TRE Rule 510: Mental Health Information Privilege in Civil Cases

(a) Definitions. In this rule:

(1) A “professional” is a person:
- (A) authorized to practice medicine in any state or nation;
- (B) licensed or certified by the State of Texas in the diagnosis, evaluation, or treatment of any mental or emotional disorder;
- (C) involved in the treatment or examination of drug abusers; or
- (D) who the patient reasonably believes to be a professional under this rule.
(2) A “patient” is a person who:
- (A) consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or
- (B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse.
(3) A “patient’s representative” is:
- (A) any person who has the patient’s written consent;
- (B) the parent of a minor patient;
- (C) the guardian of a patient who has been adjudicated incompetent to manage personal affairs; or
- (D) the personal representative of a deceased patient.
(4) A communication is “confidential” if not intended to be disclosed to third persons other than those:
- (A) present to further the patient’s interest in the diagnosis, examination, evaluation, or treatment;
- (B) reasonably necessary to transmit the communication; or
- (C) participating in the diagnosis, examination, evaluation, or treatment under the professional’s direction, including members of the patient’s family.

(b) General Rule; Disclosure.

(1) In a civil case, a patient has a privilege to refuse to disclose and to prevent any other person from disclosing:
- (A) a confidential communication between the patient and a professional; and
- (B) a record of the patient’s identity, diagnosis, evaluation, or treatment that is created or maintained by a professional.
(2) In a civil case, any person—other than a patient’s representative acting on the patient’s behalf—who receives information privileged under this rule may disclose the information only to the extent consistent with the purposes for which it was obtained.

(1) the patient; or
(2) the patient’s representative on the patient’s behalf. The professional may claim the privilege on the patient’s behalf—and is presumed to have authority to do so.

(d) Exceptions. This privilege does not apply:

(1) Proceeding Against Professional. If the communication or record is relevant to a claim or defense in:
- (A) a proceeding the patient brings against a professional; or
- (B) a license revocation proceeding in which the patient is a complaining witness.
(2) Written Waiver. If the patient or a person authorized to act on the patient’s behalf waives the privilege in writing.
(3) Action to Collect. In an action to collect a claim for mental or emotional health services rendered to the patient.
(4) Communication Made in Court-Ordered Examination. To a communication the patient made to a professional during a court-ordered examination relating to the patient’s mental or emotional condition or disorder if:
- (A) the patient made the communication after being informed that it would not be privileged;
- (B) the communication is offered to prove an issue involving the patient’s mental or emotional health; and
- (C) the court imposes appropriate safeguards against unauthorized disclosure.

(5) Party Relies on Patient’s Condition. If any party relies on the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication or record is relevant to that condition.

(6) Abuse or Neglect of “Institution” Resident. In a proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of a resident of an “institution” as defined in Tex. Health & Safety Code § 242.002.

Official Notes and Commentary

Comment to 1998 change: This comment is intended to inform the construction and application of this rule. This rule governs disclosures of patient-professional communications only in judicial or administrative proceedings. Whether a professional may or must disclose such communications in other circumstances is governed by TEX. HEALTH & SAFETY CODE §§ 611.001-611.008. Former subparagraph (d)(6) of the Civil Evidence Rules, regarding disclosures in a suit affecting the parent-child relationship, is omitted, not because there should be no exception to the privilege in suits affecting the parent-child relationship, but because the exception in such suits is properly considered under subparagraph (d)(5), as construed in R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994). In determining the proper application of an exception in such suits, the trial court must ensure that the precise need for the information is not outweighed by legitimate privacy interests protected by the privilege. Subparagraph (d) does not except from the privilege information relating to a nonparty patient who is or may be a consulting or testifying expert in the suit.

Comment to 2015 Restyling: The mental-health-information privilege in civil cases was enacted in Texas in 1979. Tex. Rev. Civ. Stat. art. 5561h (later codified at Tex. Health & Safety Code § 611.001 et seq.) provided that the privilege applied even if the patient had received the professional’s services before the statute’s enactment. Because more than thirty years have now passed, it is no longer necessary to burden the text of the rule with a statement regarding the privilege’s retroactive application. But deleting this statement from the rule’s text is not intended as a substantive change in the law.

Tex. Health & Safety Code ch. 611 addresses confidentiality rules for communications between a patient and a mental-health professional and for the professional’s treatment records. Many of these provisions apply in contexts other than court proceedings. Reconciling the provisions of Rule 510 with the parts of chapter 611 that address a mental-health-information privilege applicable to court proceedings is beyond the scope of the restyling project.