Texas Child Protection Law Bench Book

2023 version: As effective November 1, 2023

F. Protecting Privacy

Addressing safety issues must be at the forefront of any survivor parent and their families' needs. A survivor parent fleeing a perpetrator often seeks services and shelter from a family violence center to escape a violent home, and those survivor parents who stay in the home need a safe avenue to discuss the violence and make a safety plan as well. Judges might recommend their local domestic violence agency as a resource for free and confidential services for survivor parents. Domestic violence agencies can support survivors in a variety of ways, including addressing trauma concerns, stability, and safety planning, along with housing, food, and other basic needs as well as providing confidential therapeutic support. It is important to note that family violence centers are bound by the Family Violence Prevention and Services Act (FVPSA) to have all services be voluntary; so while a referral can be made, the survivor parent chooses when and if to seek services.

Advocates at family violence centers know that trust is crucial to build with survivors as the trauma and violence they have experienced in an intimate relationship is difficult to share. Being able to do confidentially represents a critical component to feeling safe and provides the circumstances for a survivor to be able to share intimate details without having to worry about them later being revealed or used against them as they rebuild their lives. Victim-advocate privilege, outlined in Tex. Fam. Code Chapter 93, supports survivors seeking help and engaging in services offered at a family violence center which offer a range of services from shelter to counseling and legal advocacy. This law is further supported by federal confidentiality protections found in the Violence Against Women Act (VAWA) and the Family Violence Prevention and Services Act (FVPSA).[227]

The confluence of these laws creates a safety net for survivors. When DFPS or courts compel information or circumvent the privacy protections afforded by law, this can create safety risks and send a message to survivors that seeking support and safety may be used against them. Texas law does not allow disclosure except in narrow instances. Absent a properly executed release of information signed by a survivor who has consented to the privilege disclosure with an advocate, Texas victim-advocate privilege law attaches to all confidential communications and the advocate or family violence center must not disclose them outside of a few exceptions. Exceptions to this privilege include:

•   Mandatory reporting of child abuse and neglect and adult abuse, neglect, and exploitation.

•   An in-camera review by a judge to assess if the family violence center holds a specific document that proves forfeiture by wrongdoing in the event of a proceeding under Tex. Crim. Proc. Art. 38.49.

•   If an advocate serving as an expert witness reviews confidential communication and then derives an opinion based on the review of that information.

Judges play a critical role in upholding the carefully constructed privacy laws in Texas and can serve to uphold survivor safety when confidentiality and privilege laws are upheld and carefully navigated.

Privilege and Confidentiality Questions for Judges to Consider:

•   Have relevant state and federal privacy statutes addressed whether disclosure of survivor information is permissible?

•   Is there any other way to access needed information without breaching the critical privacy protections survivors of family violence receive from family violence centers?

•   Will seeking this information put the survivor parent or their children at risk?

•   Who would have access to these records after disclosure and how would it help the family or affect their safety?