The Attorney General of Texas 

NOV.TII~~~ 4, 1981 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin, TX. 78711 

512/475-2501 

Telex 9101874-1357 

Telecopier 51214750266 

1607 Main St.. Suite 14W You have requested our opinion as to whether an inmate of the 

Dallas, TX. 75201 Texas Department of Corrections [hereinafter TDC] is entitled to 

214l7428944 review his own medical records held by the department. 

4824 Alberta Ave., Suite IW 

El Paso. TX. 79905 

91515333484 

1220 Dallas Ave.. Suite 202 

Houston, TX. 77002 

713l8500686 

806 Broadway. Suite 312 

Lubbock. TX. 79401 

8051747-5238 

4309 N. Tenth, Suite 8 

McAllen, TX. 78501 

51218824547 

200 Main Plaza. Suite 400 

San Antonio. TX. 78205 

5122254191 

An Equal OppOrtunityI 

Affirmative Action Employer 

Honorable W. J. Estelle. Jr. 

Director 

Texas Department of Corrections 

Huntsville, Texas 77340 

Opinion No. NW-381 

Re: Whether Texas Department 

of corrections inmate may 

review his ovn medical records 

Dear Mr. Estelle: 

It has been suggested that an inmate might have a constitutional 

or common law right to inspect his own medical records. In Paine v. 

Baker, 595 F.2d 197 (4th Cir.), cert. denied, 444 U.S. 925 (1979), the 

court considered a similar claim. In that case, a statute prohibited 

disclosure of prison records except to certain named persons. 

Although the opinion notes that an inmate has a limited right, 

grounded in due process, to have erroneous information expunged from 

his prison file, it emphasizes that there is "no constitutional 

requirement that a prisoner have access to his file." 595 F.2d at 

200, 201. 

As to an inmate's common law right of access, we are aware that 

Attorney General Opinion MW-95 (1979) found that an individual has a 

common law tight to review his own criminal history record information 

held by a law enforcement agency. That opinion, however, was based 

largely upon the existence of federal regulations granting to an 

individual a right of special access to criminal history record 

information about him in the' custody of an agency which is the 

recipient of federal funds. Since no federal regulations require the 

disclosure of prison medical records to an inmate, we do not believe 

that the reasoning of Attorney General Opinion MW-95 is applicable to 

your inquiry. 

Neither do we believe that Hutchins v. Texas Rehabilitation 

Commission, 544 S.w.Zd 802 (Tex. civ. App. - Austin 1976. no writ). 

requires a different result. In that case, the court held that a 

former patient of the rehabilitation commission had a common law right 

to inspect her own records. Likewise, Morris v. Hoerster, 377 SlW.2d 

841 (Tex. Civ. App. - Austin 1964, no writ), dealt with access to 

state hospital records by a former patient. In the situation you 

p. 1287 
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Mr. W. J. Estelle, Jr. - Page 2 (kiw-381) 

p*s=. the inmate is presently incarcerated in a facility of the 

Department of Corrections. In view of the potentially harmful effects 

upon the rehabilitation of an inmate which disclosure of his records 

might produce, we decline to extend the rationale of Hutchins, to 

include persons presently incarcerated, nor do we pass on the 

availability of such records to former inmates. 

As this office has frequently indicated, the Open Records Act, 

article 6252-17a. V.T.C.S.: 

deals primarily with the general public’s right to 

information, and does not provide for a special 

right of access to the subject of records. 

Attorney General Opinion MW-95 (1979). See also Open Records Decision 

NOS. 127 (1976); 108 (1975). Thus, under the Open Records Act, an 

inmate would have no greater access to his medical file than would any 

other member of the public. 

You first contend that inmate medical records are excepted from 

disclosure by section 3(a)(l) of the Open Records Act as “information 

deemed confidential by law.” in this case, sections 26 and 27 of 

article 42.12, Texas Code of Criminal Procedure. That statute 

provides: 

Sec. 26. The Board of Pardons and Paroles 

shall have general responsibility for the 

investigation and supervision of all prisoners 

released on parole and to mandatory supervision. 

For the discharge of this responsibility, there is 

hereby created with the Board of Pardons and 

Paroles, a Division of Parole Supervision. 

Subject to the general direction of the Board of 

Pardons and Paroles, the Division of Parole 

Supervision, including its field staff shall be 

responsible for obtaining and assembling any facts 

the Board of Pardons and Paroles may desire in 

considering parole eligibility, in establishing a 

mandatory supervision plan, and for Investigating 

and supervising paroled prisoners and prisoners 

released to mandatory supervision to see that the 

conditions of parole and mandatory supervision are 

complied with, and for making such periodic 

reports on the progress of parolees and prisoners 

released to mandatory supervision as the Board may 

desire. 

Sec. 27. All information obtained in 

connection with inmates of the Texas Department of 

Corrections subject to parole, release to 

mandatory supervision, or executive clemency or 

individuals who may be on mandatory supervision or 

P- 1288 
Mr. W. J. Estelle, Jr. - Page 3 (x4-381) 

parole and under the supervision of the division, 

or persons directly identified in any proposed 

plan of release for a prisoner, shall be 

confidential and privileged information and shall 

not be subject to public inspection; provided, 

however, that all such information shall be 

available to the Governor and the Board of Pardons 

and Paroles upon request. It is further provided, 

that statistical and general information 

respecting the parole and mandatory supervision 

program and system. including.the names of paroled 

prisoners, prisoners released to mandatory 

supervision, and data recorded in connection with 

parole and mandatory supervision services, shall 

be subject to public inspection at any reasonable 

time. 

In our opinion, this provision is applicable only to information 

obtained by and in the custody of the Division of Parole Supervision. 

If it were read to apply to all inmate information wherever it is 

found, it would deny TDC access to information about inmates in its 

custody. Such an absurd result was obviously not the intent of the 

legislature. We conclude, therefore, that inmate medical records in 

the custody of TDC are not excepted from disclosure by section 3(a)(l) 

of the Open Records Act. 

Section 3(a)(8) of the Open Records Act excepts from disclosure: 

records of law enforcement agencies that deal with 

the detection and investigation of crime and the 

internal records and notations of such lil" 

enforcement agencies which are maintained for 

internal use in matters relating to law 

enforcement. 

V.T.C.S. art. 6252-17a. 13(a)(8). The TDC probably constitutes s "law 

enforcement agency" for purposes of section 3(a)(a). See, e.g., 

Duffin v. Carlson. 636 F.2d 709, 713 (D.C. Cir. 1980) (Federal Bureau 

of Prisons is a "criminal law enforcement authority"); People v. 

Scott, 583 P.2d 939, 941 (Coio. Ct. App. 

Pw enforcement agency"). 

1978) (state penitentiary is 

It does not follow, however, that all 

TDC records are excepted by section 3(a)@). Certain records of law 

enforcement agencies have. for example, been specifically held to be 

public. See Houston Chronicle Publishing Co. v. City of Houston. 531 

S.W.2d 17(Tex. Civ. App. - Houston [14th Dist.) 1975). writ ref'd 

n.r.e.. 536 S.W.2d 559 (Tex. 1976); Open Records Decision Nos. 216 

(1978); 127 (1976). Whether inmate medical records are excepted 

depends upon whether their disclosure "will unduly interfere with law 

enforcement and crime prevention." Ex parte Pruitt, 551 S.W.2d 706, 

710 (Tex. 1977); Open Records Decision Nos. 252 (1980); 216 (1978). 

Such a determination must be made on a case-by-case basis by examining 

each particular record at issue. We note, however, that a member of 

p. 1289 
. 

. . 

Mr. W. J. Estelle, Jr. - Page 4 (Mw-381) 

the public could not have access to records protected by a common law 

or constitutional right of privacy unless the right is waived. See 

- 

Open Records Decision Nos. 258, 262 (1980). 

Although our previous discussion applies to all inmate medical 

records held by TDC. Senate Bill No. 5, the Eiedical Practice Act, 

recently enacted by the first called session of the Sixty-seventh 

Legislature, is applicable to “[rlecords of the identity, diagnosis, 

evaluation or treatment of a patient by a physician that are created 

or maintained by a physician.” V.T.C.S. art. 4495b. §5.08(b). Acts 

1981, 67th Leg., 1st C.S., ch. I, at 31. (Emphasis added). 

“Physician” includes every person “licensed to practice medicine.” 

V.T.C.S. art. 4495b. §5.08(a). Section 5.08(b) provides that such 

records “are confidential and privileged and may not be disclosed 

except as provided in this section.” The statute lists seven 

exceptions relevant to “court or administrative proceedings” under 

subsection (g) and seven other kinds of exceptions under subsection 

(h) . It is clear, however, that medical records generated by a 

physician are not generally included within the anbit of public 

information. 

Section 5.08 does, however, grant a patient access to his own 

medical records held by a physician, subsections (h)(5), (j)(l), and 

04, unless “the physician determines that access to the information 

would be harmful to the physical, mental or emotional health of the 

patient.” V.T.C.S. art. 4495b. 55.08(k). The statute does not except 

TDC inmates from its definition of “patient.” 55.08(m). Thus. as to 

any medical records of the department which are created or maintained 

by a physician. a” inmate must be permitted access unless the 

physician makes the determination required in subsection (k). I” our 

OPi”i0”. such a determination must be made on a case-by-case basis. 

It is our opinion that a” inmate of the Department of 

Corrections, in the circumstances described, Is not in general 

permitted to review his own medical records held by the department by 

virtue of any special constitutional or common law right of access. 

He may be able to review such records under the Open Records Act as a 

member of the public, unless TDC can demonstrate that disclosure will 

“unduly interfere with law enforcement or crime prevention” under 

section 3(a)(8) of the act, or unless some other exception applies. 

With regard to all TDC medical records which are generated or held by 

a physician, a” inmate has a statutory right of access, unless the 

physician determines that access “would be harmful to the physical, 

mental or emotional health” of the inmate. 

SUMMARY 

A” inmate of the Texas Department of 

Corrections, in the circumstances described, is 

not in general permitted to review his own medical 

records held by the department by ,virtue of any 

special constitutional or common law right of 

p. 1290 
Mr. W. J. Estelle. Jr. - Page 5 (t&-381) 

access. He may be able to review such records 

under the Open Records Act as a member of the 

public, unless TDC can demonstrate that disclosure 

will "unduly interfere with law enforcement or 

crime prevention" under section 3(a)(8) of the 

act. With regard to all TDC medical records which 

are generated or held by a physician, an inmate 

has a statutory right of access, unless the 

physician determines that access "would be harmful 

to the physical, mental or emotional health" of 

the inmate. 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPlNION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Ann Kraatz 

Jim Moellinger 

p. 1291