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Flores v. State


JUNE 28, 1995

Petition for Discretionary Review from the Twelfth Court of Appeals (Smith County)


A Smith County jury convicted appellant, Aristeo Lira Flores, of driving while intoxicated. The trial court assessed punishment at confinement for one year and a $100 fine. The Twelfth Court of Appeals affirmed the conviction. Flores v. State, ___ S.W.2d ___ (Tex.App. --Tyler 1993). We granted appellant's petition for discretionary review to determine whether the court of appeals erred in holding that appellant was not denied his rights under the United States and Texas constitutions when the trial court, in assessing punishment, took into account his inability to speak English.

The record reflects that the trial court determined that Smith County had no rehabilitation programs for persons convicted of alcohol offenses who do not speak English. The trial court also stated its belief that a state-run alcohol education program, which was offered in Spanish (appellant's native language), was worthless. Based on the preceding, the trial court decided that probation in appellant's case would be meaningless. The trial court then sentenced appellant to jail.

In his petition, appellant argues that the trial court's action in denying him probation because of his inability to speak English denied him due process, due course of law, equal protection of the laws, and equal rights under the United States and Texas constitutions. Appellant's argument rests entirely on the assumption that disparate treatment based on linguistic ability is the same as disparate treatment based on race or ethnic origin. In other words, according to appellant different treatment based on inability to speak English is equivalent to discrimination based on race or national origin.

There is no question that discrimination based on race or national origin is prohibited by the due process, due course of law, equal protection, and equal rights clauses of the United States and Texas constitutions. Appellant does not show that he was discriminated against due to national origin, however; any disability he suffered was due to his ability to speak only Spanish. Spanish-speaking persons have many national origins, e.g., Cuba, Spain, Mexico and Argentina, and may be racially Caucasian, African, Indian, biracial or multiracial. To accept appellant's argument -- that language equals national origin or race -- assumes illogically that all Spanish-speaking persons should be treated as one group. At least three federal appeals courts have held that language, by itself, does not identify members of a suspect class. Frontera v. Sindell, 522 F.2d 1215 (6th Cir. 1975); SoberalPerez v. Heckler, 717 F.2d 36 (2d Cir. 1983), cert. denied, 104 S.Ct. 1713 (1984); Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1981).

The constitutional provisions in question generally allow governmental classifications that are rationally related to legitimate governmental interests. The provisions require a higher justification, however, for classifications that affect suspect classes or fundamental rights. Extending such strict judicial scrutiny to classifications based on language ability would require this Court to equate same with individual characteristics that are a result of birth. The United States Supreme Court has found the basis for finding a suspect class to be "immutable characteristics" over which a person has no control: race, gender, and national origin. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764 (1973). An individual is free to choose the language he or she speaks and one only needs to look

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