Does a sex offender treatment provider have to report suspected child abuse even if the information is old or incomplete?

TX AG Opinion DM-0458: Must a sex-offender-treatment provider report suspected child abuse based on dated or incomplete information?

Plain-English summary

Texas has a broad mandatory child-abuse reporting law. Family Code section 261.101(a) says that any person who has cause to believe a child's health or welfare has been or may be adversely affected by abuse or neglect must immediately report it to the authorities. The Council on Sex Offender Treatment asked the Attorney General about a wrinkle in how it applied that law to the providers who treat sex offenders.

The council told the office it generally required treatment providers to report any allegation or suspicion of child abuse by a client. But it had created an exception: when the information a provider received from a client was "incomplete or dated," the council encouraged the provider to use "good judgment" in deciding whether to report. The council asked whether that exception squared with section 261.101.

The Attorney General concluded it did not. The statute uses "shall" and "immediately," which together create a mandatory duty with no room for the provider's discretion, and there is no language creating an exception for incomplete or dated information. The opinion pointed out that a person who knowingly fails to report suspected child abuse commits a class B misdemeanor. It also explained that the reporting duty applies even where the communication would otherwise be privileged, that the law expects reporters sometimes will not know all the details (the report need only reflect the reporter's belief that a child has been abused, even if the reporter does not know the child's name), and that a reporter acting in good faith is immune from civil and criminal liability. The discretion that does exist, over whether to actually bring charges, belongs to the investigating authority, the court, and the prosecutor, not to the treatment provider who first forms the suspicion.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Family Code chapter 261 (child-abuse reporting and investigation) has been amended since 1997. The core duty to report immediately has long been a fixture of Texas law, but confirm the current statute, the list of reporting authorities, and the penalties before relying on any specific provision below.

Common questions

If the information is old or sketchy, can a treatment provider decide not to report?
No. The Attorney General concluded that section 261.101(a) imposes a mandatory duty to report immediately, with no exception for information that is incomplete or dated. The council could not interpret the statute to give providers that discretion.

What happens if a mandated reporter stays silent?
The opinion noted that a person who knowingly fails to report suspected child abuse under chapter 261 commits a class B misdemeanor.

Does a treatment provider have to know all the facts before reporting?
No. The opinion explained that the law contemplates reporters who do not know every detail; the report need only reflect the reporter's belief that a child has been abused, and must identify the child only if the child's identity is known.

Could a provider be punished for reporting a suspicion that turns out to be wrong?
The opinion said a reporter who acts in good faith is immune from civil and criminal liability, and that a provider who reports a suspicion based on incomplete or dated information ordinarily cannot be convicted of making a false report.

Who decides whether the case actually goes forward?
Not the treatment provider. The opinion explained that the investigating authority, the court, and the prosecutor hold the discretion over whether to file charges; the provider's job is to report the suspicion.

Background and statutory framework

The reporting requirement dates to 1971, when the Legislature declared its purpose to protect children by providing for mandatory reporting of suspected abuse or neglect. Section 261.101(a) requires immediate reporting by any person with cause to believe a child has been abused, and section 261.101(c) makes the duty apply even to people whose communications are normally privileged. The report must reflect the reporter's belief that a child has been abused (section 261.102) and identify the child if known (section 261.104), but the statute anticipates the reporter may not know all the details. A good-faith reporter is immune from civil and criminal liability (section 261.106(a)), while a knowing failure to report is a class B misdemeanor (section 261.109), as is a knowingly false report or one lacking factual foundation (section 261.107).

The Attorney General applied the plain-meaning rule, declining to defer to the council's reading of an unambiguous statute (citing Calvert v. Kadane), and read "shall" as mandatory (citing Wright v. Ector County Indep. Sch. Dist. and Inwood North Homeowners' Ass'n v. Meier). The opinion located the discretion in the system downstream of the report: once a provider reports, the appropriate authority investigates (sections 261.301, 261.302), and if it finds the claim substantiated it may recommend a petition to the court, district attorney, and law-enforcement agency, after which the court may direct charges (section 261.308). A footnote also explained that subsection 261.101(b), which gives certain professionals 48 hours to report, did not apply because it covers only professionals who have direct contact with children in the normal course of their duties, which a treatment provider does not.

Citations

Statutes:

• Tex. Fam. Code ch. 261; §§ 261.101, 261.102, 261.103, 261.104, 261.106, 261.107, 261.109, 261.301, 261.302, 261.308

Cases:

• Calvert v. Kadane, 427 S.W.2d 605 (Tex. 1968)
• Wright v. Ector County Indep. Sch. Dist., 867 S.W.2d 863 (Tex. App.-El Paso 1993, no writ)
• Inwood North Homeowners' Ass'n v. Meier, 625 S.W.2d 742 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0458
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0458.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

November 26, 1997

Ms. Grace L. Davis, L.M.S.W.-A.C.P.
Executive Director
Council on Sex Offender Treatment
1100 West 49th Street
Austin, Texas 78756-3183

Opinion No. DM-458

Re: Whether Family Code section 261.101(a) permits a registered sex-offender-treatment 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 determining 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-treatment 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 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. The report should reflect the reporter's belief that a child has been abused and must identify the child if the child's identity is known.

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 261.101(a). As section 261.101(a) says, a person who suspects that a child has been abused shall report the suspicion, and shall do so immediately. The term "shall" ordinarily signals a mandate, 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.

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. 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.

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

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

Footnotes

1. Act of May 24, 1971, 62d Leg., R.S., ch. 902, sec. 1, § 1, 1971 Tex. Gen. Laws 2790, 2790 (emphasis added).

2. Fam. Code § 261.101(c).

3. Id. § 261.102.

4. Id. § 261.104.

5. A court will not give weight to an agency's construction of an unambiguous statute if the construction is contrary to the statute's plain meaning. Attorney General Opinion JM-1149 (1990) at 2; see also Calvert v. Kadane, 427 S.W.2d 605, 607 (Tex. 1968).

6. See Wright v. Ector County Indep. Sch. Dist., 867 S.W.2d 863, 868 (Tex. App.-El Paso 1993, no writ) (citing Inwood North Homeowners' Ass'n v. Meier, 625 S.W.2d 742, 743 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ)).

7. Your letter to this office suggests that you believe Family Code section 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 (b) requires a professional to report suspected child abuse within 48 hours after the suspicion arises. By its terms, however, subsection (b) applies only to a professional who has direct contact with children in the normal course of his or her official duties. We do not understand a treatment provider to have direct contact with children in the normal course of his or her official duties; we therefore need not consider whether a treatment provider is a "professional" in the word's broader sense.

8. Fam. Code § 261.109. We note that, under Family Code section 261.107, a person who knowingly or intentionally makes a report that the person knows is false or lacks factual foundation commits a class B misdemeanor. We do not in this opinion determine what a false report is or what a report that lacks a factual foundation is. In addition, whether in a particular situation a treatment provider knows information is false or lacks a factual foundation is a fact question that cannot 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-2911 (1940) at 2. We do not believe, however, that a treatment provider who reports a suspicion of child abuse based on incomplete or dated information ordinarily may be convicted of making a false report or a report lacking a factual foundation under section 261.107.

9. Fam. Code § 261.102.

10. Id. § 261.106(a).

11. See id. § 261.103 (listing agencies to which report of child abuse must be made).

12. See id. §§ 261.301 - .302.

13. Id. § 261.308(a), (b).

14. Id. § 261.308(c).