Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 24,2003

The Honorable Phil King Opinion No. GA-01 06

Chair, Regulated Industry Committee

Texas House of Representatives Re: Reporting and investigating child sexual

P.O. Box 2910 abuse (RQ-0032-GA)

Austin, Texas 78768-2910

Dear Representative King:

You note that numerous reports of suspected child sexual abuse are made daily throughout

the state from many locations and under varied circumstances.’ In order that law enforcement

officers may properly apply the statutes on reporting child sexual abuse, you ask the following

questions:

1) Are law enforcement officers, on or off duty, required to make a

report of suspected child sexual abuse when they observe facts that

suggest child sexual abuse has occurred or is occurring?

2) Are reporters* . . . required to conduct any investigation regarding

the circumstances of the child prior to making the report of suspected

abuse?

3) Are law enforcement agencies required to respond to the report

and investigate the circumstances to determine if the child is being

abused?

4) After the initial investigation, are law enforcement agencies

required to refer these investigations to specialized state agencies for

further consideration and review of the circumstances?

‘Letter from Representative Phil King, Chair, Regulated Industry Committee, Texas House of Representatives,

to Honorable Greg Abbott, Texas Attorney General, at 1 (Mar. 2 1,2003) (on file with Opinion Committee) [hereinafter

Request Letter].

*This question refers to “either mandatory or permissive” reporters, but we omit these terms because the relevant

statutes do not include them. See Request Letter, supra note 1, at 1.

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5) Are there any circumstances or locations under which these

observations may take place that change any of the above

interpretations?

Request Letter, supra note 1, at 1. Your request relates to reports of suspected child sexual abuse,

and we limit our discussion accordingly.

I. Texas Law DefininP: Child Sexual Abuse

Family Code chapter 261 provides for reporting and investigating child abuse or neglect.

Section 261 .001(l) defines “abuse” to include numerous acts and omissions by a person. Among

these is “sexual conduct harmful to a child’s mental, emotional, or physical welfare, including

conduct that constitutes the offense of indecency with a child under Section 21.11, Penal Code,

sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021,

Penal Code.” TEX. FAM. CODEANN. 8 261 .OOl( l)(E) (V emon 2002). Section 26 1.OOl(l)(E) thus

defines child sexual abuse in general terms and expressly provides that conduct under Penal Code

sections 2 1.11, 22.011, or 22.02 1 constitutes such sexual abuse. See A4ontello Salt Co. v. State of

Utah, 221 U.S. 452, 463 (1911) (the word “including” is sometimes used to specify particularly

something that belongs to a general class); see also TEX. GOV’T CODEANN. 5 3 11 .Ol 1(a) (Vernon

1998) (words and phrases are read in context and construed according to the rules of grammar and

common usage). A person reporting child sexual abuse need not personally determine whether

conduct under Penal Code section 2 1.11,22.0 11, or 22.02 1 harms “a child’s mental, emotional, or

physical welfare,” because the legislature has determined in section 26 1.OOl(l)(E) that this conduct

causes the described harm.

The Penal Code provisions incorporated into section 26 1.001 (l)(E) generally provide that

a person commits an offense by engaging in specific kinds of sexual conduct with a child under 17

years who is not the actor’s spouse. See TEX. PEN.CODEANN. 4 4 2 1.11 (a), 22.011 (c)(l), 22.02 l(b)

(Vernon 2003). It is an affirmative defense to prosecution for indecency with a child under section

21.11 that (1) the actor was not more than three years older than the victim and of the opposite sex,

(2) the actor did not use duress, force, or a threat against the victim, and (3) the actor was not subject

to certain provisions of the sex offender registration program. See id. 8 2 1.11 (b); id. ch. 62 (Vernon

Supp. 2003). A similar affirmative defense applies to prosecution for sexual assault of a child under

section 22.01 l(a)(2): that the actor was not more than three years older than the victim and at the

time of the offense (1) the victim was a child of 14 years or older, and (2) the actor was not subject

to certain provisions of the sex offender registration program. See id. 0 22.01 l(e). No such

affirmative defense applies to prosecution under Penal Code section 22.021 for aggravated sexual

assault, defined to include specific sexual contact under the following circumstances: (1) the victim

is younger than 14 years, or (2) the actor engages in specific acts, such as causing serious bodily

harm to the victim or another person, engaging in certain threatening behaviors, or administering a

specific drug to the victim. See id. 5 22.02 1(a)( l)(B), (2)(A)(B).

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II. Child Sexual Abuse Reporting Laws

Family Code section 26 1.101 (a) 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. CODEANN.

8 261.101(a) (Vernon 2002); see White v. State, 50 S.W.3d 31, 47 (Tex. App.-Waco 2001, pet.

ref d) (“cause” means “sufficient reason”). This provision imposes a mandatory requirement upon

any person, not merely law enforcement officers, to report child abuse, whether it is physical abuse,

sexual abuse, or other conduct included in the definition of “abuse.” See State v. Harrod, 8 1 S. W.3d

904, 908 (Tex. App.-Dallas 2002, pet. ref d) (p rosecution for failure to immediately report child

sexual abuse), Rodriguez v. State, 47 S.W.3d 86 (Tex. App.-Houston [ 14th Dist.] 2001, pet. ref d)

(conviction for failure to immediately report child abuse); Tex. Att’y Gen. Op. No. DM-458 (1997)

at 3 (section 26 1.101 (a) does not allow sex offender treatment providers to decide whether or not

to report “incomplete or dated” information received from client).

Section 26 1.10 1(b) establishes a specific reporting requirement for “a professional,” defined

as “an individual who is licensed or certified by the state or who is an employee of a facility licensed,

certified, or operated by the state and who, in the normal course of official duties or duties for which

a license or certification is required, has direct contact with children,” including “teachers, nurses,

doctors, day-care employees, employees of a clinic or health care facility that provides reproductive

services, juvenile probation officers, and juvenile detention or correctional officers.“3 TEX. FAM.

CODEANN. 8 261.101 (b) (Vernon 2002). If a professional

has cause to believe that a child has been abused or neglected or may

be abused or neglected, or that a child is a victim of an offense under

Section 21.11, Penal Code, and the professional has cause to believe

that the child has been abused as defined by Section 261 .OOl, the

professional shall make a report not later than the 48th hour after the

hour the professional first suspects that the child has been or may be

abused or neglected or is a victim of an offense under Section 2 1.11,

Penal Code.

Id.; see also id. 9 33.008(a) (physician reporting requirement in Parental Notification Act).

The requirement to report child sexual abuse under section 261.101 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.”

3The Federal Standards for Privacy of Individually Identifiable Health Information promulgated under the

Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-19 1,110 Stat. 2024 (codified as amended

in scattered sections of 42 U.S.C.) (HIPAA) restrict the dissemination of health information. However, health care

providers and other covered entities may disclose confidential health information about an individual whom the covered

entity reasonably believes to be a victim of abuse, neglect, or domestic violence, subject to procedures and limits set out

in the regulations. See 45 C.F.R. $0 160.203, 164.502(g), 164.512 (2002).

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Id. 6 261.101(c); see Bordman v. State, 56 S.W.3d 63,67-68 (Tex. App.-Houston [ 14th Dist.] 2001,

pet. refd) (child abuse reporting requirement prevails over clergy communication privilege); Tex.

Att’y Gen. Op. No. JC-0070 (1999) at 5 (child abuse reporting requirement prevails over

confidentiality provision applicable to polygraph exams). The identity of the person making a

report is confidential and may be disclosed only as provided by Family Code section 261.201 or

to a law enforcement officer for purposes of investigating the report. See TEX. FAM. CODE ANN.

9 261.101(d) (V emon 2002); see also id. 5 261.201 (disclosure of report of suspected child abuse

by court order; disclosure to adoptive parents, and to parent, managing conservator, or other legal

representative of child).

Reports are to be made to (1) any local or state law enforcement agency, (2) the Department

of Family and Protective Services (DFPS), formerly called the Department of Protective and

Regulatory Services,4 if the alleged sexual 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 sexual abuse occurred, or (4) the agency designated by the court to be

responsible for protecting children (the “designated agency”). See id. lj 261.103(a); see also

Vineyard v. Kraft, 828 S.W.2d 248,254 (Tex. App.-Houston [ 14th Dist.] 1992, writ denied) (court-

appointed healthcare 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”). If a state or local law enforcement agency receives a report alleging sexual abuse or

neglect by a person responsible for a child’s care, custody, or welfare, the law enforcement agency

must immediately refer the report to DFPS or the designated agency. See TEX. FAM. CODE ANN.

$261.105(a) (Vemon2002);seealsoT~~.H~~.REs.C0~~AN~. 5 40.002(a) (Vemon2001) (DFPS

is the state agency with primary responsibility for providing protective services for children and

elderly and disabled persons).

A person acting in good faith who reports or assists in investigating a report of alleged child

sexual abuse or who participates in a judicial proceeding arising from a report or investigation of

alleged child sexual abuse is immune from civil or criminal liability that might otherwise be incurred

or imposed. See TEX. FAM. CODE ANN. 5 261.106(a) (Vernon 2002); see also Alvarez v.

Anesthesiology Assocs., 967 S.W.2d 871 (Tex. App.-Corpus Christi 1998, no pet.) (in suit against

physicians for malicious prosecution relating to treatment of child and filing report of child abuse,

immunity was granted physician where the evidence showed that she reasonably believed that child

had been abused). A person who reports sexual abuse that he or she committed or who acts in bad

faith or with malicious purpose in reporting alleged child sexual abuse is not immune from civil or

criminal liability. See TEX. FAM. CODE ANN. $ 261.106(c) (Vernon 2002); see also 5 261.107

(person who knowingly or intentionally makes a false report commits an offense). A person

commits a Class B misdemeanor offense “if the person has cause to believe that a child’s physical

or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly

4The Department of Protective and Regulatory Services has been renamed the Department of Family and

Protective Services. See Act of June 1,2003,78th Leg., R.S., ch. 198, 6 1.27,2003 Tex. Sess. Law Serv. 611,641 (a

reference in law to the Department ofprotective and Regulatory Services means the Department of Family and Protective

Services).

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fails to report” as required by Family Code chapter 26 1. Id. 8 261.109; see generally FVzite, 50

S.W.3d 31 (conviction for failure to report child abuse), Morris v. State, 833 S.W.2d 624 (Tex.

App.-Houston [ 14th Dist.] 1992, pet. ref d) (same). Whether an individual must report child sexual

abuse under Family Code section 261.101 (a) depends upon whether the facts show that the person

has sufficient reason to believe that a child had been sexually abused.

III. Questions Presented

You inquire about the reporting responsibilities of law enforcement officers,’ such as sheriffs

and their deputies, constables and deputy constables, and city marshals or police officers. See

Request Letter, supra note 1, at 1; TEX. CODE GRIM. PROC. ANN. art. 2.12 (Vernon Supp. 2003)

(listing peace officers). A person appointed to serve as a peace officer must be licensed by the

Commission on Law Enforcement Officer Standards and Education. See TEX. OCC. CODEANN.

89 1701.001(l),(3), 1701.301 (Vernon 2003). As a condition of licensing, a peace officer must

complete training in investigating and documenting child abuse and sexual assault cases. See id.

$9 1701.253,1701.307(a)(2); see also id. 88 1701.35 l-.352 (agency that appoints or employs peace

officers must provide them a continuing education program that includes cases involving child abuse

and sexual assault unless agency head determines this to be inconsistent with the officer’s assigned

duties).

You ask whether law enforcement officers, on- or off-duty, are required to make a report of

suspected child sexual abuse when they observe facts that suggest child sexual abuse has occurred

or is occurring. See Request Letter, supra note 1, at 1. Like any other person, a peace officer who

has “cause to believe that a child’s physical or mental health or welfare has been adversely affected

by abuse” is required by Family Code section 26 1.10 1(a) to report the child abuse as required by the

Family Code. See White, 50 S.W.3d at 36, 47 (conviction of certified peace officer for failure to

report abuse of her stepchild). The peace officer’s on- or off-duty status does not affect the officer’s

responsibility under section 26 1.101 (a).

Peace officers also have a statutory duty “to preserve the peace within the officer’s

jurisdiction.” TEX. CODEGRIM.PROC.ANN. art. 2.13(a)-(b)(l), (4) (Vernon Supp. 2003). Whenever,

in the presence or within the view of a peace officer, “one person is about to commit an offense

against the person or property of another,” it is the officer’s duty to prevent it. Id. art. 6.06. “[A]

police officer’s ‘off-duty’ status is not a limitation upon the discharge of police authority in the

presence of criminal activity.” Wood v. State, 486 S.W.2d 771, 774 (Tex. Crim. App. 1972). A

peace officer possesses the full powers of a peace officer in the presence of criminal activity and may

take action despite being off-duty. See, e.g., Hafdahl v. State, 805 S.W.2d 396, 401 (Tex. Crim.

App. 1990) (en bane) (police officer, driving home after shift ended, was in lawful discharge of his

official dutywhen he stopped to investigate scene oftraffic accident), Wood, 486 S.W.2d at 773 (off-

duty uniformed police officers directing traffic from private parking lot to street were authorized to

make arrest for breach of the peace). _

‘The terms “law enforcement officer” and “peace officer” are sometimes used interchangeably. For instance,

the Commission on Law Enforcement Officer Standards and Education establishes standards for licensing as a peace

officer, reserve law enforcement offker, county jailer, or public security officer. See TEX. OCC. CODE ANN. $5

1701.001(3), 1701.151(2) (V emon 2003); see also Tex. Att’y Gen. Op. No. JC-0466 (2002) at 2.

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You next ask whether persons, not just law enforcement officers, who report child sexual

abuse under Family Code section 26 1.101 (a) are required to conduct any investigation regarding the

circumstances of the child before making the report. See Request Letter, supra note 1, at 1. Chapter

261 requires DFPS, certain other agencies, and law enforcement agencies to investigate reports of

child abuse, see TEX. FAM. CODE ANN. 5 261.301 (Vernon 2002), but its provisions are completely

silent as to whether persons reporting child sexual abuse must first conduct an investigation.

Although a court might find such a duty under particular circumstances, we cannot do so in an

attorney general opinion.

We will answer your next two questions together because the same statutes address them.

You ask whether law enforcement agencies are required to respond to the report and investigate the

circumstances to determine if the child is being abused, and whether, after the initial investigation,

law enforcement agencies are required to refer the investigations to specialized state agencies for

further consideration. See Request Letter, supra note 1, at 1. For purposes of this question, law

enforcement agencies include a city police department, a county sheriffs department and the Texas

Department of Public Safety. See, e.g., TEX. CODE CRIM. PROC. ANN. arts. 59.01(5), 63.001(8)

(Vernon Supp. 2003) (definitions of “law enforcement agency”).

The Family Code provides for cooperation between DFPS and law enforcement agencies in

investigating reports of child abuse. See TEX. FAM. CODE ANN. § 261.301 (Vernon 2002);6 see also

id. 9 261.401 (investigation of child abuse in facilities operated, licensed, certified, or registered by

a state agency). DFPS is required to investigate a report of child abuse “allegedly committed by a

person responsible for a child’s care, custody, or welfare,” with assistance provided by the

appropriate state or local law enforcement agency. Id. fj 261.301(a); see also id. $5 261.105(a)

(reports received by law enforcement agency alleging child abuse by person responsible for a child’s

care, custody, or welfare “shall be referred immediately to DFPS or the designated agency”),

261.105(b) (DFPS shall immediately notify appropriate law enforcement agency of any report it

receives concerning suspected abuse or neglect of a child or a child’s death from abuse or neglect);

TEX. CODE CRIM. PROC. ANN. art. 2.277 (Vernon Supp. 2003) (investigator of appropriate law

enforcement agency shall investigate report jointly with DFPS). If a report alleges child sexual abuse

by a person other than a person responsible for a child’s care, custody, or welfare, DFPS is not

required to investigate it. See TEX. FAM. CODEANN. 8 261.301 (c) (Vernon 2002). The appropriate

state or local law enforcement agency “shall investigate that report if the agency determines an

investigation should be conducted.” Id. Thus, in such cases, the state or local law enforcement

agency may decide whether to conduct an investigation of the child sexual abuse report.

%enate Bill 669 of the 78th Legislature adopts Family Code subsections 261.301(f) and (h), which assign

highest priority to reports alleging an immediate risk of child abuse that could result in death or serious harm to the child

and requires a peace officer to investigate the report jointly with the DFPS investigator. See Act of May 29,2003,78th

Leg., R.S., S.B. 669, 9 1 (to be codified at TEX. FAM. CODE ANN. 5 261.301(f), (h)) (effective Sept. 1,2003). The bill

makes conforming changes in the Code of Criminal Procedure article 2.27. See k-Z.92 (to be codified as an amendment

to TEX. CODE CRIM. PROC. ANN. art. 2.27) [hereinafter S.B. 6691.

7See S.B. 669, supra note 6.

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You finally ask whether there are any circumstances or locations under which these

observations may take place that change any of the above interpretations. Our answers to your first

four questions are based on statutes that establish a duty to report child sexual abuse and the judicial

decisions interpreting them. Whether a specific person has cause to believe that a child has been

a victim of sexual abuse depends upon the facts within that person’s knowledge. See White, 50

S.W.3d at 47-48, Morris, 833 S.W.2d at 626-28. Questions about whether a person has a duty to

report child sexual abuse under specific circumstances must be answered on a case-by-case basis by

applying the law to the facts. This office cannot find facts or resolve fact questions in an attorney

general opinion. See Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1 (stating that opinion process

does not determine facts). While we acknowledge that some circumstances and locations may

be more conducive to observing evidence of child sexual abuse than others, we cannot give a

comprehensive answer to your final question.

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SUMMARY

Family Code chapter 261 provides for reporting and

investigating child sexual abuse, including specific kinds of

sexual conduct. Law enforcement officers, whether on or off

duty, are required to report suspected child sexual abuse when

they have cause to believe that such sexual abuse has occurred or

is occurring.

The Department of Family and Protective Services is

required to investigate a report of child sexual abuse “allegedly

committed by a person responsible for a child’s care, custody, or

welfare,” with assistance provided by the appropriate state or

local law enforcement agency. The department is not required to

investigate a report that alleges child sexual abuse by a person

other than a person responsible for a child’s care, custody, or

welfare. The appropriate state or local law enforcement agency

shall investigate the report if the agency determines an

investigation should be conducted. Whether a specific person has

cause to believe that a child has been a victim of sexual abuse

depends upon the facts within that person’s knowledge.

Very t$y yours,

Atto

BARRY R. MCBEE

First Assistant Attorney General

DON R. WILLETT

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Susan L. Garrison

Assistant Attorney General, Opinion Committee