Untitled Texas Attorney General Opinion

The Attorney General of Texas August 5, 1985 JIM MATTOX Attorney General Supreme Court Building Honorable Luther JOlIeS Opinion No. JM-342 P. 0. Box 12546 county Attorney Austin. TX. 78711. 2546 Room 201, City-County Building Re: Whether a minister is 512,4752501 El Paso, Texas ?!I901 required to file a report of Telex 9101674-1367 Te,ecc,p,er 5121475-0266 child abuse under section 34.07 of the Family Code 714 Jackson. Suite 700 Dear Mr. Jones: Dallas. TX. 75202.4506 2141742-6944 You have asked whether section 34.07 of the Family Code requires a clergyman of sn established church to report information of 4624 Alberta Ave.. Suite 160 suspected child &use which is confidentially disclosed to him by a E, Paso. TX. 79905.2793 parishioner. This section, enacted in 1975, provides: 9151533.3464 (a) A person commits an offense if the person rlmol Texas. Suite 700 has cause to believe that a child's physical or Hous,on, TX. 77002-3111 mental health or welfare has been or may be 7131223-5886 further zsdverselyaffected by abuse or neglect and knowingly fails to report in accordance with Section y34.02of this code. 808 Broadway. Suite 312 l.“bbock. TX. 79401.3479 8061747-5236 (b) ,Anoffense under this section is a Class B misdemeanor. (Emphasis added). 4304 N. Tenth, Suite S Acts 1976, 64th Ls:g.,ch. 476, 54, at 1272. McAllen. TX. 76501-1665 5121682.4547 Attorney General Opinion H-986 (1977) construed section 34.01 of the Family Code, ihich contains the phrase "any person having cause to 200 Main Plaza. Suite 400 believe," as embracing not only parents or guardians but all persons San Antonio. TX. 76205-2797 having the information described therein. Because sectionn4.01 and 51212254191 34.07 are within chapter 34 of the Family Code, they should be read in See District Trustees v. Trustees of Freestone Countx pari materia. --. An Equal OpportuniiV 186 S.W.2d 378 (Tex. Clv. App. - Waco 1945, no writ). This inter- Affirmative Aclion EmPlOYer pretation of "person" should therefore be used in applying section 34.07. Consequently, clergymen are covered by this section. You also ask whether a clergyman must testify in a child abuse proceeding. Both article 3715a, V.T.C.S.. and section 34.04 of the Family Code address this subject. If there is an irreconcilable conflict between statutes dealing with the same subject, the most recent controls as the latest expression of legislative intent. See City of Dallas v. Brown, 475 S.W.2d 833 (Tex. Civ. App. - Dallas 1971. p. 1559 RonorableLuther Jones - Eage 2 (a-342) writ ref'd n.r.e.); ---see: also Sutherland Statutoq Construction, Singer, V. 2A. 151.02 (4th ed. 1984). Prior to 1967, Texas courts did not recognize the clergyman- penitent privilege. --See Diggers v. State, 358 S.W.2d 188 (Tex. Civ. APP. - Dallas 1962). wrj.t,ref'd n.r.e. per curiam. 360 S.W.Zd 516 (Tex. 1962). In that?& the legislature enacted article 3715a, which provides: No ordained ~ninister, priest, rabbi or duly accredited Chrj.stian Science practitioner of an established church or religious organization shall he required to testify in any action, suit, or proceedinq, concerning any information which may have b~een ConfLdentially communicated to him in his professionaL capacity under such circumstances that to disclor;ethe information would violate a sacred or moral trust, when the giving of such testimony is objected to by the communicant; pro- vided, however, that the presiding judge in any trial may compel such disclosure if in his opinion the same is ne:essary to a proper administration of justice. (Emphasis added). Almost immediately thereafter, however, the legislature required the testimony of clergymen i.r,child abuse proceedings. See Acts 1971, 62nd Leg., ch. 902. 51, at 2790 (amending V.T.C.S.yt. 695c-2). repealed by Acts 1973, 63rd Leg., ch. 543, 553, at 1458. Section 34.04, former article j95c-2, V.T.C.S.. of the Family Code now provides: In any proceeding regarding the abuse or neglect of a child or the cause of any abuse or neglect, evidence may not be excluded on the ground of privileged communication except in the case of communications between attorney and client. Since section 34.00 is more recent, it prevails over article 3715a. Accordingly, a clergyman must testify in a child abuse oroceedina. Only commur,icationsbetween an attorney and his client ire privileged under section 34.04. See Pollock Recent Amendments to the Texas Child Abuse Statutes: An %lvsis and Recorrmendation. 11 St. Mary's L.J. 914, 932 II. 133 (1980). Although you have not referred to the Free Exercise Clauses of the First Amendment to the United States Constitution, it has been suggested that that clat.reis implicated by your question. The Free Exercise Clause involves both freedom to believe and freedom to act. -See Cantwell v. Connecticut --' 310 U.S. 296. 303 (1940). The freedom to p. 1560 Honorable Luther Jones - Pz.g,e 3 (JM-342) believe is absolute, but the freedom to act is conduct subject to regulation for the protection of society. See United States v. Gravaon County State Bank. 656 F.2d 1070 (5tbxr. !Rl). Section l! 34.07 was enacted to ensure that oersons having kncDwledge of abuse or neglect would report that :it:forma&onto the appropriate official. In our opinion, it clearly rel3ulatesconduct. Government regulation of religious conduct is valid if it does not unduly burden the prac::iceof religion, if the state's interest in enacting the regulation is compelling, and if there are co alternative means available which are less intrusive uoon the practice. See Wisconsin v. Yoder, 406 U.S. 205 (1972); see also Sherdert v. Verr ler , ~- 374 U.S. 398 (1963). Each of these requirements is satisfied here. In Prince v. Massachuset121. 34 U.S. 158 (19441, the United States Suureme Court said "[tlhe right to practice religion freely does not include liberty to expose ihe . . -. child . . ; to ill health or death. . . ." 321 U.S. at 166-67. See also Jehovah's Witnesses v. King County Hospital Unit No. I., 278 F.Supp. 468 (N.D. Wash. 1967) aff'd 390 U.S. 598 (196$7 To conclude that the application of section 34.07 to clergyml!nwould violate the Free Exercise Clause would be to ignore this a'zimonition.We therefore conclude that to require a clergyman to report evidence of child abuse or neglect when confidentially disclosed to him by a parishioner does not violate the Free Exercise Clause. S llElNA BY Article 3715a, V.T.C.S., which provides for clergyman-penitent privilege in judicial pro- ceedings, does nclt conflict with section 34.07 of the Family Code., a reporting statute. Section 34.07 does not violate the Free Exercise Clause of the First ,imendment to the United States Constitution. It requires a minister of an established church to report evidence of child abuse when confidentially disclosed to him by a parishioner. J k Very truly your h, . JIM MATTOX Attorney General of Texas TON GREEN First Assistant Attorney General p. 1561 Honorable Luther Jones - ~11ga4 (m-342) DAVID R. RICFlARDS Executive Assistant Attornw General ROBERT GRAS Special Assistant Attorney IGeneral RICK GILPIN Chairman, Opinion Committee Prepared by Tony Guillory Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Gilpin. Chairman Colin Carl Susan Garrison Tony Guillory Mary Keller Jim Moellinger Jennifer Riggs Nancy Sutton p. 1562