IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0433-14

THE STATE OF TEXAS

v.

HAYDEN HUSE, Appellee

ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

LUBBOCK COUNTY

YEARY, J., delivered the opinion of the Court in which KELLER, P.J. and

MEYERS, KEASLER, HERVEY, ALCALA and RICHARDSON, JJ., joined. NEWELL, J.,

concurred in the result. JOHNSON, J., dissented.

O P I N I O N

In this prosecution for the misdemeanor offense of driving while intoxicated, the State

obtained evidence of Appellee’s blood-alcohol concentration by issuing a grand jury

subpoena for his hospital medical records. The trial court granted Appellee’s motion to

suppress on two grounds relevant to Appellee’s current petition for discretionary review: 1)

that obtaining Appellee’s medical records without a warrant violated the Fourth Amendment,
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necessitating suppression under both the federal exclusionary rule and Article 38.23 of the

Texas Code of Criminal Procedure; and 2) that a misuse of the grand jury subpoena process

caused the State’s acquisition of Appellee’s medical records to violate both state and federal

law, also requiring suppression of the evidence under our state exclusionary rule, Article

38.23. U.S. CONST. amend. IV; TEX. CODE CRIM. PROC. art. 38.23. The State appealed. TEX.

CODE CRIM. PROC. art. 44.01(a)(5).

In an unpublished opinion, the Seventh Court of Appeals reversed the trial court’s

order suppressing the evidence. State v. Huse, No. 07-12-00383-CR, 2014 WL 931265 (Tex.

App.—Amarillo Mar. 6, 2014) (mem. op., not designated for publication). The court of

appeals held that the trial court erred in that, respectively: 1) under this Court’s opinion in

State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997), Appellee lacked standing to raise

a Fourth Amendment challenge to the State’s acquisition of his medical records; and 2) the

State did not acquire Appellee’s medical records through an unlawful grand jury subpoena,

so it was not necessary to suppress them under Article 38.23. Huse, 2014 WL 931265, at *4-

6.

We granted Appellee’s petition for discretionary review to address two issues. First,

does the advent of the Health Insurance Portability and Accountability Act of 1996

(“HIPAA”) materially impact this Court’s holding in Hardy with respect to Fourth

1

 As the Fourteenth Court of Appeals has noted elsewhere:

1

On August 21, 1996, Congress enacted HIPAA to “improve portability and

continuity of health care coverage in the group and individual markets, to combat
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Amendmentstanding to complain of the State’s acquisition of specific medical records? And

second, did the State acquire Appellee’s medical records by way of a grand jury subpoena

process that violated either HIPAA or state law, thus necessitating that they be suppressed

under Article 38.23? We ultimately answer both questions “no.” Accordingly, we will affirm

the judgment of the court of appeals.

I. BACKGROUND

The Facts

The facts of the case were largely stipulated to by the parties in the trial court and are

not in serious dispute. They show the following time-line:

! On February 13, 2010, at approximately 2:00 o’clock in the morning,

Appellee missed a curve and plowed his car into a cotton field.

! Lubbock County Deputy Sheriffs who responded to the scene detected

the odor of alcohol on Appellee’s breath. They transported him to the

Covenant Medical Center in Lubbock.

! Appellee’s blood was drawn for medical purposes at 4:50 a.m. Later

analysis of his blood revealed a blood alcohol concentration of .219.

waste, fraud, and abuse in health care and health care delivery.” Pub.L. No. 104-191,

110 Stat. 1936 (1996). Congress also instructed the Secretary of Health and Human

Services to promulgate “final regulations” containing “standards with respect to the

privacy of individually identifiable health information” should Congress fail to enact

such privacy standards within 36 months of the HIPAA enactment. 110 Stat. 2033-

34. * * * On February 13, 2001, the Secretary promulgated final regulations that

restrict and define the ability of covered entities, i.e., health plans, health care

clearinghouses, and health care providers, to divulge patient medical records.

Tapp v. State, 108 S.W.3d 459, 462-63 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d.). It is to

those regulations that we refer in the remainder of this opinion.
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! Department of Public Safety Trooper Troy McKee met with Appellee

at the hospital at approximately 5:15 a.m. He also noticed the odor of

alcohol on Appellee’s breath as well as other signs of alcohol ingestion.

Appellee admitted to having had six or seven beers between 7:30 and

11:30 the previous evening. Appellee refused McKee’s request for a

specimen of breath or blood for blood alcohol analysis, and McKee did

not attempt to compel one.

! On March 30, 2010, based on McKee’s offense report, a Lubbock

County Assistant District Attorney filed an application for a grand jury

subpoena duces tecum to obtain Appellee’s medical records for the

February 13 incident. The subpoena issued by the District Clerk to

th

Covenant Medical Center required an employee of the hospital to

appear before the grand jury but stated that the hospital could comply

by simply calling the District Attorney’s office, presumably to arrange

delivery of Appellee’s medical records from that day to the Assistant

District Attorney. No grand jury was actively investigating Appellee.

Neither was any grand jury involved in the issuance of the subpoena,

nor were the medical records required to be, nor ever actually were,

returned to a grand jury.

! On March 31, 2010, the day after the subpoena duces tecum issued,

Appellee was formally charged by information with the misdemeanor

offense of driving while intoxicated.

! On April 15, 2010, Covenant Medical Center complied with the

subpoena duces tecum, providing Appellee’s medical records from

February 13 to the District Attorney’s office, along with a business

th

record affidavit.

! On March 14, 2011, almost a year later, Appellee amended an earlierfiled motion to suppress to argue for the first time that his medical

records should be suppressed as the product of a grand jury subpoena

that violated both state law and HIPAA. No hearing was immediately

conducted on Appellee’s motion to suppress.

! On September 27, 2011, while Appellee’s motion to suppress was still

pending, the State moved to dismiss the information against Appellee,

which was granted.
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! On October 5, 2011, a new grand jury subpoena duces tecum issued,

this time on the basis of an application that was actually signed by the

foreman of the grand jury. But, as before, the subpoena issued by the

District Clerk to Covenant Medical Center stated that the hospital could

comply by simply contacting the District Attorney’s office, to arrange

delivery of Appellee’s medical records to the Assistant District

Attorney. It is unclear whether the medical records were ever actually

returned to a grand jury. But no grand jury ever issued an indictment

against Appellee.

! On October 6, 2011, the next day, Appellee was once again charged by

information with driving while intoxicated on February 13, 2010.

Appellee’s pre-trial motions were carried over to the new information.

! On October 11, 2011, Covenant Medical Center complied with the

second grand jury subpoena by supplying the same medical records

directly to the Assistant District Attorney with a second business record

affidavit.

! On January 25, 2012, the trial court conducted a hearing on Appellee’s

motion to suppress. As summarized by the court of appeals, “[i]n

addition to testimony of Trooper McKee, the facts surrounding the

subpoena process and the obtaining of the medical records were

stipulated to between the State and Appellee, leaving only the issue of

whether Appellee’s medical records were illegally obtained and,

therefore, excludable.” 2014 WL 931265, at *2.

! On August 6, 2012, the trial court granted Appellee’s motion to

suppress.

! On November 30, 2012, the trial court filed written findings of fact and

conclusions of law in support of its grant of Appellee’s motion to

suppress.

The Trial Court’s Findings and Conclusions

After setting out the above uncontested facts, the trial court prefaced its formal

conclusions of law with a “discussion,” which included the following observations: “Because
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the State failed to establish that an actual grand jury investigation existed or that other

legislative authority or a warrant authorized its actions, the State’s use of the grand jury

subpoena(s) appears to be an illegitimate exercise of authority. It is this court’s opinion, that

the use of a grand jury subpoenas [sic] for purposes wholly unrelated to actual grand jury

investigationsisinappropriate.” It is not altogether clear from these observations whether the

trial court concluded that both the March 30 grand jury subpoena and the October 5 grand

th th

jury subpoena were unlawful, or just the March 30 grand jury subpoena. The trial court’s

th

formal conclusions of law do not entirely resolve this ambiguity. They read, almost in their

entirety, as follows:

1) Defendant has standing to present his Motion to Suppress, including,

but not limited to, challenging the process by which the State seized the

medical records. This case is distinguishable from Hardy in at least two

significant ways: first, Hardy was decided before HIPAA compliance

was mandated; second, the subpoenas in this case seek any and all

medical records and are not limited to merely blood tests.

2) HIPAA legislatively creates an expectation of privacy in medical

information in the custody of a covered health care provider.

3) A general demand by the State for “any and all” medical records

infringes upon protected privacy interests, even apart from HIPAA.

4) HIPAA provides means by which the State may lawfully obtain medical

records.

5) The State obtained Mr. Huse’s health information from a covered

healthcare prov[id]er based upon a grand jury subpoena.

6) The 3/30/10 grand jury subpoena issued by the State was defective

because it did not meet legislative requirements because no actual

grand jury was involved with that subpoena. Therefore, the 3/30/10
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subpoena was insufficient to satisfy HIPAA’s grand jury subpoena

exception.

7) The medical records obtained pursuant to the 3/30/10 subpoena were

in violation of HIPAA.

8) The 10/05/11 grand jury subpoena does not cure the 3/30/10 subpoena’s

HIPAA violation.

9) The State failed to demonstrate any attenuation of the taint.

10) The State did not acquire the records via a warrant and no exception to

the warrant requirement has been established.

11) Article 38.23 applies because the State did not comply with federal

and/or state law when obtaining Huse’s medical information.

12) This case presents no exigent circumstances. There is little danger that

the evidence would be destroyed or that a delay in obtaining a search

warrant would have jeopardized the investigation. Medical records,

unlike alcohol in one’s blood, do not dissipate over time.

13) The grand jury subpoenas were used to seize Huse’s protected medical

records for law enforcement purposes rather than to bring a witness or

evidence before a grand jury for grand jury purposes. Such an action is

not authorized by the grand jury subpoena statute and is, therefore,

unlawful.

2

14) The doctrine of inevitable discovery is not available under Texas law;

thus, the medical records that were originally obtained in an unlawful

manner must be suppressed from evidence in the current DWI case

against Defendant, even if the Court finds that they were subsequently

This conclusion of law, couched as it is in the plural form (i.e., “subpoenas”), would seem 2

to constitute a ruling that both grand jurysubpoenas were “unlawful.” On the other hand, Conclusion

Numbers 6 and 7, ante, only seem to hold the first grand jury subpoena to be expressly unlawful, and

Conclusion Numbers 8 and 9 then address whetherthe taint attendant to the unlawfulness of the first

grand jury subpoena operates also to invalidate the second. Such an inquiry would seem to be beside

the point if the second grand jury subpoena were itself unlawful. Thus, the ambiguity persists.
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obtained in a lawful manner.

3

Thus, the trial court apparently ruled that Appellee’s medical records were subject to

suppression both 1) under the Fourth Amendment exclusionary rule, because in the absence

of a valid grand jury subpoena, a warrant was required, and also 2) under Article 38.23 of the

Code of Criminal Procedure, because the grand jury subpoena process was unlawfully

invoked. In separate points of error on appeal, the State challenged these conclusions. See

TEX.CODECRIM. PROC. art. 44.01(5) (permitting the State to appeal the granting of a motion

to suppress evidence).

The Court of Appeals Opinion

The court of appeals sustained both of the State’s arguments. First, the court of

appeals rejected the trial court’s conclusion that Appellee had standing to raise the Fourth

Amendment issue. Relying upon its own earlier opinion in Kennemur v. State, 280 S.W.3d

305, 311-12 (Tex. App.—Amarillo 2008, pet. ref’d), the court of appeals held that HIPAA

did not affect Hardy’s narrow holding that “whatever interests society may have in

safeguarding the privacy of medical records [in general], they are not sufficiently strong [as]

to require protection of blood-alcohol test results from tests taken by hospital personnel

solely for medical purposes after a traffic accident.” Huse, 2014 WL 931265, at *4-5; see

Hardy, 963 S.W.2d at 527. The court of appeals noted that, in fact, HIPAA expressly

 A fifteenth (and final) conclusion of law pertained to an issue that is not before us in this 3

petition for discretionary review. Although the court of appeals reached the issue, Appellee does not

complain of its disposition in his petition, and we need not address it.
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recognizes that such records may be subject to disclosure by hospital personnel if they

suspect the commission of a crime while providing emergency care. Huse, 2014 WL 931265,

at * 5 (quoting Kennemur, 280 S.W.3d at 312, which in turn quotes 45 C.F.R. §

164.512(f)(6)(I), expressly allowing a health care provider to disclose otherwise protected

emergency health care information to law enforcement when to do so “appears necessary”

to report a crime). On the strength of the continuing viability of our holding in Hardy, the

court of appeals held that Appellee lacked a legitimate expectation of privacy in his bloodalcohol test records to justify mounting a Fourth Amendment challenge. Id.

Addressing the second issue, the court of appeals began its analysis with the

questionable premise that “the trial court made no finding in its Conclusions of Law that the

second grand jury subpoena was defective.” Id. at *6. Noting that the second grand jury

4

subpoena application was signed by the grand jury foreman, the court of appeals concluded

that it was therefore lawful under HIPAA, which also expressly provides for the disclosure

of medical records pursuant to a grand jury subpoena. Id. (citing 45 C.F.R. § 164.512(f)(1)(ii)

(B)). The court of appeals was satisfied that the grand jury foreman’s signature was enough

to satisfy HIPAA’s grand jury subpoena provision. Id. Because Appellee’s medical records

were obtained pursuant to the second, valid grand jury subpoena, the court of appeals

reasoned, and because “Appellee failed to establish any causal connection between issuance

of the first and second subpoenas,” the records were not “obtained” in violation of HIPAA.

As we have already indicated, it is not nearly as clear to us as it was to the court of appeals 4

that the trial court drew no such conclusion. See note 2, ante.
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Id. Accordingly, the court of appeals concluded, the trial court erred to apply Article 38.23

to suppress them. Id. We granted Appellee’s petition to examine each of these discrete

holdings.

II. FOURTH AMENDMENT STANDING

Under the Fourth Amendment, “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated[.]” U.S. CONST. amend. IV. This provision “protects people, not places.” Katz v.

United States, 389 U.S. 347, 351 (1967). But for that very reason, the right is a personal one

that cannot be invoked vicariously on behalf of another. “A person who is aggrieved by an

illegal search and seizure only through the introduction of damaging evidence secured by a

search of a third person’s premises or property has not had any of his Fourth Amendment

rights infringed.” Rakas v. Illinois, 439 U.S. 128, 134 (1978). As we observed in Chapa v.

State, 729 S.W.2d 723, 727 (Tex. Crim. App. 1987), “[i]n Rakas v. Illinois, the substantive

question of what constitutes a ‘search’ for purposes of the Fourth Amendment was

effectively merged with what had been a procedural question of ‘standing’ to challenge such

a search.”

Moreover, what constitutes a “search” for Fourth Amendment purposes—and hence,

what may serve to confer Fourth Amendment “standing” consistent with Rakas—may be

predicated, the Supreme Court hasrecently emphasized, on either an intrusion-upon-property

principle or a reasonable-expectation-of-privacy principle. United States v. Jones, 132 S.Ct.
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945 (2012); Florida v. Jardines, 133 S.Ct. 1409 (2013); see also Ford v. State, 477 S.W.3d

321, 328 (Tex. Crim. App. 2015) (“A Fourth Amendment claim may be based on a trespass

theory of search (one’s own personal ‘effects’ have been trespassed), or a privacy theory of

search (one’s own expectation of privacy was breached).”). Appellee has not argued, either

in the court of appeals or in this Court, that he maintains a property interest in his medical

records, nor did the court of appeals address such a theory of standing. We therefore limit

5

our consideration to the propriety of the court of appeals’s holding that Appellee lacked a

reasonable expectation of privacy in his medical records, at least insofar as they reflected the

results of the blood alcohol test results. More particularly, we will review the court of

6

appeals’s conclusion that Hardy’s holding in this regard remains unaffected by the

subsequent enactment of HIPAA.

Hardy

This Court has held that, when it comes to legal representation, “[t]he client’s file belongs

5

to the client[,]” not his attorney. In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013).

Appellee has made no analogous argument that, similarly, a patient’s medical records “belong to”

the patient, such that he has Fourth Amendment standing on that basis to complain of the State’s

warrantless acquisition of them. In the absence of briefing on that issue, we will not address it sua

sponte on discretionary review.

The trial court suppressed all of the medical records from Appellee’s treatment at the 6

Covenant Medical Center from February 13, 2010—all 74 pages of them—and not just that portion

of the medical records reporting the results of the blood-alcohol analysis. On appeal, the State seems 

to have contended only that the trial court erred to suppress the results of the blood alcohol analysis,

arguing that to suppress at least that portion of the medical records was inconsistent with this Court’s

narrow holding in Hardy. The State does not seem to contend that the trial court erred to suppress

the balance of the medical records, and so, as in Hardy itself, we need not reach that question.

Because our holding reaches only the question of whether the blood alcohol analysis should have

been suppressed, the trial court’s purported distinction between this case and Hardy, expressed in

its first conclusion of law, see page 6, ante, is moot.
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In Hardy, we explicitly recognized that, when the State itself extracts blood from a

DWI suspect, and when it is the State that conducts the subsequent blood alcohol analysis,

two discrete “searches” have occurred for Fourth Amendment purposes. 963 S.W.2d at 523-

24. Here, as in Hardy, the State neither extracted Appellee’s blood nor instigated the blood

alcohol analysis, and “the Fourth Amendment does not apply to a search or seizure, even an

arbitrary one, effected by a private party on [its] own initiative,” such as the one that the

hospital conducted in the context of treating Appellee. Skinner v. Railway Labor Exec. Assn.,

489 U.S. 602, 614 (1989). So Appellee has no standing to (and does not now) complain of

either the blood extraction or the blood alcohol analysis themselves. He argues only that the

State’s acquisition of the medical records—that reflect the result of those private intrusions

(the extraction of blood and the blood alcohol analysis)—itself constitutes a discrete

governmental search to which Fourth Amendment protections extend. To answer that

question in Hardy, we inquired whether society recognizes as reasonable any expectation of

privacy, not in medical records as a general rule, but in that subset of privately generated and

maintained medical records that would show the result of a blood alcohol analysis in an

individual that the State suspects of driving while intoxicated. 963 S.W.2d at 525-27. We

concluded that the answer to this narrower question is “no.”

Analogizing to United States v. Jacobsen, 466 U.S. 109 (1984), we pointed out that

Hardy’s expectation of privacy had already been frustrated to a certain extent by the fact that

a private party had already extracted and analyzed his blood. In Jacobsen, we explained,
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employees of a private freight company had already opened a package and, upon discovering

a white powdery substance, notified federal agents. Hardy, 963 S.W.2d at 526. The only

additional search conducted by the government itself was to test the privately exposed

substance for the presence of contraband. Id. But, since the test was designed to reveal

nothing about the substance except whether it was contraband, and an individual can have

no reasonable expectation of privacy in the possession of contraband, the analysis of the

substance was not regarded as a “search” for Fourth Amendment purposes. Id. We went on

to compare the chemical analysis of the white powdery substance in Jacobsen to the

acquisition of medical records in Hardy:

A subpoena for blood alcohol and drug information about the driver in

an automobile accident is somewhat analogous to the chemical test in

Jacobsen. A subpoena directed solely at blood alcohol and drug tests would,

like the chemical test in Jacobsen, be a very narrow investigatory method

designed to elicit evidence for a very narrow purpose.

Id. This very narrow purpose was one, we found, that society as a whole was more than

willing to endorse as a legitimate justification for invading the privacy of DWI suspects, as

evidenced by the universality of implied consent statutes across the country that compel the

extraction and analysis of their breath or blood for chemical analysis. Id. at 526-27. Indeed,

we noted, obtaining medical records of privately conducted blood extraction and analysis is

much less invasive than either the extraction or the chemical analysis themselves. Id. at 527.

In light of these considerations, we concluded that, “whatever interests society may have in

safeguarding the privacy of medical records [in general], they are not sufficiently strong to
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require protection of blood-alcohol test results taken by hospital personnelsolely for medical

purposes after a traffic accident.” Id.

HIPAA

Does HIPAA now undercut the Court’s analysis in Hardy? The court of appeals

concluded that it did not, and we agree. We have no doubt that HIPAA might support a

broader claim that society now recognizes (if it did not already) that a patient has a legitimate

expectation of privacy in his medical records in general. Indeed, we recognized in Hardy that

there was already a suggestion in our case law, even before the advent of HIPAA, that such

a reasonable expectation might exist, both in dicta, in Richardson v. State, 865 S.W.2d 944,

952-53 & n.7 (Tex. Crim. App. 1993), and in a plurality opinion, State v. Comeaux, 818

S.W.2d 46 (Tex. Crim. App. 1991) (plurality opinion). Hardy, 963 S.W.2d at 518-19; see

also Ford, 477 S.W.3d at 334 (acknowledging that there might be contexts in which there

is “a jurisprudential reason to stray from the third-party doctrine” by which a defendant is

deemed to lack a reasonable expectation of privacy in otherwise personal information that

is disclosed to a cell-phone service provider and contained in that provider’s records). But

that broader issue is not before us here—just as it was not before us in Hardy.

7

With respect to the narrower issue that we actually did decide in Hardy, HIPAA

actually serves to bolster our holding. While codifying a broad requirement of patient

We acknowledged both Richardson and Comeaux in Hardy, but observed that “the 7

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.” 963 S.W.2d at 519.
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confidentiality in medical records, HIPAA nonetheless providesspecific exceptionsin which

the disclosure of otherwise protected health care information is permitted. Section

164.512(f)(1)(ii)(B) of Title 45 of the Code of Federal Regulations, for example, allows for

the disclosure of “protected health information” when to do so is “[i]n compliance with and

as limited by the relevant requirements of . . . [a] grand jury subpoena[.]” Under this

8

provision, a DWI offender would have no legitimate expectation of privacy sufficient to

block a health care provider from disclosing otherwise protected health care information

when required to do so under the terms of a grand jury subpoena. Hardy itself involved the

disclosure of medical records, including the results of blood alcohol testing, that the State

obtained pursuant to a grand jury subpoena. 963 S.W.2d at 518. Assuming that such

disclosures occur under circumstances sufficient to meet the conditions prescribed, whatever

insulation HIPAA provides against third-party disclosure of medical records in general does

not extend to the disclosure of “blood-alcohol test results from tests taken by hospital

personnel solely for medical purposes after a traffic accident.” Hardy, 963 S.W.2d at 527.

9

Under the rubric of “Standard: Disclosure for law enforcement purposes[,]” 45 C.F.R. §

8

164.512(f)(1)(ii)(B) permits the “disclosure [of] protected health information” when it is “[i]n

compliance with and as limited by the relevant requirements of . . . [a] grand jury subpoena[.]”

We are not at this juncture concerned with the question of whether the conditions under 9

which 45 C.F.R. § 164.512(f)(1)(ii)(B) would permit disclosure were actually satisfied in this case.

That is the province of our discussion of Appellee’s second ground for review, whether the specific

provisions of HIPAA, or any provision of state law that governs grand jury subpoenas, may have

been violated so as to trigger Article 38.23’s statutory exclusionary rule. See TEX.CRIM. PROC. art.

38.23(a) (“No evidence obtained by an officer . . . in violation of any provisions of the . . . laws of

the State of Texas, . . . or laws of the United States of America, shall be admitted in evidence against

an accused on the trial of any criminal case.”). Here we mean only to point out that the existence of

this exception to HIPAA’s general rule against disclosure of medical information only serves to
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The court of appeals did not err to conclude that Hardy’s narrow holding remains valid with

respect to Fourth Amendment standing, even in light of the subsequently enacted provisions

of HIPAA.

Finally, Appellee points to a particular provision in HIPAA mandating that, in the

event of a conflict between provisions of state law and the limitations on disclosure of

medical information contained in HIPAA itself, it is the federal law that must prevail over

the state law unless the state law is more protective of an individual’s privacy interests. 45

C.F.R. § 160.203(b). From this, Appellee seems to argue that we must abandon our holding

10

in Hardy because it represents state common law that is less protective than—and therefore

preempted by—this preemption provision in HIPAA. Our response to this contention is twofold. First, Hardy’s resolution of the issue of Fourth Amendment standing was a holding of

federal constitutional dimension, not a state-law ruling. We therefore perceive no conflict

between state law and HIPAA that must be resolved in favor of the latter. Second, and in any

event, even assuming that Hardy represented a holding of state-law dimension, it is not

inconsistent with HIPAA. The blood alcohol test results in Hardy were obtained via a grand

reinforce our conclusion in Hardy that any reasonable expectation of privacy that society may be

prepared to recognize in health care information in general does not extend to evidence that is the

subject of a legitimate investigation into the offense of driving while intoxicated.

This provision reads: “A standard, requirement, or implementation specification adopted 10

under this subchapter that is contrary to a provision of State law preempts the provision of State law.

This general rule applies, except if one or more of the following conditions is met: . . . (b) The

provision of State law relates to the privacy of individually identifiable health information and is

more stringent than a standard, requirement, or implementation specification under subpart E of part

164 of this subchapter.”
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jury subpoena. 963 S.W.2d at 518, 527. As we have already observed, HIPAA expressly

permits the disclosure of otherwise “protected health information” when it is sought by way

of a grand jury subpoena. In short, nothing about HIPAA’s preemption provision prohibits

us from relying upon HIPAA itself as confirmation that society has still not recognized a

reasonable expectation of privacy in “blood-alcohol test results from tests taken by hospital

personnel solely for medical purposes after a traffic accident”—at least not an expectation

of privacy compelling enough to withstand invasion by a grand jury subpoena. For these

reasons, it is Appellee’s preemption argument, not our limited holding in Hardy, that must

fall.

III. ARTICLE 38.23

Under Article 38.23(a), evidence obtained in violation of state or federal law may not

be admitted against the accused at his trial. TEX.CODECRIM. PROC. art. 38.23(a). Thus, quite

apart from Appellee’s Fourth Amendment contention, his motion to suppress may have been

valid if one or both of the grand jury subpoenas about which he complains was defective

under either HIPAA or state statutory provisions governing their issuance.

The court of appeals believed that “the trial court made no finding . . . that the second

grand jury subpoena was defective.” Huse, 2014 WL 931265, at *6. As we have already

observed, however, the trial court’s written findings of fact and conclusions of law are at

least ambiguous on that score, and an argument can be made that it found both grand jury

subpoenas duces tecum to have been unlawfully issued, not just the first one. The court of
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appeals concluded that the second grand jury subpoena duces tecum lawfully issued, and it

believed that this conclusion essentially mooted the question of whether the first grand jury

subpoena duces tecum was valid, since the medical records that the State proposed to use

against Appellee at his trial were those “obtained” for purposes of Article 38.23(a) via the

second grand jury subpoena. Id. For our part, we will take the opposite approach. For reasons

we will explain, we harbor some doubt with respect to the legality of the second grand jury

subpoena duces tecum. We conclude, however, that the first grand jury subpoena duces

tecum issued lawfully, and so we will not ultimately pass on the lawfulness of the second.

Was HIPAA Violated?

HIPAA itself does not set any parameters for what may constitute a valid grand jury

subpoena; it simply permits the disclosure of otherwise protected health information “[i]n

compliance with and as limited by the relevant requirements of . . . [a] grand jury subpoena.”

45 C.F.R. §164.512(f)(1)(ii)(B). It does not purport to prescribe criteria for a valid grand jury

subpoena duces tecum, as a matter of state or federal law. It would appear, then, that whether

protected health information may be disclosed without violating HIPAA is a function of, at

most, two circumstances: first, whether a grand jury subpoena duces tecum existed, and

(perhaps)second, whether it validly issued in accordance with governing state or federal law.

Here, the first circumstance was met—twice. Two grand jury subpoenas duces tecum issued

in this case. That being so, there can be no possible cause to apply Article 38.23’s

exclusionary rule to a violation of HIPAA itself unless the grand jury subpoenas duces tecum
HUSE — 19

somehow failed to comply with the provisions in the Texas Code of Criminal Procedure that

authorize their issuance. In short, whether HIPAA was violated wholly devolves into a

question of whether one or both of the two grand jury subpoenas duces tecum that issued in

this case failed to comport with state law. We believe that the first one—at least—was

lawful.

Was State Law Violated?

Grand juries in Texas have the constitutional authority to investigate misdemeanor

offenses such as Appellee’s. See TEX. CONST. art. V, § 17 (“Grand juries empaneled in the

District Courts shall inquire into misdemeanors . . .”). Also, “[a] subpoena may summon one

or more persons to appear . . . on a specified day . . . before a grand jury[.]” TEX. CODE CRIM.

PROC. art. 24.01(a)(2)(C). Either the foreman of the grand jury or “the attorney representing

the State” has the authority to “issue a summons” (by which is apparently meant a subpoena)

on the grand jury’s behalf. TEX. CODE CRIM. PROC. arts. 20.10 & 20.11; George E. Dix &

John M. Schmolesky, 41 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 23:27

(3d ed. 2011). “The subpoena may require the witness to appear and produce records and

documents.” TEX. CODE CRIM. PROC. art. 20.11; see also TEX. CODE CRIM. PROC. art. 24.02

(“If a witness have in his possession any instrument of writing or other thing desired as

evidence, the subpoena may specify such evidence and direct that the witness bring the same

with him and produce it in court.”); Dix & Schmolesky, § 23:30, at 783 (“A grand jury

subpoena can, under the general authority of Article 24.02 of the Code of Criminal
HUSE — 20

Procedure, direct the witness to bring specified instruments, writings, or ‘other thing[s]’ in

his possession to the grand jury. Such a subpoena is a subpoena duces tecum.”). And finally,

“[t]he grand jury may compel the production of evidence . . . as it considers appropriate, and

its operation generally is unrestrained by the technical procedural and evidentiary rules

governing the conduct of criminal trials.” United States v. Calandra, 414 U.S. 338, 343

(1974).

Beyond the bare-bone provisions cited above, the Code of Criminal Procedure

provides little guidance with respect to the proper (or improper) use of the grand jury

subpoena power. Legal commentators have observed that, in states such as Texas, in which

“the subpoena authority appears to be shared by the prosecutor and the grand jury[,] . . . it

seems likely as a practical matter that the prosecutor will play the leading role in determining

the evidence to subpoena[.]” Sara Sun Beale, et al., 1 GRAND JURY LAW AND PRACTICE § 6:2,

at 6-10 (2d ed. 2015). Moreover, “as long as it is fairly clear that the grand jury’s subpoenas

are being used to further the grand jury’s investigation—and not some separate interest of

the prosecutor’s—the courts have permitted the prosecutors to make their own decisions as

to the issuance of subpoenas.” Id. at 6-14. Prosecutors “do not have to obtain a grand jury’s

approval before issuing subpoenas; indeed, a grand jury may not even be aware that a

prosecutor is issuing subpoenas on its behalf.” Susan W. Brenner & Lori E. Shaw, 1

FEDERAL GRAND JURY: A GUIDE TO LAW AND PRACTICE § 9:2, at 342 (2d ed. 2006). And

there is a presumption of regularity attending the purported acts of a grand jury, which the
HUSE — 21

opposing party has the burden to overcome. Sara Sun Beale, et al., 2 GRAND JURY LAW AND

PRACTICE § 9:16, at 9-100 (2d ed. 2012); Ex parte Rogers, 640 S.W.2d 921, 923 (Tex. Crim.

App. 1982); see also United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991) (“We

begin by reiterating that the law presumes, absent a strong showing to the contrary, that a

grand jury acts within the legitimate scope of its authority.”).

Despite this presumption of regularity, it is well settled that there are at least two

purposes to which a prosecutor may not legitimately direct a grand jury subpoena. First, he

may not use the grand jury subpoena as a subterfuge to obtain an investigative interview in

his office—a so-called “office subpoena.” Beale, supra, at 6-17; Brenner, supra, at 343. For

example, “[t]he prosecutor’s power to subpoena [on the grand jury’s behalf] must not be used

as a tool for police officers to force a suspect to talk when he previously refused to do so.”

Guardiola v. State, 20 S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

However, “the courts have generally permitted prosecutors to meet with prospective

witnesses in advance of their appearances before the grand jury, as long as the interviews

with the prosecutors are optional, and as long as the witnesses are given the choice to appear

before the grand jury rather than submit to an interview.” Beale, supra, at 6-17. Second, it

has been widely recognized by commentators and courts that have addressed the issue

squarely “that it is improper to use the grand jury for the purpose of preparing an already

pending indictment for trial[,]” since by that time “the grand jury’s investigative role is

ended, and the rules of pretrial discovery take effect to govern the extent to which the parties
HUSE — 22

may use the legal process to obtain information about the case.” Beale, supra, at 9-95, 9-96;

see also Susan W. Brenner & Lori E. Shaw, 2 FEDERAL GRAND JURY: A GUIDE TO LAW AND

PRACTICE § 21:10, at 234 (2d ed. 2006) (“It is improper to use a grand jury to obtain

evidence for use at the trial of one who has already been indicted.”); In re Grand Jury

Proceedings, 814 F.2d 61, 70 (1st Cir. 1987) (“It is well established that a grand jury may

not conduct an investigation for the primary purpose of helping the prosecution prepare

indictments for trial.”); see also Rogers, 640 S.W.2d at 923 (“It has been said that ‘it is

improper to use the grand jury for the purpose of preparing an already pending indictment

for trial.’ United States v. Dardi, 330 F.2d 316 (2nd Cir. 1964).”). However, commentators

have also suggested that a grand jury may continue to investigate other potential charges, and

“if, in the course of such legitimate investigative efforts, the prosecutor obtains evidence that

is relevant to the pending case, it can use that evidence at trial.” Beale, supra, at 9-98; see

also Brenner, supra, at 234 (“It is not, however, improper for a grand jury to investigate the

possibility that one who has been indicted may have committed other crimes even if the

investigation discloses evidence relevant to charges in the indictment.”). We will examine

the grand jury subpoenas duces tecum in this case with these principles and practicalities in

mind.

The court of appeals seems to have concluded that the second subpoena duces tecum

was valid because the foreman of the grand jury signed the subpoena application, and his

involvement was alone sufficient to invoke the presumption of regularity in grand jury
HUSE — 23

proceedings. But we hesitate in this case to ratify that apparent conclusion. By the time the

11

second subpoena issued, Appellee had already been charged by information with the offense

in this case. While that first information had been dismissed by the time the second subpoena

was requested and issued, the second information was filed the very next day after the second

subpoena issued. Moreover, by the time the second information was filed, charging Appellee

with the same offense as the first, the prosecution was aware of what was contained in the

medical records, since it had already obtained the very same records from the very same

source in response to itsfirst grand jury subpoena ducestecum. These circumstances combine

to suggest the possibility that the second subpoena duces tecum may not have issued for a

legitimate grand jury investigative purpose, but solely for the purpose of securing evidence

for the prosecution to use against Appellee at trial. If that is the case, it would not matter that

the foreman of the grand jury signed the subpoena application—it may still have served an

illegitimate purpose. Rogers, 640 S.W.2d at 623. While we do not decide that question today,

the wide acceptance of the point of view by other commentators and courts is enough to

cause us to hesitate to rely upon the presumption of regularity to sanction the second grand

jury subpoena duces tecum on the particular facts of this case when, in our opinion, an

alternative ground exists which leads us to conclude that the evidence was properly obtained.

We have no hesitation, however, in concluding that the first grand jury subpoena

“[T]he medical records produced in this case were produced in response to the second 11

grand jury subpoena, which was itself issued upon the request of the foreman of the grand jury. We

will not look beyond the issuance of the subpoena to determine whether the matter is a legitimate

matter of consideration by the grand jury.” Huse, 2014 WL 931265, at *6. 
HUSE — 24

duces tecum was proper. The trial court concluded that this subpoena was abusive “because

it did not meet legislative requirements because no actual grand jury was involved” in its

issuance. However, the trial court did not identify the specific legislative provisions it

believed to have been violated. In its findings of fact, it found that the first subpoena duces

tecum “was not directed to be returned to any actual grand jury.” This finding of fact is

simply unsupported by the record. The March 30 subpoena was addressed to one

th

“BEVERLY BROOKS” at the Covenant Medical Center, and it expressly commanded her

“to appear before the Grand Jury now in session” in Lubbock County with the relevant

medical records, “then and there to testify as a witness before said Grand Jury[.]” It also

issued before the charging instrument was filed, albeit only one day before. It is true that the

subpoena application was signed by the prosecutor rather than the grand jury foreman. But

as we have already noted, this was squarely in keeping with the provisions of the Code. TEX.

CODE CRIM. PROC. arts. 20.10 & 20.11.

It is also true that the subpoena offered its recipient, Ms. Brooks, the option of

complying by simply by contacting the prosecutor’s office—presumably to arrange for

delivery of the requested medical records to the prosecutor himself. But this practice does not

seem to us to necessarily conflict with any of our grand jury related statutory provisions, and

it does not seem to us to necessarily overstep the prosecutor’s role to facilitate the

investigative function of the grand jury, so long as the recipient retains the option instead to

appear before the grand jury itself, as principally commanded. Nor does the statutory scheme
HUSE — 25

necessarily contemplate that the grand jury itself must even have been aware of the grand

jury subpoena at the time it was issued. None of these circumstances surrounding the first

grand jury subpoena conflicts with any of the relevant statutory provisions. And even in the

aggregate, these circumstances are insufficient to surmount the presumption of regularity of

the grand jury proceedings. We hold that Appellee has failed to establish any illegality

attendant to the prosecutor’s use of the first grand jury subpoena duces tecum. Because the

State obtained the medical records in the absence of any specific statutory violation and in

the absence of any manifest abuse of the grand jury’s ordinary investigative function, Article

38.23(a) does not mandate that the records be suppressed.

CONCLUSION

For these reasons, we affirm the judgment of the court of appeals.

DELIVERED: April 13, 2016

PUBLISH