July 27, 1989
Honorable Dennis R. Jones Opinion NO. JM-1075
Commissioner
Texas Department of Mental Re: Effect of amendment to
Health and Mental Retardation rules of criminal evidence
P. 0. Box 12668 in production of clinical
Austin, Texas 78711-2668 records (RQ-1716)
Dear Mr. Jones:
You ask a number of questions relative to the effect of
Rule 509 of the Texas Rules of Criminal Evidence on
subpoenaes for production of Texas Department of Mental
Health and Mental Retardation client's clinical records.
The Texas Rules of Criminal Evidence were promulgated
by the Court of Criminal Appeals in conformity with
legislation authorizing the court to promulgate rules of
procedure and evidence in criminal cases. Acts 1985, 69th
Leg., ch. 685, 59 5-9, at 2473-74. &B V.T.C.S. art. 1811f.
The rules were adopted by the court on December 18, 1985,
and became effective September 1, 1986.
Rule 509 provides that "[t]here is no physician-patient
privilege in criminal proceedings." In Rouaeau v. State,
738 S.W.2d 651, 664 (Tex. Crim. App. 1987), the court held
that under the express provision of Rule 509 there is no
physician-patient privilege in criminal cases.
You ask the following questions:
I. State Court Proceedinas
A. Did Rule 509, [Texas Rules of Criminal
Evidence], repeal Tex. Rev. Civ. Stat.
Ann., Article 5561h, Section 5, and
Tex . Rev. Civ. Stat. Ann., Article
5547-300, Sec. 57, as these statutes
relate to the production of clinical
records? Is a subopena all that is
required for the production of con-
fidential clinical records in cases of
ongoing criminal proceedings in state
court?
P. 5598
Honorable Dennis R. Jones - Page 2 (JM-1075)
B. Is a state grand jury investigation a
'criminal proceeding' as described in
Rule 509?
II. Federal Court Proceedinas
A. Is Rule 509 inapplicable to a federal
court? If so, are Articles 556121 and
5547-300, Section 57, the only author-
ities in the case of a federal court
subpoena?
B. If Rule 509 is applicable to federal
court proceedings, is a federal grand
jury investigation a 'criminal
Proceeding' as described in that rule?
You ask that your questions be considered under the
following scenario:
1) The subpoena emanates from a pending
criminal proceeding in which our client is a
victim, defendant, or witness, and it is this
client's record made the subject of the
subpoena.
2) The client is or has been treated for
illness or disability unrelated to drua or
alcohol abuse.1
3) There exists no exception to the rule of
confidentiality of clinical records, and no
consent for disclosure has been given.
(Emphasis added.)
Article 5561h, V.T.C.S., relates to the confidentiality
of mental health information of an individual and provides
that a patient's or client's communication with any person
licensed or certified by the state in the diagnosis and
1. Rule 510 of the Rules of Criminal Evidence
provides:
A communication to any person involved in
the treatment or examination of alcohol or
drug abuse by a person being treated volun-
tarily or being examined for admission to
treatment for alcohol or drug abuse is not
admissible.
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Honorable Dennis R. Jones - Page 3 (JM-1075)
evaluation of any mental or emotional condition is
confidential except under certain specified exceptions set
forth in section 4 of article 5561h.
Among the statutes designated as repealed by the Rules
of Criminal Evidence as they relate to criminal law cases
and criminal law matters is article 5561h. The general
repealer provision states "repeal is effective simultane-
ously with the effective date of the comprehensive body of
rules of evidence promulgated by the Court of Criminal
Appeals." Tex. R. Crim. Evid., List of Repealed Statutes at
159-60. In a criminal case or criminal law matter, Rule 509
repeals article 5561h insofar as it relates to any informa-
tion in the clinical records relating to the diagnosis or
evaluation of a mental or emotional condition heretofore
deemed confidential under the physician-patient privilege.
Section 57(a) of article 5547-300, V.T.C.S., provides
for the confidentiality of records of the "identity, diag-
nosis, evaluation, or treatment of any person which are
maintained in connection with the performance of any program
or activity relating to mental retardation" except for cer-
tain designated exceptions set forth in section 57(b) of
article 5547-300.
Since we have no way of knowing the source or content
of the "identity, diagnosis, evaluation or treatment" in the
clinical records of a mentally retarded person, we can only
conclude that the information contained therein that had
heretofore been deemed confidential under the physician-
patient relationship is no longer privileged. To that
extent Rule 509 repeals section 57(a) of article 5547-300.
In response to your question as to whether a subpoena
is sufficient to require production of clinical records,2
article 24.02 of the Code of Criminal Procedure provides:
2. Since your question includes the term "confidential
clinical records" it should be noted that Rule 501 of the
Rules of Criminal Evidence provides:
Except as otherwise provided by these
rules or by Constitution, statute, or court
rule prescribed pursuant to statutory author-
ity, no person has a privilege to:
(1) Refuse to be a witness; or
(Footnote Continued)
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Honorable Dennis R. Jones - Page 4 (JM-1075)
If a witness [has] in his possession any
instrument of writing or other thing desired
as evidence, the subpoena may specify such
evidence and direct that the witness bring
the same with him and produce it in court.
Accordingly, a subpoena is sufficient to require production
of these records in criminal cases.
You next ask whether a grand jury investigation is a
"criminal proceeding" as described in Rule 509. It is the
function of the grand jury to inquire into all indictable
offenses within the county. Code Crim. Proc. arts. 20.09,
20.10. The grand jury is without authority to inquire into
any matter other than the violation of the penal law. Alt
v. State, 203 S.W. 53, 54 (Tex. Crim. App. 1918). A grand
jury investigation is a "criminal proceedingl' under Rule
509.
Your remaining questions relate to federal court
proceedings. Rule 501 of the Federal Rules of Evidence
provides:
Except as otherwise required by the
Constitution of the United States or provided
by Act of Congress or in rules prescribed by
the Supreme Court pursuant to statutory auth-
ority, the privilege of a witness, person,
government, State, or political subdivision
thereof shall be governed by the principles
of the common law as they may be interpreted
by the courts of the United States in the
light of reason and experience. However, in
civil actions and proceedings, with respect
to an element of a claim or defense as to
which State law supplies the rule of deci-
sion, the privilege of a witness, person,
government, State, or political subdivision
thereof shall be determined in accordance
with State law.
(Footnote Continued)
(2) Refuse to disclose any matter: or
(3) Refuse to produce any object or
writing: or
(4) Prevent another from being a witness
or disclosing any matter or producing any
object or writing.
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Honorable Dennis R. Jones - Page 5 (JM-1075)
In United States v. Meaaher, 531 F.2d 752 (5th Cir.), cert.
denied, 429 U.S. 853 (1976), the defendant was convicted of
robbery and on appeal complained of the admission into evi-
dence of the records and testing of a psychiatrist. The
court rejected the argument that the admission of such
evidence violated his privilege, as a patient, against the
disclosure of information confidential to a physician. In
rejecting defendantIs contention the court stated:
Under Rule 26, Fed.R.Crim.P., the admissibil-
ity of evidence in federal criminal trials is
governed by common law, except as modified by
Congress. Rule 501, Fed.R. of Ev., states
that unless otherwise provided, the privilege
of a witness shall be governed by the prin-
ciples of common law as interpreted by U.S.
Courts in light of experience and reason. At
common law, no physician-patient privilege
existed and, therefore. we recoanize no such
privileae in federal criminal trials today.
United States v. Harrier, 450 F.2d 1032 (5th
Cir. 1971). (Emphasis added.)
L at 753..
In response to your question, Rule 509 is not applic-
able to criminal trials and proceedings in federal courts.
Articles 5561h and 5547-300, V.T.C.S., are not applicable to
criminal proceedings since state laws relating to privileged
communications are only applicable to civil cases in federal
courts to the extent stated in Rule 501 of the Federal
Rules.
Your question of whether a grand jury proceeding in
federal court is a criminal proceeding appears to be
contingent on our having answered your previous question
that Rule 509 is applicable to criminal proceedings in
federal courts. While Rule 509 is not applicable, we do
note that a federal grand jury investigation is a "criminal
proceeding;"3 therefore the physician-patient privilege is
not applicable.
3. It is the duty of a grand jury impaneled within a
judicial district to inquire into offenses against the
criminal laws of the United States alleged to have been
committed within the district. 18 U.S.C. 5 3332.
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Honorable Dennis R. Jones - Page 6 (JM-1075)
SUMMARY
Rule 509 of the Texas Rules of Criminal
Evidence repeals article 5561h, V.T.C.S.,
insofar as it relates to any information in
the clinical records relating to the diag-
nosis or evaluation of mental or emotional
condition of a patient heretofore deemed con-
fidential under the physician-patient
privilege in criminal cases and criminal law
matters. Section 57(a) of article 5547-300,
V.T.C.S. (which provides for the confiden-
tiality of clinical records relating to the
identity, diagnosis, evaluation and treatment
of a mentally retarded person) is repealed by
Rule 509 of the Texas Rules of Criminal
Evidence in criminal cases and criminal law
matters to the extent that such records may
have heretofore been deemed confidential
under the physician-patient privilege.
A subpoena issued in accordance with the
provisions of article 24.02 of the Code of
Criminal Procedure is sufficient to require
the production of clinical records in a state
criminal proceeding. ~A grand jury investiga-
tion is a "criminal proceeding" in both state
and federal courts. Rule 509 of the Texas
Rules of Criminal Evidence is not applicable
to criminal proceedings in federal courts.
Articles 556111 and 5547-300, section 57,
V.T.C.S., are not applicable in criminal
proceedings in federal courts. .
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
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Honorable Dennis R. Jones - Page 7 (JM-1075)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
P. 5604