THEA~TORNEYGENERAL
OFTEXAS
Ave~w. - 78722
December 17. 1974
The Honorable Hank Anderson Opinion No. H- 478
County Attorney
County Courthouse Re: Confidentiality of a
Wichita Falls, Texas 76301 counselor’s report made
pursuant to section 3.54
of the Family Code.
Dear Mr. Anderson:
The facts behind your request for our opinion are that during
pendency of a divorce suit, the Judge ordered counseling pursuant to
section 3.54 of the Family Code, which provides, in part:
(a) On the filing of a petition for divorce, the
clerk shall furnish an availability of counseling
notice to the attorney filing the petition. Except
in a suit in which the respondent is cited by publica-
tion, the attorney shall forward the notice to both
parties to the suit and shall certify to the court that
he has complied with the provisions of this subsec-
tion.
. . .
(c) After a petition for divorce is filed, the court
may, in its discretion, direct the parties to counsel
with a person or persons named by the court, who
shall submit a written report to the court before the
hearing on the petition.
(d) In his report, the counselor shall give only his
opinion as to whether there exists a reasonable expecta-
tion of reconciliation of the parties, and if so, whether
p. 2173
I
The Honorable Hank Anderson page 2 (H-478)
further counseling would be beneficial. The sole
purpose of the report is to aid the court in determin-
ing whether the suit for divorce should be continued
pending further counseling, and the report shall not
be admitted as evidence in the suit. Copies of the
report shall be furnished to the parties.
. . . .
(f) No person who has counseled parties to a suit
for divorce under this section is competent to testify
in any action involving the parties or their children.
The files, records, and other work-products of the
counselor are privileged and confidential for all
purposes and may not be admitted as evidence in any
action involving the parties or their children.
(Emphasis added).
Apparently the counselor has included in his report admissions
made to him of violations of the immigration laws and the Department
of Immigration now seeks access to the report to use in proceedings
against one of the parties to the marriage. You ask whether the informa-
tion should be released to the federal agency.
We are unaware of any other law that would authorize divulging
the counselor’s reports to the immigration service. We recognize
and enforce the attorney-client privilege [Code Crim. Proc., art.
38.10; Cochran v. Cochran, 333 S. W. 2d 635 (Tex. Civ. App. --Houston
1960, writ ref’d n. r. e.)]; the husband-wife privilege [Code Crim. Proc.
art. 38.11; Johnigan v. State, 482 S. W. 2d 209 (Tex. Crim. App. 197211;
and the dergyman-penitent privilege [V. T. C. S., art. 3715a].
It is our opinion that this privilege accorded the counselor’s report,
. tir,iier section 3. 54 of the Family Code, is entitled to the same legal
IIIaus..
protection and that, therefore, it cannot be made available to the Depart-
ment of Immigration, absent an effective waiver of its confidential status.
po 2174
The Honorable Hank Anderson page 3 (H-478)
SUMMARY
A report of a counselor made pursuant to
section 3.54 of the Family Code is privileged
and confidential and, absent effective waiver,
should not be made available on the request of
a federal agency.
Very truly yours,
OHN L. HILL
General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
lg
p. 2175