February 6, 1990
Mr. Bryan M. Perot Opinion No. JR-1141
Executive Officer
Polygraph Examiners Board Re: Consent to a polygraph
P. 0. Box 4007 examination of a child
Austin, Texas 78773-0001 (RQ-1893)
Dear Mr. Perot:
You ask whether section 51.151 of the Family Code
applies to a polygraph examination of a child complainant or
a child witness for the state.
Section 51.151 provides:
If a child is taken into custody under
Section 52.01 of this code, a person may not
administer a polygraph examination to the
child without the consent of the child's
attorney or the juvenile court unless the
child is transferred to criminal court for
prosecution under Section 54.02 of this code.
Section 52.01 of the Family Code provides in pertinent
part:
(a) A child may be taken into custody:
(1) pursuant to an order of the
juvenile court under the provisions of
this title:
(2) pursuant to the laws of arrest:
(3) by a law-enforcement officer if
there are reasonable grounds to believe
that the child has engaged in delinquent
conduct or conduct indicating a need for
supervision; or
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Mr. Bryan M. Perot - Page 2 (JM-1141)
(4) by a probation officer if there are
reasonable grounds to believe that the
child has violated a condition of proba-
tion imposed by the juvenile court.
you advise that your concern is prompted by section 19
of article 4413(29cc), V.T.C.S., providing:
The board [Polygraph Examiners] shall
refuse to issue a license, shall revoke or
suspend a license, shall reprimand a
licensee, or may probate a license suspension
on any one or more of the following grounds:
. . . .
(14) violating Section 51.151, Family
Code, relating to the examination of a child
taken into custody.
your scenario does not include the taking into custody
of a child under section 52.01 of the Family Code since no
provision is made under this title for taking a child
witness or child complainant into custody. Section 51.151
does not apply to the situation you describe.
While the polygraph examiners license may not be placed
in jeopardy under your scenario, we believe caution should
be exercised in obtaining the 'consent of a child to submit
to a polygraph examination.
Section 12.04 of the Family Code, in detailing the
rights, privileges, duties, and powers of a parent, includes
in subsection (7) "the power to represent the child in legal
action and to make other decisions of substantial legal
significance concerning the child." In reviewing section
51.151, we note that prosecutors may dismiss a case if a
state's witness fails a polygraph examination. R. Dawson,
Texas Juvenile Law 103 (2d ed. 1987). While courts have
been reluctant to admit the results of a Polygraph
examination because of its lack of reliability, Romero v.
State, 493 S.W.Zd 206 (Tex. Crim. App. 1973), under certain
circumstances statements made during the examination have
been held admissible. R. Dawson, m.
Section 8.07(a)(l) of the Penal Code provides that the
offense of perjury is an exception to the rule that a person
under 15 years of age may not be convicted of an offense.
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Mr. Bryan M. Perot - Page 3 (JM-1141)
Conceivably, a statement made in a polygraph test might
become admissible against a child in a perjury trial as a
result of testimony given in legal proceedings following
the examination. Given the circumstances attendant to
questioning by a polygraph operator in connection with a
court proceeding, a child through fear, suggestion, fantasy,
etc., might make unfounded responses or admissions against
the child#s interest. Since statements made by a child
during a polygraph examination could be of "substantial
legal significance concerning the child," it would appear
advisable that the parent's consent be obtained before a
child complainant or child witness is subjected to a
polygraph examination. In the event a guardian ad litem has
been appointed for the child under section 51.11(b) of the
Family Code,1 the consent of the guardian ad litem should be
obtained.
Since your concern is directed to conduct that might
result in loss of a polygraph operatorjs license, we note
that subsections 19(l) and (2) of article 4413(29cc),
V.T.C.S., provide that failure to inform a person to be
examined of the nature of the examination or failure to
inform the subject that participation is voluntary is basis
for revocation of an examiners license. The possibility
that a child may be unable to comprehend the significance of
the examiner#s explanation of the nature of the examination
or the fact that consent to submit to the examination must
be voluntarily given furnishes additional reason for
obtaining the consent of the parent or the guardian ad
litem.
1. Section 51.11(b) provides:
In any case in which it appears to the juve-
nile court that the child's parent or guardian is
incapable or unwilling to make decisions in the
best interest of the child with respect to procee-
dings under this title, the court may appoint a
guardian ad litem to protect the interests of the
child in the proceedings.
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Mr. Bryan M. Perot - Page 4 (JM-1141)
SUMMARY
Section 51.151 of the Family Code does not
apply to a polygraph examination of a child
complainant or a child witness for the state.
However, it would be advisable for the poly-
graph examiner to obtain the consent of the
child's parent or guardian ad litem before
subjecting a child witness or a child com-
plainant to a polygraph examination.
MARYEELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICE GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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