Can mental health treatment records be subpoenaed in a Texas criminal case?

Texas AG Opinion JM-1075: Can Mental Health Records Be Subpoenaed in a Criminal Case?

Plain-English summary

The Commissioner of the Texas Department of Mental Health and Mental Retardation asked the Attorney General to sort out what happened to the confidentiality of clients' clinical records after the Court of Criminal Appeals adopted new criminal evidence rules. The specific concern was Rule 509, which says flatly: "There is no physician-patient privilege in criminal proceedings." The department wanted to know whether that rule wiped out the confidentiality statutes it had relied on, whether a plain subpoena was now enough to pull a client's records, and how all of this played out in federal court and before grand juries.

The Attorney General worked through the questions one at a time. On the core issue, Rule 509 controls. Two statutes had made mental health information confidential: article 5561h (communications with a licensed provider about a mental or emotional condition) and section 57(a) of article 5547-300 (records on the identity, diagnosis, evaluation, or treatment of a person in a mental retardation program). Both were on the list of statutes repealed by the new criminal evidence rules, effective when the rules took effect. So in a criminal case or criminal law matter, Rule 509 repeals those confidentiality protections to the extent the records had been shielded by the physician-patient privilege. The Court of Criminal Appeals had already applied Rule 509 that way in Rougeau v. State, 738 S.W.2d 651 (Tex. Crim. App. 1987).

Because the privilege is gone in criminal cases, a subpoena does the job. Article 24.02 of the Code of Criminal Procedure lets a subpoena direct a witness to bring a document or thing wanted as evidence, so a subpoena is sufficient to require production of the clinical records in a state criminal case. A grand jury investigation counts too: the grand jury exists to inquire into indictable offenses, which makes its investigation a "criminal proceeding" under Rule 509. Alt v. State, 203 S.W. 53 (Tex. Crim. App. 1918).

Federal court is different, but the practical result is the same. Rule 509 is a Texas rule and does not apply in federal court. Under Rule 501 of the Federal Rules of Evidence, privileges in federal criminal cases are governed by federal common law (state privilege law only comes in for civil claims that turn on state law). And federal common law recognizes no physician-patient privilege in criminal trials. United States v. Meagher, 531 F.2d 752 (5th Cir.), cert. denied, 429 U.S. 853 (1976); United States v. Harper, 450 F.2d 1032 (5th Cir. 1971). So the state confidentiality statutes do not apply in federal criminal proceedings, and a federal grand jury investigation is likewise a criminal proceeding in which the privilege does not apply.

One boundary worth noting: the questions were framed around records unrelated to drug or alcohol abuse. A separate rule, Rule 510, makes communications about voluntary treatment or examination for alcohol or drug abuse inadmissible, so that category is handled differently and was outside this analysis.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Texas Rules of Criminal Evidence have since been merged into the unified Texas Rules of Evidence, and the mental health confidentiality statutes cited here (articles 5561h and 5547-300) have been recodified into the Health and Safety Code, along with federal privacy law like HIPAA that did not exist in 1989. The rule numbers and statute citations here reflect the law as it stood in 1989. Anyone facing a present-day question about subpoenaing mental health records in a criminal case should check the current Texas Rules of Evidence, the current Health and Safety Code, and applicable federal privacy law.

Who this opinion affected (as of 1989)

The Department of Mental Health and Mental Retardation and its custodians of records: The opinion told the department that, in criminal cases, Rule 509 removed the physician-patient privilege that had made clinical records confidential, so a state criminal subpoena under article 24.02 was sufficient to compel production.

Prosecutors and grand juries: The opinion confirmed that a grand jury investigation is a "criminal proceeding" under Rule 509 in both state and federal court, so the physician-patient privilege did not block access to these records.

Clients whose records were sought: The opinion meant that mental health and mental retardation treatment records, previously confidential under the physician-patient privilege, could be obtained by subpoena in a criminal case, subject to the separate treatment of drug and alcohol treatment communications under Rule 510.

Common questions

Did Rule 509 eliminate the confidentiality of mental health records in criminal cases?
To the extent the records were confidential under the physician-patient privilege, yes. The Attorney General concluded Rule 509 repealed article 5561h and section 57(a) of article 5547-300 in criminal cases and criminal law matters, insofar as those statutes made privileged clinical records confidential.

Is a subpoena enough to get the records in a state criminal case?
Yes. Article 24.02 of the Code of Criminal Procedure lets a subpoena direct a witness to bring a document wanted as evidence, so a subpoena is sufficient to require production of the clinical records in a state criminal proceeding.

Is a grand jury investigation a "criminal proceeding" under Rule 509?
Yes, in both state and federal court. A grand jury exists to inquire into indictable offenses, which makes its investigation a criminal proceeding, so the physician-patient privilege does not apply.

Does Rule 509 apply in federal court?
No. Rule 509 is a Texas rule. In federal criminal cases, privilege is governed by federal common law under Rule 501 of the Federal Rules of Evidence, and federal common law recognizes no physician-patient privilege in criminal trials, so the result is the same.

Background and statutory framework

The Commissioner of the Department of Mental Health and Mental Retardation asked several questions about the effect of Rule 509 of the Texas Rules of Criminal Evidence on subpoenas for the department's clients' clinical records. The Court of Criminal Appeals promulgated the rules under legislation authorizing it to adopt rules of procedure and evidence in criminal cases, Acts 1985, 69th Leg., ch. 685, §§ 5-9, at 2473-74; see V.T.C.S. art. 1811f, adopted them on December 18, 1985, and made them effective September 1, 1986. Rule 509 provides that "[t]here is no physician-patient privilege in criminal proceedings." The Court of Criminal Appeals held under Rule 509's express provision that there is no physician-patient privilege in criminal cases. Rougeau v. State, 738 S.W.2d 651, 664 (Tex. Crim. App. 1987). The request assumed a subpoena from a pending criminal proceeding involving the client's own record, treatment for illness or disability unrelated to drug or alcohol abuse, and no applicable exception or consent.

Article 5561h, V.T.C.S., makes a patient's communication with a licensed or certified provider about the diagnosis and evaluation of a mental or emotional condition confidential, subject to exceptions in section 4. Article 5561h is among the statutes designated as repealed by the Rules of Criminal Evidence for criminal law cases and matters; the general repealer states the "repeal is effective simultaneously 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. So in a criminal case or criminal law matter, Rule 509 repeals article 5561h insofar as it relates to information in the clinical records on the diagnosis or evaluation of a mental or emotional condition previously deemed confidential under the physician-patient privilege. Section 57(a) of article 5547-300 makes confidential the records of the identity, diagnosis, evaluation, or treatment of a person in a mental retardation program, subject to exceptions in section 57(b). Because there is no way to know the source or content of such records, the opinion concluded the information previously confidential under the physician-patient relationship is no longer privileged, and Rule 509 repeals section 57(a) to that extent.

On the subpoena question, article 24.02 of the Code of Criminal Procedure provides that if a witness has in his possession an instrument of writing or other thing desired as evidence, the subpoena may specify it and direct the witness to bring it to court. Accordingly, a subpoena is sufficient to require production of the records in criminal cases. (Rule 501 of the Rules of Criminal Evidence also generally denies a privilege to refuse to be a witness, to disclose a matter, or to produce an object or writing except as otherwise provided.) On the grand jury question, it is the grand jury's function to inquire into all indictable offenses within the county, Code Crim. Proc. arts. 20.09, 20.10, and it may inquire only into violations of the penal law, Alt v. State, 203 S.W. 53, 54 (Tex. Crim. App. 1918), so a grand jury investigation is a "criminal proceeding" under Rule 509.

On the federal questions, Rule 501 of the Federal Rules of Evidence provides that privileges in federal proceedings are governed by federal common law "as they may be interpreted by the courts of the United States in the light of reason and experience," except that in civil actions where state law supplies the rule of decision, state law governs the privilege. In United States v. Meagher, 531 F.2d 752 (5th Cir.), cert. denied, 429 U.S. 853 (1976), the Fifth Circuit rejected a robbery defendant's claim that admitting a psychiatrist's records and testing violated a patient's privilege, explaining that under Rule 26 of the Federal Rules of Criminal Procedure the admissibility of evidence in federal criminal trials is governed by common law except as modified by Congress, that Rule 501 provides that a witness's privilege is governed by common law as interpreted by U.S. courts, and that "[a]t common law, no physician-patient privilege existed and, therefore, we recognize no such privilege in federal criminal trials today." United States v. Harper, 450 F.2d 1032 (5th Cir. 1971). Rule 509 is therefore not applicable to criminal trials and proceedings in federal court, and articles 5561h and 5547-300 are not applicable to federal criminal proceedings because state privilege laws apply in federal court only to civil cases as stated in Rule 501. While Rule 509 does not apply in federal court, a federal grand jury investigation is a "criminal proceeding," 18 U.S.C. § 3332, so the physician-patient privilege does not apply there either.

Citations

Rules and statutory authorities:

• Tex. R. Crim. Evid. 509 (no physician-patient privilege in criminal proceedings); Rule 510 (drug/alcohol treatment communications inadmissible); Rule 501 (general denial of privilege)
• V.T.C.S. art. 5561h (confidentiality of mental health communications; § 4 exceptions); art. 5547-300 (§ 57(a) confidentiality of mental retardation records; § 57(b) exceptions)
• Code Crim. Proc. art. 24.02 (subpoena for documents); arts. 20.09, 20.10 (grand jury inquiry into offenses)
• Acts 1985, 69th Leg., ch. 685 (authorizing the criminal evidence rules); V.T.C.S. art. 1811f
• Fed. R. Evid. 501 (federal privilege law); Fed. R. Crim. P. 26 (admissibility in federal criminal trials); 18 U.S.C. § 3332 (federal grand jury duty)

Cases:

• Rougeau v. State, 738 S.W.2d 651, 664 (Tex. Crim. App. 1987) (no physician-patient privilege under Rule 509)
• Alt v. State, 203 S.W. 53, 54 (Tex. Crim. App. 1918) (grand jury inquires only into penal law violations)
• United States v. Meagher, 531 F.2d 752 (5th Cir.), cert. denied, 429 U.S. 853 (1976) (no physician-patient privilege in federal criminal trials)
• United States v. Harper, 450 F.2d 1032 (5th Cir. 1971) (no physician-patient privilege at common law)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1075
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1075.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. Case names were confirmed by citation lookup (Rougeau v. State; United States v. Meagher; United States v. Harper).

July 27, 1989

Honorable Dennis R. Jones
Commissioner
Texas Department of Mental Health and Mental Retardation
P. O. Box 12668
Austin, Texas 78711-2668

Opinion No. JM-1075

Re: Effect of amendment to rules of criminal evidence in production of clinical 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 subpoenas 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, §§ 5-9, at 2473-74. See 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 Rougeau 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 Proceedings

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 subpoena all that is required for the production of confidential clinical records in cases of ongoing criminal proceedings in state court?

B. Is a state grand jury investigation a 'criminal proceeding' as described in Rule 509?

II. Federal Court Proceedings

A. Is Rule 509 inapplicable to a federal court? If so, are Articles 5561h and 5547-300, Section 57, the only authorities 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 drug 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 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 simultaneously 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 information 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, diagnosis, 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 certain 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:

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 proceeding" 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 authority, 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 decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

In United States v. Meagher, 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 evidence 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 defendant's contention the court stated:

Under Rule 26, Fed. R. Crim. P., the admissibility 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 principles 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 recognize no such privilege in federal criminal trials today. United States v. Harper, 450 F.2d 1032 (5th Cir. 1971). (Emphasis added.)

Id. at 753.

In response to your question, Rule 509 is not applicable 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.

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 diagnosis or evaluation of mental or emotional condition of a patient heretofore deemed confidential 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 confidentiality 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 investigation 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 5561h and 5547-300, section 57, V.T.C.S., are not applicable in criminal proceedings in federal courts.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnotes

[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 voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible.

[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 authority, no person has a privilege to: (1) Refuse to be a witness; or (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.

[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. § 3332.