Does Texas law require a child's parent to consent before the child, as a witness or complainant rather than a suspect, is given a polygraph test?

Texas AG Opinion JM-1141: Polygraph Consent for a Child Witness or Complainant

Plain-English summary

The Family Code's section 51.151 says that once a child is taken into custody as a suspect, no one may give the child a polygraph exam without the consent of the child's attorney or the juvenile court, unless the child has been transferred to criminal court for prosecution. The Polygraph Examiners Board's executive officer asked whether that same consent rule applies when the child being examined is not a suspect at all, but a complainant or witness for the state, since a licensee who violates section 51.151 can be disciplined by the board.

The Attorney General concluded that section 51.151 does not apply to a child complainant or witness, because that consent requirement is triggered only when a child is "taken into custody" under section 52.01, a term the Family Code reserves for situations involving suspected delinquent conduct, not for a child who is simply testifying or reporting an offense. So a polygraph examiner's license would not be at risk under section 51.151 for examining a child witness or complainant without the child's attorney's or the juvenile court's consent. The opinion went on, however, to recommend that examiners still obtain the consent of the child's parent or a court-appointed guardian ad litem before conducting such an exam, reasoning that a parent's general authority to make legally significant decisions for a child extends to this kind of exam, particularly given that statements made during a polygraph exam could carry legal consequences for the child later, including in a perjury prosecution.

Currency note

This opinion was issued in 1990. 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 mentioned here.

Common questions

Does a child witness or complainant need an attorney's or juvenile court's consent before a polygraph exam, the same as a detained child suspect?
No. The opinion held that Family Code section 51.151's specific consent requirement applies only when a child has been "taken into custody" as that term is used for suspected delinquent conduct, not to a child testifying as a witness or reporting as a complainant.

Could a polygraph examiner still get in trouble for testing a child witness without any consent?
Not under section 51.151 specifically, according to the opinion, but the opinion recommended obtaining the parent's or guardian ad litem's consent anyway as a matter of caution, separate from that statute's requirements.

Why did the opinion recommend parental consent even though the statute did not require it?
Because a parent generally has authority under Family Code section 12.04 to make decisions of substantial legal significance for the child, and because statements a child makes during a polygraph exam could later become admissible or otherwise legally significant, including in a perjury case, given that the Penal Code allows perjury prosecutions of children under 15 as an exception to the general rule against prosecuting young children.

Are polygraph results even reliable enough to matter?
The opinion noted that Texas courts have been reluctant to admit polygraph results directly because of reliability concerns (citing Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973)), but that statements made during an exam have sometimes been held admissible under certain circumstances.

Background and statutory framework

Family Code section 51.151 bars a polygraph examination of a child taken into custody under section 52.01 without the consent of the child's attorney or the juvenile court, unless the child has been certified for criminal prosecution under section 54.02. Section 52.01 defines "taken into custody" to include situations such as an arrest, a juvenile court order, or a law enforcement or probation officer's belief that the child engaged in delinquent conduct or violated probation, none of which describe a child acting as a witness or complainant. Article 4413(29cc), section 19, V.T.C.S., made violating section 51.151 grounds for the Polygraph Examiners Board to refuse, revoke, suspend, or reprimand a license.

Although section 51.151 did not apply, the opinion looked to Family Code section 12.04(7), which gives a parent authority to make decisions of substantial legal significance for a child, and to section 51.11(b), which lets a juvenile court appoint a guardian ad litem when a parent cannot or will not act in the child's best interest, as the basis for recommending consent from a parent or guardian ad litem before testing a child witness or complainant. The opinion also flagged that Penal Code section 8.07(a)(1) makes perjury an exception to the rule against prosecuting children under 15, meaning a child's polygraph-related statements could carry real legal stakes, and cited Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973), for the general judicial skepticism toward polygraph result reliability, while noting some polygraph-related statements have been held admissible under certain circumstances.

Citations

Statutory provisions:

• TEX. FAM. CODE §§ 12.04, 51.11(b), 51.151, 52.01, 54.02
• V.T.C.S. art. 4413(29cc), § 19 (Polygraph Examiners Board discipline)
• TEX. PENAL CODE § 8.07(a)(1)

Cases:

• Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1141
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1141.pdf

Original opinion text

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

February 6, 1990

Mr. Bryan M. Perot
Executive Officer
Polygraph Examiners Board
P. O. Box 4007
Austin, Texas 78773-0001

Opinion No. JM-1141

Re: Consent to a polygraph examination of a child (RQ-1893)

Dear Mr. Perot:

You ask whether section 51.151 of the Family Code applies to a polygraph examination of a child complainant or a child witness for the state.

Section 51.151 provides:

If a child is taken into custody under Section 52.01 of this code, a person may not administer a polygraph examination to the child without the consent of the child's attorney or the juvenile court unless the child is transferred to criminal court for prosecution under Section 54.02 of this code.

Section 52.01 of the Family Code provides in pertinent part:

(a) A child may be taken into custody:

(1) pursuant to an order of the juvenile court under the provisions of this title;

(2) pursuant to the laws of arrest;

(3) by a law-enforcement officer if there are reasonable grounds to believe that the child has engaged in delinquent conduct or conduct indicating a need for supervision; or

(4) by a probation officer if there are reasonable grounds to believe that the child has violated a condition of probation imposed by the juvenile court.

You advise that your concern is prompted by section 19 of article 4413(29cc), V.T.C.S., providing:

The board [Polygraph Examiners] shall refuse to issue a license, shall revoke or suspend a license, shall reprimand a licensee, or may probate a license suspension on any one or more of the following grounds:

. . . .

(14) violating Section 51.151, Family Code, relating to the examination of a child taken into custody.

Your scenario does not include the taking into custody of a child under section 52.01 of the Family Code since no provision is made under this title for taking a child witness or child complainant into custody. Section 51.151 does not apply to the situation you describe.

While the polygraph examiner's license may not be placed in jeopardy under your scenario, we believe caution should be exercised in obtaining the consent of a child to submit to a polygraph examination.

Section 12.04 of the Family Code, in detailing the rights, privileges, duties, and powers of a parent, includes in subsection (7) "the power to represent the child in legal action and to make other decisions of substantial legal significance concerning the child." In reviewing section 51.151, we note that prosecutors may dismiss a case if a state's witness fails a polygraph examination. R. Dawson, Texas Juvenile Law 103 (2d ed. 1987). While courts have been reluctant to admit the results of a polygraph examination because of its lack of reliability, Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973), under certain circumstances statements made during the examination have been held admissible. R. Dawson, supra.

Section 8.07(a)(1) of the Penal Code provides that the offense of perjury is an exception to the rule that a person under 15 years of age may not be convicted of an offense. Conceivably, a statement made in a polygraph test might become admissible against a child in a perjury trial as a result of testimony given in legal proceedings following the examination. Given the circumstances attendant to questioning by a polygraph operator in connection with a court proceeding, a child through fear, suggestion, fantasy, etc., might make unfounded responses or admissions against the child's interest. Since statements made by a child during a polygraph examination could be of "substantial legal significance concerning the child," it would appear advisable that the parent's consent be obtained before a child complainant or child witness is subjected to a polygraph examination. In the event a guardian ad litem has been appointed for the child under section 51.11(b) of the Family Code,[1] the consent of the guardian ad litem should be obtained.

Since your concern is directed to conduct that might result in loss of a polygraph operator's license, we note that subsections 19(1) and (2) of article 4413(29cc), V.T.C.S., provide that failure to inform a person to be examined of the nature of the examination or failure to inform the subject that participation is voluntary is basis for revocation of an examiner's license. The possibility that a child may be unable to comprehend the significance of the examiner's explanation of the nature of the examination or the fact that consent to submit to the examination must be voluntarily given furnishes additional reason for obtaining the consent of the parent or the guardian ad litem.

SUMMARY

Section 51.151 of the Family Code does not apply to a polygraph examination of a child complainant or a child witness for the state. However, it would be advisable for the polygraph examiner to obtain the consent of the child's parent or guardian ad litem before subjecting a child witness or a child complainant to a polygraph examination.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

[1] Section 51.11(b) provides:

In any case in which it appears to the juvenile court that the child's parent or guardian is incapable or unwilling to make decisions in the best interest of the child with respect to proceedings under this title, the court may appoint a guardian ad litem to protect the interests of the child in the proceedings.