                                        The Attorney         General of Texas
                                                         August 5, 1985
    JIM MATTOX
    Attorney General


    Supreme Court Building
                                       Honorable Luther JOlIeS                  Opinion No. JM-342
    P. 0. Box 12546                    county Attorney
    Austin. TX. 78711. 2546            Room 201, City-County Building           Re: Whether a minister is
    512,4752501                        El Paso, Texas   ?!I901                  required to file a report of
    Telex 9101674-1367
    Te,ecc,p,er 5121475-0266
                                                                                child abuse under section
                                                                                34.07 of the Family Code

    714 Jackson. Suite 700             Dear Mr. Jones:
    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
        4624 Alberta Ave.. Suite 160   suspected child &use which is confidentially disclosed to him by a
        E, Paso. TX. 79905.2793        parishioner. This section, enacted in 1975, provides:
        9151533.3464

                                                    (a) A person commits an offense if the person
rlmol        Texas. Suite 700
                                                 has cause to believe that a child's physical or
        Hous,on, TX. 77002-3111                  mental health or welfare has been or may be
        7131223-5886                             further zsdverselyaffected by abuse or neglect and
                                                 knowingly fails to report in accordance with
                                                 Section y34.02of this code.
        808 Broadway. Suite 312
        l.“bbock. TX. 79401.3479
        8061747-5236                                (b) ,Anoffense under this section is a Class B
                                                 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      believe," as embracing not only parents or guardians but all persons
        San Antonio. TX. 76205-2797
                                       having the information described therein. Because sectionn4.01     and
        51212254191
                                       34.07 are within chapter 34 of the Family Code, they should be read in
                                                      See District Trustees v. Trustees of Freestone Countx
                                       pari materia. --.
         An Equal OpportuniiV          186 S.W.2d 378 (Tex. Clv. App. - Waco 1945, no writ). This inter-
         Affirmative Aclion EmPlOYer   pretation of "person" should therefore be used in applying section
                                       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.



                                                                  p. 1559
RonorableLuther 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;ethe 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,icationsbetween 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.reis 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



                                 p. 1560
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.        !Rl). Section
                                                       l!
34.07 was enacted to ensure that oersons having kncDwledge of abuse or
neglect would report that :it:forma&onto the appropriate official. In
our opinion, it clearly rel3ulatesconduct.

     Government regulation of religious conduct is valid if it does
not unduly burden the prac::iceof 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!nwould 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 llElNA   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.




                                      J k
                                         Very truly your


                                                 h,                   .
                                            JIM     MATTOX
                                            Attorney General of Texas

 TON GREEN
 First Assistant Attorney General



                                  p. 1561
Honorable Luther Jones - ~11ga4   (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




                                   p. 1562
