# The Attorney General of Texas

MARK WHITE Attorney General December 20, 1979

Mr. WilliamW.Fisher, Chairman~ State Board of PolygraphExaminers Ill West Laurel-Suite 115 SanAntonio, Texas 78212 OpinionNo. MW-10 8 Re: Voluntary participation of polygraphexaminees. Dear Mr. Fisher: The Board of PolygraphExaminershas asked whether section 19(Z)of the Polygraph Examiners Act, article 4413(29cc), V.T.C.S., prohibits a polygraph examiner from proceeding with an examination of a subject when the examinee indicates that hisparticipation in the process is not voluntary. The statutory provision rear%

sec. 19. The board may refuse to issue or may suspend or revoke a license on any one or more of the following groundw (1) for failing to inform a subject to be examinedas to the natureof the examination; (2) for failing to inform a subject to be examinedthat his participation in the examination is voluntary;

. . . . (l2) [or] failing to inform the subject of the results of the examinationif so requested It is obvious from a reading of this provision that the board is not required to revoke or suspendthe license of any licensed examiner simply because he fails in one or more instances to take the ,foregoing steps, althoughit might do so. The statute merely establishes standardswhich the board mayuse to determinethe fitness of licensees. The statute ,imposes upon polygraph examiners a standard duty to inform the subjects of examinationsabout certain matters, but it does not impose upon them any duty to determine the motives of the examinee in thereafter consenting to the examinationor refusingit. If the consent given

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is truly informed consent, the examiner may take it at face value, for the purpose of

“informing” examinees is to apprise them of their right to makea choice - not to dictate a chdce or determine the motives behindit. Even if the cocperation of a polygraphexaminee has been coerced by a third party, the examiner performs his duty so long as he clearly andin good faith informs the subject that he need not undergothe examination, and that the examiner will not administerthe test if the subject chooses to cancel it. The examiner is not responsible for any coercive activity in which he does not conspire or participate. If the prospective examinee refuses to be examined, the polygraph examiner should abandon any attempt to examine him. If he has properly informed the subject of his right to refuse the examination, and the subject nevertheless choosss to go forward with it, the examiner is not at fault if it shouldlater appear that the subject’s chdce resultedfrom third-partycoercion. SUMMARY Section 19(Z)of the Polygraph Examiners Act, article 44l2(29cc), V.T.C.S., establishes a standard which the Board of Polygraph Examiners may use to determine the fitness of licensee& It raquires that the examiner properly inform a subject that .his participation in a polygraph examination is voluntary, but the examiner need not determine the motives of a consenting examinec

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Attorney Generalof Texas JOHNW. FAINTER,JR. First AssistantAttorney General TED L. HARTLEY Executive AssistantAttorney General Preparedby Bruce Youngblood AssistantAttorney GeneralAPPROVED: OPINION

COMMITTEE C. Robert Heath, Chairman

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DavidB. Brooks Bob Gammage SusanGarrison Rick Gilpm Bruce Youngblood

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