                              QMfice of tiy SZlttornep QBeneral
                                       &ate of IEexarr
DAN MORALES
 ATTORNEY
      CENERAL                               November 26,1997


   Ms. Grace L. Davis, L.M.S.W.-A.C.P                 Opinion No. DM-458
   Executive Director
   Council on Sex Offender Treatment                  Re: Whether Family Code section 261.101(a)
   1100 west 49th street                              permits a registered sex-offender-treatment
   Austin, Texas 78756-3 183                          provider discretion to report information
                                                      regarding possible child abuse (RQ-944)


   Dear Ms. Davis:

           Family Code section 261.101(a) requires a person who suspects that a child has been abused
   or neglected immediately to report the suspicion to the appropriate authorities You ask whether,
   in the event a registered sex-offender-treatment provider obtains from a client dated or incomplete
   information suggesting that the client has abused a child, the treatment provider may use his or her
   “good judgment” in demrmining whether to report the information. The plain language of section
   261.101(a) compels us to conclude that a treatment provider must report the information
   immediately if the information causes the treatment provider to believe that a child has been abused.

            We understand that in the course of a sex-offender-treatment program, a treatment provider
   or affiliated-tmatment provider (collectively, “treatment provider”) may obtain information, through
   a client’s statements or otherwise, that leads the treatment provider to believe the client may have
   abused a child (other than a child whom the client was convicted of abusing, we assume). You aver
   that your agency, the Council on Sex Offender Treatment, interprets the Family Code generally to
   require a treatment provider to report any allegation or statement of child abuse perpetrated by the
   client and disclosed to the treatment provider, as well as any suspicion the provider has of child
   abuse perpetrated by the client. You suggest, however, that the council has established an exception
   with respect to “incomplete or dated” information a treatment provider receives from a client. In that
   situation, the council apparently encourages a treatment provider to use his or her “good judgment”
   in deciding whether to report the information to the appropriate authorities. You ask if the council’s
   exception is consistent with Family Code section 261.101. We assume, for purposes of our analysis,
   that the information, although it is incomplete or dated, causes the treatment provider to suspect that
   a child has been abused.

           Family Code section 261.101(a) mandates immediate reporting of suspected child abuse:
   “A 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 by any person shall immediately make a report as provided
   by this subchapter.” (Emphasis added.) When the legislature originally enacted the substance of
Ms. GraceL. Davis, L.M.S.W.-A.C.P - Page 2                          (DM-458)




this requirement in 1971, it indicated its desire “to protect children . . . by providing for the
mandatory reporting of suspected cases [of child abuse or neglect].“’ Thus, the reporting
requirement expressly applies without exception to any individual whose personal communications
normally are privileged.2 The report should reflect the reporter’s belief that a child has been abused3
and must identify the child if the child’s identity is known4

         We conclude that the council’s interpretation, permitting a treatment provider to decide
whether to report suspected child abuse where the suspicion is premised upon incomplete or dated
information, is contrary to section 262.101(a).’ As section 261.101(a) says, aperson who suspects
that a child has been abused shall report the suspicion, and shall do so immediately. The term “shall’
ordinarily signals a mandate,6 and the term “immediately” underscores the mandate with a sense of
urgency. Conversely, we find no language in section 261.101(a) indicating that reporting suspected
child abuse is discretionary’ or establishing an exception where the suspicion is premised on
information that is incomplete or dated.. Indeed, a person who knowingly fails to report suspected
child abuse in accordance with Family Code chapter 261 commits a class B misdemeanor.s



         ‘Act of May 24,1971,62d    Leg., KS., ch. 902, sec. 1,s 1.1971 Tex. Gen. Laws 2790,279O (e&n&           added).

         zFam. Code 5 261.101(c).

         ‘Id. g 261.102.

         ‘Id. 4 261.104

        ‘A court will not give weight to an agency’s cons!n~ction of ao uoambigoous statute if the constiction
is cmtmy to the statute’s plain meaning. Attorney General Opinion M-1 149 (1990) at 2; see a& Cblvert v. Kadane,
427 S.W.2d 605,607 (Tex. 1968).

      “SeeWrightv. .&for h&p. Sch.DZst,867S.W.2d            863,868 (Tex. App.-El Paso 1993, no wit) (citing Inwood
NorthHomeowners’Assh v. M&r, 625 S.W.2d 742,743             (Tex. Civ. App.-Houston [lst Dist.] 1981, no writ)).

         ‘Your letter to this 05ce suggests that you believe Family Code s&ion 261.101(b) might apply because you
seek clarification of section 261.101 as it requires all “professionals” to report suspected child abuse or neglect.
Subsection @) reqoires a prof~ional to report M           child abuse within 48 hours after the suspicion arises. By its
terms, however, subsection @) applies only to a professional who has direct contact with children in the normal course
of his or her ofGal duties. We do not understand a treatment provider to have direct contact with children in the
normal course of his or her ofiicial duties; we therefore need not consider whether a treatment provider is a
“professional” in tbe word’s broader sense.

         ‘Fan. Code $ 261.109. We note that, under Family Code section 261.107, a person who knowingly OI
intentionally makes a report that the persoo knows is false or lacks factual foundation commits a class B misdemeanor.
We do not in this opinion determine what B f&e report is or what a report that lacks a factoal foundation is. In addition,
whether in a particular situation tieatment provider knows information is false or lacks a factual foundation is a fact
question that caonot be resolved in the opinion process. See, e.g., Attorney General Opinions DM-98 (1992) at 3; H-56
(1973) at 3; M-187 (1968) at 3; O-291 l(l940) at 2. We do not believe, however, that a treatment provider who reparts
a suspicion of child abuse based on incomplete or dated information ordiiarily may be convicted of making a false
                                                                                                        (continued...)



                                                              p. 2565
Ms. GraceL. Davis, L.M.S.W.-A.C.P - Page 3                       (DM-458)




        Moreover, chapter 261 appears to contemplate that, in some situations, the reporter will not
know all of the details. Section 261.104 implies, for example, that the reporter may not know the
child’s name or the identity of the child’s caregiver. According to the statute, the report must reflect
only the reporter’s belief that a child has been abused.9 So long as the reporter acts in good faith,
he or she is immune from civil or criminal liability.“’

        In our opinion, Family Code chapter 261 confers discretion in whether to file charges of child
abuse upon the investigating authority, the court, and the prosecutor, but confers no discretion upon
the person who originally suspects that a child has been abused, e.g., a treatment provider. Once a
treatment provider has reported the suspicion to an appropriate authority,” the authority will
investigate the claim. ‘* If , upon completing the investigation, the authority believes the claim of
child abuse is substantiated, the authority may recommend to the court, the district attorney, and a
law-enforcement agency that a petition should be filed against the alleged perpetrator.” The court
then may direct a prosecuting authority to file appropriate charges.14




(...continued)
report or a rqmi lacking a factual foundation under section 261.107.

        %m. Code $261.102.

         ‘Old.5 261.106(a).

         “See ib. 5 261.103 (listing agencies to which report of child abuse must be made).

         ‘*See id. $5 261.301 - .302.

         “fd. 5 261.308(a),   (b).

         “Id. 5 261.308(c).


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Ms. GraceL. Davis, L.M.S.W.-A.C.P - Page 4                 (DM-458)




                                      SUMMARY

               Under Family Code section 261.101(a), a person who suspects that a
           child has been abused or neglected must report that suspicion immediately to
           the appropriate authorities. The Council on Sex Offender Treatment may not
           interpret section 261.101(a) to permit a registered sex-offender-treatment
           provider or .affiliated sex-offender-treatment provider to decide whether to
           report a suspicion where the suspicion is based on dated or incomplete
           information.




                                             DAN MORALES
                                             Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SAK4I-l J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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