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 

714 Jackson. Suite 700 

Dallas. TX. 75202.4506 

2141742-6944 

4624 Alberta Ave.. Suite 160 

E, Paso. TX. 79905.2793 

9151533.3464 

rlmol Texas. Suite 700 

Hous,on, TX. 77002-3111 

7131223-5886 

808 Broadway. Suite 312 

l.“bbock. TX. 79401.3479 

8061747-5236 

4304 N. Tenth, Suite S 

McAllen. TX. 76501-1665 

5121682.4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 76205-2797 

51212254191 

An Equal OpportuniiV 

Affirmative Aclion EmPlOYer 

The Attorney General of Texas 

August 5, 1985 

Honorable Luther 

county Attorney 

JOlIeS Opinion No. JM-342 

Room 201, City-County Building 

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 asked whether 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 

further zsdversely affected by abuse or neglect and 

knowingly fails to report in accordance with 

Section y34.02 of this code. 

(b) ,An offense under this section is a Class B 

misdemeanor. (Emphasis added). 

Acts 1976, 64th Ls:g., ch. 476, 54, at 1272. 

Attorney General Opinion H-986 (1977) construed section 34.01 of 

the Family Code, ihich contains the phrase "any person having cause to 

believe," as embracing not only parents or guardians but all persons 

having the information described therein. Because sectionn4.01 and 

34.07 are within chapter 34 of the Family Code, they should be read in 

pari materia. --. See District Trustees v. 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, clergymen are covered by 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 of Dallas v. Brown, 475 S.W.2d 833 (Tex. Civ. App. - Dallas 1971. 

p. 1559 
Ronorable Luther Jones - Eage 2 (a-342) 

writ ref'd n.r.e.); see: also Sutherland Statutoq Construction, --- 

Singer, V. 2A. 151.02 (4th ed. 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.stian Science practitioner of an 

established church or religious organization shall 

he required to testify in any action, suit, or 

proceedinq, concerning any information which may 

have b~een ConfLdentially communicated to him in 

his professionaL capacity under such circumstances 

that to disclor;e the information would 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 

trial may compel such disclosure if in his opinion 

the same is ne:essary to a proper administration 

of justice. (Emphasis added). 

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.re is implicated by your question. The Free 

Exercise Clause involves both freedom to believe and freedom to act. 

See Cantwell v. Connecticut 310 U.S. 296. 303 (1940). The freedom to - --' 

p. 1560 
Honorable Luther Jones - Pz.g,e 3(JM-342) 

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 

Dwledge of abuse or 

neglect would report that :it:forma&on to the appropriate official. In 

our opinion, it clearly rel3ulates conduct. 

Government regulation of religious conduct is valid if it does 

not unduly burden the prac::ice of religion, if the state's interest in 

enacting the regulation is compelling, and if there are co alternative 

means available which are less intrusive uoon the practice. See 

Wisconsin v. Yoder, 406 U.S. 205 (1972); see also Sherdert v. 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's Witnesses 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!n would 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 

confidentially disclosed 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 nclt conflict with 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 truly your J h, k . 

JIM MATTOX 

Attorney General of Texas 

TON GREEN 

First Assistant Attorney General 

p. 1561 
Honorable Luther Jones - ~11ga 4 (m-342) 

DAVID R. RICFlARDS 

Executive Assistant Attornw General 

ROBERT GRAS 

Special Assistant Attorney IGeneral 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tony Guillory 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin. Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Mary Keller 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

p. 1562