Huse, Hayden

Opinion

PD-0433-14

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 1/14/2015 8:14:08 AM Accepted 1/14/2015 9:45:55 AM ABEL ACOSTA

CLERK

Officers President

Emmett Harris, Uvalde

January 14, 2015

President-Elect

Samuel E. Bassett, Austin 1st Vice President

Hon. Abel Acosta, Clerk

January 14, 2015

John A. Convery, San Antonio 2nd Vice President

David E. Moore, Longview Court of Criminal Appeals Treasurer

Mark Snodgrass, Lubbock Post Office Box 12308 Secretary

Kerri Anderson-Donica, Corsicana Austin, Texas 78711-2308 General Counsel

Patricia J. Cummings, Austin Editor, Voice for the Defense Michael Gross, San Antonio Subject: State v. Huse; PD-0433-14 Editor, Significant Decisions Report Kathleen Nacozy

Immediate Past President

Bobby Mims, Tyler Executive Director

Dear Mr. Acosta:

Joseph A. Martinez, Austin Directors

Susan E. Anderson, Dallas I am writing to the Court on behalf of the Texas Criminal Defense Marjorie Bachman, Austin Heather J. Barbieri, Plano Rick Berry, Marshall

Lawyers Association (“TCDLA”), the largest state association for criminal Fred C. Brigman, San Angelo Clint Broden, Dallas

Jim Darnell Sr., El Paso defense attorneys in the nation. TCDLA started more than 40 years ago as Nicole DeBorde, Houston

Emily Detoto, Houston

Donald H. Flanary, San Antonio Stephen Gordon, Haltom City a small, nonprofit association and has grown into a state-of-the-art Deandra M. Grant, Richardson Michael C. Gross, San Antonio Melissa L. Hannah, Lufkin organization, providing assistance, support and continuing education to its Theodore “Tip” Hargrove, San Angelo Jo Ann Jacinto, El Paso

Steve A. Keathley, Corsicana Laurie L. Key, Lubbock

members. TCDLA represents the interests and views of criminal defense Jeanette Kinard, Austin

Adam L. Kobs, San Antonio Michael A. McDougal, Conroe lawyers across the state, both in the legislature and before the courts as George R. Milner lll, Dallas Angela J. Moore, San Antonio David P. O’Neil, Huntsville Anthony C. Odiorne, Burnet amicus curiae in important criminal and civil cases. As required by Rule Stephanie K. Patten, Fort Worth Oscar O. Pena, Laredo Bruce Ponder, El Paso 11, Tex.R.App.Pro., neither TCDLA nor any of the attorneys representing Carole J. Powell, El Paso Bennie Ray, Austin Ray Rodriguez, Laredo Sarah E. Roland, Denton

TCDLA have received any fee or other compensation for preparing this John Hunter Smith, Sherman Edward A. Stapleton, Brownsville Clay B. Steadman, Kerrville brief. George Taylor, San Antonio Gary Alan Udashen, Dallas Oscar Vega, McAllen Coby Waddill, Denton

In the above captioned case, the Court has granted review on two Jani Wood, Houston

Associate Directors

separate questions:

Roberto Balli, Laredo

Robert Barrera, San Antonio Curtis Barton, Huntsville 1. After State v. Hardy, does a citizen have standing to Michael Head, Athens

Susan Kelly Johnston, Waco Bradley Lollar, Dallas

challenge the process by which his medical records Louis Elias Lopez, El Paso Hiram McBeth, Dallas

are obtained?

Audrey Moorehead, Dallas Simon Purnell, Corpus

Christi 2. Must the State comply with federal requirements Jeremy Rosenthal, McKinney David Ryan, Houston Frank Sellers, Lubbock

under the Health Insurance Portability and Monique Sparks, Houston

Courtney Stamper, Waxahachie Accountability Act of 1996 (HIPAA) to obtain a Mark Thiessen, Houston

citizen's medical records, and if it fails to do so, is TCDLA founded in 1971

there any remedy?

6808 Hill Meadow Drive | Austin, TX 78736 | (512) 478-2514 p | (512) 469-9107 f | www.tcdla.com

Please accept this letter as a brief for TCDLA as Amicus Curiae, and advise the members

of the Court that, although TCDLA takes no specific position on the second ground, it strongly

believes the answer to the first ground is “yes.” We urge the Court to find that, in light of the

adoption of HIPAA by the Congress of the United States, it is clear that a citizen does have

standing to challenge the process by which his medical records are obtained.

TCDLA is aware that, in State v. Hardy, 963 S.W.2d 516 (Tex.Cr.App. 1997), the Court

held that there is no expectation of privacy in these type of medical records (results of blood

tests). Indeed, relying on Hardy (and other cases), the Court of Appeals held that there is no

expectation of privacy in one’s blood-alcohol test results when the blood is obtained by hospital

personnel after a traffic accident for medical purposes. Thus, the Court of Appeals wrote,

“Appellee lacks standing to assert that using a grand jury subpoena to obtain his blood results

constituted an unreasonable search and seizure.” State v. Huse, 07-12-00383-CR (Tex.App. -

Amarillo; March 6, 2014).

In Hardy, however, Judge Price led a four judge minority in dissenting. He argued that

“society does recognize one’s expectation of privacy in medical records because society’s

expects a physicians to make affirmative efforts to ensure the confidentiality of the client’s

records.” TCDLA agrees with Judge Price and his fellow dissenters in Hardy.

The distinction between the expectation of privacy one has in his or her body vis-a-vis the

drawing of blood and the expectation of privacy one has in the results of the testing of that

blood is a distinction without difference. The core question is whether society recognizes one’s

expectation that his or her medical records will be kept confidential. TCDLA would suggest that

3

the passage of HIPPA by the United States Congress, the representatives of the people, has

answered this question.

It must be noted that, although HIPAA is at the heart of the second issue, it was not in

effect at the time of Hardy. The initial date for covered entities, such as the hospital in this case,

to comply with the privacy standards of HIPPA was April 14, 2003. See 45 C.F.R. § 164.534

(2002). The initial determination to be made is whether HIPAA overruled Hardy. Appellee’s

brief suggests that it has (P. 22 of 41), while the State’s brief suggests it has not (P. 20). TCDLA

agrees with Appellee.

TCDLA is aware that several of the Courts of Appeals have held that HIPAA does not

preempt Hardy. See, e.g., Kirsch v. State, 276 S.W.3d 579, 586-587 (Tex. App. - Houston [1st]

2008), aff’d on other grounds, Kirsch v. State, 306 S.W.3d 738 (Tex.Cr.App. 2010);1 Murray

v. State, 245 S.W.3d 37, 42 (Tex. App. - Austin 2007). Nevertheless, it is clear that HIPAA

trumps Hardy, at least in a general sense.

Pursuant to HIPAA, individually identifiable medical information cannot be disclosed by

covered entities without the consent of the individual unless disclosure is expressly permitted by

HIPAA. See 45 C.F.R. § 164.502; U.S. v. Zamora, 408 F. Supp.2d 295 (S.D.Tex. 2006);

Kennemur v. State, 280 S.W.3d 305, 312 (Tex. App. - Amarillo 2008). Disclosure is only

permitted without authorization from the individual in several limited circumstances:

1 Judge Price filed a dissenting opinion in Kirsch and was joined by Judge Meyers. The dissent is not relevant to the issue now before the Court.

4

A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.

45 C.F.R. § 164.512 (emphasis added).

Thus, a “covered entity” may only deliver one’s medical records when there is either

consent of the entity’s patient or the entity is compelled to do so by some legal process.

Accordingly, there can be no other way to interpret the limited authority of a “covered entity”

to divulge medical records than to say that there is a “reasonable” expectation of privacy in

one’s medical record.

TCDLA believes that a challenge to the manner in which the State obtained one’s medical

records from the third party “covered entity” would be similar to the right of a passenger in an

automobile to challenge the legality of the search in certain circumstances. See, Brendlin v.

California, 551 U.S. 249, 251 (2007), in which the Supreme Court held that the passenger of

a vehicle has standing to contest the legality of the traffic stop that results in his own detention.

See also Kothe v. State, 152 S.W.3d 54, 63-64 (Tex.Cr.App. 2004), in which the Court of

Criminal Appeals found that the defendant had standing under Wong Sun v. United States, 371

U.S. 471 (1963), to complain about the seizure of a controlled substance from his companion’s

bra, because it was “come at by” the exploitation of an illegal detention.

Thus, the answer to the first ground on which review was granted clearly has to be that,

because of the reasonable expectation of privacy demonstrated in HIPAA, a defendant does

have standing to challenge the process by which his or her medical records were obtained. To

5

the extent that Hardy would suggest that there is never standing to mount such a challenge,

HIPAA has preempted Hardy.

Conclusion

To the extent it would be interpreted to say a defendant never has standing to challenge

the manner in which his or her medical records were obtained, HIPAA has preempted Hardy.

A citizen has a reasonable expectation of privacy, and has the right to expect that there will be

full compliance with HIPAA before his or her medical records are turned over to the authorities

by the “covered entity” with whom he or she has a professional relationship.

Respectfully submitted,

Emmett Harris Patricia J. Cummings Attorney at Law and President of TCDLA Attorney at Law and General Counsel for TCDLA 625 Cenizo Blvd 6808 Hill Meadow Drive Uvalde, Texas 78801 Austin, Texas 78736 Tel. 210-422-7055 Tel. (512) 478-2514 eMail: emmettharrislaw@gmail.com eMail: pcummings@tcdla.com State Bar Card No. 09092000 Texas State Bar Card No. 05227500

Gena Blount Bunn Angela Moore Holmes & Moore, P.L.L.C. Attorney at Law 110 West Methvin Street 310 South St. Marys Street, Suite 1830 Longview, Texas 75601 San Antonio, Texas 778205 Tel. (903) 758-2200 Tel. (210) 364-0013 eMail: gbunn@holmesmoore.com eMail: amoorelaw@aol.com State Bar Card No. 00790323 State Bar Card No. 14320110

____________________________________

David A. Schulman Attorney at Law Post Office Box 783 Austin, Texas 78767-0783 Tel. 512-474-4747 Fax: 512-532-6282 eMail: zdrdavida@davidschulman.com State Bar Card No. 17833400 Attorneys for TCDLA

6

Certificate of Compliance and Delivery

This is to certify that: (1) this document, created using WordPerfect™ X7 software, contains

1326 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on January 14, 2015, a true and

correct copy of the above and foregoing “Brief for Texas Criminal Defense Lawyers Association

as Amicus Curiae” was transmitted via the eService function on the State’s eFiling portal, to

Jeffrey S. Ford (jford@co.lubbock.tx.us), counsel of record for the State of Texas, as well as

Chuck Lanehart (chucklanehart@lubbockcriminaldefense.com) and Charles Blevin

(charles@attorneyinlubbock.com), counsel of record for Appellee, Hayden Huse.

_______________________________________

David A. Schulman