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Sri Unique 0 a l Available for private parties ‘111/ ilk ik ii% Unique European Charm 9 if & Atmosphere beside the Gulf of Mexico on Mustang Island SOT. i Special Low Spring & Summer Rates ro, Pets Welcome 1423 11th 1 lth Street** ‘k Port Aransas, TX 78373 w l call for Rescrvatiolis ,J pue …Innoti k A 114%,. …4436 %i d Ir 1……… %.4 Sea *a l # .0 Horse Inn #, Kitchenettes-Cable TV Pool Civil Rights Comes Late to Tyler Court BY JAMES HARRINGTON THE 12TH COURT OF APPEALS in Tyler, not known for being receptive to civil rights or workers’ rights for that matter has struck again, this time upholding a year’s jail sentence for Aristeo Flores because he does not speak English. It’s difficult to imagine that as the end of the 20th century nears a court yet exists that would imprison a person for the inability to speak English. Not many people would imagine that such startling lack of enlightenment and concern for individual rights could still infect Texas. James Harrington is legal director of the Texas Civil Right’s Project. Write Dialogue. 307 West 7th Street Austin, Texas 78701 Don’t be surprised by the Tyler Court of Appeals, however. After all, this is the same bench that recently allowed peremptory challenges based on a prospective juror’s religion, even though the Texas Equal Rights Amendment specifically bans any discrimination based on religion and even though the Texas Court of Criminal Appeals has made it clear, as have other appellate courts, that the ERA applies to discriminatory peremptory jury strikes. This is also the same bench that ruled that workers with impressive employment and safety records could be denied unemployment benefits if they refused to submit to random urine tests where there was no cause for suspicion and were and were then terminated for insisting on their right to privacy, which, in Texas, is as fundamental at common law as it is under the state bill of rights, Aristeo Flores was arrested for driving while intoxicated, a misdemeanor offense. According to standard practice in Smith County, he would have received a probated sentence, with the condition of attending an alcohol rehabilitation program. However, the program in Smith County had no way of communicating with people who speak Spanish. Thus, the trial judge specifically stated on the record that because Flores did not speak English he would be unable to attend the program, and that being the case, he was off to jail for year. Not only is Flores’ incarceration unfair and repugnant, but it brands him with a stigma that his English-speaking counterparts who complete probation will not suffer. It also removes him from employment opportunities, now and in the future, and burdens his family. Not to mention being an expense to taxpayers already struggling to support the rapidly rising number of inmates imprisoned for much more serious offenses. And Flores will occupy jail space that could be used for hardened criminals, all because he did not speak English. Officially, 6 percent of Smith County is Hispanic, although with the admitted census undercount and the migrant farm workers from the Rio Grande Valley, that population probably is even greater. The Tyler justices did not write an opinion in any depth, giving remarkably short shrift to both Flores’ equal rights ‘claim and his ERA claim, collapsing them together, with out independent analysis, and stating simply and simplistically that the discrimination was rational because it was based on language, not ethnic origin, therefore subject to no strict scrutiny. That logic is about as powerful as saying that discrimination against pregnant women is not sex discrimination because it is not directed toward gender but toward anyone who may become pregnant. Not to mention the fact that the U.S. Census Bureau has for decades identified Hispanic minority persons by surname, which the U.S. Supreme Court and the Fifth U.S. Circuit Court of Appeals acknowledge as a legitimate process to measure grand jury discrimination against Hispanic Americans in Texas. For scores of years, Texas courts have recognized the critical importance of providing a non-English-speaking defendant with an interpreter at trial. Part of the reason, of course, is to prevent wrongful incarceration that might occur if the defendant does not understand the proceedings. Here, ironically, is the situation where a Hispanic man goes to jail because there is no interpreter available for the jail diversionary program. Nor did the trial judge or the appeals court explain why no alternative punishment could have been imposed upon Flores. Given the predicament, maybe it would have made more sense to require Flores to attend an English class as a condition of probation, and then afterwards attend the rehabilitation program. It has long been axiomatic in Texas equalrights-and-due-course-of-law analysis, on its simplest level, that the state must accomplish its goal by the means less restrictive or a person’s rights, and where the specter of ethnic discrimination emerges, the state must show That it has no other means available to achieve a compelling state interest. Twenty years ago this November the people of Texas ratified the Equal Rights Amendment by a resounding 4 to 1 landslide, pledging themselves, and requiring their courts, to eliminate denial of equality and to remedy the state’s rather sad history of racism and discrimination. Apparently, the adoption of the ERA guarantee as part of the Texas bill of rights did not resonate loudly enough to win the respect of the Tyler Court of Appeals. Perhaps the Court of Criminal Appeals can perform the sorely needed task of breathing life into the ERA in Smith County. 14 OCTOBER 15, 1993 VO..41910,001.701WPANAM40000.0M46.,4 .11.1.11r I