Can a probation officer report child abuse found in a confidential presentence report in Texas?

Plain-English summary

Before a judge sentences someone, a community supervision (probation) officer may prepare a presentence investigation report that digs into the offense and the defendant's criminal and social history. Sometimes that digging turns up signs that a child in the defendant's home has been abused or neglected. The problem is that Code of Criminal Procedure article 42.12, section 9 says the report's contents may not be disclosed to anyone before a plea, even the judge, except in narrow situations. Meanwhile, Texas law requires anyone who suspects child abuse to report it. The Denton County Criminal District Attorney asked the Attorney General how to reconcile the two.

The Attorney General leaned on a 1999 opinion that had faced a similar clash, there between child-abuse reporting and the confidentiality of polygraph information. That opinion held that Family Code section 261.101, the mandatory-reporting statute, prevails over any inconsistent confidentiality statute unless the other statute expressly recognizes and excepts itself from section 261.101. The reasoning was that the Legislature treats protecting children as more important than competing interests, and the reporting duty applies regardless of privileges. The opinion noted the Legislature had met in five sessions since 1999 without disturbing that conclusion.

Applying that rule, the opinion pointed out that article 42.12, section 9 never references section 261.101. So the duty to report child abuse wins. A probation officer may disclose information from a pre-plea presentence report to the Department of Family and Protective Services to the extent it shows a child's health or welfare has been adversely affected by abuse or neglect. The opinion also answered a second question: an officer who makes such a report in good faith is immune from civil and criminal liability under Family Code section 261.106(a), which protects good-faith reporters from liability for the act of reporting.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Community supervision officers (as the opinion held for them): The opinion told them they may release information from a pre-plea presentence report to the Department of Family and Protective Services to the extent it reveals a child has been abused or neglected, notwithstanding the confidentiality of article 42.12, section 9.

On reporter liability (as the opinion described it): Under the opinion, an officer who reports suspected child abuse or neglect in good faith is immune from civil and criminal liability under Family Code section 261.106(a) for the act of reporting.

Why the confidentiality statute gives way (what the opinion held): The opinion concluded section 261.101 prevails over inconsistent confidentiality statutes unless the other statute expressly excepts itself, and article 42.12, section 9 does not reference section 261.101.

Common questions

Can a probation officer report abuse seen in a confidential presentence report?
Yes. The opinion concluded the officer may disclose that information to the Department of Family and Protective Services to the extent it shows a child has been abused or neglected.

Doesn't article 42.12 make the report secret until a plea?
It does generally, but the opinion concluded the Family Code's mandatory child-abuse reporting duty prevails over that confidentiality because article 42.12 does not except itself from section 261.101.

Is the officer protected from being sued for reporting?
Yes. The opinion concluded a good-faith reporter is immune from civil and criminal liability under Family Code section 261.106(a).

Does the officer have to report it?
The opinion explained section 261.101(a) requires any person who suspects a child has been abused or neglected to report it immediately.

Background and statutory framework

Under article 42.12, section 9 of the Code of Criminal Procedure, a presentence investigation report contains the circumstances of the offense and the defendant's criminal and social history, and its contents generally may not be disclosed before a plea, even to the presiding judge, except in narrow circumstances. Tex. Code Crim. Proc. Ann. art. 42.12, § 9(c) (West Supp. 2010). Family Code section 261.101(a) requires any person with cause to believe a child's health or welfare has been adversely affected by abuse or neglect to make an immediate report, to the Department of Family and Protective Services among other entities. Tex. Fam. Code Ann. § 261.101(a) (West 2008); Tex. Fam. Code Ann. § 261.103(a).

A prior opinion held that section 261.101 prevails over any inconsistent confidentiality statute unless that statute expressly excepts itself, reflecting the priority Texas places on protecting children. The courts have recognized that protecting the child is paramount in instances of suspected abuse. Albright v. Texas Department of Human Services, 859 S.W.2d 575 (Tex. App.-Houston [1st Dist.] 1993, no writ). A good-faith reporter of child abuse or neglect is immune from civil or criminal liability for the act of reporting. Tex. Fam. Code Ann. § 261.106(a) (West 2008); State v. Harrod, 81 S.W.3d 904, 908 (Tex. App.-Dallas 2002, pet. ref'd).

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 42.12, § 9(c) (West Supp. 2010)
• Tex. Fam. Code Ann. § 261.101(a) (West 2008)
• Tex. Fam. Code Ann. § 261.103(a)
• Tex. Fam. Code Ann. § 261.106(a) (West 2008)

Cases:

• Albright v. Texas Department of Human Services, 859 S.W.2d 575 (Tex. App.-Houston [1st Dist.] 1993, no writ)
• State v. Harrod, 81 S.W.3d 904, 908 (Tex. App.-Dallas 2002, pet. ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0847
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0847.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 28, 2011

The Honorable Paul Johnson Opinion No. GA-0847
Denton County Criminal District Attorney
Post Office Box 2850 Re: Whether information contained in a presentence
Denton, Texas 76202 investigation report may be released to the
Department of Family and Protective Services for the
protection of a child (RQ-0917-GA)

Dear Mr. Johnson:

You ask whether information contained in a presentence investigation report may be released to the Department of Family and Protective Services for the protection of a child.[1]

You explain that, under section 9 of article 42.12, Code of Criminal Procedure, a community supervision officer may be directed by a judge, prior to a plea, to prepare a presentence investigation report containing, inter alia, "the circumstances of the offense with which the defendant is charged," as well as the defendant's criminal and social history. Request Letter at 1; TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(c) (West Supp. 2010). Sometimes, you assert, the supervision officer may, in the course of his investigation, obtain information that suggests that a child in the defendant's custody has been abused or neglected. Request Letter at 2. Under section 9 of article 42.12, the contents of a presentence report "may not be disclosed to any person," prior to a plea, including the presiding judge, unless certain conditions are fulfilled. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(c) (West Supp. 2010).[2]

Section 261.101(a) of the Family Code provides that "[a] person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter." TEX. FAM. CODE ANN. § 261.101(a) (West 2008). The report must be made to one of a number of entities, among which is the Department of Family and Protective Services. Id. § 261.103(a). You inquire how the confidentiality of the presentence investigation report may be reconciled with the duty of any person to report suspected child abuse or neglect. Request Letter at 1-2.

In a 1999 opinion, this office considered a somewhat similar situation. See Tex. Att'y Gen. Op. No. JC-0070 (1999). In that case, the Polygraph Examiners Act provided that information obtained in connection with a polygraph examination was confidential. Id. at 1, 3. This office unequivocally proclaimed that section 261.101 of the Family Code took precedence over other conflicting confidentiality statutes: "We believe that the legislature intended section 261.101 of the Family Code to prevail over any inconsistent statute, which includes section 19A of the Polygraph Examiners Act, unless the inconsistent statute explicitly recognizes and excepts itself from section 261.101." Id. at 5. The opinion continued:

In our opinion, the legislature deemed the protection of children more important than any other interest not explicitly protected from section 261.101's reach. Section 261.101(a) therefore orders any person who has reason to suspect that a child has been abused or neglected immediately to report the information. Subsection (c) declares that the report requirement applies without exception and regardless of the application of a privilege ....

In Albright v. Texas Department of Human Services, 859 S.W.2d 575 (Tex. App.-Houston [1st Dist.] 1993, no writ), the court stated that, under the Family Code, the protection of the child is paramount "in instances of suspected child abuse." The court further stated that the Family Code provisions regarding mandatory reporting of suspected child abuse, among other provisions, indicate that preventing child abuse is a high priority in this state and "demonstrate the public commitment to" promoting children's welfare.

Id. at 6 (citations omitted).

We believe that Opinion JC-0070 correctly construed the law. The Legislature has met in five regular sessions since the issuance of that opinion and has not challenged its conclusions. Moreover, because the protection of children outweighs other competing interests, it is our view that section 261.101 of the Family Code prevails over any inconsistent statute "unless the inconsistent statute explicitly recognizes and excepts itself from section 261.101." Id. at 5. Section 9 of article 42.12 of the Code of Criminal Procedure does not in any manner reference section 261.101, and we consequently conclude that the duty to report an instance of child abuse or neglect under section 261.101 prevails over the confidentiality provisions of section 9 of article 42.12. Accordingly, in answer to your first question, information contained in a pre-plea presentence investigation report may be disclosed to the Department of Family and Protective Services to the extent that such information discloses that a child's physical or mental health or welfare has been adversely affected by abuse or neglect, despite section 9 of article 42.12 of the Code of Criminal Procedure.

You also ask whether a community supervision officer who makes a report of child abuse or neglect to the Department of Family and Protective Services is immune from civil and criminal liability under section 261.106 of the Family Code. See Request Letter at 1. "A person acting in good faith who reports ... alleged child abuse or neglect ... is immune from civil or criminal liability that might otherwise be incurred or imposed." TEX. FAM. CODE ANN. § 261.106(a) (West 2008). See also State v. Harrod, 81 S.W.3d 904, 908 (Tex. App.-Dallas 2002, pet. ref'd) ("legislature intended to protect reporters of child abuse from liability for the act of reporting the abuse itself, not from civil or criminal liability generally"). We conclude that a community supervision officer who in good faith makes a report of child abuse or neglect to the Department of Family and Protective Services is immune from civil and criminal liability under section 261.106(a) of the Family Code.

SUMMARY

Under section 261.101, Family Code, a community supervision officer may release to the Department of Family and Protective Services information contained in a pre-plea presentence investigation report required by section 9 of article 42.12, Code of Criminal Procedure, to the extent that such information discloses that a child's physical or mental health or welfare has been adversely affected by abuse or neglect. An officer who releases such information to the Department is immune from civil and criminal liability under section 261.106(a), Family Code, for having done so.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Request Letter at 1 (Child Protective Services (CPS) is a division of the Department of Family and Protective Services.) (available at http://www.texasattorneygeneral.gov).

[2] Unless, for example, "(1) the defendant pleads guilty or nolo contendere or is convicted of the offense; or (2) the defendant, in writing, authorizes the judge to inspect the report." TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(c) (West Supp. 2010).