                                    QBffice of the Bttornep @eneral
                                              &ate of Eexae
DAN MORALES
 ATTORNEY
      CENERAL                                           May 20,199s


   The Honorable J.E. “Buster” Brown                             Opinion No. DM-476
   Chair, Natural Resources Committee
   Texas State Senate                                            Re: Whether a local school official may refuse
   P.O. Box 12068                                                to permit a Department of Protective and
   Austin, Texas 7871 l-2068                                     Regulatory Services investigator, investigating
                                                                 reported child abuse, to interview a child at
                                                                 school, and related questions (RQ-1035)

   Dear Senator Brown:

           Family Code section 261.302(b)(l) p ermits an investigator, investigating reported child
   abuse, to interview an allegedly victimized child at the child’s school. Subsection (b)(2) of the same
   section permits an investigator to include in the interview “the presence of persons” the investigator
   “determines are necessary.” Section 261.303(a) prohibits a person from interfering with an
   investigation of child abuse or neglect. You ask whether, absent a court order to the contrary and
   without being deemed to have interfered with an investigation under section 261.303(a), a local
   school official, such as a principal, may deny an investigator access to a student at school or allow
   the investigator to conduct the interview at school on the condition that a school official be present.’

            We break your question into three smaller issues. First, we consider whether a school official
   may refuse to permit an investigator to interview a child at school. We conclude the official may
   not. Second, we consider whether a school official may require that school personnel be present at
   a student interview that is conducted at the school. We conclude the official may not. Under Family
   Code section 261,302(b)(2), on the other hand, the investigator may allow school personnel to sit
   in on the interview if the investigator deems the person’s presence “necessary.” Third, we consider
   whether a school official who denies an investigator’s request to conduct an interview at the school
   or who conditions approval on the presence of school personnel at the interview may interfere with
   the investigation in contravention of Family Code section 261.303(a). We conclude the official
   interferes.

           We begin by examining Family Code chapter 261, which pertains to reports of child abuse
   or neglect. Under that chapter, any person who suspects that a child has been abused or neglected




              ‘You also ask about an investigator’s access to student records held at a school.   The Open Records Division
   of this off& is addressing this questionin ORQ-24.
The Honorable J.E. “Buster” Brown - Page 2                           (DM-476)




immediately must report the information to one of the entities listed in section 261.103.* Reports
that a child has been abused or neglected by a person responsible for the child’s care are investigated
by the Texas Department of Protective and Regulatory Services (DPRS) or “the agency designated
by the court to be responsible for the protection of children” (the designated agency), working with
the appropriate state or local law-enforcement agency.) Reports of child abuse or neglect perpetrated
by another person may be investigated by a local or state law-enforcement agency! Family Code
section 261.302 guides an investigator in the conduct of the investigation:

                   (a) The investigation may include:

                       (1) a visit to the child’s home, unless the alleged abuse or neglect can
                   be confirmed or clearly ruled out without a home visit; and

                       (2) an interview with and examination of the subject child, which may
                   include a medical, psychological, or psychiatric examination.

                   (b) The interview with and examination of the child may:

                       (1) be conducted at any reasonable time and place, including the
                   child’s home or the child’s school; and

                      (2) include the presence of persons the department or designated
                   agency determines are necessary.

                  (c) The investigation may include an interview with the child’s parents
              and an interview with and medical, psychological, or psychiatric examination
              of any child in the home.

                     ... 5



         %eFam.      Code $5 261.101(a),    ,103.

          ‘Seeid. $5 261.103(2),(4),.105(a),   .301(a);seeaLro id. 5 261.001(2) (defming department). The DPRS also
may contract with the sheriffs of certain counties, under which contract the sheriffs department conducts investigations
of child abuse for the DPRS. See id. 5 261.3019.

          ‘See id. $5 261.103(l),   .105(b), (d), .301(c). But see id. 5 261.301(t). We fmd no provision          detailing    what
a state or local law-enforcemkt     agency must or may determine in the course of its investigation.

         If the abuse or negl_ect allegedly occurred in a facility operated, licensed, certitied, or registered by a state
agency, that state agemy.must promptly and thoroughly investigate the report in accordance with Family Code chapter
261, subchapter E. See id. 5 261.301(b).

          The goal of the investigation   is to protect the child from further abuse or neglect.   See id. 5 261.301(d).      Family
                                                                                                    (continued...)




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The Honorable J.E. “Buster” Brown - Page 3                               (DM-476)




Family Code section 26 1.303(a) prohibits a person from interfering with an investigation: “A person
may not interfere with an investigation of a report of child abuse or neglect conducted by the [DPRS]
or designated agency.‘% Subsection (b) of that section permits an investigator to seek a court order
directing a person in charge of “any place where the child may be” to allow the investigator to enter
and to conduct the interview, examination, and investigation.

        Family Code section 261.406 pertains specifically to a report of child abuse or neglect in a
public or private school under the jurisdiction of the Texas Education Agency. Subsection (a) of that
section orders a DPRS investigator to investigate such a report just as the investigator would
investigate any other report under chapter 26 1. The DPRS must, however, send a written report of
the investigation to the Texas Education Agency and the local school board or local goveming body
for appropriate action.7 Local or state law-enforcement officers also may investigate a report of child
abuse or neglect in the schools8

       Before we reach our own conclusions, we will summarize the arguments of an independent
school district and the DPRS, as conveyed in letters to this office.’ The school district’s argument




code section 261.301(e) lists several facts the DPRS or the designated agency should reach conclusions about, but the
investigating agency need determine only those matters that are necessary to provide for the child’s protection:

                  As necessary to provide      for the protection   of the child, the department   or designated
             agency shall determine:

                     (1) the nature, extent, and cause of the abuse or neglect;

                     (2) the identity of the person responsible      for the abuse or neglect;

                     (3) the names and conditions      of the other children in the home;

                     (4) an evaluation   of the parents or persons responsible      for the care of the child;

                     (5) the adequacy    of the home environment;

                    (6) the relationship of the child to the persons responsible        for the care, custody, IX
                  welfare of the child; and

                     (7) all other pertinent   data.

         6We fmd nothing    in Family Code chapter 261 that provides        a penalty for interfering   with an investigation.

         ‘See Fam. Code $261.406(b)

         ‘See id. $ 261.406(c).

         %‘ee Letter from David M. Feldman,       Feldman    & Rogers, L.L.P., representing      Clear Creek Indep. Sch. Dist.,
                                                                                                                 (continued.. .)



                                                                    p.    2692
The Honorable J.E. “Buster” Brown - Page 4                       (DM-476)




is three-pronged. First, the school district argues that the Family Code does not require schools to
permit investigators to conduct interviews in the schools. The school district points to the language
of Family Code section 261.302(b)(l) in support of this argument: ‘The interview                 . may be
conducted at        the child’s school.” According to the school district, the word may indicates that
access to a child at school is within~the discretion of school administrators. The school district
further cites Family Code section 261.303(b), which permits an investigator to obtain a court order
directing an individual in charge of a place where the child is, e.g., a school, to allow the investigator
to enter the facility. If section 261.302@)(l) requires a school to accommodate an investigator upon
the investigator’s request, then, the school district continues, section 261.303(b) is meaningless.
Second, the school district contends that school counselors are necessary parties to an interview
conducted in the school. The school district bases its contention on a counselor’s statutory duty to
identify students at risk of dropping out of school’o and to participate in planning and implementing
a developmental guidance and counseling program to address these students’ needs.” Third and
finally, the school district argues that the school’s duties and responsibilities under the Education
Code obligate a school to regulate investigators’ access to the school. Education Code sections
 11.15 1(b) and 37.102(a) endow the board of trustees of an independent school district with exclusive
power to manage the district’s public schools and authorize it to adopt disciplinary rules to protect
the safety and welfare of students, as well as employees and property.

         The DPRS, on the other hand, interprets Family Code section 261.302 to “take certain actions
as the investigator   deems necessary.“”    The investigator’s broad discretionary authority, the DPRS
continues, is enhanced by the prohibition against interfering in an investigation, found in section
261.303(a), and the authority under section 261.303(b) to obtain court orders as necessary to enable
the investigator to complete the investigation. Additionally, the DPRS contests school districts’
claims that they may condition approval of an interview on the presence of school officials. As the
DPRS sees it, the decision as to who may be present at an interview rests within the investigator’s
discretion. Putting the decision in the hands of the investigator, according to the DPRS, ensures
“that the child is . . . as comfortable as possible so that the interviewer can obtain the most detailed
and accurate information that the child can provide.” The DPRS also relies upon Family Code
section 261.201, which deems information developed in an investigation confidential, apparently
suggesting that the presence of school personnel would jeopardize the information’s confidentiality.
Finally, the DPRS avers that in those cases where the individual alleged to have committed the abuse



         +ontinued)
to Sarah J. Shirley, Chair, Opinion Comm., Office of the Attorney General (Jan. 2.1998) (on tile with Opinion Comm.);
Letter from Nancy O’Neill, Supxvising Attorney, Texas Dep’t of F’rotective & Regulatory Services, to Sarah J. Shirley,
Chair,OpinionComm., Off~ce of the Attorney General (Jan. 5, 1998) (on file with OpinionComm.).

          “‘See Educ.Code g 29.081(b), (c), (d)(2)(D) (defming   shrdentaf risk   ofdropping   OUT
                                                                                                 ofschool and requiring
school district to provide~spkial programs).

          “See id. $§ 33.005(2),   .006(b)(l).

          “(Emphasis   added.)



                                                                 p.   2693
The Honorable J.E. “Buster” Brown - Page 5                         (DM-476)




is employed by the school,” any school involvement in the investigation “creates at least the
appearance of a conflict of interest and adds an unnecessary complication to the perceived integrity
of the investigation.”

        We are guided in our interpretation by the overriding purpose of chapter 261: to protect
children from abuse or neglect. In 1971, the legislature described the statute’s purpose: “to protect
children . by providing for the mandatory reporting of suspected cases.“14 The legislature further
intended to bring the State’s protective services to bear on the situation to “prevent further abuses,
and to safeguard and enhance the welfare of these children.“‘5 Finally, the legislature directed that
the statutes be administered and interpreted to provide “the greatest possible protection as promptly
as possible” for the children who are affected by abuse or neglect. M In Albright v. Texas Department
of Human Services, ” the court likewise construed the substance of Family Code chapter 261 to make
the protection of the child paramount “in instances of suspected child abuse.“18

        We conclude that a school official may not deny an investigator’s request to interview a
student at school. Only the DPRS or the designated agency is authorized, under the statute, to
determine whether to interview a child at school or elsewhere. Family Code section 261.302(b)(l)
clearly authorizes the investigator to interview or examine a child victim at any reasonable place
“including the child’s . school.” Furthermore, we do not believe that the word may in section
261.302(b) indicates that a school official may refuse an investigator’s request to interview a student
in school. We concede that the term generally connotes permission, as opposed to the word shall,
which generally connotes an imperative. I9 But we do not believe that our concession necessitates
a conclusion that a school official has the discretion to refuse an investigator’s request to conduct
an interview in the school. Rather, in our view, the word may in section 261.302(b) gives discretion
to determine where and how the interview will be conducted to the investigator.*’ Thus, with respect
to your first question, it is the investigator who may decide whether to interview the alleged victim
in the child’s home, the child’s school, or elsewhere.




         “See Fam. Code $8 261.001(5)(E),    ,406.

         “Act of May 24, 1971,62d     Leg., KS., ch. 902, sec. 1,$ 1, 1971 Tex. Gen. Laws 2790,279O.

         “Id.

         “Id.

         “859 S.W.2d 575 (T&.. App.--Houston         [lst Dist.] 1993, no writ).

         “Id. at 580.         ~_

         ‘%ee BRYAN A. GARNER, A DICTIONARYOF MODERN LEGAL USAGE 502 (1987) (contrasting                  shnN and mq).

         %e     Gonzalez v. Avalos, 866 S.W.2d 346,350      (Tex. App.--El Paso 1993), wit dim ‘d woj..   907 S.W.2d 443
(Tex. 1995).




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The Honorable J.E. “Buster” Brown - Page 6                        (DM-476)




        Indeed, the legislative history of the language including the child’s school buttresses our
construction, as well as indicates that the debate between investigators and school officials is not
new. The legislature added this language in 1983,” and the bill’s author, Representative Willis,
described for the House Committee on the Judiciary the need for the amendment:

                  At the present time, when the case worker goes to school, ninety-five
             schools out of one hundred in Texas cooperates fully and lets them talk
             to the child. . But sometimes they don’t, and ah this bill does, it just gives
             the      case worker the right. . . to interview the child at the school.22

We believe the language of section 261.302@)(l) effectuates Representative Willis’ stated intent.
Consequently, as the representative suggested, section 261.302(b)(l) gives an investigator a right
to interview a child in school if the investigator desires to do so.

         Moreover, we do not believe that section 261.303(b), which allows an investigator to obtain,
upon a showing of good cause, a court order directing a school official to comply with the
investigator’s request, authorizes a school official to refuse an investigator’s request to interview a
child in the school. In our opinion, this provision applies only to those school officials who,
blatantly disregarding section 261.302(b)(l), block an investigator’s access to a school student. We
note that the substance of section 261.303(b) was in the statutory predecessor to chapter 261 prior
to the 1983 adoption ofthe substance of section 261.302(b)(1)T3 The 1983 legislation limited the
utility of what is now section 261.301(b) with respect to school officials, but it did not render it
meaningless.

        We answer the second question consistently.            In our opinion, Family Code section
261.302(b)(2) vests authority to determine who is a necessary party to the interview with the child
solely in the investigator from the DPRS or other designated agency. Again, the word may in section
261.302(b) indicates that the decision is the investigator’s, and no one else’s, Accordingly, whether
a school official, including a counselor, is necessav to conduct an interview and may therefore
attend the interview is a matter for the investigator, not the school, to decide. Even so, we know of




          “See Act of May 29,-1983,68tb    Leg., R.S., ch. 753, g 1, 1983 Tex. Gen. Laws 4546,4546.    The legislahue
in 1983 amended the predecessor to Family Code section 261.302 by adding the language now found (essentially) in
subsection (b): “The interview with the child may be conducted at any reasonable time and at any place, including the
child’s school. The investiga~on may include an interview with the child’s parents.” See id.

          ‘zHearings on H.B. 358 Before the House Comm. on the Judiciary, 68th Leg., R.S. (Apr. 27,1983)    (statement
of Representative Willis) (tape available from House Video/Audio Services Offke).

        “See supro note 21 (quoting   1983 addition to predecessor    of Family Code section 261.302(b)).




                                                             p.      2695
The Honorable J.E. “Buster” Brown - Page 7                         (DM-476)




nothing that forbids an investigator to determine that the presence of a school offkial is necessary
to the interview.24

        Finally, we conclude that a school official who refuses to allow an investigator to interview
a student at school or who conditions approval of the request on the presence of school personnel
may interfere with an investigation for purposes of Family Code section 261.303(a). The legislature
added the substance of Family Code section 261.303(a) in 1995.” Unfortunately, we have been
unable to find any legislative history that indicates what motivated the legislature to propose and
then adopt this lsnguage?6 We rely solely up on the provision’s plain language. As it is commonly
used,” the word interfere means “to interpose in a way that hinders or impedes.“28 We fail to see
how refusing access to a student or conditioning access on the presence of school personnel can be
anything but “interpos[ing] in a way that hinders or impedes.” Forcing an investigator to obtain a
court order to access a student at school delays the investigation’s completion.29 Such a delay is
inconsistent with Family Code chapter 261’s emphasis on a prompt resolution of the report of
suspected child abuse or neglect. Section 261.301(a), for example, requires the DPRS or “designated
agency” to make “a prompt and thorough investigation          .“30

        None of the Education Code provisions to which the school district refers affect our
conclusions. Of course, a school board has exclusive authority to manage the public schools in its




          ‘%I OUTview, the presence of a school offkial at an interview would not jeopardize the contidentiality      of the
information   divulged there. We note that under Family Code section 261.201, which governs confidentiality              and
discloswe of information from a child-abuse-report   investigation, the confidentiality attaches to the information. It does
not, on the other hand, prohibit only certain persons to disclose the information.

         ?Tee Act of May 26,1995,74th       Leg., R.S., ch. 751,§ 96,1995       Tex. Gen. Laws 3888,392s

         %e language appears to have been added in a formal meeting of the House Committee               on Juvenile   Justice
and Family Issues. Formal meetings generally are not tape-recorded.

         *‘See Gov’t Code $3 11 .Ol l(a) (directing   that words be construed    consistently   with common   usage)

         fsW~~s~~~‘s    NINTH NEW COLLEGIATE
                                           DICTIONARY
                                                    631 (1990).

           “CJ Equal Employment Opporhrni~ Commh v. City of Orange, 905 F. Supp. 381, 382 (E.D. Tex. 1995)
(man.) (holding that, despite state Gpen Meetings Act, Gov’t Code ch. 55 1, City of Orange must release subpoenaed
tapes of executive session to EEOC because “EEOC’s investigative efforts into the employment practices of entities
subject to [Open Meetings Act] would be delayed significantly     if a court order were required to enforce every
administrative subpoena served upon these entities.“).

          ‘?See also, e.g., Fam. Code $5 261.101(a) (requiring person suspecting that child has been abused or neglected
to immediately report information), (b) (requiring professional suspecting that child has been abused or neglected to
report information not later than 48th hour after suspicion arises), .105(b) (requiring DPRS or designated agency
immediately to notify appropriate state or local law-enforcement    agency of reported child abuse or neglect).




                                                                  p.   2696
The Honorable J.E. “Buster” Brown - Page 8                        (DM-476)




district.” Nonetheless, the school board’s authority to adopt a particular regulation must be
considered in light of other statutes. ‘* A school board may not adopt a regulation that contravenes
other law.)’ Additionally, a school’s duty to identify students at risk of dropping out34 and a
counselor’s duty to participate in planning and implementing a developmental guidance and
counseling program to address the needs of students at risk of dropping out, among others, are not
tantamount to a right to attend an investigator’s interview with a student. Rather, we believe the
school’s and the counselor’s knowledge that a particular student has been the victim of abuse is
sufficient for purposes of the Education Code.




         “SeeEduc.Code      5 11.51(b)

           ‘%SeeAnderson v. Canyon Indep. Sch. Dirt., 412 S.W.2d 387,388        (Tex. Civ. App.--Amarillo      1967, no writ)
(considering statlltory predecekx  to Educ. Code 5 11.15 l(b)).

          “See Wood v. Alamo Heights Indep. Sch. Dist., 308 F. Supp. 551,552 (W.D. Tex. 1970) (quoting Wilson v.
Abilene Indep. Sch. Dist.,,.l90kW,2d 406,412 (Tex. Civ. App.--Eastland 1945, writ ref d warn.)), afld, 433 F.2d 355
(5th cir. 1970).

         ‘?See Educ. code § 29.081(b), (c), (d)(2)(D) (detining   student at risk   of dropping   out of school and requiring
school district to provide special programs).




                                                                  p.   2697
The Honorable J.E. “Buster” Brown - Page 9          (DM-476)




                                      SUMMARY

               A local school official may not deny the request of an investigator,
           investigating a report of suspected child abuse or neglect under Family Code
           chapter 261, to interview a student (the alleged victim) in the school. In
           addition, a local school official may not condition granting the request on a
           requirement that school personnel, such as a counselor, attend the interview.
           A school official who denies an investigator access to a student or who
           conditions access upon the investigator conducting the interview in the
           presence of school personnel may interfere with the investigation for
           purposes of Family Code section 261.303(a).




                                             DAN MORALES
                                             Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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