                        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?



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              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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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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           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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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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                       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




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