Untitled Texas Attorney General Opinion

The Attorney General of Texas December 20, 1979 MARK WHITE Attorney General Mr. William W. Fisher, Chairman~ Opinion No. MW-108 State Board of Polygraph Examiners Ill West Laurel -Suite 115 Re: Voluntary participation of San Antonio, Texas 78212 polygraph examinees. Dear Mr. Fisher: The Board of Polygraph Examiners has asked whether section 19(Z) of the Polygraph Examiners Act, article 4413(29cc), V.T.C.S., prohibits a polygraph examiner from proceeding with an examination of a subject when the examinee indicates that his participation in the process is not voluntary. The statutory provision rear% sec. 19. The board may refuse to issue or may suspendor revoke a license on any one or more of the following groundw (1) for failing to inform a subject to be examined as to the nature of the examination; (2) for failing to inform a subject to be examined that his participation in the examina- tion is voluntary; . ... (l2) [or] failing to inform the subject of the results of the examination if so requested It is obvious from a reading of this provision that the board is not required to revoke or suspend the license of any licensed examiner simply because he fails in one or more instances to take the ,foregoing steps, although it might do so. The statute merely establishes standards which the board may use to determine the fitness of licensees. The statute ,imposes upon polygraph examiners a standard duty to inform the subjects of examinations about certain matters, but it does not impose upon them any duty to determine the motives of the examinee in thereafter consenting to the examination or refusing it. If the consent given P- 341 r - Mr. William W. Fisher - Page Two (MW-108) is truly informed consent, the examiner may take it at face value, for the purpose of “informing” examinees is to apprise them of their right to make a choice - not to dictate a chdce or determine the motives behind it. Even if the cocperation of a polygraph examinee has been coerced by a third party, the examiner performs his duty so long as he clearly and in good faith informs the subject that he need not undergo the examination, and that the examiner will not administer the test if the subject chooses to cancel it. The examiner is not responsible for any coercive activity in which he does not conspire or participate. If the prospective examinee refuses to be examined, the polygraph examiner should abandon any attempt to examine him. If he has properly informed the subject of his right to refuse the examination, and the subject nevertheless choosss to go forward with it, the examiner is not at fault if it should later appear that the subject’s chdce resulted from third-party coercion. SUMMARY Section 19(Z) of the Polygraph Examiners Act, article 44l2(29cc), V.T.C.S., establishes a standard which the Board of Polygraph Examiners may use to determine the fitness of licensee& It raquires that the examiner properly inform a subject that .his participation in a polygraph examination is voluntary, but the examiner need not determine the motives of a consenting examinec ‘~g;g Attorney General of Texas JOHN W. FAINTER, JR. First Assistant Attorney General TED L. HARTLEY Executive Assistant Attorney General Prepared by Bruce Youngblood Assistant Attorney General- APPROVED: OPINIONCOMMITTEE C. Robert Heath, Chairman P. 342 Mr. William W. Fisher - Page Three (MW-108) David B. Brooks Bob Gammage Susan Garrison Rick Gilpm Bruce Youngblood D. 34-4