                                   February        6, 1990




Mr. Bryan M. Perot                                  Opinion     No.    JR-1141
Executive Officer
Polygraph Examiners    Board                        Re:   Consent to a polygraph
P. 0. Box 4007                                      examination   of a child
Austin, Texas     78773-0001                        (RQ-1893)

Dear    Mr.    Perot:

      You ask  whether   section    51.151 of  the  Family    Code
applies to a polygraph   examination   of a child complainant   or
a child witness   for the state.

        Section       51.151    provides:

                  If a child is      taken into     custody    under
              Section 52.01 of this code, a person may           not
              administer    a polygraph     examination     to   the
              child without     the   consent    of   the   child's
              attorney   or   the   juvenile court     unless    the
              child is    transferred    to   criminal court      for
              prosecution    under Section 54.02 of this code.

        Section       52.01    of the     Family    Code    provides     in      pertinent
part:

              (a)     A child    may     be taken    into     custody:

                       (1) pursuant         to      an   order    of          the
                    juvenile court         under     the   provisions          of
                    this title:

                      (2)     pursuant     to the    laws     of arrest:

                       (3) by    a law-enforcement     officer    if
                    there are    reasonable   grounds  to   believe
                    that the child     has engaged in   delinquent
                    conduct or conduct      indicating a need    for
                    supervision;   or




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                  (4) by a probation    officer if there are
               reasonable  grounds   to   believe  that    the
               child has violated    a condition  of   proba-
               tion imposed by the juvenile court.

     you advise that your concern is prompted           by section     19
of article 4413(29cc), V.T.C.S., providing:

             The    board    [Polygraph    Examiners]      shall
          refuse to issue      a license,     shall revoke     or
          suspend    a    license,      shall    reprimand      a
          licensee,    or may probate a license suspension
          on any one or more of the following         grounds:

               .   .   .   .

              (14) violating  Section   51.151,    Family
          Code, relating to the examination   of a child
          taken into custody.

      your scenario does not include the taking into        custody
of a child under section 52.01     of the Family Code since       no
provision  is made   under   this title    for   taking   a   child
witness or child complainant     into custody.    Section    51.151
does not apply to the situation    you describe.

     While the polygraph     examiners  license may not be placed
in jeopardy under your      scenario,  we believe caution  should
be exercised   in obtaining   the 'consent of a child to   submit
to a polygraph   examination.

      Section  12.04    of the    Family    Code, in    detailing     the
rights, privileges,     duties, and powers of a parent, includes
in subsection    (7) "the power to represent       the child in legal
action and    to make    other    decisions   of   substantial      legal
significance   concerning     the child."       In reviewing     section
51.151, we note     that prosecutors      may dismiss a case if          a
state's witness fails       a polygraph   examination.       R. Dawson,
Texas Juvenile    Law   103 (2d ed. 1987).         While courts      have
been   reluctant    to   admit     the   results    of   a    Polygraph
examination   because of     its lack of     reliability,    Romero    v.
State, 493 S.W.Zd 206 (Tex. Crim. App. 1973), under              certain
circumstances    statements    made during      the examination      have
been held admissible.       R. Dawson, m.

      Section 8.07(a)(l)  of the Penal Code provides   that   the
offense of perjury is an exception    to the rule that a person
under 15 years of    age may not be   convicted  of an  offense.




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Conceivably,   a statement      made    in   a polygraph      test     might
become admissible     against a     child in a perjury trial as             a
result of    testimony    given    in legal    proceedings       following
the examination.       Given    the   circumstances       attendant        to
questioning   by   a polygraph      operator   in    connection     with    a
court proceeding,     a child through fear, suggestion,           fantasy,
etc., might make unfounded         responses   or admissions        against
the child#s     interest.     Since    statements     made by     a    child
during a polygraph        examination    could    be   of    "substantial
legal significance     concerning      the child,"      it would     appear
advisable   that   the parent's      consent be      obtained before        a
child   complainant     or    child   witness     is    subjected      to   a
polygraph   examination.      In the event a guardian        ad litem has
been appointed    for the child      under section 51.11(b)         of    the
Family Code,1 the consent of the guardian            ad litem should be
obtained.

      Since your concern      is directed    to   conduct that      might
result in loss      of a polygraph     operatorjs    license, we     note
that   subsections     19(l)   and    (2)   of   article    4413(29cc),
V.T.C.S.,   provide    that failure     to inform     a person    to    be
examined   of   the nature    of the    examination    or   failure     to
inform the subject that participation          is voluntary    is   basis
for revocation      of an   examiners   license.      The   possibility
that a child may be unable to comprehend          the significance      of
the examiner#s    explanation    of the nature of the       examination
or the fact that consent        to submit to the examination         must
be   voluntarily     given    furnishes     additional     reason      for
obtaining   the   consent    of the    parent    or the    guardian     ad
litem.




       1.     Section    51.11(b)   provides:

             In any case in which it appears to the      juve-
       nile court that the child's parent or guardian        is
       incapable  or unwilling   to make   decisions  in   the
       best interest of the child with respect to procee-
       dings under this    title, the court   may appoint     a
       guardian  ad litem to protect the interests    of   the
       child in the proceedings.




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                               SUMMARY
              Section 51.151 of the Family Code does not
          apply to a polygraph      examination   of a   child
          complainant   or a child witness for the state.
          However,   it would be advisable     for the   poly-
          graph examiner to obtain       the consent of     the
          child's parent     or guardian    ad litem    before
          subjecting   a child   witness or     a child   com-
          plainant   to a polygraph   examination.




MARYEELLER
First  Assistant    Attorney       General

JUDGE ZOLLIE STEAELEY
Special Assistant  Attorney              General

RICE GILPIN
Chairman,  Opinion       Committee

Prepared by Tom G. Davis
Assistant Attorney General




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