Abell v. Frank

• Decision Date: 11 September 1980
• Docket Number: No. 79-2451,79-2451
• Citation: 625 F.2d 653
• Parties: John M. ABELL, Petitioner-Appellant, v. Raymond FRANK, Individually and in his capacity of Sheriff, Travis County, Tx., Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 653

625 F.2d 653

John M. ABELL, Petitioner-Appellant, v. Raymond FRANK, Individually and in his capacity of Sheriff Travis County, Tx., Respondent-Appellee.

No. 79-2451.

United States Court of Appeals Fifth Circuit.

Sept. 11, 1980.

Walter H. Mizell, Austin, Tex., for petitioner-appellant.

William O. Whitehurst, Suzanne Wood Brown, Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before COLEMAN, Chief Judge, REAVLEY and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, Circuit Judge:

Petitioner, a psychotherapist formerly licensed to practice in Texas, is the defendant in two civil actions filed in the district court of Travis County, Texas, by former patients. Plaintiffs in those lawsuits assert several causes of action which relate to petitioner's sexual relationships with them during the periods they were his patients. The issue before us concerns certain interrogatories propounded by plaintiffs which petitioner refuses to answer. ¹ Plaintiffs obtained an order from the trial judge compelling petitioner to answer the interrogatories, but petitioner refused to comply. After a hearing in which petitioner was ordered to show cause why he should not be held in contempt for refusing to answer, the trial judge found him in contempt of court and ordered him confined to jail until such time as he complied with the order directing him to answer the interrogatories or until further order of the court. ² Petitioner was released on bail. He then sought a writ of habeas corpus in the Texas Supreme Court and his petition was denied. He thus exhausted his state remedies as required by 28 U.S.C. § 2254 (1976). He next sought a writ of habeas corpus in the United States District Court for the Western District of Texas pursuant to 28 U.S.C. § 2241(c)(3) (1976). This petition was also denied and petitioner now seeks our review of the district court's denial. He asks us to reverse the district court's order and to order the district court to issue a writ of habeas corpus setting aside and declaring void the state's order of commitment. The basis for petitioner's refusal to answer is his claim of a federal constitutional right to privacy which he asserts on his own behalf and on behalf of any patients whose identities would be revealed if he answered the interrogatories. More specifically, he asserts that the psychotherapist/patient relationship falls within the constitutional right of privacy and that this right includes the right to confidentiality as to the fact of treatment as well as to communications between psychotherapist and patient. He argues in addition that the constitutional privacy right protects one from being required to involuntarily disclose the names of those persons with whom he has been sexually intimate.

Prior to oral argument of his appeal but after the United States District Court's denial of petitioner's habeas petition, the Texas legislature passed a privilege statute providing for confidentiality of mental health information. ³ The statute extends to patients of psychotherapists the privilege to have their identities and communications with psychotherapists remain confidential. Vernon's Ann.Civ.St. Art. 5561h. The psychotherapist is given the right to assert the privilege on behalf of his patient. The statute contemplates certain exceptions to the privilege, not relevant here, and provides for civil penalties in the event its provisions are violated. Its effective date is August 27, 1979, and it contains a provision that "the prohibitions of this Act continue to apply to confidential communications or records concerning any patient/client irrespective of when the patient/client received services of a professional." See § 2(d).

After the statute went into effect, petitioner filed a motion in the district court of Travis County to reconsider the disclosure order and the judgment of contempt. His motion alleged that the newly enacted privilege statute applies to exclude from disclosure the information the court had ordered the defendant to produce. Appellant moved the court to rescind its order of contempt. Appellant's motion is now pending in the Texas state court.

The effect of the new privilege statute on the instant case is not clear. It is conceivable that the statute will be interpreted to invalidate the order underlying the contempt order; that is, the Texas state court might find that the privilege operates retroactively to forbid disclosure of the information ordered by the court to be disclosed. ⁴ Apart from any retroactivity issue, however, the impact of the statute on any action appellant might now take must be considered. It appears that in order for appellant to purge himself of contempt, he must divulge the information the court ordered him to disclose. But such disclosure now will apparently violate the prohibitions of the privilege statute and thus subject appellant to civil liability. The Texas state court may therefore decide that the contempt order cannot stand. ⁵

This case falls within the ambit of the Pullman ⁶ abstention doctrine. Pullman abstention is appropriate " 'in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.' " Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959)). The prerequisites for Pullman abstention are that "(1) there must be an unsettled issue of state law; and (2) there must be a possibility that the state law determination will moot or present in a different posture the federal constitutional questions raised." Palmer v. Jackson, 617 F.2d 424, 428 (5th Cir. 1980). Like Pullman, this case involves a state statute, interpretation and application of which might obviate the necessity for determining the constitutional issues. In Pullman, plaintiffs challenged a Railroad Commission regulation as unauthorized by Texas statutes and as violative of the federal Constitution. The Supreme Court found abstention appropriate because the issue of whether the relevant statute authorized the challenged regulation might dispose of the controversy, thereby avoiding the constitutional issue. In the instant case, the privilege statute might dispose of the question of whether petitioner must answer interrogatory no. 50. The new statute may operate either to invalidate or to excuse compliance with the order compelling petitioner to answer interrogatory no. 50. In either event, of course, we would not need to reach the important and sensitive constitutional issues raised by petitioner.

We cannot state with certainty, however, that the privilege statute will apply to invalidate the state court's order compelling petitioner to answer interrogatory no. 50 in this case. The applicability of the statute to pending litigation and the scope ⁷ of the privilege are matters which are not clear on the face of the statute and which have not yet been decided by the Texas courts. They are matters which should properly be decided by the Texas court. We need not and do not reach them. Because resolution of these issues in the Texas court is likely to make it unnecessary for us to decide, or may present in a different posture, the important constitutional issues presented in this appeal, we decline to reach the constitutional questions at this time. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); High Ol' Times v. Busbee, 621 F.2d 135 (5th Cir. 1980); Palmer v. Jackson, 617 F.2d 424 (5th Cir. 1980).

We find it particularly appropriate for us to defer decision of these constitutional issues until such time as the state court has resolved the state law issues, in light of the fact that petitioner's motion seeking a ruling on the applicability of the new statute to his case is currently pending in the state court. See Harris County Commissioners Court v. Moore, 420 U.S. 77, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975); Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971); Gibson v. Jackson, 578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979). ⁸ Some of the delay typically associated with abstention will thus apparently be avoided here.

We have determined that abstention is appropriate in light of the newly enacted privilege statute. In order to insure that the Texas state court will be able to address the state law issues, we vacate the district court's judgment and remand with instructions that it dismiss petitioner's petition without prejudice. ⁹

VACATED AND REMANDED.

1 The same interrogatory was propounded by both plaintiffs in the civil actions against petitioner. It reads as follows:

50. Please state whether you have kissed, touched, hugged, fondled or had any sexual contact of any type, including sexual intercourse, with any other client or former patient you have undertaken to treat? If so, please state:

(a) The full name of each such patient;

(b) The date of each such sexual contact;

(c) A complete description of each act of sexual contact; and

(d) Whether each act of sexual contact occurred in your office or at some other location. If at some other location, give the full street address of said location.

2 The court's order of contempt, based as it was upon petitioner's failure to comply with the earlier discovery order made at the instance and for the benefit of the plaintiffs in the civil action, was clearly an order of civil contempt. See Ex Parte Wolters, 64 Tex.Cr.R. 238, 144 S.W. 531, 587-88 (1912).

3 The statute reads in full as follows:

Art. 5561h. Confidentiality of mental health information of...