A Trial Court May Not Compel Waiver of a Privilege

In a suit brought by the Attorney General to establish paternity, the respondent requested that the Attorney General produce the mother’s application for services submitted to the Attorney General and all related documents. Under section 231.108(a) of the Texas Family Code, these documents are confidential, and under subsection (b) they are privileged. However, subsection (c) states that the Attorney General “may” release information “for purposes directly connected with the administration of the child support, paternity determination, parent locator, or aid to families with dependent children programs.” The trial court ordered the documents produced, but the Fort Worth Court of Appeals conditionally granted mandamus, rejecting the trial court’s reasoning that because the Attorney General had discretion to release the documents, it must release the documents. The court of appeals held that “the discretion to waive privilege lies with the Attorney General and not the trial court.” In re Office of Attorney General, No. 02-13-00455-CV (Tex. App. – Fort Worth Feb. 6, 2014, orig. proceeding) (mem. op.).

Subsections (a) through (c) of Texas Family Code section 231.108 read:

(a) Except as provided by Subsection (c), all files and records of services provided under this chapter, including information concerning a custodial parent, noncustodial parent, child, and an alleged or presumed father, are confidential.

(b) Except as provided by Subsection (c), all communications made by a recipient of financial assistance under Chapter 31, Human Resources Code, or an applicant for or recipient of services under this chapter are privileged.

(c) The Title IV-D agency may use or release information from the files and records, including information that results from a communication made by a recipient of financial assistance under Chapter 31, Human Resources Code, or by an applicant for or recipient of services under this chapter, for purposes directly connected with the administration of the child support, paternity determination, parent locator, or aid to families with dependent children programs. The Title IV-D agency may release information from the files and records to a consumer reporting agency in accordance with Section 231.114.

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