DAN MORALES 

ATTORNEY GENERAL 

QBffice of tfje !i%tornep @eneral 

&ate of Ptexae 

Robert A. MacLean, M.D. 

Acting Commissioner 

Texas Department of Health 

1100 West 49th Street 

Austin, Texas 787563199 

November 27,199l 

Opinion No. DM-61 

Re: Whether a “properly qualified applicant” for a certified copy of a death 

certificate may receive the entire copy if 

the cause of death lists AIDS or HIV 

infection (RQ-104) 

Dear Dr. MacLean: 

You have requested an opinion regarding whether the Texas Department of 

Health (the “department”) may release a copy of a death certificate that lists 

acquired immune deficiency syndrome (“AIDS”) or human immunodeficiency virus 

(“HIV”) infection as a cause of death. 

Chapter 191 of ‘the Health and Safety Code requires the department to 

administer the registration of vital statistics and to establish a bureau of vital 

statistics, to be directed by the state registrar of vital statistics (the “state registrar”). 

Health & Safety Code 69 191.002(a), (b)(l), 191.004(a). Chapter 191 also requires 

the Texas Board of Health (the “board”) to adopt rules for collecting, recording, 

transcribing, compiling, and preserving vital statistics, including death records. Id 

5 191.003(a); see a&o ch. 193 (setting forth the department’s specific duties with 

respect .to death records). 

Section 191.051 of the Health and Safety @de requires the state registrar to 

supply a certified copy of a registered death record, or part of a registered death 

record, to a “properly qualified applicant,” subject to board rules controlling the 

accessibility of vital records. Pursuant to section 191.05!, the board has 

promulgated regulations that define a “properly qualified applicant” as: 

[a] legal representative, personal representative or agent, an 

immediate family member, or the registrant, who has a direct 

and tangible interest in the record and who shall have a 

significant legal relationship to the person whose record is 

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Robert A. MacLean, M.D. - Page 2 (DM-61) 

requested. The purpose for which the certified copy is needed 

and the relationship of the applicant to the registrant is essential 

to the application to determine if the applicant is properly 

qualified. 

Tex. Dep’t of Health, 15 Tex. Reg. 5603 (1990) (to be codified at 25 T.A.C. 9 181.1). 

These regulations define “legal representative, personal representative, or agent” as: 

[a]ny individual, attorney, funeral director, or other representative acting under contract for the requestor, when the requestor 

is not the applicant; or -is one bearing an affidavit, authorixing 

that person, agent, genealogist, or other representative to make 

application on behalf of the .registrant or member of the 

immediate family for the record or information requested. 

Id 

You have informed us that pursuant to section 193.001 of the Health and 

Safety Code, the department has prescribed the form and content of death 

certificates. The current form contains an entry for “cause of death.” You state that 

in some instances AIDS or HIV infection is listed on a death certificate as a cause of 

death. As a result, it is possible that information on a death certificate indicating 

that a deceased person died as a result of AIDS or HIV infection would be released 

to a properly qualified applicant. 

The Communicable Disease Prevention and Control Act’ (the “CDPCA”) 

generally prohibits disclosure of the results of AIDS tests,2 except to certain persons 

and entities under specific circumstances. See Health & Safety Code 5 81.103(b). A 

person who discloses a test result in violation of section 81.193 commits a Class A 

misdemeanor. Id 5 81.103(j). The CDPCA provides that an individual may bring 

an action to enjoin violation of these confidentiality provisions, and also establishes 

civil liability for both negligent and willful disclosures of test results. Id 0 81.104. 

‘Health & Safety Code ch. 81 (formerly article 4419b-1, V.T.C.S.). 

2 The provisioas of the CDPCA spe.citicaUy relating to AIDS tests arc found ia sections 81.101 

through 81.104 (subchapter ‘F of chapter 81) of the Health aad Safety Code (formerly section 9 of 

arlidc 4419b1, V.T.C.S.). These provisions were amended by the 72d Legisbure. Acts 1991, 72d 

Leg., ch. 14, P 23, at 57-60 (en. Sept. 1.1991). 

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Robert A. MacLean, M.D. - Page 3 

c- 

(DM-61) 

In light of the vital statistics statute requiring the release of death certificates 

and the CDPCA’s strictures on disclosure of AIDS test results, you ask whether the 

state registrar may release a death certificate listing AIDS or HIV infection as a 

cause of death to any “properly qualified applicant,” or whether the state registrar 

must release such a death certificate only to the specific persons and entities listed 

in section 81.103(b) of the CDPCA. Your question assumes that the disclosure of 

the fact that someone has died as a result of AIDS or HIV infection would disclose 

the results of an AIDS test for purposes of the CDPCA. We agree with this 

assumption. The CDPCA defines “test results” quite broadly as “wry staternmt that 

indicates that an identifiable individual has or has not been tested for AIDS or HIV 

infection. . . including a statement or assertion that the individual is positive, 

negative, at risk, or has or does not have a certain level of antigen or antibody.” Id 

5 81.101(5) (emphasis added). We believe that the information on a death 

certificate that a persondied as the result of AIDS or HIV infection would reveal 

that the person had tested positive for AIDS or HIV infection, thereby implicating 

the confidentiality provisions of the CDPCA.3 As noted above, the CDPCA 

provides that an AIDS test result may be released only to certain entities and 

persons, including the department, the person tested, the physician who ordered the 

test, health care providers responsible for caring for the person tested, and the 

spouse of the person tested. See id 9 81.103(b). While some potential “properly 

qualified applicants,” such as the deceased’s spouse, are persons to whom AIDS test 

results may be disclosed under the CDPCA, most potential “properly qualified 

applicants” are not. See Tex. Dep’t of Health, 15 Tex. Reg. 5603 (1990). 

Although common-law privacy rights lapse upon death, there is no similar 

presumption that prohibitions against disclosure in confidentiality statutes lapse 

upon the death of the subject of the information. Attorney General Opinion 

JM-851 (1988). Rather, whether a confidentiality provision lapses upon death is a 

question of statutory construction. Id; see &o Gpen Records Decision No. 524 

(1989). In Open Records Decision No. 529 (1989), this office considered whether 

the CDPCA prohibits public disclosure of AIDS tests results obtained in an autopsy 

%he CDPCA requires a physiciaa who attended a person who has died of a reportable 

disease, including AIDS or HIV infection, to immediately notify the heakh authority of the jurisdiction. 

Id. P 81.045. We are not aware, howewr,.of any statute or reguIation expressly requiring or otherwise 

authorizing physiciaas to discIose AIDS or HIV infection as the tiuse of death on death certiticates. 

Smce we have not been asked to address that issue, we simply assume for purposes of this opinion that 

the CDPCA or other law permits a physician to diiose AIDS or HIV infection as a cause of death to 

persons required to complete aad file death certificates under sectioos l%XOD2 and 1!?3.004 of the 

Health and Safety Code. 

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Robert A MacLean, M.D. - Page 4 (DM-61) 

and included in an autopsy report requested under the Dpen Records Act4 In that 

decision, we carefully examined the CDPCA in conjunction with statutory provisions 

establishing medical examiners’ duty in connection with inquests. See id at 5-7. 

We concluded that the CDPCA does not apply to AIDS test results obtained in 

autopsies and included in autopsy reports because its consent-to-testing and 

confidentiality provisions are expressed in language applicable to living persons, not 

deceased persons, and because a contrary interpretation would interfere with 

medical examiners’ statutory obligation to make full inquest reports. Id at 4,7. 

We conclude that the state registrar may release death certificates listing 

AIDS or HIV infection as the cause of death to properly qualified applicants who 

are not persons to whom AIDS test results may be disclosed under the CDPCA. See 

Health & Safety Code 3 81.103(b). In reaching this conclusion, we apply the same 

analysis we applied in Open Records Decision No. 529.5 Like the provisions at issue 

in that decision, the AIDS test results confidentiality provisions of the CDPCA refer 

to living persons. As noted above, for example, a test result is defined as “any 

statement that indicates that an identifiable individual bar or has not been tested for 

AIDSorHIVinfection... including a statement or assertion that the individual is 

positive, negative, at risk, or has or does not have a certain level of antigen or 

antibody.” Health & Safety Code 5 81.101(5) (emphasis added); see also Cpen 

Records Decision No. 529 at 7. We also note that it appears from the legislative 

history of the CDPCA confidentiality provisions that the legislature intended to 

protect persons with positive test results from discrimination, particularly in 

‘Autopsy reports are exprcdy made public records pursuant to statute. See Code Grim. Rot. 

art. 4925,3.11. In Open Records Decision No. 529 we considered whether section 3(a)(l) of the Open 

Records Ad (which mandates the withholding of ‘information deemed contidential by law”) in 

conjunction with the CDPCA precludes the disclositrc of AIDS test results on autopsy reports. 

%Iike Open Records Decision No. 529, your query is not an open rccorti rquest and does 

not other&e require us to interpret the Open Records Ad. The Open Records Act provides that a 

death record maintained by the Bureau of ViaI Stat&s of the Te+ Department of He&h is public 

information ‘avaiIabIc. to the public on and after the 25tb anniversary of the date the record is fded with 

the Bureau of, Vital Statistics.” V.T.C.S. art. 62%17a, 0 3(a)(lS)(B). We assume that you are 

concerned with the release of a death oxtiticateprior to the 25th anniversary of the date it is fded with 

the Bureau of Vital Statistics, aad solely to “properly quaIitied applicaats” as detined in the 

department’s regulations.. Tex. Dep’t of Health, 15 Tex. Reg. 5603 (1990). Because chapter 191 of the 

HeaIth aod Safety Code and the regulatioas promulgated thereunder establish requirements and 

procedures for the release of death eertiticatm prior to the 2% anniversary of the date the record is 

t&l, we consider only the interplay betwcen chapter 191 and the CDPCA. As your rquest does not 

involve “public information” or the availability of information to the “pubtic,’ we need not consider the 

interplay behveea the open Records Act and the CDPCA. 

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Robert A..MacLean, M.D. - Page 5 (DM-61) 

employment and insurance. It does not appear that the legislature intended to 

create a right to confidentiality that applies to death certificates. 

In addition, in Gpen Records Decision No. 529 we addressed medical 

examiners’ statutory duty to fully disclose the results of inquests. Here we consider 

the CDPCA’s confidentiality provisions in conjunction with the state registrar’s duty 

under section 191.051 of the Health and Safety Code to supply certified copies of 

registered death records to properly qualified applicants.6 The department’s 

regulations require that death certificates be disclosed only to those persons with a 

substantial need for access to the records. See Tex. Dep’t of Health, 15 Tex. Reg. 

5603 (1990) (requiring that a properly qualified applicant must have a “direct and 

tangible interest” in the death certificate). The state registrar’s duty under section 

191.051 of the Health and Safety Code to release death certificates to such persons 

is as explicit as medical examiners’ duty to fully disclose the results of inquests. 

Accordingly, the state registrar may release to a properly qualified applicant a copy 

of a death certificate that,lists AIDS or HIV infection as a cause of death without 

violating the CDPCA. 

SUMMARY 

The provisions of the Communicable Disease Prevention 

and Control Act which prohibit the disclosure of AIDS test 

results, Health & Safety Code !$ gl.101 et seq., do not prohibit 

the state registrar from releasing a death certificate that reveals 

that a person died as the result of AIDS or HIV infection to a 

properly qualified applicant pursuant to section 191.051 of the 

Health and Safety Code. 

DAN MORALES 

Attorney General of Texas 

%Vhik section 191.051 also authorizes the state registrar to release odyporr of a record, we 

believe that release of redacted death certitkates is not a real&tie alternative. It is not the state 

registrar’s common practice to release redacted death certiticates. Thus, such redactions would 

themselve-s reveal that AIDS or HIV i&&on is listed as a cause of death. 

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WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Mary R. Crouter 

Assistant Attorney General 

p. 311