Conflict over a certain bill in the Texas Senate revolves around whether Child Protective Services should operate in transparency or darkness. Arguing for more transparency is an attorney who represented a family that had their child illegally taken away by the agency.
The version of State Rep. Ina Minjarez’ (D–San Antonio) House Bill 135 that passed the Senate Health & Human Services Committee on May 13 requires CPS to inform parents—orally and in writing—of their right to record by audio or video while being interviewed by the state agency. The Senate committee’s version of the bill also makes it a Class C misdemeanor (maximum $500 fine, no jail time) to share those recordings online.
Supporters of the bill point out the section mandating parents be informed of their right to record, which is said to be a significant step towards holding the state agency accountable, as many parents aren’t aware of that right. But critics have raised concerns about the fine for sharing those recordings on the internet.
“That gag order provision doesn’t fly with me,” Chris Branson, a lawyer for cases involving CPS, told Texas Scorecard.
“Most of [the bill] is good. It never hurts to require them to inform parents of their rights in a situation,” he observed. “The one bad part about this … is that predetermined statutory gag order would have kept the Pardos from getting as much help as they did.”
Branson was hired as the attorney for Daniel and Ashley Pardo, whose 4-year-old son, Drake, was illegally taken by CPS in 2019. The Texas Home School Coalition published the Pardos’ recording of the illegal seizure.
“The Pardos never posted anything,” Branson said. “The Texas Homeschool Coalition posted things in their efforts to fundraise for the case. Anything that detracts from their ability to fundraise on a big case means it’s less likely that people are going to be able to help.”
“The nation helped fund this little boy’s return partly because we advised the Pardo family to record,” said Krista McIntire, a consultant on CPS issues, who opposes HB 135.
Minjarez’ office didn’t respond before publication to Texas Scorecard’s inquiry about whether she supports the fine.
CPS later admitted they had no justification for taking Drake, and the Texas Supreme Court ordered that he be returned home. Last December, his parents were finally removed from Texas’ child abuse registry.
“CPS loves to work in the dark, as do some of their cronies,” Branson continued. “It would be interesting to see whether somebody can bootstrap that statute in order to try to fine a nonparty group, like the THSC.”
Branson was asked what effect HB 135 would have if the recording fine remained in place.
“The main effect is … that’s another way to punish the parents,” he said. “Because a parent who has her kids snatched out from under [her], they just grab their smartphone and film it and post it to their Facebook friends. [If that’s done and this fine is law,] they just violated state law without having a clue they did so, and those that do know about it live with the prescribed gag orders.”
State Sen. Bob Hall (R–Edgewood) was the only vote against sending the bill out of committee to the full Senate. It has yet to be voted on, but it is on the intent calendar to be considered.
“Had this bill been in effect at that time, the Pardo family might still be fighting to get their son home and facing criminal penalties,” Hall said. He also objected to HB 135 not requiring CPS to inform parents that agents could record them, as parents are “being questioned for something that could become a criminal investigation, and their recording could be used against them.”
Branson was asked why there’s resistance to bringing more transparency to CPS cases.
“Because a lot of what they do is dirty, and they don’t like that being pointed out to the public,” he replied. “I may sound cynical, but I’ve been at this a lot of years, and I know of what I speak. They hate being recorded, or talked about, or anything in the public.”
In fact, I advise my clients to secretly tape-record any conversation they’re in CPS with, because there’s no quicker way to enrage a CPS agent than to let her know that she’s being taped.
Branson was asked if this bill would have a chilling effect on him, the advice he gives his clients, and what they can do.
“It would mitigate that somewhat,” he replied. “The CPS worker has to know about the law, first of all, then actually have the mindset of thinking she needs to follow the law by letting the parent tape.”
“I’ve actually had CPS agents say, ‘We don’t do that law stuff. We follow our manual.’ It’s in [their] manual … they just have to actually read it and follow it, which they rarely do,” said Branson.
He chuckled after being asked if he thought the fine would hold up in court. “That’s one of those things where I would happily work on an attack of it pro bono, because that shouldn’t stand,” he replied. “My guess would be that it wouldn’t. … That just seems like a prescription against your First Amendment rights to free speech.”
“I think a compromise could be reached,” he added. “It goes back to the parents not even knowing that the law exists. That’s my main problem with it: It’d be a new way to punish the parents.”
Some have argued in favor of the fine because of an alleged federal law regarding publishing images of children on the internet. Branson was asked about this. “I’m not aware of that statute, but there are some arguments to be made there that I’ve heard before that hold some merit,” he replied. “You don’t want to parade a child’s image, name, and personal information all over the internet.”
“Some sort of compromise could be sought, I suppose. But because nine out of 10 parents are not going to know that that exists, my gut reaction is to not have that statutory provision in there at all,” he said. “The complete 100 percent gag order, that’s unacceptable.”
Branson went on to ask, “Why all this hiding? I prefer much more transparency than this hiding. If they’re acting above the law and acting righteously, they shouldn’t be too worried being talked about in the press.”
McIntire has issued a call to action for citizens to contact their state senator and ask them to oppose HB 135.