## THE ATTORNEY GENERAL OF%?ECXAS

Averrm. T-s 78711

January 14, 1975
The Honorable Kenneth D. Gaver, M. D. Opinion No. H- 494 Commissioner Texas Department of Mental Health and Mental Retardation P. 0. Box 12668 Austin, Texas ‘78711 Re: Conflict between section 34.01 ofthe Family Code, requiring report of child abuse, and section 87 of the Mental Health Code, requiring confidentiality ofhospital records.
Dear Dr. Gaver:

You have requested our opinion regarding the apparent conflict between section 34.01 of the Family Code, which requires “any person” to report the abuse or neglect ofa child, and article 5547-87, V. T. C.S., which prohibits disclosure ofthe hospital records ofyour patients except in certain circumstances. Specifically, you ask whether the Department is obliged to make the reports required by section 34.01 of the Family Code without regard to the provisions of section 87 of the Mental Health Code.

Section 34.01 directs “[a]ny person having cause to believe that a child’s physical or mental health or welfare has been or may be advereely affected by abuse or neglect shall report in accordance with section 34.02 ofthis code.” Section 34.02 specifies that the reports “shall be made to: (1)the county welfare unit: (2) the county agency responsible for the protection ofjuveniles; or (3) any local or state law enforcement agency,” and further states that they shall “contain the name and address ofthe child. ”
On the other hand, section 87ofthe Mental Health Code requires that “hospital records which directly or indirectly identify a patient,

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The Honorable Kenneth D. Gaver, page 2 (H-494)

former patient, or proposed patient shall be kept confidential” except in four specified circumstances , including consent of the patient or his legal guardian, court-ordered disclosure, or a determination by the Board or the head of the relevant hospital that “disclosure will be in the best interest ofthe patient. ” Disclosure is also permitted whenever it “may be necessary to carry outthe provisions ofthis code. ” .-.

The Code Construction Act, which is applicable to “each code enacted by the 60th or a subsequent legislature, ” defines “person” to include “government or governmental subdivision or agency. I’V. T. C.S. art. 5429b-2, §1.04(2). Since Title 2ofthe Family Code was enacted by the 63rd Legislature, and since the Department of Mental Health and Mental Retardation is a “government agency, ” it is clear that section 34.01 embraces the Department ofMental Health and Mental Retardation., within the ambit of “any person. ” See Attorney General Opinion H-237 - -. (1974).
A patientye hos$Xal records may be diaclosed’when the “disclosure may be necessary to carry out the provisions ofthis Code. ‘IV. T. C.S. art. 5547-87(a)(Z). One such provision states the purpose ofthe Mental Health Code to be “to provide humane care and treatment for the mentally ill, and to facilitate their hospitalization, enabling them to obtain needed care, treatment and rehabilitation with the least possible trouble, expense and embarrassment to themselves and their families

. . . . ” V. T. C.S. art. 554772. We believe this purpose ofthe Mental Health Code will be greatly furthered by the Department’s compliance with section 34.01 of the Family Code. It would be difficult to deny that the kind of disclosure contemplated by section 34.01 will assist in providing juvenile patients with “humane care and treatment” and will facilitate their obtaining

“needed care, treatment and rehabilitation. ” Disclosure is made to designated agencies of government, and the statute provides that the ultimate recipient ofthe information shall be either the county child welfare unit, or the county agency responsible for the protection of juveniles. Such disclosure helps to fulfill, rather than contradict, the purposes ofthe Mental Health Code. Furthermore, by requiring persons to report cases of child abuse we believe the Legislature has determined that such reports are in the best interest ofthe child. We, therefore, hold that the provisions of section 34.01 ofthe Family Code are applicable to the Department.

p. 2232The Honorable Kenneth D. Gaver. page 3 (H-4941

SUMMARY
Section 34.01 ofthe Family Code, requiring

“any person having cause tobelieve that a child’s physical or mental health or welfare has been or may be adversely affected byabuse or neglect” to

“report in accordance with section 34.02, ” is applicable to the Department of Mental Health and Mental Retardation, without regard to the provisions ofarticle 5547-87, V. T. C.S.Very truly yours,

APPROVED:

C. ROBERT HEATH, Chairman Opinion Committee 1g

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