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 of the Family Code, 

requiring report of child 

abuse, and section 87 of the 

Mental Health Code, requiring confidentiality of hospital 

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 of a child, and article 5547-87, V. T. C. S., 

which prohibits disclosure of the hospital records of your 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 

of this 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 of juveniles; or (3) any local or state law enforcement agency,” 

and further states that they shall “contain the name and address of the 

child. ” 

On the other hand, section 87 of the Mental Health Code requires 

that “hospital records which directly or indirectly identify a patient, 

p. 2231 
- . 

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 of the patient. ” Disclosure is also permitted whenever it 

“may be necessary to carry out the provisions of this 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 2 of the 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 of Mental 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 of this Code. ‘I V. T. C. S. 

art. 5547-87(a)(Z). One such provision states the purpose of the 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 of the 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 of the 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 of the 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 of the child. We, therefore, 

hold that the provisions of section 34.01 of the Family Code are applicable 

to the Department. 

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

SUMMARY 

Section 34.01 of the Family Code, requiring 

“any person having cause to believe that a child’s 

physical or mental health or welfare has been or 

may be adversely affected by abuse 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 

of article 5547-87, V. T. C. S. 

Very truly yours, 

APPROVED: 

C. ROBERT HEATH, Chairman 

Opinion Committee 

1g 

p. 2233