JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 78711. 2546 512,4752501 Telex 9101674-1367 Te,ecc,p,er 5121475-0266

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An Equal OpportuniiV Affirmative Aclion EmPlOYer 

# The Attorney General of Texas
August 5, 1985

HonorableLuther countyAttorney JOlIeS OpinionNo. JM-342
Room 201,City-CountyBuilding El Paso,Texas ?!I901 Re: Whether a minister is required to file a report of child abuse under section 34.07 of the Family Code
Dear Mr. Jones: You have askedwhether section 34.07 of the Family Code requires a clergyman of sn established church to report information of suspected child &use which is confidentially disclosed to him by a parishioner. This section, enacted in 1975,provides:

(a) A person commits an offense if the person has cause to believe that a child's physical or mental health or welfare has been or may be furtherzsdversely affectedby abuse orneglect and knowingly fails to report in accordance with Sectiony34.02

of this code. (b) ,Anoffenseunder this section is a Class B misdemeanor. (Emphasisadded). Acts 1976,64thLs:g.,ch. 476, 54, at 1272. Attorney General Opinion H-986 (1977) construed section 34.01 of the FamilyCode, ihich contains thephrase "anypersonhaving cause to believe," as embracingnot only parents or guardiansbut all persons having the informationdescribed therein. Because sectionn4.01 and 34.07 arewithin chapter 34 of the Family Code, they shouldbe read in pari materia. See District Trusteesv. Trustees of **Freestone** Countx

--. 186 S.W.2d 378 (Tex. Clv. App. - Waco 1945, no writ). This interpretation of "person" should therefore be used in applying section 34.07. Consequently,clergymenare coveredby this section.
You also ask whether a clergyman must testify in a child abuse proceeding. Both article 3715a, V.T.C.S.. and section 34.04 of the Family Code address this subject. If there is an irreconcilable conflict between statutes dealing with the same subject, the most recent controls as the latest expression of legislative intent. See City ofDallasv. Brown, 475 S.W.2d 833 (Tex.Civ.App. - Dallas 1971.

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### Ronorable Luther Jones - Eage 2 (a-342)

writ ref'd n.r.e.); see: also Sutherland Statutoq Construction, --- Singer,V. 2A. 151.02 (4thed. 1984). Prior to 1967, Texas courts did not recognize the clergymanpenitent privilege. See Diggers v. State, 358 S.W.2d 188 (Tex. Civ. -- APP. - Dallas 1962). wrj.t, ref'd n.r.e. per curiam. 360 S.W.Zd 516 (Tex. 1962). In that?& the legislature enacted article 3715a, which provides:

No ordained ~ninister,priest, rabbi or duly accredited Chrj.stianScience practitioner of an establishedchurch or religiousorganization shall he required to testify in any action, suit, or proceedinq, concerning any information which may have b~eenConfLdentially communicated to him in his professionaLcapacityunder such circumstances that to disclor;ethe informationwould violate a sacred or moral trust, when the giving of such testimony is objected to by the communicant;provided, however, that the presiding judge in any trialmay compel suchdisclosure if in his opinion the same is ne:essary to a proper administration of justice. (Emphasisadded). Almost immediately thereafter,however, the legislature required the testimony of clergymen i.r, child abuse proceedings. See Acts 1971, 62nd Leg., ch. 902. 51, at 2790 (amending V.T.C.S.yt. 695c-2). repealed by Acts 1973, 63rd Leg., ch. 543, 553, at 1458. Section 34.04, former article j95c-2, V.T.C.S.. of the Family Code now provides:
In any proceeding regarding the abuse or

neglect of a child or the cause of any abuse or neglect, evidence may not be excluded on the ground of privileged communication except in the case of communications between attorney and client. Since section 34.00 is more recent, it prevails over article 3715a. Accordingly, a clergyman must testify in a child abuse oroceedina. Only commur,ications between an attorney and his client ire privileged under section 34.04. See Pollock Recent Amendments to the Texas Child Abuse Statutes: An %lvsis and Recorrmendation.11 St.Mary's L.J. 914, 932 II.133 (1980). Although you have not referred to the Free Exercise Clauses of the First Amendment to the United States Constitution, it has been suggested that that clat.reis implicatedby your question. The Free Exercise Clause involves both freedom to believe and freedom to act. See Cantwellv. Connecticut 310U.S. 296. 303 (1940). The freedomto - --'

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believe is absolute, but the freedom to act is **conduct** subject to regulation for the protection of society. See United States v. Gravaon County State Bank. 656 F.2d 1070 (5tbxr. l! 34.07 was enacted to ensure that oersons having knc !Rl). Section Dwledgeof abuse or neglect would report that :it:forma&on to the appropriateofficial. In our opinion, it clearlyrel3ulates conduct. Government regulation of religious conduct is valid if it does not unduly burden theprac::ice of religion, if the state's interest in enacting the regulationis compelling,and if thereare co alternative means available which are less intrusive uoon the practice. See Wisconsin v. Yoder, 406 U.S. 205 (1972); see also Sherdertv. Verr **ler ,**  **~-** 374 U.S. 398 (1963). Each of these requirements is satisfied **here.** In Prince v. Massachuset121.34 U.S. 158 (19441, the United States Suureme Court said "[tlhe right to practice religion freely does not include liberty to expose ihe
. .-. child
. . ; to ill health or death.
. . ." 321 U.S. at 166-67. See also Jehovah'sWitnesses v. King County Hospital Unit No. I.,278 F.Supp. 468 (N.D. Wash. 1967) aff'd 390 U.S. 598 (196$7 To conclude **that** the application of section 34.07 to clergyml!nwould violate **the** Free Exercise Clause would be to ignore this a'zimonition. We therefore conclude that to require a clergyman to report evidence of child abuse or neglect when confidentiallydisclosed to him by a parishioner does not violate the Free Exercise Clause. S ll El NA BY Article 3715a, V.T.C.S., which provides for clergyman-penitent privilege in judicial proceedings,does ncltconflictwith section 34.07 of the Family Code.,a reporting statute. Section 34.07 does not violate **the** Free Exercise Clause of the First ,imendment to the United States Constitution. It requires a minister of an established church to report evidence of child abuse when confidentially disclosed to him by a parishioner.
Very trulyyour 

# J k

h,

. JIM MATTOX AttorneyGeneralof Texas TON GREEN First AssistantAttorneyGeneral

p. 1561HonorableLuther Jones - ~11ga4 (m-342)

DAVIDR. RICFlARDS ExecutiveAssistantAttornw General ROBERT GRAS SpecialAssistantAttorney IGeneral RICK GILPIN Chairman,OpinionCommittee Preparedby TonyGuillory AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE Rick Gilpin.Chairman Colin Carl SusanGarrison Tony Guillory Mary Keller JimMoellinger JenniferRiggs Nancy Sutton

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