Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
August 5, 1985
JIM MATTOX
Attorney General
Supreme Court Building
Honorable Luther JOlIeS Opinion No. JM-342
P. 0. Box 12546 county Attorney
Austin. TX. 78711. 2546 Room 201, City-County Building Re: Whether a minister is
512,4752501 El Paso, Texas ?!I901 required to file a report of
Telex 9101674-1367
Te,ecc,p,er 5121475-0266
child abuse under section
34.07 of the Family Code
714 Jackson. Suite 700 Dear Mr. Jones:
Dallas. TX. 75202.4506
2141742-6944
You have asked whether section 34.07 of the Family Code requires
a clergyman of sn established church to report information of
4624 Alberta Ave.. Suite 160 suspected child &use which is confidentially disclosed to him by a
E, Paso. TX. 79905.2793 parishioner. This section, enacted in 1975, provides:
9151533.3464
(a) A person commits an offense if the person
rlmol Texas. Suite 700
has cause to believe that a child's physical or
Hous,on, TX. 77002-3111 mental health or welfare has been or may be
7131223-5886 further zsdverselyaffected by abuse or neglect and
knowingly fails to report in accordance with
Section y34.02of this code.
808 Broadway. Suite 312
l.“bbock. TX. 79401.3479
8061747-5236 (b) ,Anoffense under this section is a Class B
misdemeanor. (Emphasis added).
4304 N. Tenth, Suite S Acts 1976, 64th Ls:g.,ch. 476, 54, at 1272.
McAllen. TX. 76501-1665
5121682.4547
Attorney General Opinion H-986 (1977) construed section 34.01 of
the Family Code, ihich contains the phrase "any person having cause to
200 Main Plaza. Suite 400 believe," as embracing not only parents or guardians but all persons
San Antonio. TX. 76205-2797
having the information described therein. Because sectionn4.01 and
51212254191
34.07 are within chapter 34 of the Family Code, they should be read in
See District Trustees v. Trustees of Freestone Countx
pari materia. --.
An Equal OpportuniiV 186 S.W.2d 378 (Tex. Clv. App. - Waco 1945, no writ). This inter-
Affirmative Aclion EmPlOYer pretation of "person" should therefore be used in applying section
34.07. Consequently, clergymen are covered by this section.
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, 475 S.W.2d 833 (Tex. Civ. App. - Dallas 1971.
p. 1559
RonorableLuther Jones - Eage 2 (a-342)
writ ref'd n.r.e.); ---see: also Sutherland Statutoq Construction,
Singer, V. 2A. 151.02 (4th ed. 1984).
Prior to 1967, Texas courts did not recognize the clergyman-
penitent privilege. --See Diggers v. State, 358 S.W.2d 188 (Tex. Civ.
APP. - Dallas 1962). wrj.t,ref'd n.r.e. per curiam. 360 S.W.Zd 516
(Tex. 1962). In that?& the legislature enacted article 3715a,
which provides:
No ordained ~ninister, priest, rabbi or duly
accredited Chrj.stian Science practitioner of an
established church or religious organization shall
he required to testify in any action, suit, or
proceedinq, concerning any information which may
have b~een ConfLdentially communicated to him in
his professionaL capacity under such circumstances
that to disclor;ethe information would violate a
sacred or moral trust, when the giving of such
testimony is objected to by the communicant; pro-
vided, however, that the presiding judge in any
trial may compel such disclosure if in his opinion
the same is ne:essary to a proper administration
of justice. (Emphasis added).
Almost immediately thereafter, however, the legislature required the
testimony of clergymen i.r,child abuse proceedings. See Acts 1971,
62nd Leg., ch. 902. 51, at 2790 (amending V.T.C.S.yt. 695c-2).
repealed by Acts 1973, 63rd Leg., ch. 543, 553, at 1458. Section
34.04, former article j95c-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 34.00 is more recent, it prevails over article
3715a. Accordingly, a clergyman must testify in a child abuse
oroceedina. Only commur,icationsbetween an attorney and his client
ire privileged under section 34.04. See Pollock Recent Amendments to
the Texas Child Abuse Statutes: An %lvsis and Recorrmendation. 11
St. Mary's L.J. 914, 932 II. 133 (1980).
Although you have not referred to the Free Exercise Clauses of
the First Amendment to the United States Constitution, it has been
suggested that that clat.reis implicated by your question. The Free
Exercise Clause involves both freedom to believe and freedom to act.
-See Cantwell v. Connecticut
--' 310 U.S. 296. 303 (1940). The freedom to
p. 1560
Honorable Luther Jones - Pz.g,e
3 (JM-342)
believe is absolute, but the freedom to act is conduct subject to
regulation for the protection of society. See United States v.
Gravaon County State Bank. 656 F.2d 1070 (5tbxr. !Rl). Section
l!
34.07 was enacted to ensure that oersons having kncDwledge of abuse or
neglect would report that :it:forma&onto the appropriate official. In
our opinion, it clearly rel3ulatesconduct.
Government regulation of religious conduct is valid if it does
not unduly burden the prac::iceof religion, if the state's interest in
enacting the regulation is compelling, and if there are co alternative
means available which are less intrusive uoon the practice. See
Wisconsin v. Yoder, 406 U.S. 205 (1972); see also Sherdert v. Verr ler ,
~-
374 U.S. 398 (1963). Each of these requirements is satisfied here.
In Prince v. Massachuset121. 34 U.S. 158 (19441, the United States
Suureme Court said "[tlhe right to practice religion freely does not
include liberty to expose ihe . . -. child . . ; to ill health or
death. . . ." 321 U.S. at 166-67. See also Jehovah's Witnesses v.
King County Hospital Unit No. I., 278 F. Supp. 468 (N.D. Wash. 1967)
aff'd 390 U.S. 598 (196$7 To conclude that the application of
section 34.07 to clergyml!nwould violate the Free Exercise Clause
would be to ignore this a'zimonition.We therefore conclude that to
require a clergyman to report evidence of child abuse or neglect when
confidentially disclosed to him by a parishioner does not violate the
Free Exercise Clause.
S llElNA BY
Article 3715a, V.T.C.S., which provides for
clergyman-penitent privilege in judicial pro-
ceedings, does nclt conflict with section 34.07 of
the Family Code., a reporting statute. Section
34.07 does not violate the Free Exercise Clause
of the First ,imendment to the United States
Constitution. It requires a minister of an
established church to report evidence of child
abuse when confidentially disclosed to him by a
parishioner.
J k
Very truly your
h, .
JIM MATTOX
Attorney General of Texas
TON GREEN
First Assistant Attorney General
p. 1561
Honorable Luther Jones - ~11ga4 (m-342)
DAVID R. RICFlARDS
Executive Assistant Attornw General
ROBERT GRAS
Special Assistant Attorney IGeneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Tony Guillory
Mary Keller
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1562