By: Moncrief S.B. No. 443
A BILL TO BE ENTITLED
AN ACT
1-1 relating to a right to petition a court for an order to seal or
1-2 destroy records related to certain admissions to a mental health
1-3 facility; providing a criminal penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 6, Civil Practice and Remedies Code, is
1-6 amended by adding Chapter 144 to read as follows:
1-7 CHAPTER 144. DESTRUCTION OF CERTAIN RECORDS
1-8 Sec. 144.001. DEFINITIONS. In this chapter:
1-9 (1) "Former mental health patient" means an individual
1-10 who:
1-11 (A) between January 1, 1985, and December 31,
1-12 1993, was admitted to a mental health facility that has pled
1-13 guilty, or whose parent corporation has so pled, to unlawfully
1-14 conspiring to offer and pay remuneration to any person to induce
1-15 that person to refer individuals for services to the mental health
1-16 facility; and
1-17 (B) has been released from that mental health
1-18 facility; but
1-19 (C) was not admitted to the facility on the
1-20 basis of a court proceeding which included a commitment hearing
1-21 which was on the record.
1-22 (2) "Record" includes a medical record.
1-23 (3) "Court" means a district or statutory probate
2-1 court.
2-2 Sec. 144.002. SUIT AND ORDER FOR DESTRUCTION OF ADMISSION
2-3 RECORDS. (a) A former mental health patient may bring suit for an
2-4 order that all records related to the individual's admission to or
2-5 treatment at a mental health facility be sealed or destroyed.
2-6 (b) If the former mental health patient has attained
2-7 majority at the time the suit is brought, the person is entitled to
2-8 the court order to destroy the records if the court finds, based on
2-9 competent medical evidence, that the admission or treatment for
2-10 which the destruction of records is sought was not medically
2-11 necessary.
2-12 (c) If the former mental health patient is a minor at the
2-13 time the suit is brought, the person is entitled to the court order
2-14 to seal the records until the second anniversary of the person
2-15 attaining majority if the court finds, based on competent medical
2-16 evidence, that the admission or treatment for which the sealing of
2-17 records is sought was not medically necessary. Records sealed
2-18 pursuant to this subsection are not open for inspection by any
2-19 person except the former mental health patient. If, after
2-20 attaining majority, the person does not petition the court to not
2-21 destroy the records, the court shall order destruction of the
2-22 sealed records on the second anniversary of the person attaining
2-23 majority.
2-24 Sec. 144.003. PROCEDURE FOR PETITION, NOTICE, HEARING, AND
2-25 ORDER. (a) A petitioner under this chapter shall provide a list
3-1 of each health care provider, agency, hospital, and other person or
3-2 facility that the petitioner has reason to believe has possession
3-3 of a record subject to sealing or destruction if the court orders
3-4 the sealing or destruction under Section 144.002.
3-5 (b) The court shall:
3-6 (1) set a hearing on the petition; and
3-7 (2) give to each person the petitioner lists in the
3-8 petition reasonable notice of the hearing.
3-9 (c) If after the hearing the court finds that the petitioner
3-10 is entitled to an order directing that records be sealed or
3-11 destroyed:
3-12 (1) the court shall issue an order directing that the
3-13 records be sent to the court or otherwise sealed or destroyed, as
3-14 appropriate, in accordance with Section 144.004; and
3-15 (2) the court or the clerk of the court shall send to
3-16 each person the petitioner lists in the petition:
3-17 (A) a certified copy of the order;
3-18 (B) an order that any record or information
3-19 regarding the proceedings to obtain the order be sealed or
3-20 destroyed, as appropriate, or sent to the court; and
3-21 (C) an explanation of the effect of the order.
3-22 Sec. 144.004. ACTIONS FOLLOWING COURT ORDER. On a person's
3-23 receipt of an order issued under this chapter, the person shall
3-24 delete all index references that identify the former mental patient
3-25 in relation to the admission to a mental health facility from the
4-1 person's records and record storage systems and shall:
4-2 (1) remove each record that identifies the former
4-3 mental patient in relation to the admission and present each record
4-4 to the court; or
4-5 (2) if the removal of the record is impracticable,
4-6 seal or destroy, as appropriate, each portion of a record that
4-7 identifies the former mental patient in relation to the admission
4-8 and notify the court by sworn affidavit of the person's action.
4-9 Sec. 144.005. COURT RECORDS CONCERNING ORDER. The court
4-10 shall seal records concerning an order issued under this chapter
4-11 and ensure that the court's records are not open for inspection by
4-12 any person except the former mental patient or on further order of
4-13 the court after notice to the former mental patient and a finding
4-14 of good cause.
4-15 Sec. 144.006. COLLATERAL EFFECTS OF ORDER. (a) A former
4-16 mental patient who successfully petitions for an order under this
4-17 chapter may deny:
4-18 (1) the existence of any record subject to the order;
4-19 (2) the existence of the order itself;
4-20 (3) the occurrence of the former mental patient's
4-21 admission to a mental health facility if the records of the
4-22 admission are subject to the order; and
4-23 (4) the occurrence of any treatment related to the
4-24 admission if the records of the admission are subject to the order.
4-25 (b) A former mental patient who makes a denial under
5-1 Subsection (a) is not liable for a civil or criminal penalty for
5-2 perjury.
5-3 Sec. 144.007. LIMITATION ON CERTAIN LAWSUITS. A former
5-4 mental patient who successfully petitions a court for an order
5-5 under this chapter or a person acting on the former mental
5-6 patient's behalf may not file an action against a facility or
5-7 health care provider related to an event or activity that formed
5-8 the basis of a record subject to the court's order.
5-9 Sec. 144.008. DISCLOSURE OF INFORMATION SUBJECT TO ORDER;
5-10 PENALTY. (a) A person commits an offense if the person:
5-11 (1) knows of a former mental patient's admission to a
5-12 mental health facility;
5-13 (2) knows of a court order issued under this chapter
5-14 that relates to that admission; and
5-15 (3) intentionally releases, disseminates, publishes,
5-16 or otherwise uses a record or index reference subject to that
5-17 order.
5-18 (b) A person commits an offense if the person:
5-19 (1) knowingly fails to delete, seal, destroy, or
5-20 present to the court a record or index reference subject to an
5-21 order issued under this chapter; and
5-22 (2) knows or should know that the record or index
5-23 reference is subject to that order.
5-24 (c) An offense under this chapter is a Class B misdemeanor.
5-25 Sec. 144.009. EXPIRATION OF CERTAIN PROVISIONS. Sections
6-1 144.002, 144.003, and 144.004 expire January 1, 1999.
6-2 SECTION 2. The changes in law made by this Act apply only to
6-3 an action filed on or before January 1, 1999. An action filed on
6-4 or before January 1, 1999, that is pending on January 1, 1999, is
6-5 governed by Chapter 144, Civil Practice and Remedies Code, as that
6-6 chapter existed immediately before the expiration of Sections
6-7 144.002, 144.003, and 144.004 of that chapter, and that law is
6-8 continued in effect for that purpose.
6-9 SECTION 3. This Act takes effect September 1, 1997, and
6-10 applies to a record created before, on, or after that date.
6-11 SECTION 4. The importance of this legislation and the
6-12 crowded condition of the calendars in both houses create an
6-13 emergency and an imperative public necessity that the
6-14 constitutional rule requiring bills to be read on three several
6-15 days in each house be suspended, and this rule is hereby suspended.