By:  Moncrief                                 S.B. No. 443

         97S0242/1                           

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to remedies for fraudulent referrals to mental health

 1-2     facilities; providing a penalty.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Subtitle G, Title 4, Health and Safety Code, is

 1-5     amended by adding Chapter 322 to read as follows:

 1-6           CHAPTER 322.  EXPUNCTION OF RECORDS RELATING TO CERTAIN

 1-7                      MENTAL HEALTH FACILITY ADMISSIONS

 1-8           Sec. 322.001.  DEFINITION.  In this chapter, "mental health

 1-9     facility" has the meaning assigned by Section 571.003.

1-10           Sec. 322.002.  RIGHT TO EXPUNCTION.  A person who has been

1-11     admitted to a mental health facility is entitled to have all

1-12     records and files relating to the admission expunged if:

1-13                 (1)  the admission has been found by a court to have

1-14     not been medically necessary;

1-15                 (2)  the person has been released from the mental

1-16     health facility; and

1-17                 (3)  the person has not been readmitted to a mental

1-18     health facility within the five-year period preceding the date of

1-19     filing a petition for expunction under Section 322.003.

1-20           Sec. 322.003.  PROCEDURE FOR EXPUNCTION.  (a)  A person who

1-21     is entitled to expunction of records under Section 322.003 may file

1-22     a petition requesting expunction in a court of appropriate

1-23     jurisdiction.

 2-1           (b)  The petitioner shall provide a list of all health care

 2-2     providers, agencies, hospitals, and other individuals and

 2-3     facilities that the petitioner has reason to believe have records

 2-4     or files that are subject to expunction.

 2-5           (c)  The court shall set a hearing on the matter and shall

 2-6     give reasonable notice of the hearing to each official or

 2-7     individual entity listed by the petitioner.

 2-8           (d)  If the court finds that the petitioner is entitled to

 2-9     expunction of records and files that are the subject of the

2-10     request, it shall enter an order directing expunction and directing

2-11     the individuals or entities to turn over all records and files

2-12     subject to the order of expunction to the court.  The clerk of the

2-13     court shall send a certified copy of the order to each individual

2-14     or entity listed by the petitioner with an explanation of the

2-15     effect of the order. The explanation shall specify that each record

2-16     and file, including any information with respect to the proceeding

2-17     under this chapter, must be turned over to the court or, if removal

2-18     of a record or file is not practicable, destroyed in accordance

2-19     with Subsection (e).

2-20           (e)  On receipt of the order directing expunction, each

2-21     individual and entity named in the order shall turn over each

2-22     record and file that is subject to the expunction order to the

2-23     court or, if removal of a record or file is impracticable,

2-24     obliterate all portions of the record or file that identify the

2-25     requesting party and notify the court of its action by sworn

 3-1     affidavit.

 3-2           (f)  Each individual and entity named in the order shall

 3-3     delete from its records all index references to the records and

 3-4     files that are subject to the expunction order.

 3-5           (g)  If an order of expunction is issued under this section,

 3-6     the court records concerning the expunction proceeding are not open

 3-7     for inspection by anyone except the petitioner.

 3-8           Sec. 322.004.  EFFECT OF EXPUNCTION.  (a)  After entry of an

 3-9     expunction order, the release, dissemination, or use of the

3-10     expunged records and files for any purpose is prohibited and the

3-11     petitioner may deny the occurrence of the admission and the

3-12     existence of the expunction order.

3-13           (b)  On entry of an expunction order the petitioner is

3-14     prohibited from pursuing any cause of action arising from the

3-15     activities memorialized in the expunged records against the

3-16     facility or health care providers subject to the expunction.

3-17           Sec. 322.005.  VIOLATION OF EXPUNCTION ORDER.  (a)  A person

3-18     who acquires knowledge of an admission to a mental health facility

3-19     and who knows of an order expunging the records and files relating

3-20     to that admission commits an offense if the person knowingly

3-21     releases, disseminates, or otherwise uses the records or files.

3-22           (b)  A person who knowingly fails to turn over to the court

3-23     or to obliterate identifying portions of a record or file ordered

3-24     expunged under this chapter commits an offense.

3-25           (c)  An offense under this section is a Class A misdemeanor.

 4-1           Sec. 322.006.  EXPIRATION OF CHAPTER.  This chapter expires

 4-2     January 1, 2005.

 4-3           SECTION 2.  This Act takes effect September 1, 1997.

 4-4           SECTION 3.  The importance of this legislation and the

 4-5     crowded condition of the calendars in both houses create an

 4-6     emergency and an imperative public necessity that the

 4-7     constitutional rule requiring bills to be read on three several

 4-8     days in each house be suspended, and this rule is hereby suspended.