ATTORNEY GENERAL OF TEXAS GREG ABBOTT

February 28, 2011

The Honorable Paul Johnson Denton County Criminal District Attorney Post Office Box 2850 Denton, Texas 76202

Dear Mr. Johnson: Opinion No. GA-0847 Re: Whetherinformationcontained in apresentence investigation report may be released to the DepartmentofFamily andProtectiveServicesforthe protection of a child (RQ-0917-GA)

You ask whetherinformationcontainedin apresentence investigationreportmaybereleased to the Department ofFamily and Protective Services for the protection of a child.' You explain that, under section 9 ofarticle 42.12, Code ofCriminal Procedure, a community supervision officermay bedirected by ajudge, priorto a plea, to prepare apresentence investigation reportcontaining, inter alia, "thecircumstances ofthe offense with which the defendant is charged," as well as the defendant's criminal and social history. Request Letter at I; TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(c) (West Supp. 2010). Sometimes, you assert, the supervision officer may, in the course of his investigation, obtain information that suggests that a child in the defendant's custody has been abused or neglected. Request Letter at 2. Under section 9 of article 42.12, the contents of a presentence report "may not be disclosed to any person," prior to a plea, including the presidingjudge, unless certain conditions are fulfilled. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(c) (West Supp. 201O)? Section 261.101 (a) oftheFamily Codeprovides that "[a

### 1 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 a report as provided by this subchapter." TEX. FAM. CODE ANN. § 261.101(a) (West 2008). The report must be made to one of a number ofentities, among which is the Department of Family and Protective Services. ld. § 261.103(a). You inquire how the
'Request Letter at 1 (Child Protective Services (CPS) is a division ofthe Department ofFamily and Protective Services.) (available at http://www.texasattorneygeneral.gov). 'Unless, for example, "(1) the defendant pleads guilty or nolo contendere oris convicted ofthe offense; or (2) the defendant, in writing, authorizes thejudge to inspect the report." TEx. CODE CRIM. PROC. ANN. art. 42.12, § 9(c) (West Supp. 2010).The Honorable Paul Johnson

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confidentialityofthe presentence investigation report maybe reconciled with the duty ofany person to report suspected child abuse or neglect. Request Letter at 1-2. In a 1999 opinion, this office considered a somewhat similar situation. 

### See Tex. Att'y Gen. Op. No. JC-0070 (1999). In that case, the Polygraph Examiners Act provided that information obtained in connection with a polygraph examination was confidential. [d. at 1, 3. This office unequivocally proclaimed that section 261.101 of the Family Code took precedence over other conflicting confidentiality statutes: "Webelieve that the legislature intended section 261.101 ofthe Family Code to prevail over any inconsistent statute, which includes section 19A ofthe Polygraph Examiners Act, unless the inconsistent statute explicitly recognizes and excepts itselffrom section 

### 261.101." [d. at 5. The opinion continued: In our opinion, the legislature deemed the protection of children more important than any other interest not explicitly protectedfrom section261.10 1'sreach. Section 261.101(a) therefore 

### orders any person who has reason to suspect that a child has been abused or neglected 

### immediately to report the information. Subsection (c) declares that the report requirement applies 

### without exception and regardless ofthe application ofa privilege
.... In 

### Albright v. Texas Department ofHuman Services, 859 S.W.2d575 (Tex. App.-Houston [lstDist.11993,no writ), the court stated that, under the Family Code, the protection of the child is paramount "in instances ofsuspected child abuse." The court further statedthattheFamilyCodeprovisions regarding mandatoryreporting of suspected child abuse, among other provisions, indicate that preventingchild abuseis ahighpriorityinthis state and "demonstrate the public commitment to" promoting children's welfare. [d. at 6 (citations omitted). We believe that Opinion JC-0070 correctly construed the law. The Legislature has met in five regular sessions since the issuance of that opinion and has not challenged its conclusions. Moreover, because theprotection ofchildren outweighs othercompeting interests, itis ourview that section 261.101 ofthe Family Code prevails over any inconsistent statute "unless the inconsistent statute explicitly recognizes and excepts itselffrom section 261.101." [d. at 5. Section 9 ofarticle 42.12 ofthe Code ofCriminal Procedure does not in any manner reference section 261.101, and we consequently conclude that the duty to report an instance of child abuse or neglect under section 261.101 prevails over the confidentiality provisions of section 9 of article 42.12. Accordingly, in answer to your first question, information contained in a pre-plea presentence investigation report may be disclosed to the Department of Family and Protective Services to the extent that such information discloses that a child's physical or mental health orwelfare has been adversely affected by abuse or neglect, despite section 9 ofarticle 42.12 ofthe Code ofCriminal Procedure.The Honorable PaulJohnson

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You also ask whether a community supervision officer who makes a report ofchild abuse or neglect to the Department ofFamily and Protective Services is immune from civil and criminal liability under section 261.106 ofthe Family Code. See Request Letter at 1. "A person acting in good faith who reports
... alleged child abuse or neglect
... is immune from civil or criminal liability that might otherwise be incurred or imposed." TEX. FAM. CODE ANN. § 261.106(a) (West 200S). See also State v. Harrod, SI S.W.3d 904, 90S (Tex. App.-Dallas 2002, pet. ref'd) ("legislature intended to protect reporters of child abuse from liability for the act ofreporting the abuse itself, not from civil or criminal liability generally"). We conclude that a community supervision officer who in good faith makes a report ofchild abuse or neglect to the Department of Family and Protective Services is immunefrom civil and criminal liabilityunder section 261.106(a) ofthe Family Code.The Honorable Paul Johnson

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### SUMMARY Under section 261.101, Family Code, a community supervision officer may release to the Department of Family and Protective Services information contained in a pre-plea presentence investigation report required by section 9 ofarticle 42.12, Code of Criminal Procedure,tothe extentthat such informationdisclosesthat a child's physical or mental health or welfare has been adversely affected by abuse or neglect. An officer who releases such information to the Department is immune from civil and criminal liability under section 261.1

# o I(a), Family Code, for having done so.

DANIEL T. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee