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: Whether information contained in a presentence 

investigation report may be released to the 

Department of Family and Protective Services for the 

protection of a child (RQ-0917-GA) 

You ask whether information contained in a presentence investigation report may be released 

to the Department of Family and Protective Services for the protection of a child.' 

You explain that, under section 9 of article 42.12, Code of Criminal Procedure, a community 

supervision officer may be directed by a judge, prior to a plea, to prepare a presentence investigation 

report containing, inter alia, "the circumstances of the 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 

presiding judge, unless certain conditions are fulfilled. TEX. CODE CRIM. PROC. ANN. art. 42.12, 

§ 9(c) (West Supp. 201O)? 

Section 261.101 (a) of the Family Code provides 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 of entities, 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 of the Department of Family and Protective 

Services.) (available at http://www.texasattorneygeneral.gov). 

'Unless, for example, "(1) the defendant pleads guilty or nolo contendere or is convicted of the offense; or (2) 

the defendant, in writing, authorizes the judge to inspect the report." TEx. CODE CRIM. PROC. ANN. art. 42.12, § 9(c) 

(West Supp. 2010). 
The Honorable Paul Johnson - Page 2 (GA-0847) 

confidentiality of the presentence investigation report may be reconciled with the duty of any 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: "We believe that the legislature intended section 261.101 of the 

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." [d. at 5. The opinion continued: 

In our opinion, the legislature deemed the protection of 

children more important than any other interest not explicitly 

protected from section 261.10 1 's reach. Section 261.10 1 (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 of the application of a privilege .... 

In Albright v. Texas Department of Human 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 of suspected child abuse." The court further 

stated that the Family Code provisions 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. 

[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 the protection of children outweighs other competing interests, it is our view that 

section 261.101 of the Family Code prevails over any inconsistent statute "unless the inconsistent 

statute explicitly recognizes and excepts itselffrom section 261.101." [d. at 5. Section 9 of article 

42.12 of the Code of Criminal 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 or welfare has been adversely affected 

by abuse or neglect, despite section 9 of article 42.12 of the Code of Criminal Procedure. 
The Honorable PaulJohnson - Page 3 (GA-OS47) 

You also ask whether a community supervision officer who makes a report of child abuse 

or neglect to the Department of Family and Protective Services is immune from civil and criminal 

liability under section 261.106 of the 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. F AM. CODE ANN. § 261.1 06( 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 of reporting the 

abuse itself, not from civil or criminal liability generally"). We conclude that a community 

supervision officer who in good faith makes a report of child abuse or neglect to the Department of 

Family and Protective Services is immune from civil and criminal liability under section 261.1 06( a) 

of the Family Code. 
The Honorable Paul Johnson - Page 4 (GA-0847) 

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 of article 42.12, Code of 

Criminal Procedure, to the extent that such information discloses that 

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