Ex parte Abell
| Decision Date | 18 March 1981 |
| Docket Number | No. B-9939,B-9939 |
| Citation | 613 S.W.2d 255 |
| Parties | Ex parte John M. ABELL. |
| Court | Texas Supreme Court |
Brown, Maroney, Rose, Baker & Barber, Wayne Prescott and Walter H. Mizell, Austin, for relator.
Kidd, Whitehurst & Harkness, William O. Whitehurst, Jr., Polly Durham, Suzanne Wood Brown, Austin, for respondent.
Relator, John M. Abell, seeks his release from the custody of the sheriff of Travis County by writ of habeas corpus. Abell has been remanded to the sheriff's custody by the judge of the 126th District Court of Travis County until he has responded to an interrogatory posed to him by plaintiffs in a pending suit in which Abell is defendant. After Abell had been ordered to answer, he continued to refuse and was held in contempt and ordered to purge himself of contempt by answering the interrogatory. We granted Abell's application for writ of habeas corpus and set down the case for hearing. After hearing argument and consideration of the applicable authorities, we order the relator, Abell, discharged.
A discussion of the background facts is necessary. In August of 1978, two women sued Abell in separate suits alleging essentially the same complaint. They both allege that they were former patients of Dr. Abell, 1 who was a psychologist duly licensed to practice under the laws of the State of Texas. Each alleges that during the course of their psychotherapy treatment, Dr. Abell gained their complete cooperation, and when they were psychologically powerless to resist, Abell had sexual intercourse with them. Each suit separately alleges several causes of action, including malpractice, assault and battery, fraud and deceit, and intentional infliction of emotional distress. Both claim actual and punitive damages. Abell has admitted sexual relations with the plaintiffs at his office but denies that the sexual intercourse was a part of his professional treatment. Although Abell admits charging for the therapy sessions in question, he denies charging for the particular time span during which the sexual intercourse occurred.
Abell refused to answer the following interrogatory in each plaintiff's suit:
50. Please state whether you have kissed, touched, hugged, fondled or had any sexual contact of any type, including sexual intercourse, with any other current 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 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.
The trial court initially ordered on October 30, 1978, after a hearing, that Abell answer the question in both suits by November 3, 1978. The court's order further provided for certain protections:
It is further ordered, adjudged and decreed that the answers to plaintiff's interrogatory number 50 shall be provided to the court in a sealed envelope not to be opened except by further court order. Defendant's answer to interrogatory number 50 will be restricted to patients of Dr. Abell subsequent to October 28, 1972. In answering interrogatory number 50, each name, if any, will further be identified by a number or letter for possible future use. Copies of all names, corresponding numbers or letters, and all other information contained in the sealed envelope shall also be provided to plaintiff's counsel. Attorneys, as officers of the court, are ordered not to divulge these names to anyone not a party or attorney in this cause of action and to use the utmost care and discretion in contacting or approaching said individuals. 2
On advice of counsel, Abell refused to answer, and on November 16, 1978, pursuant to a show cause hearing, the trial court rendered its judgment of contempt and order of commitment. Abell then applied to this Court for a writ of habeas corpus which was denied on January 1, 1979. He next applied for a writ of habeas corpus to the federal district court, which also denied relief. Abell appealed that decision to the U. S. Court of Appeals for the Fifth Circuit. While that appeal was pending, the Texas Legislature enacted Article 5561h, Tex.Rev.Civ.Stat.Ann., which provides for the confidentiality of mental health information of individuals. The act became effective on August 27, 1979.
On September 11, 1980, the Fifth Circuit court handed down its decision declining to decide the issue of Abell's claim of a constitutional right of privacy until the Texas courts have resolved the issues of state law, particularly the applicability of the new state statute, Article 5561h. See Abell v. Frank, 625 F.2d 653 (5th Cir. 1980).
Abell then moved the Travis County District Court to reconsider its prior orders in light of the new statute. The trial court denied the motion and again committed Abell to the custody of the sheriff on December 1, 1980. Application for writ of habeas corpus was again requested of this Court. This writ was granted, the case set for hearing, and Abell released on bond pending our decision.
The threshold question involves the contention of plaintiffs that Abell's collateral attack on the trial court's order is impermissible under Ex Parte Lipscomb, 111 Tex. 490, 239 S.W. 1101 (1922). There Lipscomb was held in contempt for refusing to answer questions from the witness stand during trial on the grounds that the answers would violate the attorney-client privilege. This Court held that the existence of the privilege and the waiver of it were questions for the trial court to determine, not the witness, and habeas corpus cannot be used as a method of appealing those rulings or to correct errors in the admission or exclusion of evidence. The distinguishing facet of Lipscomb is that the question arose during trial. In the instant case, however, the problem arose during pre-trial discovery and is thus governed by the rule in Ex Parte Hanlon, 406 S.W.2d 204 (Tex.1966). We there held that a judgment of contempt was void because it was predicated on a pre-trial order that violated the permissible Relator Abell has no effective remedy here by appeal from the trial court's order. If he cannot collaterally attack the validity of the trial court's judgment of contempt by writ of habeas corpus, he in effect has no remedy.
limits of discovery allowed by the Texas Rules of Civil Procedure. The same result was reached in Ex Parte Shepperd, 513 S.W.2d 813 (Tex.1974), in which one of the relators was ordered discharged because the order of discovery was "unauthorized."
We next must determine whether the provisions of article 5561h, effective August 27, 1980, are to be applied to the order of the trial court, dated October 30, 1978, to answer the interrogatory and the subsequent order of contempt on November 16, 1978. Abell contends that the information sought is now privileged and he may not be required by the trial court to violate the law; therefore, he argues, he has been purged from contempt by the enactment of the statute.
The general rule is that there exists a presumption that an act is intended to operate prospectively and not retroactively. If there is any doubt, the intention will be resolved against retrospective operation of a statute. Gov't Personnel Mutual Life Insurance Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525 (1952). An act will not be applied retrospectively unless it appears by fair implication from the language used that it was the intent of the Legislature to make it applicable to both past and future transactions. In ascertaining legislative intent, the entire act must be examined, not just isolated provisions in the act. Merchants Fast Motor Lines v. Railroad Commission of Texas, 573 S.W.2d 502, 505 (Tex.1978); State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707 (1943); Gayle v. Lockhart, 167 S.W.2d 230 (Tex.Civ.App. Waco 1942, writ ref'd).
Article 5561h 3 provides in section 2(a) that communication between a patient/client and a professional is confidential and not to be disclosed except under certain instances set out in sec. 4. Also confidential are "(r) ecords of the identity, diagnosis, evaluation or treatment of a patient/client which are created or maintained by a professional." § 2(b). The privilege may be claimed by the patient/client or someone acting in his or her behalf, and may be claimed by the professional only on behalf of the patient/client. Several exceptions exist to the privilege 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.
but none are applicable here. 4 A person aggrieved by a violation of the act is given a cause of action for civil damages. 5 Nothing in the act indicates an intent that it be applied prospectively only. To the contrary, the act evidences a specific intention to protect communications and records arising prior to the effective date of the act. Section 2(d) states:
Thus, it is clear that the privilege extends to the matters declared confidential in the act regardless of when they occurred and are applicable to the interrogatory in question here.
Plaintiffs argue that because the trial court's order to answer was prior in time to the effective date of the act, they acquired a vested right in obtaining the answer that the Legislature cannot take away or impair. They point to Article 1, sec. 16 of the Texas Constitution which provides:
No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts shall be made.
In practice, however, retroactive lawmaking has not been viewed as the gross abuse of It is well settled in this state that laws may not operate retroactively to deprive or impair vested substantive rights acquired under existing laws, or create new obligations, impose new...
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