                      The Attorney                General        of Texas
                                              December   20,   1979
MARK WHITE
Attorney General


                   Mr. William W. Fisher, Chairman~            Opinion No. MW-108
                   State Board of Polygraph Examiners
                   Ill West Laurel -Suite 115                  Re: Voluntary participation    of
                   San Antonio, Texas 78212                    polygraph examinees.

                   Dear Mr. Fisher:

                         The Board of Polygraph Examiners has asked whether section 19(Z) of
                   the Polygraph Examiners Act, article 4413(29cc), V.T.C.S., prohibits a
                   polygraph examiner from proceeding with an examination of a subject when
                   the examinee indicates that his participation in the process is not voluntary.
                   The statutory provision rear%

                              sec. 19. The board may refuse to issue or may
                              suspendor revoke a license on any one or more of the
                              following groundw

                                      (1) for failing to inform a subject to be
                                      examined as to the nature of the examination;

                                      (2) for failing to inform a subject to be
                                      examined that his participation in the examina-
                                      tion is voluntary;

                                      . ...

                                      (l2) [or] failing to inform the subject of the
                                      results of the examination if so requested

                        It is obvious from a reading of this provision that the board is not
                   required to revoke or suspend the license of any licensed examiner simply
                   because he fails in one or more instances to take the ,foregoing steps,
                   although it might do so. The statute merely establishes standards which the
                   board may use to determine the fitness of licensees.

                        The statute ,imposes upon polygraph examiners a standard duty to
                   inform the subjects of examinations about certain matters, but it does not
                   impose upon them any duty to determine the motives of the examinee in
                   thereafter consenting to the examination or refusing it. If the consent given




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Mr. William W. Fisher   -   Page Two       (MW-108)



is truly informed consent, the examiner may take it at face value, for the purpose of
“informing” examinees is to apprise them of their right to make a choice - not to dictate
a chdce or determine the motives behind it.

       Even if the cocperation of a polygraph examinee has been coerced by a third party,
the examiner performs his duty so long as he clearly and in good faith informs the subject
that he need not undergo the examination, and that the examiner will not administer the
test if the subject chooses to cancel it.

      The examiner is not responsible for any coercive activity in which he does not
conspire or participate. If the prospective examinee refuses to be examined, the
polygraph examiner should abandon any attempt to examine him. If he has properly
informed the subject of his right to refuse the examination, and the subject nevertheless
choosss to go forward with it, the examiner is not at fault if it should later appear that
the subject’s chdce resulted from third-party coercion.

                                     SUMMARY

           Section 19(Z) of the Polygraph Examiners Act, article 44l2(29cc),
           V.T.C.S., establishes a standard which the Board of Polygraph
           Examiners may use to determine the fitness of licensee& It
           raquires that the examiner properly inform a subject that .his
           participation in a polygraph examination is voluntary, but the
           examiner need not determine the motives of a consenting
           examinec

                                   ‘~g;g



                                                Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General-

APPROVED:
OPINIONCOMMITTEE

C. Robert Heath, Chairman




                                           P.   342
Mr. William W. Fisher   -   Page Three        (MW-108)



David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpm
Bruce Youngblood




                                         D.    34-4
