Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 8/5/1985
Status: Precedential
Modified Date: 7/6/2016
Honorable Luther Jones County Attorney Room 201, City-County Building El Paso, Texas 79901
Re: Whether a minister is required to file a report of child abuse under section 34.07 of the Family Code
Dear Mr. Jones:
You have asked whether section 34.07 of the Family Code requires a clergyman of an established church to report information of suspected child abuse which is confidentially disclosed to him by a parishioner. This section, enacted in 1975, provides:
(a) A person commits an offense if the person has cause to believe that a child's physical or mental health or welfare has been or may be further adversely affected by abuse or neglect and knowingly fails to report in accordance with Section 34.02 of this code.
(b) An offense under this section is a Class B misdemeanor. (Emphasis added).
Acts 1976, 64th Leg., ch. 476, § 4, at 1272.
Attorney General Opinion
You also ask whether a clergyman must testify in a child abuse proceeding. Both article 3715a, V.T.C.S., and section 34.04 of the Family Code address this subject. If there is an irreconcilable conflict between statutes dealing with the same subject, the most recent controls as the latest expression of legislative intent. See City of Dallas v. Brown,
Prior to 1967, Texas courts did not recognize the clergyman-penitent privilege. See Biggers v. State,
No ordained minister, priest, rabbi or duly accredited Christian Science practitioner of an established church or religious organization shall be required to testify in any action, suit, or proceeding, concerning any information which may have been confidentially communicated to him in his professional capacity under such circumstances that to disclose the information would violate a sacred or moral trust, when the giving of such testimony is objected to by the communicant; provided, however, that the presiding judge in any trial may compel such disclosure if in his opinion the same is necessary to a proper administration of justice. (Emphasis added).
Almost immediately thereafter, however, the legislature required the testimony of clergymen in child abuse proceedings. See Acts 1971, 62nd Leg., ch. 902, § 1, at 2790 (amending V.T.C.S. art. 695c-2), repealed by Acts 1973, 63rd Leg., ch. 543, § 53, at 1458. Section 34.04, former article 695c-2, V.T.C.S., of the Family Code now provides:
In any proceeding regarding the abuse or neglect of a child or the cause of any abuse or neglect, evidence may not be excluded on the ground of privileged communication except in the case of communications between attorney and client.
Since section 34.04 is more recent, it prevails over article 3715a. Accordingly, a clergyman must testify in a child abuse proceeding. Only communications between an attorney and his client are privileged under section 34.04. See Pollock Recent Amendments to the Texas Child Abuse Statutes: An Analysis and Recommendation, 11 St. Mary's L.J. 914, 932 n. 133 (1980).
Although you have not referred to the Free Exercise Clauses of the
Government regulation of religious conduct is valid if it does not unduly burden the practice of religion, if the state's interest in enacting the regulation is compelling, and if there are no alternative means available which are less intrusive upon the practice. See Wisconsin v. Yoder,
Very truly yours,
Jim Mattox Attorney General of Texas
Tom Green First Assistant Attorney General
David R. Richards Executive Assistant Attorney General
Robert Gray Special Assistant Attorney General
Rick Gilpin Chairman, Opinion Committee
Prepared by Tony Guillory Assistant Attorney General
Jehovah's Witnesses in State of Wash. v. King County ... , 390 U.S. 598 ( 1968 )
Cantwell v. Connecticut , 60 S. Ct. 900 ( 1940 )
State v. Biggers , 360 S.W.2d 516 ( 1962 )
Biggers v. State , 358 S.W.2d 188 ( 1962 )
Sherbert v. Verner , 83 S. Ct. 1790 ( 1963 )
Wisconsin v. Yoder , 92 S. Ct. 1526 ( 1972 )
Dist. Trustees v. Trustees of Freestone , 186 S.W.2d 378 ( 1945 )
Jehovah's Witnesses in State of Wash. v. King County Hosp. , 278 F. Supp. 488 ( 1967 )