The Attorney General of Texas 

MARK WHITE 

Attorney General 

December 20, 1979 

Mr. William W. Fisher, Chairman~ 

State Board of Polygraph Examiners 

Ill West Laurel -Suite 115 

San Antonio, Texas 78212 

Opinion No. MW-10 8 

Re: Voluntary participation of 

polygraph examinees. 

Dear Mr. Fisher: 

The Board of Polygraph Examiners has 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 his participation 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 

examined as to the nature of the examination; 

(2) for failing to inform a subject to be 

examined that his participation in the examination is voluntary; 

. . . . 

(l2) [or] failing to inform the subject of the 

results of the examination if so requested 

It is obvious from a reading of this provision that the board is not 

required to revoke or suspend the license of any licensed examiner simply 

because he fails in one or more instances to take the ,foregoing steps, 

although it might do so. The statute merely establishes standards which the 

board may use to determine the fitness of licensees. 

The statute ,imposes upon polygraph examiners a standard duty to 

inform the subjects of examinations about certain matters, but it does not 

impose upon them any duty to determine the motives of the examinee in 

thereafter consenting to the examination or refusing it. If the consent given 

P- 341 
r - 

Mr. William W. Fisher - Page Two (MW-108) 

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 make a choice - not to dictate 

a chdce or determine the motives behind it. 

Even if the cocperation of a polygraph examinee has been coerced by a third party, 

the examiner performs his duty so long as he clearly and in good faith informs the subject 

that he need not undergo the examination, and that the examiner will not administer the 

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 should later appear that 

the subject’s chdce resulted from third-party coercion. 

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 

‘~g;g 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attorney GeneralAPPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

P. 342 
Mr. William W. Fisher - Page Three (MW-108) 

David B. Brooks 

Bob Gammage 

Susan Garrison 

Rick Gilpm 

Bruce Youngblood 

D. 34-4