concurring.
Although I concur with the result reached by the majority, I would hold that Tex.Rev.Civ.Stat.Ann. art. 5561h (Vernon Supp. 1982) was not intended by the legislature to apply to a situation where a defendant in a criminal case had asserted his lack of mental capacity to stand trial and had asserted insanity as a defense to murder. See Smith v. Smith, 519 S.W.2d 152, 153 (Tex.Civ.App.—Dallas 1974, writ ref’d). It can hardly be argued that the legislature intended this statute to apply in a situation such as here where the criminal district attorney is charged with the responsibility of prosecuting those, such as Abdnor, with violation of the state criminal statutes. The legislative policy of prosecuting criminals overrides the physician-patient privilege granted in this statute. In my view, this statute was not enacted by the legislature to protect alleged criminals and to restrict the district attorney’s staff in seeking information to refute allegations by the criminal defendant of “not guilty due to insanity.” In such a situation, in my view, this statute has no application.
Indeed, to hold, as Abdnor would have us do, would severely hamper the district attorney in determining whether Abdnor was competent to stand trial or whether he was not guilty by reason of insanity. Accordingly, I concur in the result reached but not in its rationale.