                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00020-CV
        ______________________________



  IN RE: STEPHANIE AGERS, INDIVIDUALLY
 AND AS NEXT FRIEND, NATURAL PARENT AND
LEGAL GUARDIAN OF OMARION COLE, A MINOR




           Original Mandamus Proceeding




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                   MEMORANDUM OPINION

       Stephanie Agers, on behalf of Omarion Cole, a minor, brought suit against the Harrison

County Hospital Association, d/b/a Marshall Regional Medical Center (MRMC), alleging that

MRMC’s negligent failure to recognize the danger in Cole’s rising bilirubin levels and the failure

to provide treatment for that condition proximately caused Cole serious brain injury. MRMC

sought the production of records and materials regarding Cole from the Texas Department of

Family and Protective Services (DFPS). Agers opposed the production of the DFPS records,

arguing that they were confidential and irrelevant. After an in camera review, the trial court

ordered the production of forty-one pages of DFPS materials. Agers sought mandamus relief.

       Here, Agers argues that the trial court abused its discretion because: (1) MRMC is not

eligible to receive the DFPS records because it is not among the entities listed in 40 TEX. ADMIN.

CODE 700.203 as one who is entitled to those records; (2) the disclosure of the DFPS records is not

essential to the administration of justice; and (3) in ordering the disclosure of the DFPS records,

the trial court failed to make a specific finding (MRMC failed to produce evidence indicating) that

the specific requirements of Section 261.201(b) were met.

       We deny Agers’s petition for writ of mandamus because: (1) although MRMC is not

among those entitled to access to such records without a court order, it is entitled to view the DFPS

records if a court orders them to be produced; (2) the trial court could have reasonably determined

that the DFPS records were essential to the administration of justice; and (3) Section 261.201 of



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the Texas Family Code does not require a trial court’s order to contain the specific findings that

production is essential to the administration of justice when ordering the disclosure of DFPS

confidential records.

Factual and Procedural Background

       Cole was born to Agers on September 12, 2005. From shortly after his birth until he was

discharged from MRMC, Cole’s medical records indicate steadily increasing bilirubin levels in his

blood. The normal reference range for bilirubin levels is between 2.0 and 10.0 mg/dL. The date,

time, and bilirubin levels (in mg/dL) indicated in each test were:

       9-12-05 at 5:00 p.m. Bilirubin level was 3.8;
       9-13-05 at 5:15 a.m. Bilirubin level was 8.1 (14 hours after birth);
       9-13-05 at 4:30 p.m. Bilirubin level was 9.8 (25 hours after birth);
       9-14-05 at 5:25 a.m. Bilirubin level was 12.6 (38 hours after birth); and
       9-14-05 at 2:55 p.m. Bilirubin level was 13.4 (48 hours after birth).

When Cole was discharged from MRMC on September 14, his bilirubin level was above normal;

five days after his discharge, he was re-admitted to MRMC with a bilirubin level of 135.2mg/dL

and then diagnosed with kernicterus (bilirubin encephalopathy), a specific form of brain damage.

Agers contends that Cole’s kernicterus occurred in part during the period between September 14

and September 19 as a proximate result of the nurse’s failure to recognize the elevated bilirubin

levels as a problem and treat the condition before Cole was discharged from MRMC’s care.

       The cause of Cole’s brain damage was the issue. MRMC provided notice to all parties

that it intended to depose DFPS by deposition on written questions. The deposition sought the



                                                 3
production from DFPS of “any and all records” pertaining to Cole. Agers objected and moved to

quash the request, also seeking a protective order on the grounds that the production request was

overly broad, that it sought the production of irrelevant materials, and that it requested privileged,

confidential DFPS records that were not subject to public release under TEX. FAM. CODE ANN.

§ 261.201 (Vernon Supp. 2009); 40 TEX. ADMIN. CODE § 700.203 (2010).

            After a telephone hearing, the trial court ordered DFPS to produce the records for an in

camera inspection. 1 After inspecting the materials, the trial court ordered DFPS to produce

forty-one pages of the DFPS materials to MRMC (“DFPS materials”).2 The trial court denied

Agers’s motion for reconsideration of the motion to quash and motion for protective order, but

granted a forty-five day stay of the production of the DFPS materials so that Agers could pursue

mandamus relief.

Availability of Mandamus Relief

            We grant the extraordinary relief of mandamus only when the trial court has clearly abused

its discretion and the relator lacks an adequate appellate remedy. In re Team Rocket, L.P., 256

S.W.3d 257 (Tex. 2008) (orig. proceeding). The scope of discovery is generally within the trial

court’s discretion. Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). With

respect to the resolution of factual issues or matters committed to the trial court’s discretion, the


1
    Relators renewed their motion for a protective order precluding the production of the DFPS materials.
2
About that time, the trial judge, the Honorable Bonnie Leggat Hagan, retired and was succeeded by the Honorable
William Todd Hughey.

                                                            4
reviewing court may not substitute its judgment for the trial court. Brady v. Fourteenth Court of

Appeals, 795 S.W.2d 712, 714 (Tex. 1990) (orig. proceeding). The relator must establish that the

trial court could reasonably have reached only one decision. Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992) (orig. proceeding). Review of a trial court’s determination of legal principles

controlling its ruling applies a much less deferential standard, since the trial court has no discretion

in determining what the law is or applying the law to those facts. In re Jorden, 249 S.W.3d 416,

424 (Tex. 2008) (orig. proceeding); Walker, 827 S.W.2d at 840.

Accessibility of Confidential DFPS Records Through Court Order

        In her first point of error, Agers argues that MRMC is not in the class of persons or entities

to whom the confidential DFPS records may be disclosed. She argues that a private entity, such

as MRMC, is not listed under 40 TEX. ADMIN. CODE § 700.203 as an entity to whom the

confidential DFPS records may be disclosed; ergo, Agers argues, the trial court may not order the

records to be disclosed to MRMC. We disagree.

        Agers mischaracterizes the purpose and exclusivity of Section 700.203. It contains a list

of persons and entities to whom confidential records (such as the DFPS records at issue in this

case) may be disclosed without the intervention of a court order.             40 TEX. ADMIN. CODE

§§ 700.203(a), 700.205(e) (2010). Section 700.205(e) of the Administrative Code provides that

“individuals not otherwise authorized to obtain records . . . must obtain a court order” ordering

the disclosure of the records “using the procedures outlined in § 261.201(b).” 40 TEX. ADMIN.



                                                   5
CODE § 700.205(e). In this case, MRMC sought, and the trial court properly considered, the

disclosure of the DFPS records through the Section 261.201(b) procedures.

The Trial Court Could Have Reasonably Determined that the Production of the DFPS Record is
Essential to the Administration of Justice

            Agers also contends that the DFPS records are not essential to the administration of justice,

and therefore do not meet the requirements of Section 261.201 of the Texas Family Code. We

disagree.

            Section 261.201(b) of the Texas Family Code provides, in relevant part, that a court may

order the disclosure of confidential information if:

                   (3)     after hearing and an in camera review of the requested information,
            the court determines that the disclosure of the requested information is:
                           (A)     essential to the administration of justice;3 and
                           (B)     not likely to endanger the life or safety of:
                                   (i)     a child who is the subject of the report of alleged or
                           suspected abuse or neglect;
                                   (ii)    a person who makes a report of alleged or suspected
                           abuse or neglect; or
                                   (iii) any other person who participates in an investigation
                           of reported abuse or neglect or who provides care for the child.4

TEX. FAM. CODE ANN. § 261.201(b).



3
    This term is not defined by statute.
4
 Section 261.201(b) also requires that a motion has been filed with the court requesting the release of the information
and a notice of hearing has been served on the investigating agency and all other interested parties. Here, the parties
do not dispute that a motion was filed seeking the release of the DFPS records, that a proper notice was given to the
investigating agency and all interested parties, and that a hearing was held to determine whether or not, and to what
extent, the DFPS records should be disclosed.


                                                          6
        Here, Agers argues that the DFPS documents are not essential for the administration of

justice and that they are irrelevant unless they pertain to the two-week period during which Cole

suffered his brain injury. Agers contends that MRMC’s nurses’ failure to recognize and treat

Cole’s elevated and rising bilirubin levels proximately caused, in whole or in part, his brain injury.

MRMC contends that Cole’s condition was completely or partially brought about by Agers’s

failure to receive proper pre-natal and post-natal care for Cole. It also asserts that the DFPS

records are relevant and essential to their position.

        In light of the parties’ relative positions, Cole’s condition, its cause(s), and any factors

contributing thereto go to the very heart of this case. The Texas Supreme Court noted in Walker

that a denial of discovery going to the heart of a party’s case may render an appellate remedy

inadequate. 827 S.W.2d at 843. Having reviewed the briefs, the record, and the DFPS records in

dispute, we find that the trial court could have reasonably determined that the disclosure of the

DFPS records is relevant to Cole’s condition, pre-natal, and/or post-natal care, and that their

disclosure was essential to the administration of justice.5 With the required due deference to the

trial court’s inherent factual determinations and restrictions on the disclosure of the confidential

information contained in the DFPS records, we decline to cite specific facts and find that the trial

court did not abuse its discretion in ordering the disclosure of the DFPS records.

Need for Specific Findings in Order Issued Pursuant to Texas Family Code Section 261.201


5
 This opinion relates to the discoverability of the DFPS records under Section 261.201 of the Texas Family Code and
should not be construed as a ruling or opinion regarding the admissibility of any portion of the DFPS records.

                                                        7
            Agers contends that the entry of such an order was permissible only after MRMC had

introduced evidence that release of the DFPS records was unlikely to endanger the life or safety of

the child, a person reporting abuse, or the life or safety of others participating in the abuse

allegation.       She also maintains that the order itself was required to include specific findings to

that effect.       We disagree.

            If, after a hearing and in camera review of the requested documents, the court determines

that the disclosure of the information is essential to the administration of justice and “not likely to

endanger the life or safety of” the child, a person reporting alleged abuse, or any person

participating in the investigation, the court may order the documents to be disclosed. TEX. FAM.

CODE ANN. § 261.201(b). The statute does not require the trial court to make specific findings

either that the disclosure of the records is “essential to the administration of justice” or that

disclosure is “not likely to endanger” the persons listed in the statute. See id. Absent such a

specific requirement, we will not impose one. A trial court is presumed to know the law6 and a

recitation of what the law requires the trial court to consider in exercising its discretion is not

necessary. Further, there is no evidence in the record that the disclosure of the DFPS records

would endanger the life or safety of the child, a person reporting alleged abuse, or any person

involved in the abuse investigation.




6
    Hurst v. Travelers Ins. Co., 353 S.W.2d 60, 64 (Tex. Civ. App.––El Paso 1961, no writ).

                                                           8
      We deny the petition for writ of mandamus.




                                         Bailey C. Moseley
                                         Justice

Date Submitted:     May 4, 2010
Date Decided:       May 5, 2010




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