DAN MORALES 

ATTORNEY GENERAL 

Qaffice of tip !2lttornep QhnersI 

&ate of QCexas 

June 13.1995 

hr. Don Gilbert 

Commissioner 

Texas Department of Mental Health 

and Mental Retardation 

P.O. Box 12668 

Austin, Texas 7871 l-2668 

Dear Mr. Gilbert: 

opinion No. DM-353 

Re: ESect of the Brady Handgun Violence 

Prevention Act on the con6dentiality of client 

‘records of the Texas Dep- of Mental 

Health and Mental Betardation (RQ-73 1) 

your predecessor asks about the effect of the federal Brady Handgun Violence 

Prevention Act (the “‘Brady Act”) with regard to the disclosure of client records by the 

Texas Department of Mental Health and Mental Retardation. Your predecessor’s specific 

questions are: 

1) Is [the department] required to disclose client-identifying 

information to law enforcement oflicers conducting background 

searches pursuant to the Brady Act? 

2) Does the Brady Act require disclosure without consent for the 

following categories of persons . . . : 

a) clients with mental illness or mental retardation who are 

able to give consent; 

b) clients with mental illness or mental retardation who have 

court-appointed guardians, or 

c) clients with mental ihness or mental retardation who have 

been c&t-committed to a facility under the Mental Health 

Code and are unable to provide consent and have no legal 

gUUdii? 

As we will explain in what follows, it is our opinion that the provisions of the 

Brady Act do not require the department to disclose, to law enforcement officers 

performing background searches under the Brady Act, mental health records which would 

not otherwise be available to those officers, that is, the Brady Act does not alter the 

confidentiality status of such records under state law. We do not understand your 

predecessor to ask and we therefore do not generally address here whether particular 

mental health records are or are not available to law en9orcement officers under state law. 
Mr. Don Gilbert - Page 2 (DM-353) 

The Brady Act. adopted in 1993,’ amended federal firearms laws found in title 18 

of the United States Code section 922 by providing among other things that, prior to 

transferring a handgun, a licensed “tmnsfero?’ must notify the “chief law enforcement 

05~ of the place of residence of the transferee ,* and, unless notified in the meantime by 

the law enforcement officer that the transfer is lawful. may not complete the transfer until 

five days have elapsed without the transferor’s being not&d by the law enforcement 

05ice1 that the “receipt or possession of the handgun by the tmnsferee would violate 

,j%derd, State, or local law.” Id. 18 USC. 5 922(s)(l)(A).s Preexisting law in title 18 of 

the United States Code, section 922, makes it unlawtbl for a person to %ceive any 

fiream. . . transported in interstate commerce or foreign commerce,” id subset. @), or 

“posses [any harm] in or a5ecting commerce” if among other things he “has been 

adjudicated as a mental defective or. . . has been committed to any mental institution.” 

Id. 5 922(&e 

Subsection (s)(2) of 922 provides: 

A chief law enfo rmnent 05ccr to whom a transfhror has 

provided notice. . . ahaUmakeatwwmahieefforlto~within 

5 business days whether receipt or possession would be in violation 

of the law, in&ding research in whrriewr State and lo& 

recordkeeping qwtems are avuikzble and in a national systan 

designated by the Attorney General.s mphasis added.] 

The “national tyaan” referred to in subsection (s)(2) has not yet been developed. 

Section 103 of the public law adopting the Brady Act requires the United States Attorney 

General to develop a national crintinul background check system for purposes of &Brady 

‘Ad ofNw. 30.1993. F’ob. L. 103.159, tit. I, 1993 U.S.S.C.A.N. (107 Stnt.) 1536. 

*racpmvirianrdrubrcction(g)wacoriginal~rdmedbyPub.L.No.90-351,TitleTV.~902, 

hmc 19.1968 82 Stat 228 at16 aumdcd by Pub. L. No. 90-618, Title I, Oct. 22,1968,82 Stat. 1216. 

p. 1881 
Mr. Don Gilbert - Page 3 (DM-353) 

Act rquirements by November 30.1998. (It is perhaps because of these plans that, by its 

own terms, section (s)(l)‘s requirement of a five-day waiting period applies only until the 

1998 date.) However, with regard to a national system to identify other persons ineligible 

to purchase firearms-such as the persons about whom your predecessor is 

concerned-Congress has so far only directed the Attorney General to conduct a study. 

See Pub. L. No. 100-690,§ 6213. Thus, the focus of his concern is the availability of your 

department’s records to law enforcement officers performing research under subsection 

,(s)(2). In this regard, he refers to the provisions of chapters 595 and 611 of the Health 

and Safkty Code. 

Section 595.001 provides that “[r]ecords of the identity, diagnosis, evaluation, or 

treatment of a person that are maintained in connection with the performance of a 

program or activity relaring lo mentol re&rabion are confidential and may be disclosed 

only for the purposes and under the circumstances authorized under section 595.003 and 

595.004.” (Emphasis added.) Section 595.003, as pertinent here, permits, subject to 

department rules, disclosure of a record with the consent of “the person about whom the 

record is maintained,” his parent if he is a minor, or his guardian if he has been adjudicated 

incompetent. Section 595.004 permits a person to obtain his own records, unless the 

responsible professional determines it is not in the person’s best interest, or a parent if the 

person is a minor, or a guardian. Notably, section 595.003 expressly prohibits exchanges 

of records between governmental agencies except as necessary to deliver &vices to 

clients or obtain payment. Subsection (d) of section 595.005, however. does permit 

disclosure of all or parts of records “[i]f authorized by an appropriate order of a court of 

competent jurisdiction” upon application showing good cause, where the court has 

determined the need for disclosure outweighs the injury to the subject. Section 595.005 

provides other ex~ptions to the section 595.003 consent rquirements, but except for 

subsection (d) thereof they do not appear to be relevant here. 

Health and Safety Code chapter 611, “Mental Health Records,” provides, in 

section 611.002, that “records of the identity, diagnosis, evaluatioK or treatment of a 

patient that are created or maintained by a professional, are confidential” and may be 

disclosed only as provided by sections 611.004 and 611.0045. Section 611.0045 provides 

for the release to a patient or his parent, guardian, or designee, of the patient’s own 

records. Section 611.004 authorizes disclosure to various persons or entities for example 

audits or “research” (where the records are deidentitied), payment purposes, legislative 

inquiries, perhaps pertinent here are subsections (a)(l) and (2) which allow a professional 

to disclose records to “a governmental agency if the disclosure is required or authorized 

by law” and, “to medical or law enforcement personnel ifthe professional determines there 

is a probability of imminent physical injury by the patient to the patient or others or there 

is a probability of immediate mental or emotional injury to the patient.” 

In addition to chapters 595 and 611 of the Health and Safety Code, your 

predecessor also refers to federal regulations pertaining to records of clients receiving 

chemical dependency services, found in title 42 of the Code of Federal Regulations, Part 2. 

These regulations, adopted under title 42 of the United States Code, sections 29Odd-3 and 

p. 1882 
Mr. Don Gilbert - Page 4 (DM-353) 

29Oee-3, prohibit record disclosure absent patient consent except to medical personnel in 

emergencies, for audit and scientific research purposes, or pursuant to court order. 

Section 2.64(d) of these regulations permits a court to order disclosure where the 

information is not otherwise available and the public interest outweighs injury to the 

patient. We understand, too, that other provisions of law regarding con6dentiality of 

records may be implicated by the concerns your predecessor raises. See. es., Health & 

Safety Code 4 576.005 (confidentiality of records of a mental health facility). 

Reciting the above-referenced t3taMe~ and regtdations as their authority, the 

department has adopted extensive rules with regard to disclosure of “client-identifying 

information” for the use of its staff and the public. 25 T.AC. ch. 403, sub& K The 

rules appear to aim at comprehensiveness. We do not understand your predecessor to 

raise concerns as to the validity of these rules, and we assume their legal adequacy for 

purposes of this opinion. The rules essentially break down department records into three 

types-those of clients receiving “mental health services,” “mental retardation services” 

and “chemical dependency services”-and provide for disclosing or withholding records 

for each type depending on whether adequate consent to release them has been obtained. 

We believe that threshold issue to all the questions your predecessor presents is 

whether the Brady Act requires or authorizes disclosure of information to a law 

enforcement 05cer performing the subsection (s)(Z) research where disclosure would 

otherwise be prohibited. In our opinion, the Brady Act does not have such et&t. The act 

directs law enforcement 05cers to make “reasonable efforts” to determine the eligibility 

of individuals to obtain handguns, “including research in whatever State and local 

recordkeeping systems are available.” We find nothing in the Brady Act which purports to 

alter whether given state or local records are “available” for purposes of the act, that is, to 

make otherwise unavailable records “available” for the law enforcunent 05cers 

performing the research under the act. 

Notably, another provision of the Brady Act, section 103(e) of Public Law No. 

103-159, expressly permits the Attorney Genera& “[n]otwithstanding any other law, to 

obtain “from any department or agency of the United States” information on persons for 

whom receipt of a firearm would be unlawftd. Presumably, Congress could have chosen 

to afford local law enforcement officers carrying out research under the act similar 

authority to obtain rewrds”notwithstanding other law.” It did not. 

of course department records sought by law enforcement officers performing 

Brady Act research may m certain cases be available to them under existing state law and 

regulations-for example, where there is the rquisite wnsent, where a court Orders 

disclosure, or where a “professional” determines that there is a threat of injury to the client 

or others. See, e.g., Health & Safety Code 85 595.003, .005,611.004(a)(2)~ But agahk 

p. 1883 
Mr.DonGilberl - Page 5 (DM-353) 

we do not believe the Brady Act in itself makes otherwise unavailable records of the 

department “available” to law enforcement officers for purposes of their performing the 

research rquircd by the act. In view of this determination, we do not think it necessary to 

respond specifically to the various permutations in which your predecessor presents his 

questions.’ 

SUMMARY 

The federal Brady Act, in directing certain law enforcement 

05cers to research “available” records in order to determine 

lawfblncss of a person’s obtaining a handgun, does not rquirc or 

authorize the Department of Mental Health and Mental Retardation 

to disclose client records which are otherwise confidential ahd 

unavailable to such officers under state law. This opinion does not 

address which particular records are or are not available to such 

05cus under state law. 

DAN MORALES 

Attorney General of Texas 

(footocks continocd) 

amtidcntiairanrd6maysom6Umeslawfullyhcshamdbctweengwernmmral cntitirs. see, cg., Attorney 

Gcnd Opiion m-590 (1986). We would also note spaifically with rdcrcncc to the contidcntiality 

exception -h scction 6ll.O04(a)(l) of the Hcallb sod !%fcty code. mfcrcnc4 io your prrdssgsor’s 

rcqxst, which &on allows a pmfcssiond to dklose raords to -a govzmmcmal agcnq if tbc 

dibclosurrisrcquircdozau~byirw~thatf~orthcrraconsnatedrbovcwcQnotklicvethcBRdy 

Act in itself operates either to ‘rcqoirt” or %otbolizc” disclosure witbin the meaning of section 

6ll.@O4(a)(l). See. e.g.. Attomey Gcncml Opinion JM-838 (1988). While the Bmdy Act may ‘rcqoin? 

or %utborize” a law wforccmcnt officu to -II ‘8vdhble” tccotds, it cannot, we think, be read to 

“tcquirc” 01 “mnbmiw” tbc dqamncnt to di&~6 them. cj: a.&. Hum. Rcs. Code 5 48.0385 

(DCptWMOfHUtMtlSClViCC5’mhallha\s-”tOWCOldSluoc+rarytOprformarvr ofdmia mda 

clqtcr 48. protativc mvices for ddclly). 

‘We~thatthcrrarltwerrachbae-thattbeBrodyAdQanotmsLeothcrrvirermrvDilablc 

~~availableu,theudentthattheyM~rdsofs~~hohpckcn~~catedrrrmcntal 

ddcaivc or who has boa committed to a mcmd insUtmion”-rdicvcs the dqartmem of having to 

detcrtninc which rcWrdS fd ilIt0 tbOS6 GatC8OrieS. It lll~dy Mt k illlIllcdi8tdy @paXlIt in St& ti Who 

shoold k cc&dcrcd as having ban Sdjodicatcd as a mmfal ddec&c” or “~ommittcd to any mental 

h&utjon” m&r LIIC Brady Act. See, e.g., United St,*, Y. Hame/, 474 F.2d 1120 (8th Cir. 1973) (rope 

oftcrm’mcmalddcctiw). 

p. 1884 
Mr. Don Gilbert - Page 6 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opiion Comminee 

Prepared by Wti Walker 

jlssistant Attorney General 

W-353) 

p. 1885