contracted evaluators as interpreters who are interviewed, selected, and trained by the board and appointed by the commission, treating them as different people from board members. An earlier version of the rule drew the same line. The opinion also noted that although a commission rule labels the BEI an "advisory committee," that label does not strip the board of the non-advisory duties the legislature gave it.

The director suggested section 81.007(k), which says the commission "shall compensate an evaluator" on a fee schedule, authorized paying board members. The opinion disagreed. The legislative history of that provision, going back to its 1993 enactment, shows the "evaluators" it covers are the roughly 40 statewide volunteers who are not BEI members and who historically donated their services. The statute was meant to let the commission pay those non-member evaluators, not the board members. The commission's appropriations and rules provide for reimbursing BEI members' expenses as advisory board members, so members may recover expenses for performing their statutory duties, but not compensation. The opinion also declined to reach the common-law conflict-of-interest question, since the contracts would be invalid regardless.

Currency note

This opinion was issued in 2001. 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. Chapter 81 of the Human Resources Code and the commission's rules in title 40 of the Administrative Code have been amended since 2001, and interpreter certification functions in Texas have since been reorganized, so the agency structure and section numbers described here may no longer be current.

What the opinion meant for those who asked

The Commission for the Deaf and Hard of Hearing (what the opinion held): The opinion concluded the commission could not contract with and pay BEI members as contracted evaluators, because evaluating candidates is the board's statutory responsibility. It confirmed the commission may pay non-member evaluators under section 81.007(k) and may reimburse BEI members' expenses, but may not compensate members for their service.

BEI members (what the opinion held for them): The opinion treated evaluating interpreter candidates as part of the members' own statutory duties, performed without a contract with the commission. Under commission rule, members are entitled to expense reimbursement but not to pay for that service.

Interpreter candidates and certified interpreters (what the opinion held for them): The opinion confirmed the BEI is responsible for evaluating and certifying interpreters, subject to commission approval, and that the board may carry out evaluations through members, staff, or non-member contracted evaluators working under its supervision.

Common questions

Can a Texas interpreter board member be paid to evaluate candidates?
The opinion concluded no. Evaluating candidates is part of the BEI's statutory job under Human Resources Code section 81.007, so a member cannot be hired and paid to do it as a contracted evaluator.

Who are the "evaluators" the commission is told to compensate?
The opinion explained that section 81.007(k) and its legislative history refer to the non-member evaluators, historically volunteers, who conduct evaluations for the board. The provision lets the commission pay those people, not the board members.

Do board members get nothing for their work?
Not nothing. The opinion concluded that under commission rule and the agency's appropriations, BEI members may be reimbursed for the expenses of carrying out their official duties, including evaluations, but may not receive compensation for the service itself.

Did the opinion decide the conflict-of-interest question?
No. The director also asked whether paying board members would violate the common-law conflict-of-interest rule, but because the contracts would be invalid in any event, the opinion did not need to and did not decide that question.

Background and statutory framework

The Texas Commission for the Deaf and Hard of Hearing is established under chapter 81 of the Human Resources Code and governed by a board appointed by the Governor with Senate consent. Tex. Hum. Res. Code Ann. §§ 81.001-.020 (Vernon 2001); id. § 81.002(a). Section 81.007 authorizes the commission to establish an interpreter certification program and, if it does, requires it to appoint a seven-member Board for Evaluation of Interpreters to administer the program. Subject to the commission's approval, the board prescribes the qualifications for each certification level and evaluates and certifies interpreters. The commission compiles a statewide registry using the board's recommendations, sets fees, adopts rules on denying or revoking certificates, and compensates an evaluator on a fee schedule set by rule. The commission may adopt rules necessary to implement the chapter. Id. § 81.006(b)(3), § 81.007. The commission may discipline a certified interpreter only on the board's recommendation. Id. § 81.0072(a).

Commission rules provide that BEI members receive no compensation for performing the duties of the office but may receive expense reimbursement, and they describe contracted evaluators as interpreters interviewed, selected, and trained by the board and appointed by the commission. 40 Tex. Admin. Code §§ 183.9, 183.11, 183.17, 183.18, 183.19, 183.29 (2001). The compensation provision now in section 81.007(k) was adopted in 1993, when the board's evaluators were volunteers who donated their services; the bill analysis and fiscal note show the legislature meant to let the commission pay those non-member evaluators. Act of May 26, 1993, 73d Leg., R.S., ch. 722, § 1, 1993 Tex. Gen. Laws 2828. The commission's appropriations provide for reimbursing BEI members' expenses as advisory board members under Government Code chapter 2110, with travel expenses governed by chapter 660. Tex. Gov't Code Ann. §§ 2110.001-.008, § 2110.004, §§ 660.001-.055 (Vernon 1994 & Supp. 2001, and Vernon 2000). The opinion also recited the common-law conflict-of-interest rule. Meyers v. Walker, 276 S.W. 305, 307 (Tex. Civ. App.-Eastland 1925, no writ).

Citations

Statutory and regulatory provisions:

• Tex. Hum. Res. Code Ann. §§ 81.001-.020 (Vernon 2001)
• Tex. Hum. Res. Code Ann. § 81.002(a) (Vernon 2001)
• Tex. Hum. Res. Code Ann. § 81.006(b)(3) (Vernon 2001)
• Tex. Hum. Res. Code Ann. § 81.007 (Vernon 2001)
• Tex. Hum. Res. Code Ann. § 81.0072(a) (Vernon 2001)
• Tex. Gov't Code Ann. §§ 2110.001-.008 (Vernon 2000)
• Tex. Gov't Code Ann. § 2110.004 (Vernon 2000)
• Tex. Gov't Code Ann. §§ 660.001-.055 (Vernon 1994 & Supp. 2001)
• 40 Tex. Admin. Code §§ 183.9, 183.11, 183.17, 183.18, 183.19, 183.29 (2001)
• Act of May 26, 1993, 73d Leg., R.S., ch. 722, § 1, 1993 Tex. Gen. Laws 2828

Cases:

• Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App.-Eastland 1925, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0437
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0437.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

December 3, 2001

Mr. David W. Myers, Executive Director
Texas Commission for the Deaf and Hard of Hearing
4800 North Lamar, Suite 310
Austin, Texas 78711

Opinion No. JC-0437

Re: Whether the Texas Commission for the Deaf and Hard of Hearing may pay members of the Board for Evaluation of Interpreters to evaluate interpreters, and related questions (RQ-0393-JC)

Dear Mr. Myers:

On behalf of the Texas Commission for the Deaf and Hard of Hearing ("TCDH"), you ask whether the commission may contract with members of the Board for Evaluation of Interpreters ("BEI") to evaluate candidates for certification as interpreters and compensate them as "contracted evaluators." We conclude that the BEI has a responsibility under the statute to evaluate candidates and that BEI members may not serve as evaluators under contract with the TCDH. Pursuant to commission rule, BEI members are entitled to receive expenses for carrying out official duties, but they may not receive compensation.

The TCDH, established by chapter 81 of the Human Resources Code, is governed by a board appointed by the Governor with the advice and consent of the Senate. See Tex. Hum. Res. Code Ann. §§ 81.001-.020 (Vernon 2001); see id. §§ 81.002(a) (appointment and composition of commission); .006 (duties and powers of the commission). Section 81.007 of the Human Resources Code provides that the commission "may establish a program in accordance with this section for the certification of interpreters" who are proficient in communication skills necessary to communicate with individuals who are deaf or hard of hearing. Id. § 81.007(a). If it decides to establish a certification program, the "commission shall appoint" a seven-member Board for Evaluation of Interpreters "to administer the certification program." Id. § 81.007(b). BEI members are "usually experienced interpreters who also have extensive experience performing evaluations of candidates for certification."[1] Members of the BEI are not paid for their service on that board, see 40 Tex. Admin. Code § 183.19 (2001), but the TCDH has contracted with members of the BEI to evaluate interpreter candidates and has paid them for performing this service. See generally Request Letter, supra note 1. In a recent audit, the Comptroller questioned the commission's practice of employing BEI members as "contracted evaluators," persons who are responsible for evaluating and scoring the interpreting and transliterating skills of interpreter candidates. See id. (attachment from Comptroller "Detailed Findings-Purchase"); see also 40 Tex. Admin. Code § 183.29 (2001) (duties of contracted evaluators). According to the Comptroller, "the commission paid BEI members for evaluator services that the members are required to perform per statute." Request Letter, supra note 1 (attachment from Comptroller "Detailed Findings-Purchase"). The commission disagrees and asks the following question:

            Are members of the Board for Evaluation of Interpreters (BEI) required to perform, without compensation and as a part of their statutory responsibility, evaluations of candidates for certification as interpreters?

Request Letter, supra note 1, at 1, 4.

We address your question by reviewing the statutes and rules applicable to the BEI and to the certification of interpreters. Both the TCDH and the BEI have authority and duties under statute for the evaluation and certification of interpreters. Section 81.007 of the Human Resources Code authorizes TCDH to establish a certification program and provides that the BEI appointed by the commission will "administer the certification program." Tex. Hum. Res. Code Ann. § 81.007(a), (b) (Vernon 2001).

Section 81.007 sets out the commission's responsibilities. It is required to "use the recommendations of the board in compiling a statewide registry of interpreters by skill level"; to charge fees for an application for certification, the administration of an examination, and the renewal of a certificate; to adopt rules stating the grounds for denying, suspending, or revoking an interpreter's certificate; to determine how frequently it will conduct the interpreter examinations; to recognize, prepare, or administer continuing education programs for certificate holders; and to "compensate an evaluator based on a fee schedule as determined by commission rule." See id. § 81.007(d), (e), (h), (i), (k), (l); see also id. § 81.007(f) (recognition of certificates issued by other jurisdictions); .007(g) (commission's authority to provide for expiration of certificates on various dates during year). The commission also has authority to adopt rules "necessary to implement this chapter," including section 81.007 of the Human Resources Code. See id. § 81.006(b)(3).

The statute grants TCDH authority over many aspects of the certification program, but it also grants authority and responsibilities to the BEI. "The commission, on the recommendation of the Board for Evaluation of Interpreters, shall revoke or suspend a certificate, place on probation a person whose certificate has been suspended, or reprimand an interpreter certified by the commission for a violation of a rule of the commission." Id. § 81.0072(a). Legislative history relating to this provision states that the TCDH may not discipline a certified interpreter unless it has received the recommendation of the BEI to do so. See House Research Organization, Bill Analysis, Tex. H.B. 2859, 74th Leg., R.S. (1995) at 2.

As already noted, the BEI will "administer the certification program." Tex. Hum. Res. Code Ann. § 81.007(b) (Vernon 2001). It thus has administrative duties delegated by the legislature. Section 81.007(c) provides that, "[s]ubject to approval of the commission, the board shall prescribe qualifications for each of several levels of certification based on proficiency and shall evaluate and certify interpreters using these qualifications." Id. § 81.007(c). We read this provision as making the BEI responsible for establishing qualifications for the levels of certification, subject to the commission's approval, and for evaluating and certifying interpreters, again subject to the commission's approval of its decisions. The BEI could assign these duties to its own members, to staff, or to persons under contract with the commission. See generally id. § 81.007(k). According to a Sunset Advisory Commission report issued in 1998:

            The Board for Evaluation of Interpreters (BEI) was created in 1980 and is composed of seven licensed interpreters who, together with a staff of two agency employees, administer the licensing of interpreters in Texas and advise the agency on related matters.

Sunset Advisory Comm'n, Tex. Comm'n for the Deaf and Hard of Hearing, Staff Report, at 38 (1998); see also Tex. Comm'n for the Deaf and Hard of Hearing, Self Evaluation Report to the Tex. Sunset Advisory Comm'n, at 10 (1997) (BEI staff functions include testing candidates, development and revision of testing materials and administering a complaint resolution process).

In our opinion, the BEI is responsible for evaluating interpreter candidates, whether the evaluations are performed by the board members themselves, by staff, or by contracted evaluators working under the board's supervision. See 40 Tex. Admin. Code §§ 183.17 (each hearing member of BEI "may be an evaluator and may evaluate as needed"); .18 (ethical standards applicable to board members in evaluating applicants and participating in board proceedings regarding applicants); .29 (qualifications and responsibilities of contracted evaluators) (2001). The BEI is responsible for the evaluation of applicants, and it has statutory authority to perform such evaluations without contracts between its members and the TCDH.

Moreover, the TCDH rule governing contracted evaluators suggests that BEI members may not be contracted evaluators. This rule provides in part:

            Contracted evaluators will be composed of interpreters who have been interviewed, selected, trained by the board, and appointed by the commission.

Id. § 183.29 (emphasis added). Although contracted evaluators are appointed by the TCDH, they are interviewed, selected, and trained by the BEI. Thus, the rule treats the evaluators as different persons from board members. This can also be seen in a prior version of this rule:

            Advisory Committee on Evaluation. The advisory committee on evaluation will be composed of interpreters who have applied to be evaluators [members of the committee] and have been interviewed, tested, evaluated, trained, and appointed by the board and approved by the commission for the purpose of conducting evaluations of interpreting skills to determine the qualifications of interpreters. The contract evaluators [committee] function[s] under the supervision of the board.

18 Tex. Reg. 8511 (1993) (proposing amendment to 40 Tex. Admin. Code § 183.29) (proposed Oct. 22, 1993).

A commission rule identifies the BEI as an "advisory committee." See 40 Tex. Admin. Code § 183.11 (2001); but see id. § 183.9(2) (BEI is the certifying board for the evaluation of interpreters under the commission). The commission's designation of the board as an "advisory committee" does not take away its non-advisory responsibilities delegated by the legislature. The commission's rule does not change our conclusion as to the board's statutory authority to evaluate applicants for certification as interpreters. We conclude that members of the BEI are authorized by statute to evaluate such applicants and may not do so as contracted evaluators.

You have also asked whether the commission's contracting with BEI members for interpreter evaluations violates the common-law conflict-of-interest rule. This common-law rule helps insure the integrity of public contracts by prohibiting a governmental body from entering into a contract in which one of its members has a personal pecuniary interest. See Tex. Att'y Gen. Op. Nos. DM-18 (1991); JM-671 (1987); MW-179 (1980) (common-law conflict-of-interest rule applies to state agencies). The court in Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App.-Eastland 1925, no writ) stated this rule as follows:

            If a public official directly or indirectly has a pecuniary interest in a contract, no matter how honest he may be, and although he may not be influenced by the interest, such a contract so made is violative of the spirit and letter of our law, and is against public policy.

Meyers, 276 S.W. at 307. We have concluded that BEI members may not contract with the TCDH to perform interpreter evaluations as contract evaluators. Because such contracts would not be valid in any case, we need not decide whether they would also violate the common-law conflict-of-interest rule.

You ask whether or not board members who perform evaluations as a statutory responsibility may receive compensation for this service. The commission's rules provide that board members shall not receive any compensation for performing the duties of the office, but may receive reimbursement for expenses in performing the duties of the office, subject to current funding patterns of the commission. See 40 Tex. Admin. Code § 183.19 (2001). You suggest, however, that section 81.007(k) of the Human Resources Code authorizes the commission to pay board members for performing evaluations. Section 81.007(k) provides that the commission "shall compensate an evaluator," according to a statutory schedule that bases the amount of compensation on the level of certification for which the candidate is evaluated. Tex. Hum. Res. Code Ann. § 81.007(k) (Vernon 2001).

The legislative history of section 81.007(k) shows that "evaluators" are persons who are not members of the BEI or TCDH. This provision was adopted in 1993 as Senate Bill 1117 of the Seventy-third Legislature. See Act of May 26, 1993, 73d Leg., R.S., ch. 722, § 1, 1993 Tex. Gen. Laws 2828, 2829. A bill analysis states that competency testing for interpreters is provided

            through the Board for Evaluation of Interpreters (BEI) under the Texas Commission for the Deaf and Hearing Impaired. The BEI has approximately 40 evaluators statewide. Currently, these evaluators are "volunteers" and have been donating their services since the BEI was established in 1979.

Senate Research Center, Bill Analysis, Tex. S.B. 1117, 73d Leg., R.S. (1993). The bill analysis also states that evaluators are reimbursed for their expenses, but receive no compensation for their services. See id. "The majority of evaluators hold full-time jobs and now must give up one or more days' pay each time they participate in candidate evaluations. Some feel it is unrealistic to expect these evaluators to continue to volunteer their services indefinitely." Id. The fiscal note, moreover, states that "[t]he bill would direct the commission to compensate, based on a designated fee schedule, individuals who conduct evaluations of interpreting skills for the Board for Evaluation of Interpreters." Fiscal Note, Tex. S.B. 1117, 73d Leg., R.S. (1993) (emphasis added). The legislature did not intend BEI members to receive compensation under section 81.007(k).

We point out that the TCDH appropriation for the years ending August 31, 2000, and August 31, 2001, provides for reimbursing the expenses of BEI members pursuant to Government Code section 2110.004, which relates to the expenses of advisory board members. See General Appropriations Act, 76th Leg., R.S., ch. 1589, art. II, 1999 Tex. Gen. Laws 5446, 5578; Tex. Gov't Code Ann. §§ 2110.001-.008 (Vernon 2000) (chapter 2110 relating to state agency advisory committees); see also General Appropriations Act, 77th Leg., R.S., S.B. 1, II-18 (available at Legislative Reference Library). Details about permissible expenses are set out in the General Appropriations Act. See General Appropriations Act, 76th Leg., R.S., ch. 1589, art. IX, pt. 5, 1999 Tex. Gen. Laws 5446, 6269-6275 (travel regulations); see also Tex. Gov't Code Ann. §§ 660.001-.055 (Vernon 1994 & Supp. 2001) (chapter 660 relating to Travel Regulations Act). Accordingly, pursuant to TCDH rules, members of the BEI may not receive compensation for carrying out statutory duties, such as performing evaluations, but may receive expenses. See 40 Tex. Admin. Code §§ 183.11, .19 (2001).

                                   SUMMARY

            Members of the Board of Evaluators for Interpreters have statutory authority under section 81.007 of the Human Resources Code to evaluate applicants for certification as interpreters for the deaf and hard of hearing. Board members may not serve as evaluators pursuant to contract with the Commission for the Deaf and Hard of Hearing. Pursuant to commission rule, board members may not receive compensation for their service, but are entitled to receive expenses.

                                           JOHN CORNYN
                                           Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General-General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee