By Naishtat                                     H.B. No. 1308

      75R5144 JJT-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to a right to petition a court for an order to destroy

 1-3     records related to certain admissions to a mental health facility;

 1-4     providing a criminal penalty.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  Title 6, Civil Practice and Remedies Code, is

 1-7     amended by adding Chapter 144 to read as follows:

 1-8                    CHAPTER 144.  DESTRUCTION OF CERTAIN

 1-9                               MEDICAL RECORDS

1-10           Sec. 144.001.  DEFINITIONS.  In this chapter:

1-11                 (1)  "Former mental health patient" means an individual

1-12     who has been admitted to a mental health facility and has been

1-13     released.

1-14                 (2)  "Record" includes a medical record.

1-15           Sec. 144.002.  SUIT AND ORDER FOR DESTRUCTION OF ADMISSION

1-16     RECORDS.  A former mental health patient may bring suit for an

1-17     order that all records related to the individual's admission to or

1-18     treatment at a mental health facility be destroyed.  The person is

1-19     entitled to the court order to destroy the records if the court

1-20     finds:

1-21                 (1)  the person has not been admitted to a mental

1-22     health facility during the five years preceding the suit; and

1-23                 (2)  the admission regarding which the destruction of

1-24     records is sought was not medically necessary.

 2-1           Sec. 144.003.  PROCEDURE FOR PETITION, NOTICE, HEARING, AND

 2-2     ORDER.  (a)  A petitioner under this chapter shall provide a list

 2-3     of each health care provider, agency, hospital, and other person or

 2-4     facility that the petitioner has a reason to believe has possession

 2-5     of a record subject to destruction if the court orders the

 2-6     destruction of records under Section 144.002.

 2-7           (b)  The court shall:

 2-8                 (1)  set a hearing on the petition; and

 2-9                 (2)  give to each person the petitioner lists in the

2-10     petition reasonable notice of the hearing.

2-11           (c)  If after the hearing the court finds that the petitioner

2-12     is entitled to an order directing that records be destroyed:

2-13                 (1)  the court shall issue an order directing that the

2-14     records be sent to the court or otherwise destroyed in accordance

2-15     with Section 144.004; and

2-16                 (2)  the court or the clerk of the court shall send to

2-17     each person the petitioner lists in the petition:

2-18                       (A)  a certified copy of the order;

2-19                       (B)  an order that any record or information

2-20     regarding the proceedings to obtain the order be destroyed or

2-21     returned to the court; and

2-22                       (C)  an explanation of the effect of the orders.

2-23           Sec. 144.004.  ACTIONS FOLLOWING COURT ORDER.  (a)  On a

2-24     person's receipt of an order issued under this chapter, the person

2-25     shall delete all index references that identify the former mental

2-26     patient in relation to the admission to a mental health facility

2-27     from the person's records and record storage systems and shall:

 3-1                 (1)  remove each record that identifies the former

 3-2     mental patient in relation to the admission and present each record

 3-3     to the court; or

 3-4                 (2)  if the removal of the record is impracticable,

 3-5     destroy each portion of a record that identifies the former mental

 3-6     patient in relation to the admission and notify the court by sworn

 3-7     affidavit of the person's action.

 3-8           (b)  The court shall destroy all records presented to the

 3-9     court under this section when all appeals related to the order are

3-10     exhausted.

3-11           Sec. 144.005.  COURT RECORDS CONCERNING ORDER.  The court

3-12     shall seal records concerning an order issued under this chapter

3-13     and ensure that the court's records are not open for inspection by

3-14     any person except the former mental patient.

3-15           Sec. 144.006.  COLLATERAL EFFECTS OF ORDER.  (a)  A former

3-16     mental patient who successfully petitions for an order under this

3-17     chapter may deny:

3-18                 (1)  the existence of any record subject to the order

3-19     or of the order itself; or

3-20                 (2)  the occurrence of:

3-21                       (A)  the former mental patient's admission to a

3-22     mental health facility if the records of the admission are subject

3-23     to the order; or

3-24                       (B)  any treatment related to the admission

3-25     described by Paragraph (A).

3-26           (b)  A former mental patient who makes a denial under

3-27     Subsection (a) is not liable for a civil or criminal penalty for

 4-1     perjury.

 4-2           Sec. 144.007.  LIMITATION ON CERTAIN LAWSUITS.  A former

 4-3     mental patient who successfully petitions a court for an order

 4-4     under this chapter or a person acting on the former mental

 4-5     patient's behalf may not file against a facility or health care

 4-6     provider an action related to an event or activity that formed the

 4-7     basis of a record subject to the court's order.

 4-8           Sec. 144.008.  DISCLOSURE OF INFORMATION SUBJECT TO ORDER;

 4-9     PENALTY.  (a)  A person commits an offense if the person:

4-10                 (1)  knows of a former mental patient's admission to a

4-11     mental health facility;

4-12                 (2)  knows of a court order issued under this chapter

4-13     that relates to that admission; and

4-14                 (3)  intentionally releases, disseminates, publishes,

4-15     or otherwise uses a record or index reference subject to that

4-16     order.

4-17           (b)  A person commits an offense if the person:

4-18                 (1)  knowingly fails to delete, destroy, or present to

4-19     the court a record or index reference subject to an order issued

4-20     under this chapter; and

4-21                 (2)  knows or should have known that the record or

4-22     index reference is subject to that order.

4-23           (c)  An offense under this chapter is a Class A misdemeanor.

4-24           Sec. 144.009.  EXPIRATION OF CERTAIN PROVISIONS.  Sections

4-25     144.002-144.004 expire September 1, 2003.

4-26           SECTION 2.  The changes in law made by this Act apply only to

4-27     an action filed on or before September 1, 2003.  An action filed on

 5-1     or before September 1, 2003, that is pending on September 1, 2003,

 5-2     is governed by Chapter 144, Civil Practice and Remedies Code, as

 5-3     that chapter existed immediately before the expiration of those

 5-4     sections of that chapter as provided by Section 144.009 of that

 5-5     chapter, and that law is continued in effect for that purpose.

 5-6           SECTION 3.  This Act takes effect September 1, 1997, and

 5-7     applies to a record created before, on, or after that date.

 5-8           SECTION 4.  The importance of this legislation and the

 5-9     crowded condition of the calendars in both houses create an

5-10     emergency and an imperative public necessity that the

5-11     constitutional rule requiring bills to be read on three several

5-12     days in each house be suspended, and this rule is hereby suspended.