                            NUMBER 13-08-00200-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


VALLEY BAPTIST MEDICAL CENTER,                                              Appellant,

                                           v.

NOE MORALES, JR., AS ADMINISTRATOR OF THE
ESTATE OF PAULINA MORALES, DECEASED,                                        Appellee.


                   On appeal from the 404th District Court
                        of Cameron County, Texas.


                                   OPINION

                 Before Justices Rodriguez, Garza, and Vela
                       Opinion by Justice Rodriguez

      This is a statutory construction case. In a mandamus proceeding, the district court

ordered appellant, Valley Baptist Medical Center (VBMC), to produce the medical records

of Paulina Morales to appellee, Noe Morales, Jr. (Morales), as administrator of the estate
of Paulina Morales, deceased, without charge. By a single issue, VBMC contends that the

trial court erred in ordering production of the records without charge because, although

Morales is entitled to a copy of Ms. Morales's medical records pursuant to section

74.051(d) of the Texas Civil Practices and Remedies Code, VBMC may charge a

reasonable fee for providing the information under section 241.154 of the Texas Health

and Safety Code. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.051(d) (Vernon 2005); TEX .

HEALTH & SAFETY CODE ANN . § 241.154 (Vernon 2001). We reverse and render.

                                               I. Background

        Morales provided VBMC with a written request and proper authorization for copies

of Ms. Morales's medical records. See TEX . CIV. PRAC . & REM . CODE ANN . §§ 74.051(d),

74.052 (Vernon 2005). Upon receipt of the notice, VBMC advised Morales that the fee for

the records would be $1,143.00. See TEX . HEALTH & SAFETY CODE ANN . § 241.154.

Challenging the fee request, Morales filed a petition seeking a mandamus order that VBMC

produce copies of the records without charge. VBMC answered contending that it was

entitled to be compensated for providing a copy of the medical records. Following a

hearing on Morales's petition, the district court entered judgment that VBMC provide

Morales with a free copy of Ms. Morales's medical records. VBMC appeals from that

judgment.1

                            II. Applicable Law and Standard of Review

        Section 74.051(d) of the civil practices and remedies code states that


        1
           VBMC filed a m otion to fix supersedeas. The trial court heard the m otion, at which tim e the parties
agreed that Morales would place $1,143.00, representing a reasonable fee for production of the records, see
infra n.3, in trust for VBMC pending the outcom e of this appeal and that VBMC would produce the records to
Morales.

                                                       2
        [a]ll parties shall be entitled to obtain complete and unaltered copies of the
        patient's medical records from any other party within 45 days from the date
        of receipt of a written request for such records; provided, however, that the
        receipt of the medical authorization in the form required by Section 74.052
        executed by the claimant herein shall be considered compliance by the
        claimant with this subsection.

TEX . CIV. PRAC . & REM . CODE ANN . § 74.051(d). Section 241.154 of the health and safety

code provides the following, in relevant part:

        (a) On receipt of a written authorization from a patient or legally authorized
        representative to examine or copy all or part of the patient's recorded health
        care information, . . . a hospital or its agent, as promptly as required under
        the circumstances but not later than the 15th day after the date the request
        and payment authorized under Subsection (b) are received, shall:

              (1) make the information available for examination during regular
        business hours and provide a copy to the requestor, if requested; or

              (2) inform the authorized requestor if the information does not exist or
        cannot be found.

        (b) Except as provided by Subsection (d), the hospital or its agent may
        charge a reasonable fee for providing the health care information and is not
        required to permit the examination, copying, or release of the information
        requested until the fee is paid unless there is a medical emergency.[2]

                 ****

        (d) A hospital may not charge a fee for:

               (1) providing health care information under Subsection (b) to the
        extent the fee is prohibited under Subchapter M, Chapter 161;

                 (2) a patient to examine the patient's own health care information;

               (3) providing an itemized statement of billed services to a patient or
        third-party payor, except as provided under Section 311.002(f); or




        2
         The form ula for determ ining a reasonable fee is set out in section 241.154(b)(1). See T EX . H EALTH
& S AFETY C OD E A N N . § 241.154(b)(1) (Vernon 2001).

                                                      3
              (4) health care information relating to treatment or hospitalization for
       which workers' compensation benefits are being sought, except to the extent
       permitted under Chapter 408, Labor Code.

TEX . HEALTH & SAFETY CODE ANN . § 241.154.

       Statutory construction is a question of law, which appellate courts review de novo,

giving no deference to the trial court's interpretation. See F.F.P. Operating Partners, L.P.

v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Our goal is to ascertain and give effect to

the Legislature's intent by examining the statute's plain language. City of Desoto v. White,

No. 07-1031, 2009 Tex. LEXIS 395, at *12 (Tex. June 19, 2009) (citing Duenez, 237

S.W.3d at 683); Rodriguez v. Tex. Workforce Comm'n, 986 S.W.2d 781, 783 (Tex.

App.–Corpus Christi 1999, pet. denied). "Therefore, our practice when construing a statute

is to recognize that 'the words [the Legislature] chooses should be the surest guide to

legislative intent.'" Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)

(citing Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)).

"Where possible, courts are to construe language used in statutes so as to harmonize all

relevant laws, not create conflict." Rodriguez, 986 S.W.2d at 783. "Only when those

words are ambiguous do we 'resort to rules of construction or extrinsic aids.'" Summers,

282 S.W.3d at 437 (citing In re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007));

Rodriguez, 986 S.W.2d at 783.

                                      III. Discussion

       By a single issue, VBMC contends that section 241.154(b) of the Texas Health and

Safety Code and section 74.051(d) of the Texas Civil Practice and Remedies Code are not

in conflict. It asserts that to hold otherwise would be to disregard section 241.154(b) when



                                             4
it would be possible to give effect to both the entitlement to records in section 74.051(d)

and to the fee schedule for those records in section 241.154(b). VBMC urges that these

statutes should be harmonized and construed to allow Morales a copy of the records, but

to also require him to pay the reasonable statutory fee. In response, Morales asserts that,

by its terms, section 241.154 is not specifically applicable to requests for records made

pursuant to section 74.051(d). He argues that the unqualified entitlement to the records

as set out in that section conflicts with the language of the hospital's requirement to

withhold records pending payment of copy charges contained in section 241.154.

        A plain reading of section 74.051(d) of the civil practice and remedies code provides

that "[a]ll parties shall be entitled to obtain complete and unaltered copies of the patient's

medical records from any other party" when a proper medical authorization is provided.

TEX . CIV. PRAC . & REM . CODE ANN . § 74.051(d). "Entitle" is defined as "[t]o grant a legal

right to or qualify for." BLACK'S LAW DICTIONARY 612 (9th ed. 2009).

        A plain reading of section 241.154(b) of the health and safety code indicates that

a "hospital or its agent may charge a reasonable fee" for providing "health care

information" upon "receipt of a written authorization from a . . . legally authorized

representative" and that the hospital "is not required to permit the examination, copying,

or release of the information requested until the fee is paid." TEX . HEALTH & SAFETY CODE

ANN . § 241.154. The statute sets out a fee schedule that is considered "reasonable" and

authorizes annual adjustments to that fee schedule based on the consumer price index.3




        3
           It is undisputed that the fee for Ms. Morales's records, as calculated under the fee schedule in effect
at that tim e, was $1,143.00.

                                                        5
Id. § 241.154(b)(1), (e). Section 241.154 also identifies four specific instances when a

hospital may not charge a fee. See id. § 241.154(d).

       In examining these statutes, we note that section 74.051(d) of the civil practices and

remedies code provides only that Morales is entitled to copies of medical records. See

TEX . CIV . PRAC . & REM . CODE ANN . § 74.051(d). Morales, a party who has provided a

proper medical authorization as required by 74.052 and who is therefore in compliance with

section 74.051(d), is entitled to—that is, he has a legal right to—receive copies of Ms.

Morales's medical records. However, section 74.051(d) does not say that Morales is

entitled to, or has a legal right to, free medical records. Indeed, section 74.051(d) is silent

as to whether a fee is to be paid by Morales for the requested copies. It is also silent as

to whether the fee, if any, is to be paid prior to receipt of the requested copies.

       Section 241.154(b) of the health and safety code does, however, provide that a

reasonable fee may be charged by a hospital for providing copies of medical records to a

legally authorized representative who has provided the hospital with written authorization.

See TEX . HEALTH & SAFETY CODE ANN . § 241.154(b). The language is clearly discretionary,

providing that the hospital may, should it choose to do so, charge a reasonable fee and

receive that fee before providing the requested records.           See id.   In addition, the

Legislature set out only four exceptions to this discretionary charge. See id. § 241.154(d).

None of the specific instances apply to a claimant who is asserting a health care liability

claim against a hospital from which the representative is requesting records. See id.

       Had the Legislature intended to require health care defendants to provide a copy

of a patient's medical records free of charge, it could have done so. See, e.g., TEX . BUS.



                                              6
& COM . CODE ANN . § 4.406(b) (Vernon 2002) ("A bank shall provide, on request and without

charge to the customer, at least two items or a legible copy of the items with respect to

each statement of account sent to the customer.") (emphasis added); id. § 9.616(e)

(Vernon 2002) ("A debtor or consumer obligor is entitled without charge to one response

to a request under this section during any six-month period in which the secured party did

not send the debtor or consumer obligor an explanation pursuant to Subsection (b)(1).")

(emphasis added); TEX . EDUC . CODE ANN . § 54.641(a) (Vernon 2006) ("Not later than

January 1 of each year, the board shall furnish without charge to each purchaser a

statement. . . .") (emphasis added). It chose not to include the words "without charge" in

section 241.154(d). See TEX . HEALTH & SAFETY CODE ANN . § 241.154(d). The Legislature

also could have added a claimant, such as Morales, to the list of exceptions set out in

section 241.154(d), but did not do so. See id.

      After examining the plain language of each statute and focusing on the words the

Legislature chose to use, we conclude that the statutes are not in conflict and can be

harmonized. See White, 2009 Tex. LEXIS 395, at *12; Summers, 282 S.W.3d at 437;

Rodriguez, 986 S.W.2d at 783. Thus, harmonizing the statutes, Morales is entitled to Ms.

Morales's medical records pursuant to section 74.051(d), and he may also be required to

pay the fees provided for in section 241.154(b) if requested to do so by the hospital. See

Rodriguez, 986 S.W.2d at 783.

      Having found the statutes can be harmonized, we need not address Morales's

remaining arguments, which are premised upon a finding that the statutes conflict. See

TEX . R. APP. P. 47.1. Accordingly, we sustain VBMC's sole issue.



                                            7
                                    IV. Conclusion

      We reverse the trial court's writ entered on March 27, 2008, and we render judgment

that Morales obtain a complete and unaltered copy of Ms. Morales's medical records from

VBMC and that Morales pay to VBMC the requested fee of $1,143.00 for providing the

health care information.



                                                  NELDA V. RODRIGUEZ
                                                  Justice

Opinion delivered and filed this
28th day of August, 2009.




                                           8
