February 24, 2022 | Blog, Personnel, Students

Child Abuse Reporting Mandate and Attorney General Opinion KP-0401

By Dean Micknal

On Friday, February 18, 2022, Texas Attorney General Ken Paxton issued Opinion No. KP-0401, in which the Attorney General opined that a court could find that certain enumerated “sex-change procedures”, when performed on minors, constitute child abuse under several provisions of Chapter 261 of the Texas Family Code.

The specific procedures addressed in the Opinion include:

  1. sterilization through castration, vasectomy, hysterectomy, oophorectomy, metoidioplasty, orchiectomy, penectomy, phalloplasty, and vaginoplasty;
  2. mastectomies;
  3. removing from children otherwise healthy or non-diseased body part or tissue; and
  4. providing, administering, prescribing, or dispensing following categories of drugs to children:

a.  puberty-suppression or puberty-blocking drugs;
b.  supraphysiologic doses of testosterone to females; and
c.  supraphysiologic doses of estrogen to males.

Importantly, the AG’s Opinion includes a pointed reminder that Family Code Section 261.101 imposes mandatory reporting requirements on both the general public and professionals who have “reasonable cause to believe” that a child has been abused.  The Opinion reiterates that the term “professional” includes “teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers” and closes with a warning that “[a] failure to report under these circumstances is a criminal offense.”

On Tuesday, February 22, 2022, Governor Greg Abbott forwarded the AG’s Opinion to the Commissioner of the Texas Department of Family and Protective Services (“DFPS”), calling on DFPS to “conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas.” The Governor’s correspondence, which closed with the directive that “[t]o protect Texas children from abuse, DFPS and all other state agencies must follow the law as explained in OAG Opinion No. KP-0401”, was also forwarded to a number of other state agency commissioners, including TEA Commissioner Morath.

Those of us who have worked in public education over the last several years understand that the issue of gender identity is rife with emotional, legal, and political complications. That said, public educators should be aware that they do have an obligation to report when they have reasonable cause to believe a child has been abused. Determining whether an individual has “reasonable cause” to suspect abuse always requires a case-by-case determination.  However, our firm has consistently advised our clients to err on the side of reporting when they have doubts about conduct that may or may not constitute child abuse.

Ultimately, a court of law will need to decide whether and/or in what circumstances the procedures identified in KP-0401 actually constitute child abuse.  In the interest of remaining consistent, our firm believes educators should be aware of the AG’s interpretation and continue to err on the side of caution should they question whether knowledge of such procedure(s) triggers a legal obligation to report. In doing so, the publicized opinions of the Attorney General and Governor may lead a reporter to believe that making a report based on knowledge of an enumerated procedure(s) would likely constitute “good faith” so as to provide immunity from any related civil or criminal liability.

Please do not hesitate to contact the education lawyers at Leasor Crass, P.C. if you have additional questions about this matter.

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