             THE      ATTORNEY     GENERAL
                         OF%?ECXAS
                       Averrm.   T-s         78711




                            January    14, 1975


The Honorable Kenneth D. Gaver, M. D.          Opinion No. H-    494
Commissioner
Texas Department of Mental Health and          Re: Conflict between section
   Mental Retardation                          34.01 of the Family Code,
P. 0. Box 12668                                requiring report of child
Austin, Texas ‘78711                           abuse,   and section 87 of the
                                               Mental Health Code, requir-
                                               ing confidentiality  of hospital
                                               records.

Dear Dr.   Gaver:

        You have requested our opinion regarding the apparent conflict
between section 34.01 of the Family Code, which requires “any person”
to report the abuse or neglect of a child, and article 5547-87, V. T. C. S.,
which prohibits disclosure  of the hospital records of your patients
except in certain circumstances.    Specifically,  you ask whether the
Department is obliged to make the reports required by section 34.01 of
the Family Code without regard to the provisions     of section 87 of the
Mental Health Code.

         Section 34.01 directs “[a]ny person having cause to believe that a
child’s physical or mental health or welfare has been or may be advereely
affected by abuse or neglect shall report in accordance with section 34.02
of this code.”   Section 34.02 specifies that the reports “shall be made to:
(1) the county welfare unit: (2) the county agency responsible for the pro-
tection of juveniles; or (3) any local or state law enforcement agency,”
and further states that they shall “contain the name and address of the
child. ”

        On the other hand, section 87 of the Mental Health Code requires
that “hospital records which directly or indirectly identify a patient,




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        The Honorable   Kenneth D. Gaver,     page 2      (H-494)




        former patient, or proposed patient shall be kept confidential” except
        in four specified circumstances , including consent of the patient or his                 .-.
        legal guardian, court-ordered    disclosure, or a determination by the
        Board or the head of the relevant hospital that “disclosure   will be in the
        best interest of the patient. ” Disclosure is also permitted whenever it
        “may be necessary to carry out the provisions of this code. ”

                 The Code Construction Act, which is applicable to “each code
        enacted by the 60th or a subsequent legislature,    ” defines “person” to
        include “government      or governmental subdivision or agency. I’ V. T. C. S.
        art. 5429b-2, §1.04(2).     Since Title 2 of the Family Code was enacted
        by the 63rd Legislature,    and since the Department of Mental Health and
        Mental Retardation is a “government agency, ” it is clear that section
        34.01 embraces the Department of Mental Health and Mental Retardation.,
        within the ambit of “any person. ” -See Attorney General Opinion H-237               -.
         (1974).

                 A patientye hos$Xal records may be diaclosed’when         the “disclosure
        may be necessary to carry out the provisions of this Code. ‘I V. T. C. S.
        art. 5547-87(a)(Z).    One such provision states the purpose of the Mental
        Health Code to be “to provide humane care and treatment for the mentally
        ill, and to facilitate their hospitalization,   enabling them to obtain needed
        care, treatment and rehabilitation with the least possible trouble, expense
        and embarrassment      to themselves and their families . . . . ” V. T. C. S.
        art. 554772. We believe this purpose of the Mental Health Code will be
        greatly furthered by the Department’s        compliance with section 34.01 of
        the Family Code. It would be difficult to deny that the kind of disclosure
        contemplated by section 34.01 will assist in providing juvenile patients
        with “humane care and treatment” and will facilitate their obtaining
        “needed care, treatment and rehabilitation. ” Disclosure is made to
        designated agencies of government,        and the statute provides that the
        ultimate recipient of the information shall be either the county child
        welfare unit,   or the county agency responsible for the protection of
        juveniles.    Such disclosure helps to fulfill,   rather than contradict,    the
        purposes of the Mental Health Code. Furthermore,           by requiring persons
        to report cases of child abuse we believe the Legislature        has determined
        that such reports are in the best interest of the child.      We, therefore,
        hold that the provisions    of section 34.01 of the Family Code are applicable
         to the Department.




                                             p. 2232
The Honorable   Kenneth D. Gaver.    page 3    (H-4941




                               SUMMARY

                    Section 34.01 of the Family Code, requiring
                “any person having cause to believe that a child’s
                physical or mental health or welfare has been or
                may be adversely affected by abuse or neglect” to
                “report in accordance with section 34.02, ” is
                applicable to the Department of Mental Health and
                Mental Retardation,   without regard to the provisions
                of article 5547-87, V. T. C. S.

                                                Very   truly yours,




APPROVED:




C. ROBERT HEATH,        Chairman
Opinion Committee

1g




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