By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Probationer has 5th but not 6th amendment
rights in sex treatment program; polygraph examiner must report child abuse to
police (99-3-24)
On July 6, 1999, the Texas Attorney
General stated that a licensed polygraph examiner is required by the Family Code
to report to appropriate law enforcement authorities any information about child
abuse obtained during the course of a polygraph examination ordered as part of
sex offender treatment as a condition of probation. The probationer does not
have a right to counsel during the polygraph examination because he is not in
custody, but does have a privilege against self-incrimination.
99-3-24. Opinion Attorney General No. JC-0070, 1999 WL 499747, 1999 TexAgLexis
___ (7/6/99)[Texas Juvenile Law (4th Ed. 1996)].
Re: Whether a polygraph examiner who in the course of an examination learns that
a child has been abused or neglected must report that information to the
appropriate authorities, and related questions (RQ-923)
Mr. Frank DiTucci
Executive Officer
Texas Polygraph Examiners Board
P.O. Box 4087
Austin, Texas 78773-0001
Dear Mr. DiTucci:
Section 19A of the Polygraph Examiners Act, article 4413(29cc) of the Revised
Civil Statutes, [FN1] forbids a licensed polygraph examiner to disclose, except
in limited circumstances, information gained from a polygraph examination. On
the other hand, section 261.101(a) of the Family Code requires a person who
believes that a child has been abused or neglected immediately to report the
information to the appropriate authorities. Where a polygraph examiner learns
during the course of a polygraph examination that a child has been abused or
neglected, you ask whether the examiner must keep the information confidential
in compliance with section 19A of the Polygraph Examiners Act or must report the
information in accordance with section 261.101(a) of the Family Code. We believe
that section 261.101 of the Family Code prevails and, accordingly, that the
polygraph examiner must report the information.
You explain that your question arises in the context of sex-offender treatment
programs many state courts mandate as part of a convicted offender's
rehabilitation, presumably while the offender is on parole or under mandatory
supervision. We do not understand you to ask about polygraph examinations that
may occur while the offender is imprisoned. Your letter indicates that a court-
ordered treatment program normally consists of three phases:
Phase I: The offender admits and accepts responsibility for the actions of the
offense he or she has been charged with. It's known as "breaking
denial."
Phase II: The offender comes to terms with his or her past. Other assaults, in
addition to those for which he or she is currently receiving treatment, are
discussed, and prior, unknown victims are revealed. Finally, the offender's
sexual deviance is explored. This phase, known as "sexual history," is
important because it is used to direct treatment.
Phase III: The offender is monitored to insure there are no new victims and to
hold in check any thinking errors. This phase is known as
"monitoring."
Letter from Frank DiTucci, Executive Officer, Texas Polygraph Examiners Board,
to Sarah J. Shirley, Office of the Texas Attorney General (Oct. 31, 1996) (on
file with Opinion Committee) [hereinafter "Request Letter"].
You continue to explain that an offender does not progress with his or her
treatment unless he or she is willing to disclose all of his or her prior sexual
history. If an offender fails to progress, his or her probation or parole is
revoked. As you state, "[t]he offender appears to be faced with a dilemma:
reveal one's prior sexual history in order to be considered making
rehabilitative progress, but run the risk of being charged for earlier, but as
yet undiscovered[,] sexual assaults." Id.
Your primary question appears to be motivated not by the offender's dilemma, but
by the dilemma the polygraph examiner faces: must he or she keep the information
confidential, consistently with section 19A of the Polygraph Examiners Act, or
must the examiner report the information, consistently with section 261.101 of
the Family Code. In your view, these two statutes are inconsistent with each
other, and a polygraph examiner cannot simultaneously comply with both. If
section 261.101 of the Family Code prevails over article 4413(29cc), section 19A
of the Revised Civil Statutes, you ask whether the polygraph examiner may
satisfy the statutory obligation to report a suspicion of child abuse by
informing the offender's local community supervision and corrections officer or
parole officer. Finally, you ask about whether the examination may infringe upon
the examinee's constitutional due-process rights.
A. Which statute controls: article 4413(29cc) of the Revised Civil Statutes or
section 261.101 of the Family Code?
We begin by analyzing the statutes at issue. The Polygraph Examiners Act
("the Act"), Tex. Rev. Civ. Stat. Ann. art. 4413(29cc) (Vernon 1976
& Supp. 1999), purports to regulate all persons who profess to "detect
deception or . . . verify truth of statements" using instruments such as
lie detectors, polygraphs, or deceptographs. Id. s 2 (Vernon 1976); see Texas
State Employees Union v. Texas Dep't of Mental Health & Mental Retardation,
746 S.W.2d 203, 204 (Tex. 1987) (describing the nature of polygraph testing).
With certain limited exceptions, information acquired from a polygraph
examination is confidential:
(a) Except as provided by Subsection (c) of this section, a licensed polygraph
examiner, licensed trainee, or employee of a licensed polygraph examiner may not
disclose to another person information acquired from a polygraph examination.
(b) Except as provided by Subsection (d) of this section, a person for whom a
polygraph examination is conducted or an employee of the person may not disclose
to another person information acquired from the examination.
(c) A licensed polygraph examiner, licensed trainee, or employee of a licensed
polygraph examiner may disclose information acquired from a polygraph
examination to:
(1) the examinee or any other person specifically designated in writing by the
examinee;
(2) the person, firm, corporation, partnership, business entity, or governmental
agency that requested the examination;
(3) members or their agents of governmental agencies such as federal, state,
county, or municipal agencies that license, supervise, or control the activities
of polygraph examiners;
(4) other polygraph examiners in private consultation, all of whom will adhere
to this section; or
(5) others as may be required by due process of law.
(d) A person for whom a polygraph examination is conducted or an employee of the
person may disclose information acquired from the examination to a person
described by Subdivisions (1) through (5) of Subsection (c) of this section.
(e) The board or any other governmental agency that acquires information from a
polygraph examination under Subdivision (3) of Subsection (c) of this section
shall keep the information confidential.
Tex. Rev. Civ. Stat. Ann. art. 4413(29cc), s 19A (Vernon Supp. 1999). Any person
who intentionally, knowingly, recklessly, or with criminal negligence violates
section 19A commits a Class B misdemeanor. Id. s 26.
The other section about which you ask, section 261.101 of the Family Code,
requires all persons, without exception, who believe that a child has been
abused or neglected to report that suspicion to the appropriate authorities:
(a) 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.
. . . .
(c) The requirement to report under this section applies without exception to an
individual whose personal communications may otherwise be privileged, including
an attorney, a member of the clergy, a medical practitioner, a social worker, a
mental health professional, and an employee of a clinic or health care facility
that provides reproductive services.
. . . .
Tex. Fam. Code Ann. s 261.101(a), (c) (Vernon Supp. 1999); see id. 261.001(1),
(4), (6) (Vernon 1996 & Supp. 1999) (defining "abuse,"
"neglect," and "report"); cf. Tex. Att'y Gen. Op. No. H-986
(1977) at 2 (determining that Family Code section 34.01, now section 261.101(a),
requires a person who suspects that a child has been or may be sexually abused
to report that suspicion). The report, which should reflect the reporter's
belief that a child has been or may be abused or neglected, see Tex. Fam. Code
Ann. s 261.102 (Vernon 1996); see also id. ss 261.001(6) (defining
"report"), .104 (listing contents of report), must be made to one of
the entities listed in section 261.103:
(1) any local or state law enforcement agency;
(2) the [Department of Protective and Regulatory Services] if the alleged or
suspected abuse involves a person responsible for the care, custody, or welfare
of the child;
(3) the state agency that operates, licenses, certifies, or registers the
facility in which the alleged abuse or neglect occurred; or
(4) the agency designated by the court to be responsible for the protection of
children.
Id. s 261.103; see id. s 261.001(2) (defining "department"). A knowing
failure to report a suspicion of child abuse or neglect in accordance with
chapter 261 of the Family Code is a class B misdemeanor. See id. s 261.109.
We agree with you that a polygraph examiner cannot comply with both the
confidentiality provision in the Polygraph Examiners Act and the disclosure
provision in the Family Code. Either the polygraph examiner must keep the
information confidential under article 4413(29cc) of the Revised Civil Statutes
or the polygraph examiner must disclose the information to the proper
authorities under section 261.101 of the Family Code. A polygraph examiner
cannot do both. And, if a polygraph examiner chooses to keep the information
confidential under article 4413(29cc), section 19A of the Revised Civil
Statutes, he or she may be criminally responsible for knowingly failing to
report the suspicion under section 261.109 of the Family Code. Conversely, a
polygraph examiner who chooses to report his or her suspicion under chapter 261
of the Family Code may be criminally responsible under article 4413(29cc),
section 26 of the Revised Civil Statutes for failing to keep the information
confidential. We must, therefore, consider which provision prevails. [FN2]
Generally, where a general statute conflicts irreconcilably with a special
statute, we must construe the special statute as an exception to the general
provision, unless the general provision was enacted later and the legislature
manifestly intended the general provision to prevail. See Tex. Gov't Code Ann. s
311.026 (Vernon 1998); 2 Norman J. Singer, Statutes and Statutory Construction s
40.02, at 191 (5th ed. 1993). But it is unclear here which statute is the more
general and which the more specific. For example, the Polygraph Examiners Act's
confidentiality provision might be viewed as a special statute pertaining only
to polygraph examiners that we should construe as an exception to the general
directive that all persons report suspicions of child abuse. On the other hand,
the Family Code's reporting requirement might be construed to specially except
child-abuse information from the provision granting confidentiality generally to
information gained in the course of a polygraph examination. Consequently, we
must look further to determine which provision the legislature intended to
prevail.
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. The legislature added section 19A to
the Polygraph Examiners Act in 1981 as a result of the sunset review process.
See Act of May 27, 1981, 67th Leg., R.S., ch. 768, s 4, sec. 19A, 1981 Tex. Gen.
Laws 2867, 2872; House Comm. on Gov't Organization, Bill Analysis, Tex. Comm.
Substitute S.B. 441, 67th Leg., R.S. (1981); Sunset Advisory Commission, Final
Report to the Governor of Texas and Members of the Sixty-seventh Texas
Legislature 153 (Dec. 1980) [hereinafter "Final Report"]; Sunset
Advisory Commission, Legislative Proposals 532 (Dec. 1980) [hereinafter
"Legislative Proposals"]. We understand that at that time the use of
polygraph examinations was shifting at a dramatically increasing rate from
criminal prosecutions to attempts to reduce loss from employee theft in
industrial and commercial settings. See Final Report, supra, at 153-54. To
minimize problems generally associated with polygraph examinations, "such
as invasion of privacy," the Sunset Commission proposed, and the
legislature ultimately adopted, a statute forbidding a polygraph examiner to
release information received in a polygraph examination except in those limited
circumstances described statutorily. Id. at 154; see also Legislative Proposals,
supra, at 533. Ostensibly, the legislature did not contemplate the use of
polygraph examinations in sex-offender treatment programs.
When the legislature originally enacted the substance of section 261.101 in
1971, it described its purpose: "to protect children . . . by providing for
the mandatory reporting of suspected cases." Act of May 24, 1971, 62d Leg.,
R.S., ch. 902, s 1, sec. 1, 1971 Tex. Gen. Laws 2790 (emphasis added). The
legislature further intended that the state's protective services would
"prevent further abuses, and . . . safeguard and enhance the welfare of
these children." Id. Finally, the legislature directed that the statutes be
administered and interpreted to provide "the greatest possible protection
as promptly as possible" for the children who are affected by abuse or
neglect. Id.
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. See
Tex. Att'y Gen. Op. Nos. DM-458 (1997) at 2 (stating that term
"'immediately' underscores the . . . sense of urgency"); H-986 (1977)
at 4 (defining "any person"). Subsection (c) declares that the report
requirement applies without exception and regardless of the application of a
privilege, e.g., attorney-client or priest-penitent. Tex. Fam. Code Ann. s
261.101(c) (Vernon Supp. 1999); see also Tex. Att'y Gen. Op. No. DM-458 (1997)
at 3 (opining that chapter 261 of Family Code confers no discretion upon person
who suspects that child has been abused).
Our interpretation of section 261.101 of the Family Code comports with the Texas
Court of Appeals' interpretation of the statute. 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." Id. at 580. 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.
Finally, our conclusion is consistent with what we perceive as a legislative
intent to collect federal funds under 42 U.S.C. s 5106a. The legislature
apparently enacted the substance of section 261.101 partly to comply with a
federal directive. See Antoinette M. Pollock, Recent Amendments to the Texas
Child Abuse Statutes: An Analysis and Recommendation, 11 St. Mary's L.J. 914,
932 (1979). Under 42 U.S.C. s 5106a(a), the Secretary of Health and Human
Services, through the Office on Child Abuse and Neglect, see 42 U.S.C. s 5101(a)
(1994 & Supp. II 1996), financially may assist a state in improving its
child protective service system. Id. s 5106a(a). A state's eligibility for the
grant is contingent upon, in part, whether the state has "in effect . . . a
State law . . . [providing] for the reporting of known and suspected instances
of child abuse and neglect." Id. s 5106a(b)(2)(A)(i).
For all of these reasons, we conclude that section 261.101(a) of the Family Code
prevails over any inconsistent statute unless the legislature has expressly
excepted the inconsistent statute from the reach of section 261.101. Because the
legislature has not expressly excepted information acquired in a polygraph
examination or polygraph examiners from the requirement of section 261.101,
section 261.101 must prevail over section 19A of the Polygraph Examiners Act.
Consequently, a polygraph examiner immediately must report his or her suspicion
that a child has been abused.
B. To whom must a polygraph examiner report the information?
We turn now to your second question: to whom must the polygraph examiner report
the information? As a preliminary matter, the fact that a polygraph examiner may
report suspicions of child abuse to the examinee's supervisory officer under
section 19A of the Polygraph Examiners Act does not relieve the polygraph
examiner of the duty to report under section 261.101(a) of the Family Code,
which requires the examiner to "make a report as provided by this
subchapter." Tex. Fam. Code Ann. s 261.101(a) (Vernon Supp. 1999). Section
19A(c)(2) of the Polygraph Examiners Act, which permits a polygraph examiner to
disclose information acquired from an examination to "the person . . . or
governmental agency that requested the examination," authorizes a polygraph
examiner to disclose the information to the examinee's local community
supervision and corrections officer or parole officer, but does not require that
the examiner do so. Tex. Rev. Civ. Stat. Ann. art. 4413(29cc), s 19A(c)(2)
(Vernon Supp. 1999). We do not address in this opinion whether a local community
supervision and corrections officer or a parole officer has a duty to report a
suspicion of child abuse under section 261.101 of the Family Code once a
polygraph examiner has disclosed the information to the officer. In any event,
section 261.101(b) prohibits a professional from not reporting his or her
suspicion because the professional thinks someone else will make the report.
In our view, a report to the local community supervision and corrections officer
or parole officer is not "a report as provided by [chapter 261, subchapter
B of the Family Code]." See Tex. Fam. Code Ann. s 261.101(a) (Vernon Supp.
1999). A polygraph examiner must, under chapter 261, subchapter B of the Family
Code, report suspected child abuse to a person listed in section 261.103.
Relevant to the polygraph examiner's situation, the examiner has two possible
alternatives: either a state or local law-enforcement agency or "the agency
designated by the court to be responsible for the protection of children."
[FN3] Id. s 261.103 (Vernon 1996). As a matter of law, a local community
supervision and corrections officer or a parole officer is neither a
law-enforcement agency nor an agency designated by a court to be responsible for
the protection of children.
To determine whether a local community supervision and corrections officer or a
parole officer is a local or state law enforcement agency, we must first
ascertain what the legislature meant by the phrase "local or state law
enforcement agency." Chapter 261 of the Family Code does not provide a
definition. The phrase is defined in two provisions of the Code of Criminal
Procedure, however. Chapter 59, pertaining to the forfeiture of contraband,
defines "law enforcement agency" to mean "an agency of the state
or . . . of a political subdivision . . . authorized by law to employ peace
officers." Tex. Code Crim. Proc. Ann. art. 59.01(5) (Vernon Supp. 1999);
see id. art. 2.12 (defining "peace officers"). Similarly, chapter 62,
pertaining to missing children and missing persons, defines the term to mean
"a police department of a city in this state, a sheriff of a county in this
state, or the Department of Public Safety." Id. art. 62.001(8); cf. id.
art. 62.01(2) (defining "local law enforcement authority" as chief of
municipal police or county sheriff). We think these substantially similar
definitions embody the commonly understood meaning of the phrase "local or
state law enforcement agency," and we therefore apply them here. See Tex.
Gov't Code Ann. s 311.011(a) (Vernon 1998) (directing that statutory phrases be
read in context and construed according to common usage).
Neither a local community supervision and corrections officer or a parole
officer is a member of a local or state law enforcement agency. First, peace
officers are precluded from being appointed as community supervision officers.
See Tex. Gov't Code Ann. s 76.005(c) (Vernon 1998); Tex. Hum. Res. Code Ann. s
141.065 (Vernon 1990) (prohibiting peace officer from acting as probation
officer); see also Tex. Att'y Gen. LO-96-091, at 1 (construing section 141.065,
Human Resources Code, to preclude assistant juvenile probation officer from
serving as constable). Likewise, a person serving as a peace officer may not be
employed as a parole officer. See Tex. Gov't Code Ann. s 508.113(c), (d) (Vernon
1998). Thus, a community supervision and corrections officer or a parole officer
cannot be a member of a law enforcement agency under article 59.01 of the Code
of Criminal Procedure. Second, a local community supervision and corrections
officer is an employee of the local community supervision and corrections
department, which is established by the district judge or district judges trying
criminal cases in a judicial district. See Tex. Gov't Code Ann. ss 76.002, .004,
.005 (Vernon 1998) (establishing community supervision and corrections
departments and providing for staffing). Accordingly, a community supervision
and corrections department is separate from a police or sheriff's department and
is not a law enforcement agency for purposes of article 62.001(8) of the Code of
Criminal Procedure. Similarly, a parole officer is an employee of the pardons
and paroles division of the Texas Department of Criminal Justice, see Tex. Gov't
Code Ann. ss 508.001(7), . 111(b), .113 (Vernon 1998), not of a municipal police
department or a county sheriff's department. We are unaware of any other
definition of the term that might lead us to a contrary conclusion.
We therefore consider whether a report to the local community supervision and
corrections officer or parole officer is equivalent to a report to an agency
designated to be responsible to protect children. You premise your suggestion on
the fact that the Community Justice Assistance and Pardons and Paroles Divisions
of the Texas Department of Criminal Justice have broad mandates to monitor
offenders to protect society; protecting society, you believe, includes the
children of that society.
We conclude that neither an officer of a local community supervision and
corrections department nor a parole officer is an "agency designated by the
court to be responsible for the protection of children." See Tex. Fam. Code
Ann. s 261.103 (Vernon 1996). We do not determine in this opinion what the
legislature meant by specifying that a person report a suspicion of child abuse
or neglect to an "agency designated by the court to be responsible for the
protection of children." See id. We believe that the legislature intended
by the quoted language to describe an agency that a court has particularly
designated to be responsible for protecting children. Cf. Vineyard v. Kraft, 828
S.W.2d 248, 254 (Tex. App.-Houston [14th Dist.] 1992, writ denied) (stating that
court-appointed health-care professionals evaluating child's best interest in
connection with parents' divorce qualified as "agency designated by the
court to be responsible for the protection of children"). But we are not
aware that any court has ordered either of these officers, in any particular
case, to be responsible for protecting children.
Furthermore, neither an officer of a local community supervision and corrections
department nor a parole officer has within his or her statutory duties a
responsibility for protecting children. We find, for instance, nothing that
specifically directs a community supervision and corrections department officer
to be responsible for protecting children, as section 261.103(4) of the Family
Code requires. The statutory purpose of an officer of a local community
supervision and corrections department is to ensure that a defendant who has
been placed on community supervision under article 42.12 of the Code of Criminal
Procedure complies with the conditions of the court's order, which conditions
are "designed to protect or restore the community, protect or restore the
victim, or punish, rehabilitate, or reform the defendant." Tex. Code Crim.
Proc. Ann. art. 42.12, s 11(a) (Vernon Supp. 1999).
Similarly, we find nothing in the statutes governing the Pardons and Paroles
Division of TDCJ specifically directing it to be responsible for protecting
children. Indeed, the Pardons and Paroles Division's main responsibility centers
on the felon, not on society. The duty of the Pardons and Paroles Division is to
"supervise and reintegrate felons into society" after the felons are
released from confinement. Tex. Gov't Code Ann. s 493.005 (Vernon 1998). Under
the Adult Parole and Mandatory Supervision Law, chapter 508 of the Government
Code, a parole officer is responsible to ensure that the parolees and those
released subject to mandatory supervision comply with the conditions of parole
or mandatory supervision. See id. s 508.001(6), (7) (defining "parole"
and "parole officer"); see also Tex. Code Crim. Proc. Ann. art. 42.12
ss 2(2)-(3); 8 (Vernon Supp. 1999) (defining "community supervision"
and "supervision officer" and describing which prisoners are eligible
for community supervision).
Moreover, we believe the legislature intended to require that a report be made
to an entity that could promptly investigate the report of suspected child abuse
or neglect. Section 261.301 of the Family Code requires the Texas Department of
Protective and Regulatory Services, see also 40 Tex. Admin. Code s 700.505
(1998) (setting time frame for investigations by Department of Protective and
Regulatory Services, Child Protective Services), or the "designated
agency" to promptly and thoroughly investigate the report of child abuse or
neglect, Tex. Fam. Code Ann. s 261.301(a), (e) (Vernon 1996 & Supp. 1999);
see also 40 Tex. Admin. Code ss 700.507 - .510 (1998) (outlining investigation
procedure by Child Protective Services.). The investigating entity must
determine:
(1) the nature, extent, and cause of the abuse or neglect;
(2) the identity of the person responsible for the abuse or neglect;
(3) the names and conditions of the other children in the home;
(4) an evaluation of the parents or persons responsible for the care of the
child;
(5) the adequacy of the home environment;
(6) the relationship of the child to the persons responsible for the care,
custody, or welfare of the child; and
(7) all other pertinent data.
Tex. Fam. Code Ann. s 261.301(e) (Vernon 1996). The investigating entity,
whether it is the Department of Protective and Regulatory Services or the
"designated agency," also may file an application for a temporary
restraining order to prevent a child from being removed from the state in
certain circumstances. Id. s 261.306(a) (Vernon 1996); see also 40 Tex. Admin.
Code ss 700.510, .515 (1998) (setting forth conditions necessitating immediate
or short term protection). Finally, all investigators must comply with annual
professional training standards set by the Texas Department of Protective and
Regulatory Services. Tex. Fam. Code Ann. s 261.310(b) (Vernon 1996); see also 40
Tex. Admin. Code s 700.519 (1998) (setting forth voluntary standards for
investigators). Neither an officer of the local community supervision and
corrections department nor a parole officer is authorized, equipped, or trained
to conduct the required investigation or to prevent a child from being removed
from the state if necessary.
We accordingly conclude that a polygraph examiner must, consistently with Family
Code section 261.103, report a suspicion of child abuse or neglect to either a
law enforcement agency or the agency specifically designated by the court to be
responsible to protect children. Unless a court has explicitly ordered that an
officer of the local community supervision and corrections department or a
parole office is responsible to protect children, the designated agency is not
either of those officers.
C. Does a polygraph examination in this context deny the examinee's
constitutional rights?
You next ask whether a polygraph examiner denies the examinee's due-process
rights "when conducting a polygraph examination at the request of an
attorney, or . . . a non-attorney." Request Letter, supra, at 4. We must
answer your question in general terms because it literally covers any polygraph
examination given for any purpose. We are unable to address all conceivable fact
situations. We thus limit our discussion to what we understand to be your
central concern: An examinee who is without legal counsel during the examination
and who reveals previously undiscovered incidents of child abuse or neglect may
be denied due-process protection with respect to those undiscovered incidents if
the polygraph examiner reports them. You also are concerned that an examinee who
reveals previously undiscovered incidents in the belief that the information
would be used only in connection with the crime for which the examinee has been
convicted may be entitled to additional protection regarding the undiscovered
incidents. Because we believe the legal principles we discuss apply to convicted
offenders who are placed on community supervision the same as to parolees, we do
not distinguish between the two in the following discussion. See Davis v. State,
757 S.W.2d 386, 389 (Tex. App.-Dallas 1988, no writ) (stating that both
probation and parole are the means by which a defendant may escape part of the
punishment imposed by law). Additionally, as we have suggested, we do not
consider here the rights of inmates because we have been informed that they are
not at issue.
We assume for purposes of this opinion that a polygraph examination given in the
course of a court-ordered treatment program is a state action. Constitutional
due-process guarantees, whether under the federal or the state constitution,
impose obligations only upon "state actors." See Republican Party of
Tex. v. Dietz, 940 S.W.2d 86, 88-91 (Tex. 1997). Whether the state is
sufficiently involved in a particular case requires the resolution of fact
questions that cannot be determined in the opinion process. See id. at 91; see
also, e.g., Tex. Att'y Gen. Op. Nos. DM-98 (1992) at 3; H-56 (1973) at 3; M- 187
(1968) at 3; O-2911 (1940) at 2.
The Fourteenth Amendment to the United States Constitution and article I,
section 19 of the Texas Constitution require the state to provide due process of
law. Because Texas courts traditionally have interpreted the due-process
requirement of article I, section 19 to be coextensive with due-process
requirements under the federal constitution, see University of Tex. Med. Sch. v.
Than, 901 S.W.2d 926, 929 (Tex. 1995), we will analyze your question solely in
terms of federal constitutional due-process requirements. Federal courts have
determined that, at a minimum, due process requires "notice and an
opportunity to be heard at a meaningful time and in a meaningful manner."
See id. at 930 (and cases cited therein). In the context of criminal law,
procedural due process means, in general, a right to a fair trial. See 1 Chester
J. Antieau, Modern Constitutional Law s 5:113, at 394 (1969).
Violation of a defendant's right to counsel may constitute a denial of due
process. See Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963). The Sixth
Amendment to the United States Constitution guarantees a defendant a right to
counsel in certain circumstances. See id. at 339-40. The Fourteenth Amendment
extends this guarantee, which the United States Supreme Court has characterized
as "fundamental and essential to a fair trial," to defendants in
actions by the states. Id. at 342; see also Wood v. State, 478 S.W.2d 513, 515
(Tex. Crim. App. 1972); Ahmadi v. State, 864 S.W.2d 776, 781 (Tex. App.-Fort
Worth 1993, pet. ref'd). Additionally, the Texas Constitution provides a right
to counsel to citizens charged with a crime. Tex. Const. art. I, s 10; see Tex.
Code Crim. Proc. Ann. art. 1.05 (Vernon 1977); Phetvongkham v. State, 841 S.W.2d
928, 931 (Tex. App.-Corpus Christi 1992, pet. ref'd, untimely filed).
Nevertheless, the state constitutional guarantee does not provide any greater
right than that accorded in the federal constitution. Foster v. State, 713
S.W.2d 789, 790 (Tex. App.-Houston [1st Dist.] 1986) (citing Floyd v. State, 710
S.W.2d 807 (Tex. App.-Fort Worth 1986, pet. dism'd), aff'd 787 S.W.2d 385 (Tex.
Crim. App. 1990); Narvaiz v. State, 840 S.W.2d 415, 433 (Tex. Crim. App. 1992)
(en banc) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)), cert. denied, 507
U.S. 975 (1993).
An individual's right to counsel does not attach until the state begins an
adversarial judicial proceeding against the individual. Hidalgo v. State, 983
S.W.2d 746, 752 (Tex. Crim. App. 1999); McFarland v. State, 928 S.W.2d 482, 507
(Tex. Crim. App. 1996) (en banc), cert. denied, 519 U.S. 1119 (1997); see also
Barley v. State, 906 S.W.2d 27, 36 (Tex. Crim. App. 1995) (en banc), cert.
denied, 516 U.S. 1176 (1996). "The Sixth Amendment right to counsel
automatically becomes effective at the inception of adversary judicial criminal
proceedings and must be implemented by the State at every critical stage of
those proceedings, even absent a specific request, unless the accused
intelligently and voluntarily yields his prerogative to the assistance of an
attorney." Fuller v. State, 829 S.W.2d 191, 205 (Tex. Crim. App. 1992) (en
banc), cert. denied, 508 U.S. 941 (1993). In general, no critical stage is
reached until the state has filed formal charges against an individual. Price v.
State, 870 S.W.2d 205, 207 (Tex. App.-Fort Worth), aff'd, 887 S.W.2d 949 (Tex.
Crim. App. 1994) (en banc).
In our opinion, the polygraph examinations you describe do not implicate the
examinee's Sixth Amendment right to counsel. If the subject of a polygraph
examination discloses during the course of an examination that he or she
committed a previously undiscovered incident of child abuse or neglect but
charges on that incident have not yet been filed, the subject has no right to
counsel with respect to this previously undisclosed criminal incident until
prosecution on that incident is initiated. The examinee must be offered counsel
only when judicial criminal proceedings based upon the previously undisclosed
incident are initiated. We consequently conclude that the situation about which
you ask does not as a matter of law implicate an examinee's due-process rights.
Whether an examinee's due-process rights are violated in a particular situation
is a question of fact that cannot be resolved in the opinion process. See, e.g.,
Tex. Att'y Gen. Op. Nos. DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3;
O-2911 (1940) at 2. Moreover, you cite nothing that bars an examinee from having
the assistance of counsel during a polygraph examination given as part of the
examinee's sex-offender treatment process.
In your request letter to this office, you ask the following: "In pre-
adjudicated cases: Does due process outweigh Section 261 of the Texas Family
Code if the polygraph test is run for an attorney and does the Texas Family
Code, Section 261 outweigh The Texas Polygraph Examiners Act, Section 19A?"
Request Letter, supra, at 4. As stated above, we believe that the Family Code's
reporting requirement prevails over section 19A of the Polygraph Examiners Act.
This is true for both pre- and post-adjudicated cases. With regard to the
involvement of an attorney, we believe you are asking about the attorney-client
privilege. The attorney-client privilege applies to the testimony of a polygraph
examiner hired by an attorney for a client, if the examiner was employed as the
attorney's agent to assist in rendering legal advice to the client. See 81 Am.
Jur. 2d Witnesses s 424, at 378 (1992). While such a polygraph examiner cannot
avoid the requirement to report, see Tex. Fam. Code Ann. s 261.101(c) (Vernon
Supp. 1999), section 261.202 of the Family Code allows a court to exclude
evidence subject to the attorney-client privilege in a proceeding regarding the
abuse or neglect of a child. See id. s 261.202 (Vernon 1996).
Although you have not asked specifically whether the polygraph examination
implicates an examinee's Fifth Amendment rights against self-incrimination, we
think it incumbent upon us to comment briefly on this subject. The Fifth
Amendment to the United States Constitution, in relevant part, provides that no
person "shall be compelled in any criminal case to be a witness against
himself." U. S. Const. amend. V. Article I, section 10 of the Texas
Constitution provides similarly. See Tex. Const. art. I, s 10. The provision in
our state constitution affords no broader protection than that provided under
the federal constitution. McKenna v. State, 671 S.W.2d 138, 139 (Tex. App.-
Houston [1st Dist.] 1984, pet. ref'd); Ex parte Shorthouse, 640 S.W.2d 924, 928
(Tex. Crim. App. 1982) (en banc).
The privilege against self-incrimination not only permits a person to refuse to
testify against him- or herself at a criminal trial in which he or she is a
defendant, but also permits a person to refuse to answer official questions
"put to him in any other proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal proceedings."
Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414
U.S. 70, 77 (1973)). If, after invoking the privilege, a witness is compelled to
testify against himself or herself, the witness's answers are inadmissible
against that person in a later criminal prosecution. Id. A person does not lose
this protection because he or she has been convicted of a crime, notwithstanding
that a defendant is imprisoned or on probation at the time he or she makes the
incriminating statements. If those statements are compelled, they are
inadmissible in a subsequent trial for a crime other than that for which the
defendant has been convicted. Id.
The United States Supreme Court has considered a probationer's statements to a
probation officer in Murphy. In that case, a sex offender on probation was
required to participate in sex-offender treatment, report to his probation
officer as directed, and to be truthful with the probation officer in all
matters. Murphy, 465 U.S. at 422. During the course of sex-offender treatment,
the defendant revealed that he had committed a rape and murder several years
earlier for which he had never been prosecuted. The treatment counselor conveyed
this information to the probation officer, who then requested a meeting with the
defendant. At the meeting, the probation officer asked the defendant about the
prior rape and murder; the defendant admitted to the crimes. He was subsequently
tried for the rape and murder. At his trial, he sought to suppress his
statements to the probation officer, claiming they were obtained in violation of
the Fifth and Fourteenth Amendments. Id. at 424-25.
The Supreme Court concluded that the Fifth Amendment privilege against self-
incrimination was not violated and that the defendant's statements to his
probation officer could be used in the prosecution of the rape and murder
charges. Id. at 440. In doing so, the Court noted that the privilege is not
self-executing. Id. at 427. That is, a witness who desires the protection of the
privilege must claim it or they will not be considered to have been
"compelled" to answer within the meaning of the Fifth Amendment. Id.
(quoting United States v. Monia, 317 U.S. 424, 427 (1943)). In this case,
although the probationer was under a general obligation to appear and answer
questions, that general obligation did not render the probationer's voluntary
statements compelled answers. Id. at 427.
The Court noted two exceptions to the general rule that the privilege is not
self-executing, pertinent to the program you ask about. First, the Court stated,
the privilege against self-incrimination need not be invoked by the witness when
he or she is subject to custodial interrogation. Id. at 430. Miranda warnings
extend to persons in custody to advise them of their constitutional rights. See
Miranda v. Arizona, 384 U.S. 436 (1966). A Texas court has stated that a
court-ordered polygraph examination to which a felon convicted of aggravated
sexual assault must submit as a condition of probation is not a custodial
interrogation. Marcum v. State, 983 S.W.2d 762, 766 (Tex. App.-Houston [14th
Dist.] 1998, pet. ref'd); see also Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.
Crim. App. 1996) (stating that person is in custody "only if, under the
circumstances, a reasonable person would believe that his freedom of movement
was restrained to the degree associated with a formal arrest").
Consequently, Marcum suggests that Miranda warnings are not required before such
a polygraph examination, but that question ultimately is one of federal law. See
Marcum, 983 S.W.2d at 766; see also Tex. Code Crim. Proc. art. 38.22, ss 2, 3
(Vernon 1979 & Supp. 1999) (requiring Miranda warnings prior to custodial
interrogation); Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim. App. 1990) (en
banc) (stating that state must demonstrate that defendant knowingly and
intelligently waived privilege against self-incrimination only if statement
stems from custodial interrogation). Marcum further suggests that the Fifth
Amendment privilege against self-incrimina-tion is not self-executing in the
circumstances about which you ask. See Marcum, 983 S.W.2d at 766; see also
Murphy, 465 U.S. at 430 (stating that privilege against self-incrimination is
self-executing only when witness is subject to custodial interrogation).
Second, the privilege need not be invoked when the state penalizes the assertion
of the privilege so as to foreclose a free choice to remain silent, thereby
compelling incriminating testimony. Murphy, 465 U.S. at 434 (quoting Garner v.
United States, 424 U.S. 648, 661 (1976)). A threat to revoke probation if the
probationer is untruthful generally is insufficient to give rise to a
self-executing privilege against incrimination. Id. at 435. On the other hand,
the Supreme Court expressly has cautioned that "if the state, either
expressly or by implication, asserts that invocation of the privilege would lead
to revocation of probation, it would have created the classic penalty situation,
the failure to assert the privilege would be excused, and the probationer's
answers would be deemed compelled and inadmissible in a criminal
prosecution." Id. Accordingly, the state may "not constitutionally
carry out a threat to revoke probation for the legitimate exercise of the Fifth
Amendment privilege." Id. at 438.
Courts in Oregon and Florida have applied Murphy to a polygraph examination that
a probationer is required to take as a condition of probation. See Cassamassima
v. State, 657 So. 2d 906 (Fla. Dist. Ct. App. 1995) (en banc); State v. Tenbusch,
886 P.2d 1077 (Or. Ct. App. 1994), cert. denied, 516 U.S. 991 (1995). Although
the probationer in the Oregon case was required to be honest about his sexual
history, the court found that the condition did not "expressly nor
implicitly foreclose his right to object to making self- incriminating
statements." Tenbusch, 886 P.2d at 1082-83. In addition, the court believed
that the requirement that the defendant submit to a polygraph examination as
part of the treatment program, a requirement not present in Murphy, only
emphasizes the requirement that the defendant be truthful; it does not affect
the defendant's privilege against self-incrimination. See Tenbusch, 886 P.2d at
1082 n.6. Thus, the court concluded that the conditions of the defendant's
probation do not on their face constitute a threat by the state to penalize the
defendant for invoking his Fifth Amendment privilege. Id. at 1083.
The Florida court similarly acknowledged that a probationer who submits to a
polygraph examination and who answers questions about sexual contact with
children as part of a required treatment program has a right to invoke his
privilege against self-incrimination. See Cassamassima, 657 So. 2d at 911.
"Consistent with Murphy, the probationer may . . . refuse to answer [only]
if it is within his Fifth Amendment right to do so. The state then may elect
whether to require the answer by eliminating the threat of prosecution for the
crime." Id.
Although no Texas court has yet addressed the question of self-incrimination in
the context of polygraph examinations ordered as a condition of probationary
sex-offender treatment, we believe the cases just discussed are instructive. In
light of this authority, we believe that an examinee has a right to claim the
privilege against self-incrimination during the course of a polygraph
examination if the answer to the question posed may incriminate the examinee in
a future criminal proceeding. The state may not revoke the examinee's community
supervision or parole as a consequence of the examinee's invoking the privilege.
See Murphy, 465 U.S. at 438. If the state wishes to compel the examinee to
answer a question after he or she has legitimately invoked the privilege with
respect to that question, the state must provide some sort of immunity for the
confession. See id. at 429 (quoting Maness v. Meyers, 419 U.S. 449, 473 (1975)
(White, J., concurring in the result)); see also Cassamassima, 657 So. 2d at
911.
Summary
Section 261.101 of the Family Code prevails over a conflicting statute, such as
section 19A of the Polygraph Examiners Act, article 4413(29cc) of the Revised
Civil Statutes, unless the legislature has explicitly indicated to the contrary.
Because the legislature has not expressly excepted the information a polygraph
examiner acquires during the course of a polygraph examination from the scope of
section 261.101 of the Family Code, a polygraph examiner must report information
indicating that a child has been or may have been abused or neglected in
accordance with section 261.103 of the Family Code.
The examinee's local community supervision and corrections officer or parole
officer is not an "agency designated by the court to be responsible for the
protection of children" for purposes of section 261.103 of the Family Code,
unless a court has specifically ordered otherwise.
A court probably would find that a polygraph examinee is not entitled to counsel
during the course of a polygraph examination under section 261.101 of the Family
Code and, consequently, that conducting the examination without counsel does not
violate the examinee's due-process right. The attorney- client privilege applies
to the testimony of a polygraph examiner hired by an attorney in certain
circumstances.
An examinee may have a right to claim the privilege against self- incrimination
during the course of a polygraph examination. If the state wishes to compel an
examinee who has legitimately invoked the privilege to respond to the question,
the state must determine whether to provide immunity for the confession.
Yours very truly,
John Cornyn
Attorney General of Texas
Andy Taylor
First Assistant Attorney General
Clark Kent Ervin
Deputy Attorney General - General Counsel
Elizabeth Robinson
Chair
Opinion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General