State v. Hardy

• Decision Date: 19 November 1997
• Docket Number: No. 1061-94,1061-94
• Citation: 963 S.W.2d 516
• Parties: The STATE of Texas, v. Steven Mack HARDY, Appellee.
• Court: Texas Court of Criminal Appeals

Page 516

963 S.W.2d 516

The STATE of Texas, v. Steven Mack HARDY, Appellee.

No. 1061-94.

Court of Criminal Appeals of Texas En Banc.

Nov. 19, 1997.

Opinion Dissenting from Denial of

Rehearing Jan. 14, 1998.

Brian Wice (On Rehearing), Ross Palmie, Houston, for appellant.

Carol M. Cameron, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge, delivered the opinion of the Court, in which McCORMICK, Presiding Judge, and MANSFIELD, HOLLAND and WOMACK, Judges, joined.

Appellee was charged with the misdemeanor offense of driving while intoxicated. Before trial, he filed a motion to suppress medical records containing blood-test results. The trial court granted the motion to suppress but its decision was subsequently reversed by the Court of Appeals. We granted review to determine whether the Court of Appeals erred in holding that appellee possessed no privilege or reasonable expectation of privacy in his medical records. We will affirm.

1. Facts

Appellee was involved in an automobile accident on December 3, 1992. Trooper Authier of the Department of Public Safety investigated the scene and formed the opinion that appellee was intoxicated. ¹ Due to his injuries, appellee was subsequently "life-flighted" to a local hospital. During the course of treatment, the hospital drew blood from appellee and conducted a blood alcohol test for medical purposes. ² On December 7, Trooper Authier obtained a grand jury subpoena for alcohol or drug information pertaining to appellee's treatment. The records obtained reflected that appellee's blood alcohol content was .239. Ten days later, appellee was charged with misdemeanor driving while intoxicated.

Before trial, appellee filed a motion to suppress the blood test results and other medical record evidence on the basis that the records were obtained in violation of the physician-patient-privilege under the Texas Medical Practice Act, Tex.Rev.Civ. Stat. Article 4495b, § 5.08. The trial court granted appellee's motion and found that Trooper Authier's "actions violated the Texas Medical Practice Act, as well as the defendant's right to a reasonable expectation of privacy." ³ The State appealed and the Court of Appeals reversed and remanded. The Court of Appeals held that the trial court erred in granting the motion to suppress because § 5.08 of the Texas Medical Practice Act had been repealed by Tex.R.Crim. Evid. 509. The Court of Appeals further held that the repeal of § 5.08 extinguished any reasonable expectation of privacy in medical records in criminal cases.

In his petition for discretionary review, appellee argues that the Emergency Medical Services Act, Texas Health & Safety Code, Chapter 773 is a legislative response to our repeal of § 5.08 and restored any reasonable expectation of privacy abrogated by the adoption of Rule 509. Appellee alleges the new act gives him the same statutory right of privacy that § 5.08 gave the defendant in State v. Comeaux, 818 S.W.2d 46 (Tex.Cr.App.1991). Appellee also argues, based upon Comeaux, that a Fourth Amendment constitutional right to privacy in medical records exists regardless of the status of the physician-patient privilege in Texas.

2. Prior cases

In Comeaux, the defendant was involved in a car accident. Id. at 48. The DPS trooper at the scene did not believe that the defendant was intoxicated. Id. The defendant was subsequently taken to a hospital, where a sample of his blood was drawn for medical purposes in accordance with the order of an attending physician. Id. at 48-49. The tests performed upon the defendant's blood did not include a blood alcohol content analysis. Id. at 49. A police officer subsequently used a false authorization form to acquire a portion of the blood sample, and a blood alcohol test was conducted by law enforcement agents. Id. at 48-49.

A four-judge plurality opinion held that the State's acquisition of the blood sample violated the Fourth Amendment and the Texas constitutional counterpart. Id. at 53. Relying heavily upon § 5.08 of the Medical Practice Act, the plurality reasoned that the defendant had a legitimate expectation of privacy in his blood sample. Id. at 52-53. In its discussion, however, the plurality also indicated that an expectation of privacy in blood testing is a part of understandings recognized and permitted by society. Id. at 52 (citing HIV and drug use testing). In a concurring opinion, Judge Campbell, joined by Judge Benavides, maintained that the State's acquisition of the blood sample violated the privilege set out in § 5.08 because no criminal prosecution was pending at the time the defendant's blood was transferred to law enforcement authorities. Id. at 56 (Campbell, J. concurring). Judge Campbell specifically repudiated the plurality's expectation of privacy rationale as "likely incorrect." Id. at 54 (Campbell, J. concurring). Two other judges concurred without opinion, and one judge dissented. Id. at 53 & 56.

Because Comeaux is only a plurality opinion, it is not binding precedent. In a subsequent opinion, we did cite Comeaux with approval for the proposition that there is a reasonable expectation of privacy in physician-patient communications. Richardson v. State, 865 S.W.2d 944, 952-953 & 953 n. 7 (Tex.Crim.App.1993). This comment, however, was mere dicta because the question in the case was whether a pen register constituted a search under Article I, § 9 of the Texas Constitution. See Richardson, generally. Moreover, the existence of a reasonable expectation of privacy in physician-patient communications, generally, does not necessarily mean that medical records would carry an expectation of privacy in every situation. Nevertheless, while Comeaux and Richardson are not binding, we may look to those opinions for their persuasive value. With that consideration in mind, we address the privilege and constitutional issues.

3. Physician/patient privilege

Tex.R.Crim. Evid. 509 states: "There is no physician-patient privilege in criminal proceedings." Rule 509 applies to proceedings before a grand jury. Tex.R.Crim. Evid. 1101(b). See also Tex. Atty. Gen. Op. JM-1075 at 3811. This Court, by order dated December 18, 1985, repealed § 5.08 ⁴ insofar as it relates to criminal law matters. See Rev. Civ. Stat. Ann., Article 4495b, Repeal commentary (Vernon's Supp.1997). The Texas Constitution empowers the Legislature to delegate rule-making authority to this Court, and accordingly, the Legislature delegated to this Court the power to promulgate rules of evidence and to repeal a number of evidentiary statutes, including § 5.08. See Tex. Const., Art. 5, § 31; Tex.Rev.Civ. Stat. Ann., Art. 1811f, §§ 5, 6, & 9 (Vernon's Supp.1986). On the face of the rules and statutes, it appears that any physician-patient privilege that might have existed under § 5.08 has been abrogated by the repeal of § 5.08 and the promulgation of Rule 509.

However, in some cases construing the rules of appellate procedure, we have indicated that this Court may not "abridge, enlarge, or modify" a litigant's substantive rights when we repeal a statutory provision and replace it with a rule. Davis v. State, 870 S.W.2d 43, 45-46 (Tex.Crim.App.1994)(This Court may not, through appellate rule, enlarge appellate jurisdiction provided by former statute--nonjurisdictional defects occurring after the plea); Lyon v. State, 872 S.W.2d 732, 734-736 (Tex.Crim.App.1994)(same); Flowers v. State, 935 S.W.2d 131, 132-134 (Tex.Crim.App.1996)(This Court may not, through appellate rule, restrict appellate jurisdiction recognized under former statute--claim that plea was involuntary). These cases relied upon statutory language in former Article 1811f, § 1 (Vernon's Supp.1986)--now Tex. Gov't Code § 22.108(a). The section of the delegating statute relating to evidence contains a similar--though not identical--provision. See Article 1811f, § 5 (Vernon's Supp.1986). To determine whether the rationale in Davis, Lyon, and Flowers, applies to the instant case, we engage in statutory construction to determine the meaning of the provision relating to evidence.

The starting point in an analysis of the meaning of a statute is, of course, the language of the statute itself. When the language of the statute is unambiguous, we must give effect to the plain meaning of the words unless doing so would lead to absurd results. Boykin v. State, 818 S.W.2d 782, 785-786 & 786 n. 4 (Tex.Crim.App.1991). When the language of a statute is ambiguous, we may look to extratextual factors for guidance in determining the statute's meaning. Id. Following these principles, we find the rationale in Davis, Lyon, and Flowers to be inapplicable to the present case for two reasons.

First, we hold that the legislatively conferred power to repeal statutes relating to evidence differed from the legislatively conferred power to repeal statutes relating to appellate procedure: the Legislature conferred absolute authority to repeal specified statutes relating to evidence but gave only limited authority to repeal specified statutes relating to appellate procedure. This conclusion flows naturally from differences in the plain language of the statutory provisions relating to appellate procedure and evidence. The appellate procedure provision that prevents appellate rules from abridging, enlarging or modifying substantive rights contains a reference to a provision that permits the repeal of certain specified statutes relating to appellate procedure:

Articles of the Code of Criminal Procedure, 1965, that govern posttrial appellate and review procedure in criminal cases are hereby repealed pursuant to Section 4 of this Act. The court of criminal appeals is granted rulemaking power to promulgate rules of posttrial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of a...