Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 28, 2011
The Honorable Paul Johnson Opinion No. GA-0847
Denton County Criminal District Attorney
Post Office Box 2850 Re: Whether information contained in a presentence
Denton, Texas 76202 investigation report may be released to the
Department of Family and Protective Services for the
protection of a child (RQ-0917-GA)
Dear Mr. Johnson:
You ask whether information contained in a presentence investigation report may be released
to the Department of Family and Protective Services for the protection of a child.'
You explain that, under section 9 of article 42.12, Code of Criminal Procedure, a community
supervision officer may be directed by a judge, prior to a plea, to prepare a presentence investigation
report containing, inter alia, "the circumstances of the offense with which the defendant is charged,"
as well as the defendant's criminal and social history. Request Letter at I; TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 9(c) (West Supp. 2010). Sometimes, you assert, the supervision officer may, in
the course of his investigation, obtain information that suggests that a child in the defendant's
custody has been abused or neglected. Request Letter at 2. Under section 9 of article 42.12, the
contents of a presentence report "may not be disclosed to any person," prior to a plea, including the
presiding judge, unless certain conditions are fulfilled. TEX. CODE CRIM. PROC. ANN. art. 42.12,
§ 9(c) (West Supp. 201O)?
Section 261.101 (a) of the Family Code provides that "[a1person having cause to believe that
a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any
person shall immediately make a report as provided by this subchapter." TEX. FAM. CODE ANN.
§ 261.101(a) (West 2008). The report must be made to one of a number of entities, among which
is the Department of Family and Protective Services. ld. § 261.103(a). You inquire how the
'Request Letter at 1 (Child Protective Services (CPS) is a division of the Department of Family and Protective
Services.) (available at http://www.texasattorneygeneral.gov).
'Unless, for example, "(1) the defendant pleads guilty or nolo contendere or is convicted of the offense; or (2)
the defendant, in writing, authorizes the judge to inspect the report." TEx. CODE CRIM. PROC. ANN. art. 42.12, § 9(c)
(West Supp. 2010).
The Honorable Paul Johnson - Page 2 (GA-0847)
confidentiality of the presentence investigation report may be reconciled with the duty of any person
to report suspected child abuse or neglect. Request Letter at 1-2.
In a 1999 opinion, this office considered a somewhat similar situation. See Tex. Att'y Gen.
Op. No. JC-0070 (1999). In that case, the Polygraph Examiners Act provided that information
obtained in connection with a polygraph examination was confidential. [d. at 1, 3. This office
unequivocally proclaimed that section 261.101 of the Family Code took precedence over other
conflicting confidentiality statutes: "We believe that the legislature intended section 261.101 of the
Family Code to prevail over any inconsistent statute, which includes section 19A of the Polygraph
Examiners Act, unless the inconsistent statute explicitly recognizes and excepts itself from section
261.101." [d. at 5. The opinion continued:
In our opinion, the legislature deemed the protection of
children more important than any other interest not explicitly
protected from section 261.10 1's reach. Section 261.10 1(a) therefore
orders any person who has reason to suspect that a child has been
abused or neglected immediately to report the information.
Subsection (c) declares that the report requirement applies without
exception and regardless of the application of a privilege ....
In Albright v. Texas Department of Human Services, 859
S.W.2d575 (Tex. App.-Houston [lstDist.11993, no writ), the court
stated that, under the Family Code, the protection of the child is
paramount "in instances of suspected child abuse." The court further
stated that the Family Code provisions regarding mandatory reporting
of suspected child abuse, among other provisions, indicate that
preventing child abuse is a high priority in this state and "demonstrate
the public commitment to" promoting children's welfare.
[d. at 6 (citations omitted).
We believe that Opinion JC-0070 correctly construed the law. The Legislature has met in
five regular sessions since the issuance of that opinion and has not challenged its conclusions.
Moreover, because the protection of children outweighs other competing interests, it is our view that
section 261.101 of the Family Code prevails over any inconsistent statute "unless the inconsistent
statute explicitly recognizes and excepts itselffrom section 261.101." [d. at 5. Section 9 of article
42.12 of the Code of Criminal Procedure does not in any manner reference section 261.101, and we
consequently conclude that the duty to report an instance of child abuse or neglect under section
261.101 prevails over the confidentiality provisions of section 9 of article 42.12. Accordingly, in
answer to your first question, information contained in a pre-plea presentence investigation report
may be disclosed to the Department of Family and Protective Services to the extent that such
information discloses that a child's physical or mental health or welfare has been adversely affected
by abuse or neglect, despite section 9 of article 42.12 of the Code of Criminal Procedure.
The Honorable PaulJohnson - Page 3 (GA-OS47)
You also ask whether a community supervision officer who makes a report of child abuse
or neglect to the Department of Family and Protective Services is immune from civil and criminal
liability under section 261.106 of the Family Code. See Request Letter at 1. "A person acting in
good faith who reports ... alleged child abuse or neglect ... is immune from civil or criminal
liability that might otherwise be incurred or imposed." TEX. F AM. CODE ANN. § 261.1 06( a) (West
200S). See also State v. Harrod, SI S.W.3d 904, 90S (Tex. App.-Dallas 2002, pet. ref'd)
("legislature intended to protect reporters of child abuse from liability for the act of reporting the
abuse itself, not from civil or criminal liability generally"). We conclude that a community
supervision officer who in good faith makes a report of child abuse or neglect to the Department of
Family and Protective Services is immune from civil and criminal liability under section 261.1 06( a)
of the Family Code.
The Honorable Paul Johnson - Page 4 (GA-0847)
SUMMARY
Under section 261.101, Family Code, a community
supervision officer may release to the Department of Family and
Protective Services information contained in a pre-plea presentence
investigation report required by section 9 of article 42.12, Code of
Criminal Procedure, to the extent that such information discloses that
a child's physical or mental health or welfare has been adversely
affected by abuse or neglect. An officer who releases such
information to the Department is immune from civil and criminal
liability under section 261.1 oI (a), Family Code, for having done so.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee