75R11575 E
By Moncrief S.B. No. 443
Substitute the following for S.B. No. 443:
By Berlanga C.S.S.B. No. 443
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to a right to petition a court for an order to seal or
1-3 destroy records related to certain admissions to a mental health
1-4 facility; 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 RECORDS
1-9 Sec. 144.001. DEFINITIONS. In this chapter:
1-10 (1) "Former mental health patient" means an individual
1-11 who:
1-12 (A) between January 1, 1985, and December 31,
1-13 1993, was admitted to a mental health facility that has pled
1-14 guilty, or whose parent or affiliate corporation has so pled, to
1-15 unlawfully conspiring to offer and pay remuneration to any person
1-16 to induce that person to refer individuals for services to a mental
1-17 health facility; and
1-18 (B) has been released from that mental health
1-19 facility; but
1-20 (C) was not admitted to the facility on the
1-21 basis of a court proceeding that included a commitment hearing that
1-22 was on the record.
1-23 (2) "Record" includes a medical record.
1-24 (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
2-26 of each health care provider, agency, hospital, and other person or
2-27 facility that the petitioner has reason to believe has possession
3-1 of a record subject to sealing or destruction if the court orders
3-2 the sealing or destruction under Section 144.002.
3-3 (b) The court shall:
3-4 (1) set a hearing on the petition; and
3-5 (2) give to each person the petitioner lists in the
3-6 petition reasonable notice of the hearing.
3-7 (c) If after the hearing the court finds that the petitioner
3-8 is entitled to an order directing that records be sealed or
3-9 destroyed:
3-10 (1) the court shall issue an order directing that the
3-11 records be sent to the court or otherwise sealed or destroyed, as
3-12 appropriate, in accordance with Section 144.004; and
3-13 (2) the court or the clerk of the court shall send to
3-14 each person the petitioner lists in the petition:
3-15 (A) a certified copy of the order;
3-16 (B) an order that any record or information
3-17 regarding the proceedings to obtain the order be sealed or
3-18 destroyed, as appropriate, or sent to the court; and
3-19 (C) an explanation of the effect of the order.
3-20 Sec. 144.004. ACTIONS FOLLOWING COURT ORDER. On a person's
3-21 receipt of an order issued under this chapter, the person shall
3-22 delete all index references that identify the former mental patient
3-23 in relation to the admission to a mental health facility from the
3-24 person's records and record storage systems and shall:
3-25 (1) remove each record that identifies the former
3-26 mental patient in relation to the admission and present each record
3-27 to the court; or
4-1 (2) if the removal of the record is impracticable,
4-2 seal or destroy, as appropriate, each portion of a record that
4-3 identifies the former mental patient in relation to the admission
4-4 and notify the court by sworn affidavit of the person's action.
4-5 Sec. 144.005. COURT RECORDS CONCERNING ORDER. The court
4-6 shall seal records concerning an order issued under this chapter
4-7 and ensure that the court's records are not open for inspection by
4-8 any person except the former mental patient or on further order of
4-9 the court after notice to the former mental patient and a finding
4-10 of good cause.
4-11 Sec. 144.006. COLLATERAL EFFECTS OF ORDER. (a) A former
4-12 mental patient who successfully petitions for an order under this
4-13 chapter may deny:
4-14 (1) the existence of any record subject to the order;
4-15 (2) the existence of the order itself;
4-16 (3) the occurrence of the former mental patient's
4-17 admission to a mental health facility if the records of the
4-18 admission are subject to the order; and
4-19 (4) the occurrence of any treatment related to the
4-20 admission if the records of the admission are subject to the order.
4-21 (b) A former mental patient who makes a denial under
4-22 Subsection (a) is not liable for a civil or criminal penalty for
4-23 perjury.
4-24 Sec. 144.007. LIMITATION ON CERTAIN LAWSUITS. (a) Except
4-25 as provided by Subsection (b), a former mental patient who
4-26 successfully petitions a court for an order under this chapter or a
4-27 person acting on the former mental patient's behalf may not file an
5-1 action against a facility or health care provider related to an
5-2 event or activity that formed the basis of a record subject to the
5-3 court's order.
5-4 (b) A juvenile former mental health patient whose records
5-5 have been sealed under this chapter may file an action or complaint
5-6 at any time before the records have been destroyed under Section
5-7 144.002(c).
5-8 Sec. 144.008. DISCLOSURE OF INFORMATION SUBJECT TO ORDER;
5-9 PENALTY. (a) A person commits an offense if the person:
5-10 (1) knows of a former mental patient's admission to a
5-11 mental health facility;
5-12 (2) knows of a court order issued under this chapter
5-13 that relates to that admission; and
5-14 (3) intentionally releases, disseminates, publishes,
5-15 or otherwise uses a record or index reference subject to that
5-16 order.
5-17 (b) A person commits an offense if the person:
5-18 (1) knowingly fails to delete, seal, destroy, or
5-19 present to the court a record or index reference subject to an
5-20 order issued under this chapter; and
5-21 (2) knows or should know that the record or index
5-22 reference is subject to that order.
5-23 (c) An offense under this chapter is a Class B misdemeanor.
5-24 Sec. 144.009. APPLICABILITY OF OTHER LAW. This chapter
5-25 supersedes other state law regarding the retention or destruction
5-26 of patient records.
5-27 Sec. 144.010. 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.