OPFlCE OF THE ATTORNEY GENERAL. STATE OF TEXAS JOHN CORNYN

July 6, 1999

Mr. Frank DiTucci Executive Officer Texas Polygraph Examiners Board P.O. Box 4087 Austin, Texas 78773-0001 Opinion No. JC-0070
Re: Whether a polygraph examiner who in the course ofan examination learns that achild has been abused or neglected must report that information to the appropriate authorities, and related questions (RQ-923)

Dear Mr. DiTucci:
Section 19A of the Polygraph Examiners Act, article 4413(29cc) of the Revised Civil Statutes,’ forbids a licensed polygraph examiner to disclose, except in limited circumstances, information gained from a polygraph examination. On the other hand, section 261.101(a) of the Family Code requires aperson who believes that achild has been abused orneglected immediately to report the information to the appropriate authorities. Where apolygraph examiner learns during the course of apolygraph examination that a child has been abused or neglected, you ask whether the examiner must keep the information confidential in compliance with section 19A of the Polygraph Examiners Act or must report the information in accordance with section 261.101(a) of the Family Code. We believe that section 261.101 of the Family Code prevails and, accordingly, that the polygraph examiner must report the information.

Youexplainthat your question arises inthecontext ofsex-offender treatment programs many state courts mandate aspart of aconvicted offender’s rehabilitation, presumably while the offender is on parole or under mandatory supervision. We do not understand you to ask about polygraph examinations that may occur while the offender is imprisoned. Your letter indicates that a courtordered treatment program normally consists of three phases:

Phase I: The offender admits and accepts responsibility for the actions ofthe offense he or shehas been charged with. It’s known as

“breaking denial.”

‘Effective September 1, 1999, article 4413(29cc) of the Revised Civil Statutes will be repealed and codified
as chapter 1703 ofthe Occupations Code. See Act ofMay 10,1999,76tb Leg., RX, H.B. 3155,§ 1, sea. 1703.001- ,403.Mr. Frank DiTucci - Page 2 (JC-0070)

Phase II: The offender comes to terms with his orher past. Other assaults, in addition tothose forwhich he or she iscurrently receiving treatment, are discussed, and prior, unknown victims are revealed. Finally, the offender’s sexual deviance is explored. This phase, known as “sexual history,” is important because it is used to direct treatment.
Phase III: The offender is monitored to insure there are no new victims and to hold in check any thinking errors. This phase is known as “monitoring.”
Letter from Frank DiTucci, Executive Officer, Texas Polygraph Examiners Board, to Sarah J. Shirley, Office of the Texas Attorney General (Oct. 31, 1996) (on file with Opinion Committee) [hereinafter “Request Letter”].

You continue to explain that an offender does not progress with his orher treatment unless he or she is willing to disclose all ofhis or her prior sexual history. If an offender fails to progress, his or her probation or parole is revoked. As you state, “[tlhe offender appears to be faced with a dilemma: reveal one’s prior sexual history in order tobeconsidered making rehabilitative progress, but run the risk ofbeing charged for earlier, but as yet undiscovered[,] sexual assaults.” Id.

Your primary question appears to be motivated not by the offender’s dilemma, but by the dilemma the polygraph examiner faces: must he or she keep the information confidential, consistently with section 19A of the Polygraph Examiners Act, or must the examiner report the information, consistently with section 26 1.101ofthe Family Code. Inyour view, these two statutes areinconsistent with each other, and apolygraph examiner cannot simultaneously comply with both. If section 261.101 ofthe Family Code prevails over article 4413(29cc), section 19Aof the Revised Civil Statutes, you askwhether thepolygraph examiner may satisfy the statutory obligation toreport a suspicion ofchild abuse by informing the offender’s local community supervision and corrections officer or parole officer. Finally, you ask about whether the examination may intinge upon the examinee’s constitutional due-process rights.
A. Which statute controls: article 4413(29ccj ofthe Revised Civil Statutes or section 261.101 ofthe Familv Code?
Webegin by analyzing the statutes atissue. The Polygraph Examiners Act (“the Act”), TEX. REV.CIV.STAT.

ANN.art. 4413(29cc) (Vernon 1976& Supp. 1999),purports to regulate all persons who profess to “detect deception or
.verify truth of statements” using instruments such as lie detectors, polygraphs, or deceptographs. Id. 52 (Vernon 1976); see Texu.~ State Employees Union
v. Texas Dep’t of Mental Health & Mental Retardation, 746 S.W.2d 203, 204 (Tex. 1987) (describing the nature ofpolygraph testing). With certain limited exceptions, information acquired from a polygraph examination is confidential:Mr. Frank DiTucci - Page 3 (JC-0070)

(a) Except as provided by Subsection (c) of this section, a licensed polygraph examiner, licensed trainee, or employee of a licensed polygraph examiner may not disclose to another person information acquired from apolygraph examination. (b) Except asprovided by Subsection(d) ofthis section, aperson for whom apolygraph examination is conducted or an employee of the person may not disclose to another person information acquired from the examination. (c) Alicensed polygraph examiner, licensed trainee, oremployee of alicensed polygraph examiner may disclose information acquired from apolygraph examination to: (1) the examinee or any other person specifically designated in writing by the examinee; (2) theperson, firm, corporation, partnership, business entity,
or governmental agency that requested the examination; (3) members ortheir agents ofgovernmental agencies such as federal, state, county, or municipal agencies that license, supervise,
or control the activities ofpolygraph examiners; (4) other polygraph examiners in private consultation, all of whom will adhere to this section: or (5) others asmay be required by due process of law. (d) A person for whom apolygraph examination is conducted or an employee of the person may disclose information acquired from the examination to aperson described by Subdivisions (1)through (5) of Subsection (c) of this section. (e) The board or any other governmental agency that acquires information from apolygraph examination under Subdivision (3) of Subsection (c)ofthis section shall keep the information confidential.

TEX. F&v. Crv. STAT. ANN. art. 4413(29cc), 5 19A (Vernon Supp. 1999). Any person who intentionally, knowingly, recklessly, or with criminal negligence violates section 19A commits a Class B misdemeanor. Id. $26.Mr. Frank DiTucci - Page 4 (JC-0070)

The other section about which you ask, section 261.101 of the Family Code, requires all persons, without exception, who believe that a child has been abused or neglected to report that suspicion to the appropriate authorities:

(a) A person 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 areport asprovided by this subchapter.

. (c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

TEX.FAM.CODE

ANN.5261.101(a), (c) (Vernon Supp. 1999); see id. 261.001(l), (4), (6) (Vernon 1996 & Supp. 1999) (defining “abuse,” “neglect,” and “report”); cf:Tex. Att’y Gen. Op. No. H-986 (1977) at2 (determining that Family Code section 34.01, now section 261.101(a), requires aperson who suspects that achild has been or may be sexually abused to report that suspicion). The report, which should reflect the reporter’s belief that a child has been or may be abused or neglected, see TEX.FAM.CODE

ANN.5261.102 (Vernon 1996);seealso id. $5261.001(6) (defming”report”), ,104 (listing contents of report), must be made to one of the entities listed in section 261.103:

(1) any local or state law enforcement agency; (2) the [Department ofprotective and Regulatory Services] if the alleged or suspected abuse involves aperson responsible for the care, custody, or welfare of the child; (3) the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred;
or (4) the agency designated by the court to be responsible for the protection of children.Mr. Frank DiTucci - Page 5 (JC-0070)

Id. $26 1.103;see id. 526l.OOl(2) (defining “department”). Aknowing failure toreport asuspicion of child abuse or neglect in accordance with chapter 261 of the Family Code is a class B misdemeanor. See id. 6261.109.

We agree with you that apolygraph examiner cannot comply with both the confidentiality provision in the Polygraph Examiners Act and the disclosure provision in the Family Code. Either the polygraph examiner must keep the information confidential under article 4413(29cc) of the Revised Civil Statutes or the polygraph examiner must disclose the information to the proper authorities under section 261.101 ofthe Family Code. Apolygraph examiner cannot doboth. And, if a polygraph examiner chooses to keep the information confidential under article 4413(29cc), section 19A of the Revised Civil Statutes, he or she may be criminally responsible for knowingly failing to report the suspicion under section 261.109 ofthe Family Code. Conversely, apolygraph examiner who chooses to report his or her suspicion under chapter 261 ofthe Family Code may be criminally responsible under article 4413(29cc), section 26 ofthe Revised Civil Statutes for failing to keep the information confidential. We must, therefore, consider which provision prevails.2 Generally, where a general statute conflicts irreconcilably with a special statute, we must construe the special statute asan exception tothe general provision, unless the general provision was enacted later and the legislature manifestly intended the general provision to prevail. See TEX. GOV’T

CODE ANN.5 311.026 (Vernon 1998); 2NORMAN J. SINGER,

STATUTES

AND STATUTORY CONSTRUCTION

5 40.02, at 191 (5th ed. 1993). But it is unclear here which statute is the more general and which the more specific. For example, the Polygraph Examiners Act’s confidentiality provision might beviewed asa special statute pertaining only topolygraph examiners that we should construe as an exception to the general directive that all persons report suspicions of child abuse. Onthe other hand, the Family Code’s reporting requirement might be construed to specially except child-abuse information from theprovision granting confidentiality generally toinformation gained in the course of apolygraph examination. Consequently, we must look further to determine which provision the legislature intended to prevail.

We believe that the legislature intended section 26 1.101ofthe 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. The legislature added section 19Ato the Polygraph Examiners Act in 1981as aresult ofthe sunset review process. SeeActofMay27,1981,67thLeg.,R,S.,ch. 768,§ 4,sec. 19A, 1981Tex. Gen. Laws2867,2872; HOUSE COMM. ONGOV’T

ORGANIZATION,

BILLANALYSIS,

Tex. Comm. Substitute S.B. 441,67th

‘An examinee may, ofcourse, specifically designate in writing any of the entities listed in Family Code section 261.103 as entities to which the examiner may disclose information received in the examination, see TEX. REV. CIV. STAT. ANN. art. 4413(29cc), 5 19A(t)(l) (Vernon Supp. 1999), but for purposes of this opinion, we assume the examinee has not.Mr. Frank DiTucci - Page 6 (JC-0070)

Leg., R.S. (1981); Sunset Advisory Commission, Final Report to the Governor of Texas and Members of the Sixty-seventh Texas Legislature 153 (Dec. 1980) [hereinafter “Final Report”]; Sunset Advisory Commission, Legislative Proposals 532 (Dec. 1980) [hereinafter “Legislative Proposals”]. We understand that at that time the use ofpolygraph examinations was shifting at a dramatically increasing rate from criminal prosecutions to attempts to reduce loss from employee theft in industrial and commercial settings. See Final Report, supra, at 153-54. To minimize problems generally associated with polygraph examinations, “such as invasion of privacy,” the Sunset Commission proposed, and the legislature ultimately adopted, a statute forbidding a polygraph examiner to release information received in a polygraph examination except in those limited circumstances described statutorily. Id. at 154;see also Legislative Proposals, supra, at 533. Ostensibly, the legislature did not contemplate the use ofpolygraph examinations in sex-offender treatment programs.
Whenthe legislatureoriginallyenacted the substance ofsection261.101 in 1971,itdescribed its purpose: “to protect children by providing for the mandatory reporting of suspected cases.” Act of May 24, 1971,62d Leg., RX, ch. 902, 5 1, sec. 1, 1971 Tex. Gen. Laws 2790 (emphasis added). The legislature further intended that the state’s protective services would “prevent further abuses, and safeguard and enhance the welfare of these children.” Id. Finally, the legislature directed that the statutes be administered and interpreted toprovide “the greatest possible protection
as promptly aspossible” for the children who are affected by abuse or neglect. Id.

In our opinion, the legislature deemed the protection of children more important than any other interest not explicitly protected from section 261.101’s reach. Section 261.101(a) therefore orders any person who has reason to suspect that achild has been abused or neglected immediately to report the information. See Tex. Att’y Gen. Op. Nos. DM-458 (1997) at 2 (stating that term

“‘immediately’ underscores the sense ofurgency”); H-986 (1977) at4 (defining “any person”). Subsection (c) declares that the report requirement applies without exception and regardless of the application of a privilege, e.g., attorney-client or priest-penitent. TEX. FAM. CODE ANN. §261.101(c) (Vernon Supp. 1999); see also Tex. Att’y Gen. Op. No. DM-458 (1997) at 3 (opining that chapter 261 ofFamily Code confers no discretion upon person who suspects that child has been abused).
Our interpretation of section 261.lOl ofthe Family Code comports with the Texas Court of Appeals’ interpretation of the statute. In Albright v. Texas Department ofHuman Services, 859 S.W.2d 575 (Tex. App.-Houston [lst Dist.] 1993,no writ), the court stated that, under the Family Code, the protection of the child is paramount “in instances of suspected child abuse.” Zd.at 580. The court further stated that the Family Codeprovisions 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. Id.Mr. Frank DiTucci - Page 7 (JC-0070)

Finally, our conclusion is consistent with what we perceive as a legislative intent to collect federal funds under 42 U.S.C. $5 106a. The legislature apparently enacted the substance of section 261.101 partly to comply with a federal directive. SeeAntoinette M. Pollock, Recent Amendments to the Texas ChildAbuse Statutes: AnAnalysis andRecommendation, 11ST.MARY’S L.J. 914,932 (1979). Under 42 U.S.C. 5 5106a(a), the Secretary of Health and Human Services, through the Office on Child Abuse and Neglect, see 42U.S.C. $5 101(a) (1994 & Supp. II 1996),financially may assist a state in improving its child protective service system. Id. 4 5106a(a). A state’s eligibility forthe grant iscontingent upon, inpart, whether the state has “in effect. aState law.

. [providing] for the reporting of known and suspected instances of child abuse and neglect.” Id. 5 5106a(h)(2)(A)(i).

For all of these reasons, we conclude that section 261.101(a) of the Family Code prevails
over any inconsistent statute unless the legislature has expressly excepted the inconsistent statute from the reach of section 261.101. Because the legislature has not expressly excepted information acquired in a polygraph examination or polygraph examiners from the requirement of section 261.101, section 261.101 must prevail over section 19A of the Polygraph Examiners Act. Consequently, apolygraph examiner immediately must report his or her suspicion that a child has been abused.
B. To whom must a DOb3xDh examiner reDortthe information?

We turn now to your second question: to whom must the polygraph examiner report the information? As apreliminary matter, the fact that apolygraph examiner may report suspicions of child abuse tothe examinee’s supervisory officer under section 19Aofthe Polygraph Examiners Act does not relieve the polygraph examiner ofthe duty toreport under section 261.101(a) ofthe Family Code, which requires the examiner to “make areport asprovided by this subchapter.” TEX. FAM. CODE ANN. 4261.101(a) (Vernon Supp. 1999). Section 19A(c)(2) ofthe Polygraph Examiners Act, which permits apolygraph examiner to disclose information acquired from an examination to “the person.
.orgovernmental agency thatrequested theexamination,” authorizes apolygraph examiner to disclose the information to the examinee’s local community supervision and corrections officer
or parole officer, but does not require that the examiner do so. TEX. REV. CIV. STAT. ANN. art. 4413(29cc), 9 19A(c)(2) (Vernon Supp. 1999). We do not address in this opinion whether a local community supervision and corrections officer or aparole officer has a duty to report a suspicion of child abuse under section 261.101 ofthe Family Code once apolygraph examiner has disclosed the information to the officer. In any event, section 261.101(b) prohibits a professional from not reporting his or her suspicion because the professional thinks someone else will make the report.
In our view, a report to the local community supervision and corrections officer or parole officer is not “a report as provided by [chapter 261, subchapter B of the Family Code].” See TEX. FAM.CODE

ANN.5261.101(a) (Vernon Supp. 1999). A polygraph examiner must, under chapter 261, subchapter B of the Family Code, report suspected child abuse to a person listed in sectionMr. Frank DiTucci - Page 8 (JC-0070)

26 1.103. Relevant tothe polygraph examiner’s situation, the examiner has twopossible alternatives: either a state or local law-enforcement agency or “the agency designated by the court to be responsible for the protection of children.“3 Id. 5 261.103 (Vernon 1996). As a matter of law, a local community supervision and corrections officer or aparole officer isneither alaw-enforcement agency nor an agency designated by acourt to be responsible for the protection of children.

To determine whether a local community supervision and corrections officer or a parole offrcer is alocal or state law enforcement agency, we must first ascertain what the legislature meant by the phrase “local or state law enforcement agency.” Chapter 261 of the Family Code does not provide a definition. The phrase is defined in two provisions of the Code of Criminal Procedure, however. Chapter 59,pertaining to the forfeiture ofcontraband, defines “law enforcement agency” to mean “an agency of the state or of a political subdivision

. authorized by law to employ peace officers.” TEX.CODEGRIM. PROC. ANN.art. 59.01(5) (Vernon Supp. 1999); see id. art. 2.12 (defining “peace officers”). Similarly, chapter 62, pertaining to missing children and missing persons, defines the term to mean “a police department of a city in this state, a sheriff of a county in this state, or the Department of Public Safety.” Id. art. 62.001(g); cf id. art. 62.01(2) (defining

“local law enforcement authority” as chief of municipal police or county sheriff). We think these substantially similar definitions embody the commonly understood meaning ofthe phrase “local or state law enforcement agency,” and we therefore apply them here. See TEX. GOV’T CODEANN. $ 311.01l(a) (Vernon 1998) (directing that statutory phrases be read in context and construed according to common usage).
Neither alocal community supervision andcorrections officer or aparole officer isamember ofalocal or state law enforcement agency. First, peace offtcers areprecluded from being appointed
as community supervision officers. See TEX.GOV’T CODE ANN.§76.005(c) (Vernon 1998); TEX. HUM.RES.CODE

ANN.5 141.065 (Vernon 1990) (prohibiting peace officer from acting asprobation officer); see also Tex. Att’y Gen. LO-96-091, at 1(construing section 141.065, Human Resources Code, topreclude assistantjuvenile probation officer from serving asconstable). Likewise, aperson serving as apeace officer may not be employed as aparole officer. See TEX.GOV’T CODEANN. 5 508.113(c), (d) (Vernon 1998). Thus, acommunity supervision and corrections officer or aparole officer cannot be amember ofalaw enforcement agency under article 59.01 ofthe Code of Criminal Procedure. Second, a local community supervision and corrections officer is an employee of the local community supervision and corrections department, which is established by the district judge
or district judges trying criminal cases in ajudicial district. See TEX.GOV’TCODE ANN. 54 76.002, ,004, ,005 (Vernon 1998) (establishing community supervision and corrections departments and providing for staffing). Accordingly, a community supervision and corrections department is separate from apolice or sheriffs department and is not a law enforcement agency for purposes of

‘Family Code section 261.103(2) and (3) does not appear to apply generally to the situation in which a polygraph examiner finds him or herself. If either subsection (2) OI (3) applies, however, a polygraph examiner must report the suspicion as those subsections require.Mr. Frank DiTucci - Page 9 (JC-0070)

article 62.001(g) of the Code of Criminal Procedure. Similarly, aparole officer is an employee of thepardons and paroles division oftheTexas Department ofCriminal Justice, see TEX.GOV’TCODE ANN.$4 508.001(7), .l 1l(b), ,113 (Vernon 1998),not of amunicipal police department or acounty sheriffs department. We are unaware of any other definition of the term that might lead us to a contrary conclusion.

We therefore consider whether areport to the local community supervision and corrections ofker orparole officer isequivalent to areport to an agency designated to beresponsible to protect children. You premise your suggestion on the fact that the Community Justice Assistance and Pardons and Paroles Divisions of the Texas Department of Criminal Justice have broad mandates tomonitor offenders to protect society; protecting society, you believe, includes the children ofthat society.

We conclude that neither an officer of a local community supervision and corrections department nor a parole officer is an “agency designated by the court to be responsible for the protection ofchildren.” SeeTEX. FAM. CODE ANN.5261.103 (Vernon 1996). We do not determine in this opinion what the legislature meant by specifying that a person report a suspicion of child abuse or neglect to an “agency designated by the court to be responsible for the protection of children.” See id. We believe that the legislature intended by the quoted language to describe an agency that a court has particularly designated to be responsible for protecting children. Cf: Vineyardv. Kraft, 828 S.W.2d248,254 (Tex. App.-Houston [14thDist.] 1992,writ denied) (stating that court-appointed health-care professionals evaluating child’s best interest in connection with parents’ divorce qualified as “agency designated by the court to be responsible for the protection of children”). But we are not aware that any court has ordered either of these officers, in any particular case, to be responsible forprotecting children. Furthermore, neither anofficer ofalocal community supervision and corrections department
nor aparole officer has within his orher statutory duties aresponsibility forprotecting children. We find, for instance, nothing that specifically directs a community supervision and corrections department officer to be responsible for protecting children, as section 261.103(4) of the Family Code requires. The statutory purpose ofanofficer ofalocal community supervision and corrections department is to ensure that a defendant who has been placed on community supervision under article 42.12 of the Code of Criminal Procedure complies with the conditions of the court’s order, which conditions are “designed to protect or restore the community, protect or restore the victim,
or punish, rehabilitate, or reform the defendant.” TEX.CODE GRIM. PROC. ANN.art. 42.12, 5 1l(a) (Vernon Supp. 1999). Similarly, we find nothing in the statutes governing the Pardons and Paroles Division of TDCJ specifically directing it to be responsible for protecting children. Indeed, the Pardons and Paroles Division’s main responsibility centers on the felon, not on society. The duty ofthe Pardons and Paroles Division isto “supervise and reintegrate felons into society” after the felons arereleasedMr. Frank DiTucci - Page 10 (JC-0070)

from confinement. TEX.GOV’TCODE ANN.5493.005 (Vernon 1998). Under the Adult Parole and Mandatory Supervision Law, chapter 508 of the Government Code, aparole officer is responsible to ensure that the parolees and those released subject to mandatory supervision comply with the conditions of parole or mandatory supervision. See id. 5 508.001(6), (7) (defining “parole” and

“parole officer”); see also TEX.CODE GRIM. PROC.ANN.art. 42.12 $5 2(2)-(3); 8 (Vernon Supp. 1999) (defining “community supervision” and “supervision officer” anddescribing which prisoners
are eligible for community supervision).
Moreover, we believe the legislature intended to require that areport be made to an entity that could promptly investigate the report of suspected child abuse or neglect. Section 261.301 of the Family Code requires the Texas Department ofProtective and Regulatory Services, see also 40 TEX.ADMIN.CODE$ 700.505 (1998) (setting time frame for investigations by Department of Protective and Regulatory Services, Child Protective Services), or the “designated agency” to promptly and thoroughly investigate the report of child abuse or neglect, TEX.FAM.CODE ANN. 5 261.301(a), (e) (Vernon 1996 & Supp. 1999); see also 40 TEX.ADMIN. CODE5s 700.507 - ,510 (1998) (outlining investigation procedure by Child Protective Services.). The investigating entity must determine:

(1) the nature, extent, and cause of the abuse or neglect; (2) the identity of the person responsible for the abuse or neglect; (3) the names and conditions of the other children in the home; (4) an evaluation ofthe parents orpersons responsible for the care of the child; (5) the adequacy of the home environment; (6) the relationship of the child to the persons responsible for the care, custody, or welfare of the child; and (7) all other pertinent data.

TEX.FAM.CODEANN.5 261.301(e) (Vernon 1996). The investigating entity, whether it is the Department of Protective and Regulatory Services or the “designated agency,” also may file an application for a temporary restraining order to prevent achild from being removed from the state in certain circumstances. Id. $ 261.306(a) (Vernon 1996); see also 40 TEX. ADMIN.CODE 5s 700.5 10, .515(1998) (setting forth conditions necessitating immediate or short term protection). Finally, all investigators must comply with annual professional training standards setby the Texas Department of Protective and Regulatory Services. TEX.FAM.CODE ANN.§ 261.310(b) (VernonMr. Frank DiTucci - Page 11 (JC-0070)

1996); see also 40 TEX. ADMIN. CODE $ 700.519 (1998) (setting forth voluntary standards for investigators). Neither an officer of the local community supervision and corrections department
nor a parole officer is authorized, equipped, or trained to conduct the required investigation or to prevent a child from being removed t?om the state if necessary.
We accordingly conclude that a polygraph examiner must, consistently with Family Code section 261.103, report a suspicion of child abuse or neglect to either alaw enforcement agency or the agency specifically designated by the court tobe responsible toprotect children. Unless acourt has explicitly ordered that an officer ofthe local community supervision and corrections department
or a parole office is responsible to protect children, the designated agency is not either of those officers.
C. Does a oolveraah examination in this context denv the examinee’s constitutional Tights?

You next ask whether apolygraph examiner denies the examinee’s due-process rights “when conducting apolygraph examination atthe request ofan attorney, or
. . anon-attorney.” Request Letter, supra, at 4. We must answer your question in general terms because it literally covers any polygraph examination given for any purpose. We are unable to address all conceivable fact situations. We thus limit our discussion to what we understand to be your central concern: An examinee who is without legal counsel during the examination and who reveals previously undiscovered incidents ofchild abuse orneglect may be denied due-process protection with respect tothose undiscovered incidents ifthepolygraph examiner reports them. You also areconcerned that
an examinee who reveals previously undiscovered incidents inthe beliefthat the information would be used only in connection with the crime for which the examinee has been convicted may be entitled to additional protection regarding the undiscovered incidents. Because webelieve the legal principles we discuss apply to convicted offenders who are placed on,community supervision the
same asto parolees, we do not distinguish between the two in the following discussion. See Davis
v. State, 757 S.W.2d 386, 389 (Tex. App.-Dallas 1988, no writ) (stating that both probation and parole are the means by which a defendant may escape part of the punishment imposed by law). Additionally, as we have suggested, we do not consider here the rights of inmates because we have been informed that they are not at issue.

We assume for purposes of this opinion that a polygraph examination given in the course of
acourt-ordered treatment program is a state action. Constitutional due-process guarantees, whether under the federal or the state constitution, impose obligations only upon “state actors.” See Republican Party of Tex. v. Die&, 940 S.W.2d 86, 88-91 (Tex. 1997). Whether the state is sufficiently involved in a particular case requires the resolution of fact questions that cannot be determined in the opinion process. See id. at 91; see also, e.g., Tex. Att’y Gen. Op. Nos. DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2.Mr. Frank DiTucci - Page 12 (JC-0070)

The Fourteenth Amendment to the United States Constitution and article I, section 19 of the Texas Constitution require the state to provide due process of law. Because Texas courts traditionally have interpreted the due-process requirement of article I, section 19tobe coextensive with due-process requirements under the federal constitution, see University of Tex.Med. Sch. v. Than, 901 S.W.2d 926,929 (Tex. 1995), we will analyze your question solely in terms of federal constitutional due-process requirements. Federal courts have determined that, at a minimum, due process requires “notice and an opportunity to be heard at a meaningful time and in a meaningful
manner.” See id. at 930 (and cases cited therein). In the context of criminal law, procedural due process means, in general, a right to a fair trial. See 1 CHESTER J. ANTIEAU, MODERN CONSTITUTIONALLAW $5:113, at 394 (1969).
Violation of adefendant’s right to counsel may constitute adenial ofdueprocess. See Gideon
v. Wuinwright, 372 U.S. 335, 342-45 (1963). The Sixth Amendment to the United States Constitution guarantees a defendant aright to counsel in certain circumstances. See id. at 339-40. The Fourteenth Amendment extends this guarantee, which the United States Supreme Court has characterized as “fundamental and essential to afair trial,” to defendants in actions by the states. Id. at 342; see also Wood v.State, 478 S.W.2d 513,515 (Tex. Crim. App. 1972);Ahmadi v.State, 864 S.W.2d 776, 781 (Tex. App.-Fort Worth 1993, pet. ref d). Additionally, the Texas Constitution provides aright to counsel to citizens charged with acrime. TEX.CONST. art.I, 5 10; seeTEX.CODE GRIM.PROC.ANN.art. 1.05 (Vernon 1977); Phetvongkham v. State, 841 S.W.2d 928, 931 (Tex. App.-Corpus Christi 1992, pet. refd, untimely tiled). Nevertheless, the state constitutional guarantee does not provide any greater right than that accorded in the federal constitution. Foster
v. State, 713 S.W.2d 789, 790 (Tex. App.-Houston [lst Dist.] 1986) (citing Floyd v. State, 710 S.W.2d 807 (Tex. App.-Fort Worth 1986, pet. dism’d), affd 787 S.W.2d 385 (Tex. Crim. App. 1990); Narvaiz v. State, 840 S.W.2d 415,433 (Tex. Crim. App. 1992) (en bane) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)), cert. denied, 507U.S. 975 (1993).
An individual’s right to counsel does not attach until the state begins an adversarial judicial proceeding against the individual. Hidalgo Y. State, 983 S.W.2d 746,752 (Tex. Crim. App. 1999); McFarland v.State, 928 S.W.2d 482,507 (Tex. Crim. App. 1996) (enbane), cert. denied, 519U.S. 1119 (1997); see also Barley v. State, 906 S.W.2d 27,36 (Tex. Crim. App. 1995) (en bane), cert. denied, 516 U.S. 1176 (1996). “The Sixth Amendment right to counsel automatically becomes effective at the inception of adversary judicial criminal proceedings and must be implemented by the State at every critical stage of those proceedings, even absent a specific request, unless the accused intelligently and voluntarily yields his prerogative to the assistance of an attorney.” Fuller
v.State, 829 S.W.2d 191,205 (Tex. Crim. App. 1992) (en bane), cert. denied, 508U.S. 941 (1993). In general, no critical stage is reached until the state has tiled formal charges against an individual. Price v. State, 870 S.W.2d 205, 207 (Tex. App.-Fort Worth), aff’d, 887 S.W.2d 949 (Tex. Crim. App. 1994) (en bane).Mr. Frank DiTucci - Page 13 (JC-0070)

In our opinion, thepolygraph examinations you describe donot implicate the examinee’s Sixth Amendment right to counsel. Ifthe subject of apolygraph examination discloses during the course of an examination that he or she committed a previously undiscovered incident of child abuse or neglect but charges on that incident have not yet been filed, the subject has no right to counsel with respect tothis previously undisclosed criminal incident until prosecution on that incident isinitiated. The examinee must be offered counsel only when judicial criminal proceedings based upon the previously undisclosed incident are initiated. We consequently conclude that the situation about which you ask does not as amatter oflaw implicate an examinee’s due-process rights. Whether an examinee’s due-process rights are violated in aparticular situation is aquestion of fact that cannot be resolved in the opinion process. See, e.g., Tex. Att’y Gen. Op. Nos. DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2. Moreover, you cite nothing that bars an examinee from having the assistance ofcounsel during apolygraph examination given aspart ofthe examinee’s sex-offender treatment process.
In your request letter to this office, you ask the following: “In pre-adjudicated cases: []Does due process outweigh Section 261 of the Texas Family Code if the polygraph test is run for an attorney and does the Texas Family Code, Section 261 outweigh The Texas Polygraph Examiners Act, Section 19A?” Request Letter, supra, at4. As stated above, webelieve that the Family Code’s reporting requirement prevails over section 19A of the Polygraph Examiners Act. This is true for both pre- and post-adjudicated cases. With regard tothe involvement of anattorney, webelieve you are asking about the attorney-client privilege. The attorney-client privilege applies tothe testimony of a polygraph examiner hired by an attorney for a client, if the examiner was employed as the attorney’s agent to assist inrendering legal advice tothe client. See 81 AM. JUR. 2D Witnesses 5424, at 378 (1992). While such apolygraph examiner cannot avoid the requirement to report, see TEX. FAM.CODE

ANN.5261.101(c) (Vernon Supp. 1999), section 261.202 ofthe Family Code allows a court to exclude evidence subject tothe attorney-client privilege in aproceeding regarding the abuse
or neglect of a child. See id. § 261.202 (Vernon 1996). Although you have not asked specifically whether the polygraph examination implicates an examinee’s Fifth Amendment rights against self-incrimination, we think it incumbent upon us to comment briefly on this subject. TheFifth Amendment tothe United States Constitution, inrelevant part, provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S.CONST. amend. V. Article I,section 10ofthe Texas Constitution provides similarly. See TEX. CONST. art. I, § 10. The provision in our state constitution affords no broader protection than that provided under the federal constitution. McKenna v. State, 671 S.W.2d 138, 139 (Tex. App.-Houston [lst Dist.] 1984,pet. refd); Exparfe Shorthouse, 640 S.W.2d 924,928 (Tex. Crim. App. 1982) (en bane).
The privilege against self-incrimination not only permits aperson to refuse to testify against him- or herself at a criminal trial in which he or she is a defendant, but also permits a person to refuse to answer official questions “put to him in any other proceeding, civil or criminal, formal orMr. Frank DiTucci - Page 14 (JC-0070)

informal, where the answers might incriminate him in future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420,426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70,77 (1973)). If, after invoking the privilege, a witness is compelled to testify against himself or herself, the witness’s answers are inadmissible against that person in a later criminal prosecution. Id. A person does not lose this protection because he or she has been convicted of a crime, notwithstanding that a defendant is imprisoned or on probation at the time he or she makes the incriminating statements. Ifthose statements are compelled, they are inadmissible in a subsequent trial for acrime other than that for which the defendant has been convicted. Id.
The United States Supreme Court has considered a probationer’s statements to a probation officer in Murphy. In that case, a sex offender on probation was required to participate in sexoffender treatment, report to his probation officer as directed, and to be truthful with the probation officer in all matters. Murphy, 465 U.S. at 422. During the course of sex-offender treatment, the defendant revealed that he had committed arape and murder several years earlier for which he had
never been prosecuted. The treatment counselor conveyed this information to the probation officer, who then requested a meeting with the defendant. At the meeting, the probation officer asked the defendant about the prior rape and murder; the defendant admitted to the crimes. He was subsequently tried for the rape and murder. At his trial, he sought to suppress his statements to the probation officer, claiming they were obtained inviolation ofthe Fifth andFourteenth Amendments. Id. at 424-25.
The Supreme Court concluded that the Fifth Amendment privilege against self-incrimination
was not violated and that the defendant’s statements to his probation officer could be used in the prosecution of the rape and murder charges. Id. at 440. In doing so, the Court noted that the privilege is not self-executing. Id. at 427. That is, a witness who desires the protection of the privilege must claim itorthey will not be considered to have been “compelled” to answer within the meaning of the Fifth Amendment. Id. (quoting UnitedStates v.Mania, 317 U.S. 424,427 (1943)). In this case, although theprobationer wasunder ageneral obligation to appear and answer questions, that general obligation did not render the probationer’s voluntary statements compelled answers. Id. at 427.
The Court noted two exceptions to the general rule that the privilege is not self-executing, pertinent to the program you ask about. First, the Court stated, the privilege against selfincrimination need notbe invoked by thewitness when he or sheis subject tocustodial interrogation. Id. at 430. Miranda warnings extend to persons in custody to advise them of their constitutional rights. SeeMiranda v.Arizona, 384 U.S. 436 (1966). A Texas court has stated that acourt-ordered polygraph examination to which a felon convicted of aggravated sexual assault must submit as a condition ofprobation isnot acustodial interrogation. Marcurn Y. State, 983 S.W.2d 762,766 (Tex. App.-Houston [14th Dist.] 1998,pet. ref d); see alsoDowthitt v.State, 931 S.W.2d 244,254 (Tex. Crim. App. 1996) (stating that person is in custody “only if, under the circumstances, areasonable person would believe that his freedom ofmovement was restrained to the degree associated with aMr. Frank DiTucci - Page 15 (JC-0070)

formal arrest”). ConsequentlyJfurcum suggests that Mirandawarnings arenot required before such
a polygraph examination, but that question ultimately is one of federal law. See Marcum, 983 S.W.2d at 766; see also TEX.CODECRIM.PROC. art. 38.22, $5 2,3 (Vernon 1979 & Supp. 1999) (requiring Miranda warnings prior to custodial interrogation); Melton Y.State, 790 S.W.2d 322,326 (Tex. Crim. App. 1990) (enbane) (stating that state must demonstrate that defendant knowingly and intelligently waived privilege against self-incrimination only if statement stems from custodial interrogation). Marcurn further suggests that the Fifth Amendment privilege against self-incrimination is not self-executing in the circumstances about which you ask. SeeMarcum, 983 S.W.2d at 766; see also Murphy, 465 US. at 430 (stating that privilege against self-incrimination is selfexecuting only when witness is subject to custodial interrogation). Second, the privilege need not be invoked when the state penalizes the assertion of the privilege so as to foreclose a free choice to remain silent, thereby compelling incriminating testimony. Murphy, 465 U.S. at434 (quoting Garner v. United States, 424 U.S. 648,661 (1976)). A threat to revoke probation if the probationer is untruthful generally is insufficient to give rise to a self-executing privilege against incrimination. Id. at 435. On the other hand, the Supreme Court expressly has cautioned that “if the state, either expressly orby implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in acriminal prosecution.” Id. Accordingly, the state may

“not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” Id. at 438.
Courts in Oregon and Florida have applied Murphy to a polygraph examination that a probationer is required to take as a condition ofprobation. See Cassamassima v. State, 657 So. 2d 906 (Fla. Dist. Ct.App. 1995) (enbane); Statev. Tenbusch, 886P.2d 1077 (Or. Ct.App. 1994),cert. denied, 516US. 99l(1995). Although the probationer in the Oregon case wasrequired tobehonest about his sexual history, the court found that the conditiondidnot “expresslynor implicitly foreclose his right to object to making self-incriminating statements.” Tenbusch, 886 P.2d at 1082-83. In addition, the court believed that the requirement that the defendant submit to a polygraph examination aspart ofthe treatment program, arequirement not present inMurphy, only emphasizes the requirement that the defendant be truthful; it does not affect the defendant’s privilege against self-incrimination. See Tenbusch, 886 P.2d at 1082 n.6. Thus, the court concluded that the conditions ofthe defendant’s probation donot ontheir faceconstitute athreat by the state topenalize the defendant for invoking his Fifth Amendment privilege. Id. at 1083.
The Florida court similarly acknowledged that a probationer who submits to a polygraph examination and who answers questions about sexual contact with children as part of a required treatment program has aright to invoke his privilege against self-incrimination. See Cassamassima, 657 So. 2d at 911. “Consistent with Murphy, the probationer may
. refuse to answer [only] if itMr. FrankDiTucci - Page 16 (JC-0070)

iswithin his Fifth Amendment right to do so. The state then may elect whether torequire the answer by eliminating the threat ofprosecution for the crime.” Id. Although no Texas court has yet addressed the question of self-incrimination in the context of polygraph examinations ordered as acondition ofprobationary sex-offender treatment, we believe the casesjust discussed are instructive. In light of this authority, we believe that an examinee has
aright toclaim the privilege against self-incrimination during the course ofapolygraph examination ifthe answer to the question posed may incriminate the examinee in a future criminal proceeding. The state may not revoke the examinee’s community supervision orparole as aconsequence of the examinee’s invoking the privilege. SeeMurphy, 465 U.S. at 438. Ifthe state wishes to compel the examinee to answer aquestion after he or she has legitimately invoked the privilege with respect to that question, the state must provide some sort of immunity for the confession. See id. at 429 (quoting Maness v.Meyers, 419 U.S. 449,473 (1975) (White, J., concurring in the result)); see also Cassamassima, 657 So. 2d at 911.Mr. Frank DiTucci - Page 17 (JC-0070)

SUMMARY
Section 261.101 of the Family Code prevails over a conflicting statute, such as section 19A of the Polygraph Examiners Act, article 4413(29cc) of the Revised Civil Statutes, unless the legislature has explicitly indicated to the contrary. Because the legislature has not expressly excepted the information a polygraph examiner acquires during the course ofapolygraph examination t?om the scope of section 261.101 of the Family Code, a polygraph examiner must report information indicating that achild has been or may have been abused or neglected in accordance with section 261.103 of the Family Code.
The examinee’s local community supervision andcorrections officer orparole officer is not an “agency designated by the court to be responsible forthe protection ofchildren” forpurposes of section 261.103 of the Family Code, unless a court has specifically ordered otherwise.

Acourt probably would find that apolygraph examinee isnot entitled to counsel during the course of a polygraph examination under section 261.101 of the Family Code and, consequently, that conducting the examination without counsel does not violate the examinee’s due-process right. The attorney-client privilege applies to the testimony of a polygraph examiner hired by an attorney in certain circumstances.
An examinee may have a right to claim the privilege against self-incrimination during the course of apolygraph examination. If the state wishes tocompel an examinee who has legitimately invoked the privilege to respond to the question, the state must determine whether to provide immunity for the confession.

Attorney General of TexasMr. Frank DiTucci - Page 18

ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVIN Deputy Attorney General - General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General (JC-0070)