Could a Texas county clerk release records filed in a mental-health docket to the public?

Texas AG Opinion JM-260: Mental Health Docket Records

Plain-English summary

Harris County asked about "the availability to the public of instruments filed in a mentally ill docket in the office of the county clerk." JM-260 concluded that disclosure depended on whether a record revealed private details protected by the Mental Health Code. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

The opinion treated every statement of facts in a mental-health proceeding as confidential. It said: "The statement of facts in every such proceeding is clearly excepted from disclosure." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Other material was confidential only when it "discloses intimate details of the personal and private life of the accused" or a family member. JM-260 assigned the initial decision to "the county clerk, in consultation with the county attorney." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

The opinion compared that statutory test with common-law privacy, which protected "highly intimate or embarrassing facts" whose disclosure would be "highly objectionable to a person of ordinary sensibilities." It noted that much or all material about a person with mental or emotional illness might satisfy the standard. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

When the clerk remained uncertain, JM-260 said "the material in question should be submitted to this office as a request under the Open Records Act." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Currency note

This opinion was issued in 1984. 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.

Common questions

Were all records in a mental-health docket automatically public?

No. JM-260's summary said a county clerk could disclose information "only if such information does not disclose intimate details of the personal and private life of the accused" or a family member. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Were statements of fact in the docket confidential?

Yes. The opinion stated that "the statement of facts in every such proceeding is clearly excepted from disclosure." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Who initially decided whether another docket record revealed intimate details?

JM-260 said "the county clerk, in consultation with the county attorney, must make the initial determination" for the particular information. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Could a judge authorize access to otherwise private mental-health docket material?

The quoted statute allowed use, inspection, or copying "only by a written order" of specified county, probate, domestic-relations, or district judges after the issuing judge found the access justified and in the public interest. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

What examples of private medical information did the opinion identify?

Quoting Open Records Decision No. 262, JM-260 listed a "drug overdose," "acute alcohol intoxication," obstetrical or gynecological illness, "convulsions/seizures," and "emotional/mental distress." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Background and statutory framework

Section 3(a)(1) of the former Open Records Act excepted "information deemed confidential by law, either Constitutional, statutory, or by judicial decision." JM-260 applied that exception to confidentiality created by article 5547-12. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Article 5547-12 declared statements of fact and other writings revealing intimate personal or family details to be "public records of a private nature." Access required a written judicial order supported by an informal determination that use, inspection, or copying was justified and in the public interest. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

JM-260 also said information "created or maintained" by a physician under section 5.08 of article 4495b, or by a professional under article 5561h, could be released only as those statutes permitted. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Citations and references

• Section 3(a)(1) excepted "information deemed confidential by law, either Constitutional, statutory, or by judicial decision." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf
• Article 5547-12 protected writings that "disclose intimate details of the personal and private life" of the patient or family. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf
• Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 683 (Tex. 1976), described protected material as containing "highly intimate or embarrassing facts." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf
• Open Records Decision No. 262 (1980) supplied examples of medical information that ordinarily met the common-law privacy test. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0260
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0260.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

December 21, 1984

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-260

Re: Availability of information from mental health records

Dear Mr. Driscoll:

You have requested our opinion regarding the availability to the public of instruments filed in a mentally ill docket in the office of the county clerk.

The Open Records Act, article 6252-17a, section 3(a)(1), V.T.C.S., provides that:

(a) All information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business is public information and available to the public during normal business hours of any governmental body, with the following exceptions only:

(1) information deemed confidential by law, either Constitutional, statutory, or by judicial decision. . . .

Articles 5547-11 and 5547-12, V.T.C.S., provide:

All applications, petitions, certificates, and all other papers permitted or required to be filed in the county court by this code shall be filed with the county clerk of the proper county who shall file the same and endorse on each paper the date filed and the docket number and his official signature.

Each and every statement of facts, together with report, and every other writing which discloses intimate details of the personal and private life of the accused or the patient or which discloses intimate details of the personal life of any and all members of the family of the accused or the patient, in a mentally ill docket in the office of the county clerk are hereby declared to be public records of a private nature which may be used, inspected, or copied only by a written order of the county judge, probate judge, a court of domestic relations judge, or a district judge of the county in which the docket is located, and no such order shall issue until the issuing judge has determined informally to his satisfaction that said use, inspection, or copying is justified and in the public interest. (Emphasis added).

Section 3(a)(1) excepts from disclosure under the Open Records Act all information made confidential by law. Article 5547-12 makes confidential certain records filed in connection with any proceedings under the Mental Health Code. The statement of facts in every such proceeding is clearly excepted from disclosure. Other material is excepted only if it "discloses intimate details of the personal and private life of the accused" or of a member of his family. In our opinion, the county clerk, in consultation with the county attorney, must make the initial determination as to whether particular information satisfies these criteria.

The test imposed by article 5547-12 is similar to that used by the Texas Supreme Court in determining whether information is excepted from disclosure by a common law right of privacy. In Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 683 (Tex. 1976), the court said that material is protected by common law privacy if it contains "highly intimate or embarrassing facts" whose disclosure would be "highly objectionable to a person of ordinary sensibilities." In Open Records Decision No. 262 (1980), this office said that medical information ordinarily satisfies this test if it relates to

a "drug overdose," "acute alcohol intoxication," "obstetrical/gynecological" illness, "convulsions/seizures," or "emotional/mental distress."

Furthermore, any information "created or maintained" by a physician under section 5.08 of article 4495b, V.T.C.S., or by a "professional" as defined in article 5561h, V.T.C.S., may not be released except as indicated in those statutes.

This standard will provide some guidelines for the county clerk's decision in determining whether to withhold information in a particular instance. We note, however, the likelihood that much or all material relating to a person suffering from mental or emotional illness may be excepted under this standard. If the clerk is uncertain about whether particular information "discloses intimate details of the personal and private life of the accused," or of a member of his family, the material in question should be submitted to this office as a request under the Open Records Act.

SUMMARY

A county clerk may disclose to the public information filed in connection with a mentally ill docket only if such information does not "disclose intimate details of the personal and private life of the accused," or of a member of his family, pursuant to article 5547-12, V.T.C.S.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton