Case Information
*1 The Attorney General of Texas August 5, 1985
JIM MATTOX
Attorney General Honorable Luther Opinion No. JM-342 JOlIeS
Supreme Court Building county Attorney P. 0. Box 12546 Room 201, City-County Building Re: Whether a minister is Austin. TX. 78711. 2546 512,4752501 El Paso, Texas ?!I901 required to file a report of Telex 9101674-1367 child abuse under section Te,ecc,p,er 5121475-0266 34.07 of the Family Code Dear Mr. Jones: 714 Jackson. Suite 700 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 suspected child &use which is confidentially disclosed to him by a 4624 Alberta Ave.. Suite 160 parishioner. This section, enacted in 1975, provides: E, Paso. TX. 79905.2793 9151533.3464
(a) A person commits an offense if the person has cause to believe that a child's physical or rlmol Texas. Suite 700 mental health or welfare has been or may be Hous,on, TX. 77002-3111 further zsdversely affected by abuse or neglect and 7131223-5886 knowingly fails to report in accordance with Section y34.02 of this code. 808 Broadway. Suite 312
l.“bbock. TX. 79401.3479 (b) ,An offense under this section is a Class B 8061747-5236 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 San Antonio. TX. 76205-2797 [51212254191] believe," as embracing not only parents or guardians but all persons having the information described therein. Because sectionn4.01 and 34.07 are within chapter 34 of the Family Code, they should be read in pari materia. See District Trustees v. Trustees of Freestone Countx --. 186 S.W.2d 378 (Tex. Clv. App. - Waco 1945, no writ). This inter- An Equal OpportuniiV pretation of "person" should therefore be used in applying section Affirmative Aclion EmPlOYer 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.
Ronorable Luther 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;e the 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,ications between 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.re is 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 - --'
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. l! !Rl). Section Dwledge of abuse or 34.07 was enacted to ensure that oersons having knc neglect would report that :it:forma&on to the appropriate official. In our opinion, it clearly rel3ulates conduct.
Government regulation of religious conduct is valid if it does not unduly burden the prac::ice of 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!n would 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 ll El NA 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.
Very truly your J k h, . JIM MATTOX Attorney General of Texas TON GREEN
First Assistant Attorney General
Honorable Luther Jones - ~11ga 4 (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