1-1           By:  Moncrief                                    S.B. No. 443

 1-2           (In the Senate - Filed February 5, 1997; February 10, 1997,

 1-3     read first time and referred to Committee on Jurisprudence;

 1-4     March 11, 1997, reported adversely, with favorable Committee

 1-5     Substitute by the following vote:  Yeas 7, Nays 0; March 11, 1997,

 1-6     sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 443                    By:  Ellis

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to a right to petition a court for an order to seal or

1-11     destroy records related to certain admissions to a mental health

1-12     facility; providing a criminal penalty.

1-13           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-14           SECTION 1.  Title 6, Civil Practice and Remedies Code, is

1-15     amended by adding Chapter 144 to read as follows:

1-16                CHAPTER 144.  DESTRUCTION OF CERTAIN RECORDS

1-17           Sec. 144.001.  DEFINITIONS.  In this chapter:

1-18                 (1)  "Former mental health patient" means an individual

1-19     who:

1-20                       (A)  between January 1, 1985, and December 31,

1-21     1993, was admitted to a mental health facility that has pled

1-22     guilty, or whose parent corporation has so pled, to unlawfully

1-23     conspiring to offer and pay remuneration to any person to induce

1-24     that person to refer individuals for services to the mental health

1-25     facility; and

1-26                       (B)  has been released from that mental health

1-27     facility; but

1-28                       (C)  was not admitted to the facility on the

1-29     basis of a court proceeding which included a commitment hearing

1-30     which was on the record.

1-31                 (2)  "Record" includes a medical record.

1-32                 (3)  "Court" means a district or statutory probate

1-33     court.

1-34           Sec. 144.002.  SUIT AND ORDER FOR DESTRUCTION OF ADMISSION

1-35     RECORDS.  (a)  A former mental health patient may bring suit for an

1-36     order that all records related to the individual's admission to or

1-37     treatment at a mental health facility be sealed or destroyed.

1-38           (b)  If the former mental health patient has attained

1-39     majority at the time the suit is brought, the person is entitled to

1-40     the court order to destroy the records if the court finds, based on

1-41     competent medical evidence, that the admission or treatment for

1-42     which the destruction of records is sought was not medically

1-43     necessary.

1-44           (c)  If the former mental health patient is a minor at the

1-45     time the suit is brought, the person is entitled to the court order

1-46     to seal the records until the second anniversary of the person

1-47     attaining majority if the court finds, based on competent medical

1-48     evidence, that the admission or treatment for which the sealing of

1-49     records is sought was not medically necessary.  Records sealed

1-50     pursuant to this subsection are not open for inspection by any

1-51     person except the former mental health patient.  If, after

1-52     attaining majority, the person does not petition the court to not

1-53     destroy the records, the court shall order destruction of the

1-54     sealed records on the second anniversary of the person attaining

1-55     majority.

1-56           Sec. 144.003.  PROCEDURE FOR PETITION, NOTICE, HEARING, AND

1-57     ORDER.  (a)  A petitioner under this chapter shall provide a list

1-58     of each health care provider, agency, hospital, and other person or

1-59     facility that the petitioner has reason to believe has possession

1-60     of a record subject to sealing or destruction if the court orders

1-61     the sealing or destruction under Section 144.002.

1-62           (b)  The court shall:

1-63                 (1)  set a hearing on the petition; and

1-64                 (2)  give to each person the petitioner lists in the

 2-1     petition reasonable notice of the hearing.

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

 2-3     is entitled to an order directing that records be sealed or

 2-4     destroyed:

 2-5                 (1)  the court shall issue an order directing that the

 2-6     records be sent to the court or otherwise sealed or destroyed, as

 2-7     appropriate, in accordance with Section 144.004; and

 2-8                 (2)  the court or the clerk of the court shall send to

 2-9     each person the petitioner lists in the petition:

2-10                       (A)  a certified copy of the order;

2-11                       (B)  an order that any record or information

2-12     regarding the proceedings to obtain the order be sealed or

2-13     destroyed, as appropriate, or sent to the court; and

2-14                       (C)  an explanation of the effect of the order.

2-15           Sec. 144.004.  ACTIONS FOLLOWING COURT ORDER.  On a person's

2-16     receipt of an order issued under this chapter, the person shall

2-17     delete all index references that identify the former mental patient

2-18     in relation to the admission to a mental health facility from the

2-19     person's records and record storage systems and shall:

2-20                 (1)  remove each record that identifies the former

2-21     mental patient in relation to the admission and present each record

2-22     to the court; or

2-23                 (2)  if the removal of the record is impracticable,

2-24     seal or destroy, as appropriate, each portion of a record that

2-25     identifies the former mental patient in relation to the admission

2-26     and notify the court by sworn affidavit of the person's action.

2-27           Sec. 144.005.  COURT RECORDS CONCERNING ORDER.  The court

2-28     shall seal records concerning an order issued under this chapter

2-29     and ensure that the court's records are not open for inspection by

2-30     any person except the former mental patient or on further order of

2-31     the court after notice to the former mental patient and a finding

2-32     of good cause.

2-33           Sec. 144.006.  COLLATERAL EFFECTS OF ORDER.  (a)  A former

2-34     mental patient who successfully petitions for an order under this

2-35     chapter may deny:

2-36                 (1)  the existence of any record subject to the order;

2-37                 (2)  the existence of the order itself;

2-38                 (3)  the occurrence of the former mental patient's

2-39     admission to a mental health facility if the records of the

2-40     admission are subject to the order; and

2-41                 (4)  the occurrence of any treatment related to the

2-42     admission if the records of the admission are subject to the order.

2-43           (b)  A former mental patient who makes a denial under

2-44     Subsection (a) is not liable for a civil or criminal penalty for

2-45     perjury.

2-46           Sec. 144.007.  LIMITATION ON CERTAIN LAWSUITS.  A former

2-47     mental patient who successfully petitions a court for an order

2-48     under this chapter or a person acting on the former mental

2-49     patient's behalf may not file an action against a facility or

2-50     health care provider related to an event or activity that formed

2-51     the basis of a record subject to the court's order.

2-52           Sec. 144.008.  DISCLOSURE OF INFORMATION SUBJECT TO ORDER;

2-53     PENALTY.  (a)  A person commits an offense if the person:

2-54                 (1)  knows of a former mental patient's admission to a

2-55     mental health facility;

2-56                 (2)  knows of a court order issued under this chapter

2-57     that relates to that admission; and

2-58                 (3)  intentionally releases, disseminates, publishes,

2-59     or otherwise uses a record or index reference subject to that

2-60     order.

2-61           (b)  A person commits an offense if the person:

2-62                 (1)  knowingly fails to delete, seal, destroy, or

2-63     present to the court a record or index reference subject to an

2-64     order issued under this chapter; and

2-65                 (2)  knows or should know that the record or index

2-66     reference is subject to that order.

2-67           (c)  An offense under this chapter is a Class B misdemeanor.

2-68           Sec. 144.009.  EXPIRATION OF CERTAIN PROVISIONS.  Sections

2-69     144.002, 144.003, and 144.004 expire January 1, 1999.

 3-1           SECTION 2.  The changes in law made by this Act apply only to

 3-2     an action filed on or before January 1, 1999.  An action filed on

 3-3     or before January 1, 1999, that is pending on January 1, 1999, is

 3-4     governed by Chapter 144, Civil Practice and Remedies Code, as that

 3-5     chapter existed immediately before the expiration of Sections

 3-6     144.002, 144.003, and 144.004 of that chapter, and that law is

 3-7     continued in effect for that purpose.

 3-8           SECTION 3.  This Act takes effect September 1, 1997, and

 3-9     applies to a record created before, on, or after that date.

3-10           SECTION 4.  The importance of this legislation and the

3-11     crowded condition of the calendars in both houses create an

3-12     emergency and an imperative public necessity that the

3-13     constitutional rule requiring bills to be read on three several

3-14     days in each house be suspended, and this rule is hereby suspended.

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