              THEA~TORNEYGENERAL
                       OFTEXAS
                                   Ave~w.   -               78722




                                        December       17. 1974


The Honorable Hank Anderson                                  Opinion No.   H-   478
County Attorney
County Courthouse                                            Re: Confidentiality of a
Wichita Falls,  Texas 76301                                  counselor’s  report made
                                                             pursuant to section 3.54
                                                             of the Family Code.

Dear Mr.   Anderson:

        The facts behind your request for our opinion are that during
pendency of a divorce suit, the Judge ordered counseling pursuant to
section 3.54 of the Family Code, which provides,    in part:

                     (a) On the filing of a petition for divorce,    the
               clerk shall furnish an availability     of counseling
               notice to the attorney filing the petition.     Except
               in a suit in which the respondent is cited by publica-
               tion, the attorney shall forward the notice to both
               parties to the suit and shall certify to the court that
               he has complied with the provisions        of this subsec-
               tion.

                       .   .   .


                     (c) After a petition for divorce is filed, the court
                may, in its discretion,    direct the parties to counsel
                with a person or persons named by the court, who
                shall submit a written report to the court before the
                hearing on the petition.

                     (d) In his report, the counselor   shall give only his
                opinion as to whether there exists a reasonable      expecta-
                tion of reconciliation  of the parties,  and if so, whether




                                                p.   2173
I




    The Honorable   Hank Anderson      page 2      (H-478)




                    further counseling  would be beneficial.    The sole
                    purpose of the report is to aid the court in determin-
                    ing whether the suit for divorce should be continued
                    pending further counseling,   and the report shall not
                    be admitted as evidence in the suit.     Copies of the
                    report shall be furnished to the parties.

                        . .   .   .


                         (f) No person who has counseled parties to a suit
                    for divorce under this section is competent to testify
                    in any action involving the parties or their children.
                    The files,   records,  and other work-products   of the
                    counselor   are privileged  and confidential for all
                    purposes and may not be admitted as evidence in any
                    action involving the parties or their children.
                    (Emphasis added).

            Apparently  the counselor    has included in his report admissions
    made to him of violations    of the immigration   laws and the Department
    of Immigration   now seeks access to the report to use in proceedings
    against one of the parties to the marriage.      You ask whether the informa-
    tion should be released   to the federal agency.

            We are unaware of any other law that would authorize divulging
    the counselor’s  reports to the immigration       service.  We recognize
    and enforce the attorney-client      privilege [Code Crim. Proc.,    art.
    38.10; Cochran v. Cochran, 333 S. W. 2d 635 (Tex. Civ. App. --Houston
    1960, writ ref’d n. r. e.)]; the husband-wife    privilege [Code Crim.    Proc.
    art. 38.11; Johnigan v. State, 482 S. W. 2d 209 (Tex. Crim. App. 197211;
    and the dergyman-penitent      privilege [V. T. C. S., art. 3715a].

             It is our opinion that this privilege accorded the counselor’s    report,
        . tir,iier section 3. 54 of the Family Code, is entitled to the same legal
    IIIaus..
    protection and that, therefore,     it cannot be made available  to the Depart-
    ment of Immigration,      absent an effective waiver of its confidential  status.




                                         po 2174
The Honorable   Hank Anderson      page 3       (H-478)




                             SUMMARY

                    A report of a counselor made pursuant to
                section 3.54 of the Family Code is privileged
                and confidential and, absent effective waiver,
                should not be made available on the request of
                a federal agency.

                                                    Very   truly yours,




                                                      OHN L. HILL
                                                               General    of Texas

APPROVED:




DAVID   M.   KENDALL,    First   Assistant




C. ROBERT HEATH,        Chairman
Opinion Committee


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