Copyright (c) 1996 St. Mary's University of San Antonio
St. Mary's Law Journal
COMMENT: SPEAKING THE LANGUAGE OF EXCLUSION: HOW EQUAL PROTECTION AND FUNDAMENTAL RIGHTS ANALYSES PERMIT LANGUAGE DISCRIMINATION
28 St. Mary's L. J. 149
DONNA F. COLTHARP
In the summer of 1995, the en banc Texas Court of Criminal Appeals in Flores v. State 2 upheld a lower court's ruling that gave a drunk-driving (DWI) offender, Aristeo Lira Flores, a one-year term of imprisonment rather than a one-year term of probation. 3 The trial judge denied probation not because of the offender's character or the seriousness of the offense, but because Mr. Flores could not speak English. 4 The county in which Mr. Flores was arrested and convicted did not provide a DWI rehabilitation program in Spanish. Therefore, the judge reasoned that Mr. Flores could not benefit from probation. 5
In his appeal to the Texas Court of Criminal Appeals, Mr. Flores claimed that the lower court violated his equal protection and due process rights under the Fourteenth Amendment of the United States Constitution, 6 and his equality rights and due course of law rights under the Texas Constitution. 7 Had the judge denied Mr. Flores, a Latino, probation because of his race, Mr. Flores almost certainly would have been successful on his federal claims, 8 because the very notion of equal protection is intrinsically connected with race. 9 Likewise, Mr. Flores probably would have prevailed on his due process claim had he been able to establish that he had a fundamental right to probation or to be a monolingual speaker of a language other than English. 10 Mr. Flores's state claims would have been equally successful, because Texas courts have ...
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