                                                                                                                           PD-0433-14
                                                                                                          COURT OF CRIMINAL APPEALS
                                                                                                                           AUSTIN, TEXAS
                                                                                                        Transmitted 1/14/2015 8:14:08 AM
                                                                                                          Accepted 1/14/2015 9:45:55 AM
                                                                                                                            ABEL ACOSTA
                                                                                                                                    CLERK

                                   Officers
                                 President
                  Emmett Harris, Uvalde
                                              January 14, 2015
                           President-Elect
               Samuel E. Bassett, Austin
                        1st Vice President
                                              Hon. Abel Acosta, Clerk
                                                                                                       January 14, 2015
           John A. Convery, San Antonio
                       2nd Vice President
               David E. Moore, Longview       Court of Criminal Appeals
                                 Treasurer
                Mark Snodgrass, Lubbock       Post Office Box 12308
                                 Secretary
       Kerri Anderson-Donica, Corsicana       Austin, Texas 78711-2308
                         General Counsel
            Patricia J. Cummings, Austin
             Editor, Voice for the Defense
              Michael Gross, San Antonio           Subject: State v. Huse; PD-0433-14
     Editor, Significant Decisions Report
                         Kathleen Nacozy
               Immediate Past President
                        Bobby Mims, Tyler
                        Executive Director
                                              Dear Mr. Acosta:
              Joseph A. Martinez, Austin
                                Directors
              Susan E. Anderson, Dallas
                                                   I am writing to the Court on behalf of the Texas Criminal Defense
               Marjorie Bachman, Austin
               Heather J. Barbieri, Plano
                    Rick Berry, Marshall
                                              Lawyers Association (“TCDLA”), the largest state association for criminal
           Fred C. Brigman, San Angelo
                     Clint Broden, Dallas
                Jim Darnell Sr., El Paso      defense attorneys in the nation. TCDLA started more than 40 years ago as
                Nicole DeBorde, Houston
                  Emily Detoto, Houston
        Donald H. Flanary, San Antonio
           Stephen Gordon, Haltom City
                                              a small, nonprofit association and has grown into a state-of-the-art
         Deandra M. Grant, Richardson
          Michael C. Gross, San Antonio
             Melissa L. Hannah, Lufkin        organization, providing assistance, support and continuing education to its
    Theodore “Tip” Hargrove, San Angelo
                 Jo Ann Jacinto, El Paso
            Steve A. Keathley, Corsicana
                  Laurie L. Key, Lubbock
                                              members. TCDLA represents the interests and views of criminal defense
                 Jeanette Kinard, Austin
             Adam L. Kobs, San Antonio
           Michael A. McDougal, Conroe        lawyers across the state, both in the legislature and before the courts as
              George R. Milner lll, Dallas
           Angela J. Moore, San Antonio
              David P. O’Neil, Huntsville
             Anthony C. Odiorne, Burnet
                                              amicus curiae in important criminal and civil cases. As required by Rule
        Stephanie K. Patten, Fort Worth
                   Oscar O. Pena, Laredo
                   Bruce Ponder, El Paso      11, Tex.R.App.Pro., neither TCDLA nor any of the attorneys representing
                Carole J. Powell, El Paso
                      Bennie Ray, Austin
                   Ray Rodriguez, Laredo
                Sarah E. Roland, Denton
                                              TCDLA have received any fee or other compensation for preparing this
           John Hunter Smith, Sherman
       Edward A. Stapleton, Brownsville
             Clay B. Steadman, Kerrville      brief.
             George Taylor, San Antonio
             Gary Alan Udashen, Dallas
                    Oscar Vega, McAllen
                   Coby Waddill, Denton
                                                   In the above captioned case, the Court has granted review on two
                     Jani Wood, Houston

                     Associate Directors
                                              separate questions:
                   Roberto Balli, Laredo
            Robert Barrera, San Antonio
               Curtis Barton, Huntsville               1.   After State v. Hardy, does a citizen have standing to
                  Michael Head, Athens
             Susan Kelly Johnston, Waco
                  Bradley Lollar, Dallas
                                                            challenge the process by which his medical records
              Louis Elias Lopez, El Paso
                 Hiram McBeth, Dallas
                                                            are obtained?
              Audrey Moorehead, Dallas
            Simon Purnell, Corpus
Christi                                                2.   Must the State comply with federal requirements
            Jeremy Rosenthal, McKinney
                   David Ryan, Houston
                 Frank Sellers, Lubbock
                                                            under the Health Insurance Portability and
               Monique Sparks, Houston
          Courtney Stamper, Waxahachie                      Accountability Act of 1996 (HIPAA) to obtain a
                Mark Thiessen, Houston
                                                            citizen's medical records, and if it fails to do so, is
             TCDLA founded in 1971
                                                            there any remedy?
              6808 Hill Meadow Drive | Austin, TX 78736 | (512) 478-2514 p | (512) 469-9107 f | www.tcdla.com
        State v. Huse; PD-0433-13 -- Amicus Curiae Letter Brief Submitted by TCDLA -- Page 2



      Please accept this letter as a brief for TCDLA as Amicus Curiae, and advise the members

of the Court that, although TCDLA takes no specific position on the second ground, it strongly

believes the answer to the first ground is “yes.” We urge the Court to find that, in light of the

adoption of HIPAA by the Congress of the United States, it is clear that a citizen does have

standing to challenge the process by which his medical records are obtained.

      TCDLA is aware that, in State v. Hardy, 963 S.W.2d 516 (Tex.Cr.App. 1997), the Court

held that there is no expectation of privacy in these type of medical records (results of blood

tests). Indeed, relying on Hardy (and other cases), the Court of Appeals held that there is no

expectation of privacy in one’s blood-alcohol test results when the blood is obtained by hospital

personnel after a traffic accident for medical purposes. Thus, the Court of Appeals wrote,

“Appellee lacks standing to assert that using a grand jury subpoena to obtain his blood results

constituted an unreasonable search and seizure.” State v. Huse, 07-12-00383-CR (Tex.App. -

Amarillo; March 6, 2014).

      In Hardy, however, Judge Price led a four judge minority in dissenting. He argued that

“society does recognize one’s expectation of privacy in medical records because society’s

expects a physicians to make affirmative efforts to ensure the confidentiality of the client’s

records.” TCDLA agrees with Judge Price and his fellow dissenters in Hardy.

      The distinction between the expectation of privacy one has in his or her body vis-a-vis the

drawing of blood and the expectation of privacy one has in the results of the testing of that

blood is a distinction without difference. The core question is whether society recognizes one’s

expectation that his or her medical records will be kept confidential. TCDLA would suggest that
          State v. Huse; PD-0433-13 -- Amicus Curiae Letter Brief Submitted by TCDLA -- Page 3



the passage of HIPPA by the United States Congress, the representatives of the people, has

answered this question.

       It must be noted that, although HIPAA is at the heart of the second issue, it was not in

effect at the time of Hardy. The initial date for covered entities, such as the hospital in this case,

to comply with the privacy standards of HIPPA was April 14, 2003. See 45 C.F.R. § 164.534

(2002). The initial determination to be made is whether HIPAA overruled Hardy. Appellee’s

brief suggests that it has (P. 22 of 41), while the State’s brief suggests it has not (P. 20). TCDLA

agrees with Appellee.

       TCDLA is aware that several of the Courts of Appeals have held that HIPAA does not

preempt Hardy. See, e.g., Kirsch v. State, 276 S.W.3d 579, 586-587 (Tex. App. - Houston [1st]

2008), aff’d on other grounds, Kirsch v. State, 306 S.W.3d 738 (Tex.Cr.App. 2010);1 Murray

v. State, 245 S.W.3d 37, 42 (Tex. App. - Austin 2007). Nevertheless, it is clear that HIPAA

trumps Hardy, at least in a general sense.

       Pursuant to HIPAA, individually identifiable medical information cannot be disclosed by

covered entities without the consent of the individual unless disclosure is expressly permitted by

HIPAA. See 45 C.F.R. § 164.502; U.S. v. Zamora, 408 F. Supp.2d 295 (S.D.Tex. 2006);

Kennemur v. State, 280 S.W.3d 305, 312 (Tex. App. - Amarillo 2008). Disclosure is only

permitted without authorization from the individual in several limited circumstances:




 1
    Judge Price filed a dissenting opinion in Kirsch and was joined by Judge Meyers. The dissent is not relevant
to the issue now before the Court.
         State v. Huse; PD-0433-13 -- Amicus Curiae Letter Brief Submitted by TCDLA -- Page 4


      A covered entity may use or disclose protected health information to the extent
      that such use or disclosure is required by law and the use or disclosure complies
      with and is limited to the relevant requirements of such law.

45 C.F.R. § 164.512 (emphasis added).

      Thus, a “covered entity” may only deliver one’s medical records when there is either

consent of the entity’s patient or the entity is compelled to do so by some legal process.

Accordingly, there can be no other way to interpret the limited authority of a “covered entity”

to divulge medical records than to say that there is a “reasonable” expectation of privacy in

one’s medical record.

      TCDLA believes that a challenge to the manner in which the State obtained one’s medical

records from the third party “covered entity” would be similar to the right of a passenger in an

automobile to challenge the legality of the search in certain circumstances. See, Brendlin v.

California, 551 U.S. 249, 251 (2007), in which the Supreme Court held that the passenger of

a vehicle has standing to contest the legality of the traffic stop that results in his own detention.

See also Kothe v. State, 152 S.W.3d 54, 63-64 (Tex.Cr.App. 2004), in which the Court of

Criminal Appeals found that the defendant had standing under Wong Sun v. United States, 371

U.S. 471 (1963), to complain about the seizure of a controlled substance from his companion’s

bra, because it was “come at by” the exploitation of an illegal detention.

      Thus, the answer to the first ground on which review was granted clearly has to be that,

because of the reasonable expectation of privacy demonstrated in HIPAA, a defendant does

have standing to challenge the process by which his or her medical records were obtained. To
        State v. Huse; PD-0433-13 -- Amicus Curiae Letter Brief Submitted by TCDLA -- Page 5



the extent that Hardy would suggest that there is never standing to mount such a challenge,

HIPAA has preempted Hardy.

                                              Conclusion

      To the extent it would be interpreted to say a defendant never has standing to challenge

the manner in which his or her medical records were obtained, HIPAA has preempted Hardy.

A citizen has a reasonable expectation of privacy, and has the right to expect that there will be

full compliance with HIPAA before his or her medical records are turned over to the authorities

by the “covered entity” with whom he or she has a professional relationship.

                                     Respectfully submitted,
                Emmett Harris                                    Patricia J. Cummings
     Attorney at Law and President of TCDLA          Attorney at Law and General Counsel for TCDLA
                 625 Cenizo Blvd                                 6808 Hill Meadow Drive
               Uvalde, Texas 78801                                 Austin, Texas 78736
                Tel. 210-422-7055                                  Tel. (512) 478-2514
      eMail: emmettharrislaw@gmail.com                        eMail: pcummings@tcdla.com
          State Bar Card No. 09092000                      Texas State Bar Card No. 05227500

              Gena Blount Bunn                                       Angela Moore
           Holmes & Moore, P.L.L.C.                                   Attorney at Law
            110 West Methvin Street                        310 South St. Marys Street, Suite 1830
             Longview, Texas 75601                             San Antonio, Texas 778205
               Tel. (903) 758-2200                                 Tel. (210) 364-0013
        eMail: gbunn@holmesmoore.com                           eMail: amoorelaw@aol.com
         State Bar Card No. 00790323                          State Bar Card No. 14320110


                                 ____________________________________
                                 David A. Schulman
                                 Attorney at Law
                                 Post Office Box 783
                                 Austin, Texas 78767-0783
                                 Tel. 512-474-4747
                                 Fax: 512-532-6282
                                 eMail: zdrdavida@davidschulman.com
                                 State Bar Card No. 17833400
                                 Attorneys for TCDLA
        State v. Huse; PD-0433-13 -- Amicus Curiae Letter Brief Submitted by TCDLA -- Page 6



                            Certificate of Compliance and Delivery

      This is to certify that: (1) this document, created using WordPerfect™ X7 software, contains

1326 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on January 14, 2015, a true and

correct copy of the above and foregoing “Brief for Texas Criminal Defense Lawyers Association

as Amicus Curiae” was transmitted via the eService function on the State’s eFiling portal, to

Jeffrey S. Ford (jford@co.lubbock.tx.us), counsel of record for the State of Texas, as well as

Chuck    Lanehart    (chucklanehart@lubbockcriminaldefense.com)            and     Charles     Blevin

(charles@attorneyinlubbock.com), counsel of record for Appellee, Hayden Huse.




                                       _______________________________________
                                       David A. Schulman
