                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00235-CV


IN RE E.C., F.C., T.C., AND                                          RELATORS
CLEBURNE METAL WORKS, LLC
D/B/A CLEBURNE SHEET METAL


                                    ------------

                          ORIGINAL PROCEEDING
                       TRIAL COURT NO. 96-268349-13

                                    ------------

                                   OPINION

                                    ------------

                                I. INTRODUCTION

      Relators E.C., F.C., T.C., and Cleburne Metal Works, LLC d/b/a Cleburne

Sheet Metal filed a petition for writ of mandamus complaining that the trial court

had abused its discretion by overruling their assertions of confidentiality and

privilege and ordering them to produce documents from the file of Dr. Dick Miller,

a clinical psychologist who was hired as a consultant by E.C’s defense attorneys

in his juvenile proceeding. We hold that Dr. Miller’s file and opinions are not
confidential and that any privileged information has been waived through

voluntary disclosure. Accordingly, we will deny the petition.

                           II. RELEVANT BACKGROUND1

      Sixteen-year-old E.C. was involved in an automobile accident late one

night in June 2013 after he lost control of the truck that he was driving while

intoxicated. Four people died and a number of others sustained injuries. E.C.

hired defense attorneys “[w]ithin hours of the accident,” and the defense

attorneys then retained Dr. Miller as a consultant. According to a document filed

by Real Parties in Interest K.M. and A.M., individually and as next friends for

L.M., a minor (collectively, RPIs), Dr. Miller spent approximately fifty hours

treating E.C. and his parents after the accident.

      In September 2013, the State filed a petition alleging that E.C. had

engaged in delinquent conduct by committing four violations of penal code

section 49.08 and two violations of penal code section 49.07. See Tex. Penal

Code Ann. §§ 49.07 (intoxication assault), 49.08 (intoxication manslaughter)

(West 2011). According to RPIs, E.C. ultimately “pled guilty” to four counts of

intoxication manslaughter.      Although initially hired as a consultant, Dr. Miller

testified at the subsequent disposition hearing and “freely discussed the case, his

treatment of [E.C.], and his role in the defense.” The juvenile court sentenced

E.C. to ten years’ probation.


      1
       All facts contained herein are taken from documents within the mandamus
record. We do not attempt to correct any terminology that may be inconsistent
with the Juvenile Justice Code.
                                         2
      A civil lawsuit was filed against Relators in September 2013 to recover

damages for injuries sustained as a result of Relators’ alleged negligence and

gross negligence in connection with the accident. Other parties intervened in the

coming months, including RPIs. Relators have settled all of the claims alleged by

all of the plaintiffs and intervenors, except for those of RPIs.

      In March 2014, RPIs issued to Dr. Miller (1) a subpoena for production of

documents and (2) a notice of deposition by written questions, both seeking

Dr. Miller’s records pertaining to E.C.’s juvenile proceeding. Relators responded

by filing motions for a protective order. RPIs later noticed Dr. Miller’s deposition,

which Relators moved to quash. Relators argued in briefing that Dr. Miller’s file

and his thoughts and opinions generated as part of E.C.’s defense in the juvenile

proceeding are confidential under family code sections 51.13(b) and 58.005;

privileged under the work-product, attorney-client, and mental-health privileges;

and irrelevant.

      The trial court conducted a hearing on Relators’ motions and signed an

order on May 29, 2014,

            (1)   finding that family code sections 51.13(b) and 58.005(a)
      were inapplicable to the records and testimony of Dr. Miller;

            (2)    finding that Relators’ claims of work-product privilege,
      attorney-client privilege, and mental-health privilege had been
      waived;

             (3)    granting Relators’ motions as to certain records; and

            (4)    ordering Relators to submit the rest of Dr. Miller’s
      records for an in-camera inspection.

                                          3
Relators filed a motion for rehearing, asking the trial court to perform an in-

camera review of Dr. Miller’s file in order to assess their assertions of

confidentiality and privilege, and E.C.’s defense counsel submitted Dr. Miller’s file

to the trial court for an in-camera inspection. On July 22, 2014, the trial court

signed an order requiring Relators to produce certain documents from Dr. Miller’s

file (identified by Bates numbers) within fourteen days of the order. Relators filed

this mandamus petition, and we granted their emergency motion to stay the

May 29 and July 22, 2014 orders pending our consideration of the petition.

                             III. STANDARD OF REVIEW

       Mandamus relief is proper only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas,

290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding). A trial court clearly abuses

its discretion when it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law or if it clearly fails to correctly

analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888

(Tex. 2010) (orig. proceeding).

                         IV. CONFIDENTIALITY ARGUMENTS

       Relying primarily on family code sections 51.13(b) and 58.005(a), Relators

argue that Dr. Miller’s file and opinions regarding E.C.’s juvenile case are

confidential and not discoverable in a subsequent civil proceeding such as this

one.   See Tex. Fam. Code Ann. §§ 51.13(b), 58.005(a) (West 2014).             They

contend that juvenile proceedings are treated differently than adult criminal

                                         4
proceedings and civil proceedings, that all records and files of the juvenile in

conjunction with a juvenile proceeding are confidential, and that “[t]here is only

one conceivable exception that could allow disclosure (or at least discovery) of

Dr. Miller’s opinions here: if [Relators] were to designate Dr. Miller as their own

retained testifying expert in this civil proceeding,” which has not happened.

Relators’ confidentiality arguments therefore require us to construe family code

sections 51.13(b) and 58.005(a).

      Our primary objective when construing a statute is to ascertain and give

effect to the legislature’s intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex.

2006). We seek that intent “first and foremost” in the statutory text. Lexington

Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). Particularly important here

is that we must consider the words in context, not in isolation. See Jaster v.

Comet II Constr., Inc., No. 12-0804, 2014 WL 2994503, at *4 (Tex. July 3, 2014);

State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); see also Tex. Gov’t Code

Ann. § 311.011(a) (West 2013) (providing that words and phrases shall be read

in context). Thus, in determining the meaning of a statue, a court must consider

the entire act, its nature and object, and the consequences that would follow from

each construction. Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.

1991). A court should not assign a meaning to a statutory provision that would

be inconsistent with other provisions of the same act, even though it might be

susceptible to such a construction standing alone. See Tex. Dep’t of Transp. v.

Needham, 82 S.W.3d 314, 318 (Tex. 2002). Indeed, “[i]nterpretations of statutes

                                        5
which would produce absurd results are to be avoided.” Sharp, 815 S.W.2d at

249.   Accordingly, we begin our analysis with the statute’s words and then

consider the apparent meaning of those words within their context. Statutory

construction presents a question of law that we review de novo. Shumake, 199

S.W.3d at 284.

       A.    Family Code Section 51.13(b)

       The Juvenile Justice Code is found in Title 3 of the family code. Chapter

51 includes a wide range of general provisions, including such topics as

jurisdiction, waiver of rights, and polygraph examinations. Tex. Fam. Code Ann.

§§ 51.04, .09, .151 (West 2014).      Section 51.13 address the “[e]ffect” of an

adjudication or disposition. Id. § 51.13. In particular, subsection (a) provides that

an order of adjudication or disposition is not a conviction of a crime and does not

disqualify a child in any civil service application or appointment, subsection (c)

prohibits a child from being committed or transferred to a penal institution or

other facility that is used primarily to execute the sentences of persons convicted

of a crime, and subsection (d) explains when a particular adjudication is a final

felony conviction for purposes of the habitual offender statute. Id. § 51.13 (a),

(c), (d). Section 51.13(b) provides as follows:

       (b)    The adjudication or disposition of a child or evidence adduced
       in a hearing under this title may be used only in subsequent:

             (1)   proceedings under this title in which the child is a party;

             (2)    sentencing proceedings in criminal court against the
             child to the extent permitted by the Texas Code of Criminal
             Procedure, 1965; or
                                         6
             (3)   civil commitment proceedings under Chapter 841,
             Health and Safety Code.

Id. § 51.13(b). Subsection (b) is appropriately found in section 51.13 because it

identifies one “[e]ffect” of an adjudication or disposition; specifically, when (1) the

adjudication or disposition of a child or (2) evidence adduced in a hearing under

this title (3) may be used: in a subsequent (i) proceeding under this title in which

the child is a party, (ii) sentencing proceeding in criminal court against the child

as permitted, or (iii) civil commitment proceeding. Id.

      There are several reasons why section 51.13(b) has no application here.

First, RPIs are not seeking to use E.C.’s adjudication, his disposition, or any

evidence adduced at a hearing under this title. They are seeking to discover

Dr. Miller’s file and opinions. Dr. Miller’s file and opinions are not an adjudication,

a disposition, or evidence adduced at a hearing under this title. Section 51.13(b)

is therefore inapposite.

      To the extent that Relators conflate Dr. Miller’s file and opinions with

evidence adduced at a hearing—because his testimony reflected his opinions

and various matters contained in his file—section 51.13(b) nonetheless does not

render Dr. Miller’s file confidential.   A proper construction of section 51.13(b)

cannot ignore that the legislature chose the verb “used” and followed it by setting

out three different subsequent “proceedings.” Id. Statutory construction rules

“require that the words employed by the legislature shall be taken in their

ordinary and popular acceptation, unless technical terms are used, or unless it

clearly appears from the context that the words used were not intended to be
                                           7
understood in their ordinary and popular signification.” Engelking v. Von Wamel,

26 Tex. 469, 469 (1863). The legislature did not define the word “used,” but

because three subsequent “proceedings” are immediately identified thereafter,

we can gather that the legislature intended for the word “used” to be construed in

its technical sense: specifically, prior adjudications, dispositions, and evidence

adduced in a hearing under the Juvenile Justice Code are “used” when they are

admitted for some purpose. See, e.g., George E. Dix and John M. Schmolesky,

43A Texas Practice, Criminal Practice and Procedure § 46:31 (citing section

51.13(b) and discussing the admissibility of juvenile adjudications in subsequent

criminal prosecutions).    Thus, it clearly appears from the context of section

51.13(b) that the intent of the legislature was to limit the formal instances, or

“proceedings,” in which an adjudication, a disposition, or evidence adduced at a

hearing under the Juvenile Justice Code could be admitted, or “used,” for

whatever purpose it may be.

      RPIs here are not attempting to “use[]” Dr. Miller’s file because they are not

attempting to admit it in some proceeding for some purpose; rather, RPIs are

merely trying to discover it pretrial. It is well understood in the civil context that

there is a fundamental difference between the discoverability of evidence and the

admissibility of evidence at trial or some proceeding.2 See, e.g., In re Pilgrim’s

Pride Corp., 204 S.W.3d 831, 835 n.8 (Tex. App.—Texarkana 2006, orig.


      2
       Relators implicitly acknowledge this distinction when they state
disjunctively that Dr. Miller’s file is not “discoverable, pursuable or usable.”
[Emphasis added.]
                                         8
proceeding [mand. dism’d]) (“Relevance should not be confused with

admissibility. Admissibility is not required for information to be discoverable.”).

Relators argue that this construction “is inefficient because it allows discovery of

information and materials which cannot be used in the civil proceeding.”

However, an inefficient result is not analogous to an absurd result, which is what

we seek to avoid when construing a statute.          Moreover, the rules of civil

procedure contemplate some level of inefficiency. See Tex. R. Civ. P. 192.3(a)

(stating that information that might not be admissible is nevertheless

discoverable if the information sought appears reasonably calculated to lead to

the discovery of admissible evidence).       Accordingly, even if we assume that

Dr. Miller’s file and opinions somehow constitute evidence adduced at a hearing,

section 51.13(b) is inapposite because RPIs are not seeking to “use[]” Dr. Miller’s

file.

        B.    Family Code Section 58.005(a)

        Relators’ arguments implicating section 58.005(a) founder for a related,

context-deficient reason. Section 58.005(a), entitled “Confidentiality of Records,”

provides as follows:

        (a)     Records and files concerning a child, including personally
        identifiable information, and information obtained for the purpose of
        diagnosis, examination, evaluation, or treatment or for making a
        referral for treatment of a child by a public or private agency or
        institution providing supervision of a child by arrangement of the
        juvenile court or having custody of the child under order of the
        juvenile court may be disclosed only to:

              (1)     the professional staff or consultants of the agency or
              institution;
                                         9
             (2)  the judge, probation officers, and professional staff or
             consultants of the juvenile court;

             (3)   an attorney for the child;

             (4)   a governmental agency if the disclosure is required or
             authorized by law;

             (5)    a person or entity to whom the child is referred for
             treatment or services if the agency or institution disclosing the
             information has entered into a written confidentiality
             agreement with the person or entity regarding the protection of
             the disclosed information;

             (6)   the Texas Department of Criminal Justice and the
             Texas Juvenile Probation Commission for the purpose of
             maintaining statistical records of recidivism and for diagnosis
             and classification; or

             (7)  with leave of the juvenile court, any other person,
             agency, or institution having a legitimate interest in the
             proceeding or in the work of the court.

Tex. Fam. Code Ann. § 58.005(a) (emphasis added). Relators broadly construe

the terms “[r]ecords and files,” as that term is used in the statute, to refer to all

records and files in existence, including the files of a person hired as a consultant

by defense counsel, like Dr. Miller.          But Relators perform no statutory-

construction analysis to support their proposed interpretation; they merely cite

section 58.005(a), construe it in isolation from the remainder of the chapter, and

argue that the statute means what they say it does.          A proper construction

demonstrates that the legislature had something else in mind when it used the

words “[r]ecords and files.”




                                         10
      Chapter 58 of the Juvenile Justice Code contains many statutes

addressing numerous aspects of juvenile records, including who must keep

records, what type of information must be kept, and who can access records. Id.

§§ 58.001‒.405 (West 2014).       Subchapter A of chapter 58 is actually titled

“Records.” Of the fourteen statutes contained in that subchapter, only two define

the term “records.” See id. §§ 58.0051 (“‘Educational records’ means records in

the possession of a primary or secondary educational institution that contain

information relating to a student . . . .”), 58.0071(a)(2) (“‘Physical records and

files’ include entries in a computer file or information on microfilm, microfiche, or

any other electronic storage media.”). The other statutes in subchapter A simply

refer to “records,” “files,” or both, including section 58.005(a). Nonetheless, we

can gain insight into what the legislature meant when it used the words “[r]ecords

and files” in section 58.005(a) by examining the context in which the same terms

are used throughout the subchapter. For example:

      •section 58.003(g)(1) provides that on entry of a sealing order, “all law
      enforcement, prosecuting attorney, clerk of court, and juvenile court
      records ordered sealed shall be sent” timely to the court that issued the
      order. Id. § 58.003(g)(1) (emphasis added).

      •section 58.003(m) provides in part that “[o]n request of the Department of
      Public Safety, a juvenile court shall reopen and allow the department to
      inspect the files and records of the juvenile court.” Id. § 58.003(m)
      (emphasis added).

      •section 58.007(b) provides that “the records and files of a juvenile court, a
      clerk of court, a juvenile probation department, or a prosecuting attorney
      relating to a child who is a party to a proceeding under this title may be
      inspected or copied only by” various individuals or entities. Id. § 58.007(b)
      (emphasis added).

                                         11
      •section 58.007(c) addresses “law enforcement records and files
      concerning a child.” Id. § 58.007(c) (emphasis added).

      •section 58.007(g) permits a juvenile court that is in possession of the
      record of a defendant’s adjudication to provide the record to a prosecuting
      attorney. Id. § 58.007(g).

      •section 58.007(i) addresses when a juvenile probation department may
      release information contained in its records without leave of the juvenile
      court. Id. § 58.007(i).

      •section 58.0071(c) identifies who may authorize the destruction of
      physical records and files relating to a closed juvenile case: “a juvenile
      board in relation to the records and files in the possession of the juvenile
      probation department,” “the head of a law enforcement agency in relation
      to the records and files in the possession of the agency,” and “a
      prosecuting attorney in relation to the records and files in the possession of
      the prosecuting attorney’s office.” Id. § 58.0071(c) (emphasis added).

      The pattern here is apparent: when using the undefined terms “records”

and “files,” the legislature is referring to records and files in the possession of or

belonging to individuals or entities closely associated with the juvenile court

system—a juvenile court, a prosecuting attorney, a court clerk, or a law

enforcement agency. When section 58.005(a) is read in context, the “[r]ecords

and files concerning a child” are those records and files in the possession of or

belonging to the same individuals or entities identified throughout the subchapter.

There is absolutely nothing in chapter 58 to indicate that unlike the other statutes

contained therein, the legislature intended the terms “[r]ecords and files” to refer

to all records and files in existence everywhere, including the records and files of

a person hired as a consultant by defense counsel in a juvenile proceeding.

While the terms might be susceptible to that construction when standing alone,

there can be no doubt that such a construction is inconsistent with other
                                         12
provisions of the chapter and the intent of the legislature. See Needham, 82

S.W.3d at 318. Accordingly, Dr. Miller’s files are not “[r]ecords and files” as that

term is used in section 58.005(a), and like section 51.13(b), the statute is

inapposite to the discovery dispute in this case.

      We hold that the trial court did not abuse its discretion by finding that family

code sections 51.13(b) and 58.005(a) were inapplicable to the records and

testimony of Dr. Miller. We overrule all of Relators’ confidentiality arguments that

are premised upon the family code.

                             V. PRIVILEGE ARGUMENTS

      Relators argue that Dr. Miller’s file and opinions are protected by the work-

product, attorney-client, and mental-health privileges. At the hearing on Relators’

motions for protection, RPIs argued that to the extent Dr. Miller’s file and opinions

were privileged, the privileges had been waived because Dr. Miller testified about

his opinions in open court at E.C.’s disposition hearing and gave several

televised interviews during which he discussed his opinions.           RPIs argued

similarly in their response.   The trial court agreed, specifically finding in its

May 29, 2014 order that Relators had waived their claims of work-product

privilege, attorney-client privilege, and mental-health privilege as to Dr. Miller’s

file and opinions. In light of the trial court’s order finding waiver, we presume

(without deciding) that Dr. Miller’s file and opinions are privileged and proceed to

consider whether the privileges have been waived.




                                         13
      Privileges may be waived by voluntarily disclosing or consenting to the

disclosure of any significant part of the privileged matter, unless such disclosure

itself is privileged. Tex. R. Evid. 511(1). Rule of evidence 511 begins by stating,

“A person upon whom these rules confer a privilege against disclosure waives

the privilege . . . .” Id. (emphasis added). Thus, rule 511 applies to each of

Relators’ claimed privileges, including the mental-health privilege, which is found

in the immediately preceding rule. See Tex. R. Evid. 510. The burden of proof to

establish the existence of a privilege rests on the one asserting it. Jordan v.

Court of Appeals for the Fourth Supreme Judicial Dist., 701 S.W.2d 644, 648‒49

(Tex. 1985).

      We do not have the record from E.C.’s disposition hearing, nor have we

requested to review the documents that the trial court ordered Relators to

produce, but we may consider whether waiver has occurred here because there

is no dispute between the parties that Dr. Miller (1) testified at the disposition

hearing and (2) disclosed a significant amount of information that would have

otherwise been protected by the attorney-client, work-product, or mental-health

privileges.3 See Tex. R. App. P. 38.1(g) “(In a civil case, the court will accept as

true the facts stated unless another party contradicts them”). Considering that

we are presuming that Dr. Miller’s file is privileged, the question then is whether



      3
        According to RPIs, Dr. Miller testified that E.C.’s killing of four and injuring
others was a product of “affluenza,” a mental condition that prevented him from
linking his behavior with consequences. RPIs set out additional testimony of
Dr. Miller, but we do not repeat it here.
                                          14
Dr. Miller’s testifying at E.C.’s disposition hearing about matters that would have

otherwise been privileged constituted a waiver of Relators’ claimed privileges.

      This court has held that a party waived privileged information by previously

disclosing it in open court. See Stroud Oil Props., Inc. v. Henderson, No. 02-03-

00003-CV, 2003 WL 21404820, at *3 (Tex. App.—Fort Worth June 19, 2003, pet.

denied) (mem. op.). We set out the following facts in Stroud Oil Properties:

            Appellants are plaintiffs and counter-defendants in a lawsuit
      against Appellees in Brazos County arising out of a dispute over an
      oil and gas development agreement. At the same time as the
      Brazos County suit was pending, Appellees apparently had an
      internal disagreement about how to operate their business. The
      dispute was focused primarily at how Appellees could best respond
      to Appellants’ suit in Brazos County.

            Appellees filed suit in Tarrant County to resolve their dispute.
      Throughout the suit, Appellees allegedly disclosed privileged
      information in open court. Appellees settled the suit and filed a rule
      76a motion to seal the record in an effort to prevent the privileged
      information from becoming public. After a hearing, the trial court
      sealed the record.

             Appellants learned of the suit in Tarrant County and attempted
      to gain access to the records claiming that the suit was held in open
      court and had to have some relationship with the suit in Brazos
      County. When Appellants discovered that the court sealed the
      records, Appellants intervened in the case in an attempt to unseal
      the record. . . . After [a] hearing, the trial court ruled to keep the
      record sealed, and Appellants appealed.

Id. at *1. We held that “Appellees waived any alleged privileged information

when they voluntarily disclosed it in open court.” Id. at *3.

      Stroud Oil Properties is on point. The trial court could have reasonably

concluded that E.C. waived any privilege as to Dr. Miller’s file or opinions by

eliciting his testimony on those matters in open court at the prior disposition
                                         15
hearing. See Tex. R. Evid. 511; see also In re Ortuno, No. 14-08-00457-CV,

2008 WL 2855028, at *2 (Tex. App.—Houston [14th Dist.] July 24, 2008, orig.

proceeding [mand. denied]) (“A party waives a privilege if it voluntarily discloses

the privileged information to an open court.”); see also Nat’l Polymer Prods., Inc.

v. Borg-Warner Corp., 641 F.2d 418, 421 (6th Cir. 1981) (beginning analysis

“with the well-established principle of American jurisprudence that the release of

information in open trial is a publication of that information and, if no effort is

made to limit its disclosure, operates as a waiver of any rights a party had to

restrict its further use”); Vardon Golf Co. v. Karsten Mfg. Corp., 213 F.R.D. 528,

532‒35 (N.D. Ill. 2003) (holding that party had waived attorney-client and work-

product privileges by revealing protected information in earlier mandamus

petition to circuit court).

       Relators argue that Dr. Miller’s testifying at the disposition hearing did not

waive any privileges because a privilege is not waived by disclosure if the

disclosure itself is privileged, and under family code section 51.13(b), “testimony

at a juvenile proceeding is and remains confidential,” and there is no exception

for subsequent civil proceedings. See Tex. R. Evid. 511; Tex. Fam. Code Ann.

§ 51.13(b). We already discussed section 51.13(b) above, and that analysis is

equally applicable here. Section 51.13(b) does not state that “testimony at a

juvenile proceeding is and remains confidential”; it identifies subsequent

“proceedings” in which evidence adduced at a juvenile trial may be “used.” We

reject Relators’ broad interpretation of section 51.13(b) as some kind of a

                                         16
catchall, blanket provision that renders juvenile proceedings confidential in every

potential context imaginable, aside from the three set out in the statute.

      Relators argue that Dr. Miller could not have waived the privileges by

testifying at E.C.’s disposition hearing because only a party could have waived

the privileges. See Tex. R. Evid. 511; In re Gen. Agents Ins. Co. of Am., Inc.,

224 S.W.3d 806, 814 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding)

(“A client unquestionably has the right to waive the attorney-client privilege.”).

Relators included in the mandamus record an affidavit signed by F.C. stating that

he did not authorize Dr. Miller to speak publicly about his work with E.C.

However, while F.C. may not have consented to Dr. Miller’s disclosure of

otherwise privileged information, E.C. certainly did when he called Dr. Miller to

testify at the disposition hearing.

      Relators have not met their burden to show that the claimed privileges

have not been waived. Accordingly, we hold that the trial court did not abuse its

discretion by finding that Relators’ claims of work-product privilege, attorney-

client privilege, and mental-health privilege had been waived.4        We overrule

Relators’ privilege arguments.




      4
        Relators argue that the relevance exception contained in rule of evidence
510(d)(5) does not apply to except Dr. Miller’s file and opinions from the mental-
health privilege. See Tex. R. Evid. 510(d)(5). We need not reach this argument
because we presumed that Dr. Miller’s file is protected by the mental-health
privilege (and that the exception therefore did not apply) but concluded that the
privilege had been waived. See Tex. R. App. P. 47.1.
                                        17
                                VI. CONCLUSION

      We deny relators’ petition for writ of mandamus and lift the stay previously

ordered by this court on August 4, 2014.




                                                  /s/ Bill Meier

                                                  BILL MEIER
                                                  JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: September 16, 2014




                                       18
