# 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 ofa counselor’s report made pursuant to section 3.54 ofthe Family Code. Dear Mr. Anderson:

The facts behind your request for our opinion are that during pendency ofa divorce suit, the Judge ordered counseling pursuant to section 3.54 ofthe Family Code, which provides, in part: (a) On thefiling ofa petition for divorce, the clerk shall furnish an availability of counseling notice to the attorney filing the petition. Except in a suit inwhich the respondent is cited by publication, the attorney shall forward the notice toboth parties to the suit and shall certify to the court that he has complied with the provisions ofthis subsection.

. . . (c) After a petition for divorce is filed, the court may, in its discretion, direct the parties to counsel with aperson or persons named by the court, who shall submit awritten report to the court before the hearing on the petition. (d)Inhis report, the counselor shall give only his opinion as towhether there exists a reasonable expectation of reconciliation ofthe parties, and if so, whether

p. 2173I

The Honorable Hank Anderson page 2 (H-478)

further counseling would be beneficial. The sole purpose ofthe 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 ofthe report shall be furnished tothe parties.

for . . . . (f)No person who has counseled parties toa 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 ofthe 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 tohim ofviolations ofthe immigration laws and the Department ofImmigration now seeks access tothe report to use in proceedings against one ofthe parties to the marriage. You ask whether the information should be released to the federal agency.

We are unaware ofany 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.)]; thehusband-wife privilege [Code Crim. Proc. art. 38.11; Johnigan v. State, 482 S.W. 2d 209 (Tex. Crim. App. 197211; and thedergyman-penitent privilege [V. T. C.S., art. 3715a].

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

. IIIaus..tir,iiersection 3. 54 ofthe Family Code, is entitled tothe same legal protection and that, therefore, it cannot be made available tothe Department ofImmigration, absent an effective waiver of its confidential status.

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

SUMMARY A report ofa counselor made pursuant to section 3.54 ofthe Family Code is privileged and confidential and, absent effective waiver, should not be made available on the request of afederal agency. Very truly yours,

OHN L. HILL

General of Texas APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee 

# lg

p. 2175