                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-19-00099-CV
                              __________________

                     KAIL EDWARD GIBSON, Appellant

                                         V.

 HONORABLE ROBERT HILL TRAPP JUDGE OF 411TH DISTRICT
COURT, POLK COUNTY, TEXAS AND WILLIAM LEE HON, DISTRICT
        ATTORNEY OF POLK COUNTY, TEXAS, Appellees

__________________________________________________________________

                On Appeal from the 258th District Court
                         Polk County, Texas
                      Trial Cause No. CIV32431
__________________________________________________________________

                          MEMORANDUM OPINION

      Pro se appellant Kail Edward Gibson appeals from the trial court’s dismissal

of his lawsuit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code.

See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014. Gibson raises three issues

for our consideration. We affirm the trial court’s judgment.



                                         1
                                  BACKGROUND

      Gibson, an inmate in the Pack Unit, filed a pro se due course of law complaint

against appellees, seeking a declaration that the appellees violated his constitutional

rights and a permanent injunction ordering the appellees to comply with the due

course of law and admit to violating the Health Insurance Portability and

Accountability Act (“HIPAA”) by illegally obtaining his mental health records.

Gibson alleged that William Lee Hon, the District Attorney of Polk County, Texas,

violated his constitutional rights by obtaining his mental health records without his

consent or providing him notice. Gibson alleged that the Honorable Robert Hill

Trapp, Judge of the 411th District Court of Polk County, Texas, violated his

constitutional rights by admitting the mental health records during his trial.

      The trial judge signed an order dismissing, without prejudice, Gibson’s claims

as frivolous because the pleadings failed to state a cause of action. In its order, the

trial court found that the disclosure of medical records under HIPAA was

permissible when the information was disclosed for law enforcement purposes and

obtained pursuant to a grand jury subpoena. Gibson appealed.

                                    ANALYISIS

      In issue one, Gibson complains that he was denied due process when the trial

court dismissed his complaint as frivolous without conducting a hearing. In issue

                                          2
two, Gibson argues that the trial court abused its discretion by dismissing his claim

as frivolous based on its finding that the disclosure of medical records under HIPAA

was permissible, because his claim does not involve medical records. According to

Gibson, his claim involves mental health records which contain his confidential

communications with a mental health professional. In issue three, Gibson complains

that the court abused its discretion by concealing his privileged mental health records

when it decided to deny his claim without conducting a hearing, thereby denying

him an opportunity to prove that the records were not ordinary medical records.

      We review the trial court’s dismissal of an inmate’s claim pursuant to Chapter

14 under an abuse of discretion standard. Thomas v. Knight, 52 S.W.3d 292, 294

(Tex. App.—Corpus Christi 2001, pet. denied). We will affirm the trial court’s

dismissal if it was proper under any legal theory. Hamilton v. Pechacek, 319 S.W.3d

801, 809 (Tex. App.—Fort Worth 2010, no pet.) (citing Johnson v. Lynaugh, 796

S.W.2d 705, 706-07 (Tex. 1990)). In forma pauperis suits by inmates, such as

Gibson’s lawsuit, are governed by Chapter 14 of the Texas Civil Practice and

Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014. A court

may dismiss a claim brought under Chapter 14 if it is frivolous. See id. §

14.003(a)(2). In considering the purposes of Chapter 14, the trial court’s discretion

to dismiss claims is broad. Jackson v. Tex. Dep’t of Crim. Justice-Inst. Div., 28

                                          3
S.W.3d 811, 813 (Tex. App.—Corpus Christi 2000, pet. denied). In making its

determination of whether a claim is frivolous, a trial court may consider whether a

claim has an arguable basis in law or in fact. Tex. Civ. Prac. & Rem. Code Ann. §

14.003(b)(2). Chapter 14 states that the trial court may hold a hearing to decide

whether a claim should be dismissed. Tex. Civ. Prac. & Rem. Code Ann. §

14.003(c).

      In most cases, a trial court cannot dismiss an in forma pauperis lawsuit based

on a determination that the lawsuit lacks an arguable basis in fact without having a

fact hearing. In re Wilson, 932 S.W.2d 263, 265 (Tex. App.—El Paso 1996, no writ).

However, if the lawsuit lacks an arguable basis in law, the trial court can dismiss a

claim without conducting a hearing. McDonald v. Houston Dairy, 813 S.W.2d 238,

239 (Tex. App.—Houston [1st Dist.] 1991, no writ.). When a trial court dismisses a

claim without conducting a hearing, our review focuses on whether the inmate’s

claim has no basis in law, which is a question of law that we review de novo. Sawyer

v. Tex. Dep’t of Crim. Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.]

1998, pet. denied). In conducting our review, we take the allegations in the inmate’s

petition as true and review the types of relief and causes of action set out in the

petition to determine whether, as a matter of law, the petition states a cause of action

that would authorize relief. Leachman v. Dretke, 261 S.W. 3d 297, 304 (Tex. App.—

                                           4
Fort Worth 2008, no pet.). “A claim has no arguable basis in law if it is an

indisputably meritless legal theory.” Id.

      Because the trial court did not conduct a hearing before it dismissed Gibson’s

lawsuit, the issue before us is whether the trial court properly determined that there

was no basis in law for Gibson’s claims. See id. The trial court dismissed Gibson’s

claims because it found that the disclosure of Gibson’s medical records was

permissible, because the records were obtained pursuant to a grand jury subpoena

and disclosed for law enforcement purposes. In issue two, Gibson argues that the

trial court erred by finding that the disclosure of medical records under HIPAA was

permissible, because his claim does not involve medical records. According to

Gibson, his claim involves mental health records which contain his confidential

communications with a mental health professional.

      The appellees argue that the rules of evidence concerning the privileged nature

of records pertaining to the diagnosis or treatment of mental health patients that

Gibson cites to in his petition apply to civil cases, and Gibson’s underlying case is

criminal in nature. See Tex. R. Evid. 509, 510. According to the appellees, Rule

509(b) clearly states that in a criminal case, there is no physician-patient privilege;

however, a confidential communication is not admissible in a criminal case if it was

made to a person involved in the treatment of or examination for alcohol or drug

                                            5
abuse and by a person being treated voluntarily for admission to treatment for

alcohol or drug abuse. See Tex. R. Evid. 509(b). The appellees maintain that because

the records at issue did not involve the treatment of or examination for alcohol or

drug abuse, Gibson possessed no privilege to prevent disclosure, and thus, there is

no basis for his complaint that the trial court erred by finding that the disclosure of

the records was permissible.

       In his petition, Gibson complains that the appellees improperly admitted

evidence regarding an out-of-court statement he made to a board-certified

psychiatrist when he was a psychiatric patient and residing at a mental hospital.

Gibson argued that he never waived the confidentiality privilege under article 38.23

of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23

(providing that no evidence obtained in violation of any provision of the Constitution

or laws of the State of Texas or of the Constitution or laws of the United States shall

be admitted in evidence against the accused in the criminal case). According to

Gibson, his mental health records were secured by an illegal search and seizure that

violated his constitutional rights and HIPAA. Gibson maintained that District

Attorney Hon concealed the mental health records and failed to follow proper

procedures, thereby depriving him of due process. See Tex. Code Crim. Proc. Ann.

arts. 1.04, 2.01.

                                          6
      Our review of Gibson’s petition shows that he failed to cite to any relevant

case law or statutes supporting his contention that the physician-patient privilege

applied in his underlying criminal proceeding. See Absalon v. State, 460 S.W.3d 158,

162-63 (Tex. Crim. App. 2015). There is no physician-patient privilege in Texas

criminal proceedings except under limited circumstances not applicable here. See

Tex. R. Evid. 509(b); Absalon, 460 S.W.3d 162-63. Gibson also alleges that the

appellees violated HIPAA by retrieving his mental health records through a grand

jury subpoena without his consent. See 45 C.F.R. § 164.512. The appellees did not

violate HIPAA because they are not covered entities under HIPPA, and accordingly,

the appellees’ conduct is not governed by HIPAA. See Rodriguez v. State, 469

S.W.3d 626, 634-35 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see also 45

C.F.R. §§ 160.102(a), 164.104(a). Additionally. HIPAA provides for disclosure of

protected information for law enforcement purposes to a law enforcement official in

compliance with a grand jury subpoena. 45 C.F.R. § 164.512(f)(1)(ii)(B). Taking the

allegations in Gibson’s petition as true and reviewing the types of relief and causes

of action in the petition, we conclude that the trial court did not err by dismissing his

claims for having no arguable basis in law. See Leachman, 261 S.W.3d at 304, 306.

We overrule issue two.



                                           7
      In issue one, Gibson complains that he was denied due process when the trial

court dismissed his complaint as frivolous without conducting a hearing. In issue

three, Gibson complains that the court abused its discretion by concealing his

privileged mental health records when it decided to deny his claim without

conducting a hearing, thereby denying him an opportunity to prove that the records

were not ordinary medical records. Because the trial court properly determined that

Gibson’s claims had no arguable basis in law, and thus failed to state a claim, we

conclude that the trial court was not required to conduct a hearing. See McDonald,

813 S.W.2d at 239. We overrule issues one and three. Having overruled each of

Gibson’s issues, we conclude that the trial court did not abuse its discretion by

dismissing Gibson’s claims as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. §

14.003(a)(2); Thomas, 52 S.W.3d at 294. Accordingly, we affirm the trial court’s

judgment.

      AFFIRMED.

                                            ______________________________
                                                   STEVE McKEITHEN
                                                       Chief Justice


Submitted on October 2, 2019
Opinion Delivered October 31, 2019


Before McKeithen, C.J., Horton and Johnson, JJ.
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