THEA~TORNEYGENERAL 

OFTEXAS 

Ave~w. - 78722 

December 17. 1974 

The Honorable Hank Anderson 

County Attorney 

County Courthouse 

Wichita Falls, Texas 76301 

Opinion No. H- 478 

Re: Confidentiality of a 

counselor’s report made 

pursuant to section 3.54 

of the Family Code. 

Dear Mr. Anderson: 

The facts behind your request for our opinion are that during 

pendency of a divorce suit, the Judge ordered counseling pursuant to 

section 3.54 of the Family Code, which provides, in part: 

(a) On the filing of a petition for divorce, the 

clerk shall furnish an availability of counseling 

notice to the attorney filing the petition. Except 

in a suit in which the respondent is cited by publication, the attorney shall forward the notice to both 

parties to the suit and shall certify to the court that 

he has complied with the provisions of this subsection. 

. . . 

(c) After a petition for divorce is filed, the court 

may, in its discretion, direct the parties to counsel 

with a person or persons named by the court, who 

shall submit a written report to the court before the 

hearing on the petition. 

(d) In his report, the counselor shall give only his 

opinion as to whether there exists a reasonable expectation of reconciliation of the parties, and if so, whether 

p. 2173 
I 

The Honorable Hank Anderson page 2 (H-478) 

further counseling would be beneficial. The sole 

purpose of the report is to aid the court in determining whether the suit for divorce should be continued 

pending further counseling, and the report shall not 

be admitted as evidence in the suit. Copies of the 

report shall be furnished to the parties. 

for 

. . . . 

(f) No person who has counseled parties to a suit 

divorce under this section is competent to testify 

in any action involving the parties or their children. 

The files, records, and other work-products of the 

counselor are privileged and confidential for all 

purposes and may not be admitted as evidence in any 

action involving the parties or their children. 

(Emphasis added). 

Apparently the counselor has included in his report admissions 

made to him of violations of the immigration laws and the Department 

of Immigration now seeks access to the report to use in proceedings 

against one of the parties to the marriage. You ask whether the information should be released to the federal agency. 

We are unaware of any other law that would authorize divulging 

the counselor’s reports to the immigration service. We recognize 

and enforce the attorney-client privilege [Code Crim. Proc., art. 

38.10; Cochran v. Cochran, 333 S. W. 2d 635 (Tex. Civ. App. --Houston 

1960, writ ref’d n. r. e.)]; the husband-wife privilege [Code Crim. Proc. 

art. 38.11; Johnigan v. State, 482 S. W. 2d 209 (Tex. Crim. App. 197211; 

and the dergyman-penitent privilege [V. T. C. S., art. 3715a]. 

It is our opinion that this privilege accorded the counselor’s report, 

IIIaus.. . tir,iier section 3. 54 of the Family Code, is entitled to the same legal 

protection and that, therefore, it cannot be made available to the Department of Immigration, absent an effective waiver of its confidential status. 

po 2174 
The Honorable Hank Anderson page 3 (H-478) 

SUMMARY 

A report of a counselor made pursuant to 

section 3.54 of the Family Code is privileged 

and confidential and, absent effective waiver, 

should not be made available on the request of 

a federal agency. 

Very truly yours, 

OHN L. HILL 

General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

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