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.