, JOHN CORNYN 

\ 

September 9, 1999 

The Honorable Pete P. Gallego 

Chair, Committee on General Investigating 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Opinion No. JC-0108 

Re: Whether the governing body of a hospital 

district may meet in closed session when 

acting as a medical peer review committee 

under the Medical Practice Act and related 

questions (RQ-0005) 

Dear Representative’Gallego: 

You ask whether the governing body of a hospital district acts as a medical peer review 

committee as defined in the Medical Practice Act, title 3, subtitle B, chapter 151 of the Texas 

Occupations Code’ (“the Act”), when it decides whether a physician should receive hospital 

privileges, evaluates the competence of a physician, or evaluates the quality of medical and health 

care services at the district’s hospital. If the governing body of a hospital district does have authority 

to act as a peer review committee, you ask whether it may, without violating the requirements of the 

Open Meetings Act, hold a closed session when exercising that authority. The governing body of 

a hospital district acts as a medical peer review committee when it decides whether a physician 

should receive hospital privileges, evaluates the competence of a physician, or evaluates the quality 

ofmedical and health care services at the district’s hospital, to the extent that the evaluation involves 

discussions or records that specifically identify an individual patient or physician. A hospital 

district’s proceedings as a medical peer review committee are exempt from the requirements ofthe 

Open Meetings Act. 

Your inquiry is limited to the peer review of physicians, and we will similarly limit our 

answer. Because your questions are based on statutes that were amended in the 76th session of the 

legislature, we will modify the questions where necessary to take these amendments into account. 

You first ask whether the governing body of a hospital district acts as a medical peer review 

committee under the Act when it decides whether a physician should be privileged to admit and treat 

patients at the hospital, evaluates the competence of a physician, or evaluates the quality of medical 

and health care services at the district’s hospital. 

‘The Medical Practice Act was formerly article 4495b of the Texas Revised Civil Statutes. Tbc 76th 

Legislature repealed and reenacted this law as title 3, subtitle B of tbe Occupations Code. Act of May 13, 1999,76tb 

Leg.,R.S,ch. 388.5 1, $5 151.001-,056, 1999Tex. Sess. Law Sew. 1431, 1461-66(Vemon). (EffectiveSeptember 1, 

1999.) 
The Honorable Pete P. Gallego - Page 2 (JC-0108) 

“Medical peer review” or “professional review action” is “the evaluation of medical and 

health care services, including evaluation of the qualifications of professional health care 

practitioners and of patient care provided by those practitioners.” Act of May 13, 1999,76th Leg., 

R.S., ch. 388, § 1, sec. 151.002(7), 1999 Tex. Sess. Law Serv. 1431,1463 (Vernon) (to be codified 

at TEX. Oct. CODE ANN. $ 151.002(7)) [h ereinafter “Act of May 13, 1999”]. A “[mledical peer 

review committee,” or “professional review body” within the Medical Practice Act includes the 

governing board of a health care entity and a committee or the medical staff of a health care entity 

with authority to evaluate the quality of medical and health care services or the competence of 

physicians. Id. 5 15 1.002(g). The definition of a “health care entity” expressly includes a hospital 

district. See id. 5 151.002(5), as amended by Act ofMay 21, 1999,76th Leg., R.S., H.B. 2171, 3 

1 (effective June 19, 1999)? The governing body of a hospital district, as the governing board of 

a health care entity, falls within the definition of a “medical peer review committee” or “professional 

review committee” in the Act. See Act ofMay 13,1999, supra 5 15 1.002(g) (to be codified at TEX. 

OCC. CODE ANN. 5 15 1.002(g)) (governing board of a health care entity is a medical peer review 

committee). 

Moreover, “medical peer review committee” is defined by the Medical Practice Act as 

follows: 

“Medical peer review committee” or “professional review body” 

means a committee of a health-care entity, [and] the governing board 

of a health-care entity The term “medical peer review 

committee” or “professional review body” includes the governing 

body of a public hospital owned or operated by a governmental 

entity, the governing body of a hospital authority . and the 

governing body of a hospital district created under Article IX, Texas 

Constitution, but only: 

(-4) in relation to the governing body’s evaluation of the 

competence of a physician or the quality of medical and health care 

services provided by the public hospital, hospital authority, or 

hospital district; and 

(B) to the extent that the evaluation under Paragraph (A) 

involves discussions or records that specifically or necessarily 

identify an individual patient or physician. 

Act ofMay 26, 1999,76th Leg., R.S., H.B. 747, 5 1 (to be codified as an amendment to TEX. OCC. 

CODE ANN. 5 151.002(8)) (effective June 19, 1999). 

2’lke repeal of a statute by a code does not affect an amendment of the statllte by the legislature that enacted 

the code. The amendment is preserved and given effect as part of the code provision that revised the statute so amended. 

TEX. GOV’TCODEANN. 4 311.031(c) (Vernon 1998). 
The Honorable Pete P. Gallego - Page 3 (JC-0108) 

Thus, the governing body of a hospital district acts as a “medical peer review committee” or 

“professional review body” when it evaluates the competence of a physician, or evaluates the quality 

ofmedical and health care services at the district’s hospital, but only to the extent that the evaluation 

identities a particular patient or physician. It also acts as a peer review committee in deciding 

whether or not to accord a physician hospital privileges, because this decision necessarily involves 

evaluating the physician’s competence. See generally Memorial Hospital-The Woodlands v. 

McCown, 927 S.W.2d 1, 3-4 (Tex. 1996) (the initial decision as to whether a physician should 

receive hospital privileges is part of the peer review process). 

You ask whether the governing body ofthe hospital district may meet in closed session when 

it acts as a peer review committee. As a general matter, the governing body of a hospital district is 

subject to the Open Meetings Act as “the governing board of a special district created by law.” TEX. 

GOV’T CODE ANN. 5 551.001(3)(H) (V emon 1994); see Fidelity and Deposit Co. v. Concerned 

Taxpayers, 829 S.W.2d 923,926-27 (Tex. App.-Austin 1992, no writ) (hospital district trustees were 

liable on official bonds for violations ofOpen Meetings Act); Tex. Att’y Gen. Op. No. H-238 (1974) 

at 2 (Harris County Hospital District is a special district created under authority of law). However, 

a proceeding of a medical peer review committee is expressly exempted from the Open Meetings 

Act. Section 161.032(a) of the Health and Safety Code, which makes the records and proceedings 

of a peer review committee confidential and exempt from discovery, see Brownwood Regional 

Hospital v. Eleventh Court of Appeals, 927 S.W.2d 24 (Tex. 1996), was amended by the 76th 

legislative session to include the following language: 

A proceeding of a medical peer review committee, as defined by 

Section 1.03, Medical Practice Act. , or a meeting ofthe governing 

body of a public hospital, hospital district, or hospital authority at 

which the governing body receives records, information, or reports 

provided by a medical committee or medical peer review committee 

is not subject to Chapter 551, Government Code. 

Act of May 21,1999,76th Leg., R.S., H.B. 2171,s 4 (to be codified as an amendment to Health & 

Safety Code $ 161.032(a)) (effective June 19, 1999). 

The governing body of a hospital district is accordingly exempt from the Open Meetings Act 

when it acts as a peer review committee or when it receives records, information, or reports provided 

by a medical committee or medical peer review committee. Section 161.032(a) of the Health and 

Safety Code does more than authorize a governmental body to conduct deliberations in executive 

session; it exempts the proceedings of amedical peer review committee from the Gpen Meetings Act 

in its entirety, including the notice provision. Thus, when the governing body of a hospital district 

meets as a peer review committee and does not conduct any other business subject to the Open 

Meetings Act, it is not required to post notice ofthe subject matter. Section 161.032(a) ofthe Health 

and Safety Code also exempts a peer review proceeding from the Open Meetings Act requirement 

that a final action, decision, or vote may only be made in an open meeting. See TEX. GOV’T CODE 

ANN. 9 551.102 (Vernon 1994). When the hospital district board engages in a peer review 
The Honorable Pete P. Gallego - Page 4 (X-0108) 

proceeding within section 15 1.002(g) of the Texas Occupations Code, it may conduct all discussion 

and take final action in a closed session. 

You next ask whether the governing body of the hospital district is exempt from the Open 

Meetings Act as a peer review committee only when it is evaluating the competence, qualifications, 

or actions of a physician, but not when it is generally evaluating the quality of medical and health 

care services for which it is responsible in a way that does not involve evaluating an identifiable 

physician. As we have already concluded, the governing body of a hospital district acts as a 

“medical peer review committee” or “professional review body” when it evaluates the competence 

of a physician or evaluates the quality of medical and health care services at the district’s hospital, 

to the extent that the evaluation involves discussions or records that specifically or necessarily 

identify the individual patient or physician. Accordingly, the governing body acts as a peer review 

committee and is exempt from the Open Meetings Act when it evaluates the quality of medical and 

health care services only so long as the evaluation involves discussions or records that specifically 

or necessarily identify the individual patient or physician. 

Your last question is premised on the assumption that a hospital district governing body may 

not hold a closed meeting to act as a peer review committee. You inquire about the legal 

consequences of such a conclusion, the potential criminal or civil liability that the hospital district 

governing body or its members might face if the governing body evaluates the competence of 

physicians in an open meeting or simply fails to meet to evaluate the competence of physicians 

practicing or applying to practice at the district’s hospital to avoid doing so in an open meeting. 

Because the governing body of a hospital district is exempt from the Open Meetings Act when it 

meets as a peer review committee and need not in those instances meet in an open meeting, we need 

not address your last question, 
The Honorable Pete P. Gallego - Page 5 (JC-0108) 

SUMMARY 

Pursuant to the Medical Practice Act, the governing body of 

a hospital district acts as a medical peer review committee when it 

decides whether a physician should receive hospital privileges, 

evaluates the competence of a physician, or evaluates the quality of 

medical and health care services at the district’s hospital, to the extent 

that the evaluation involves discussions or records that specifically 

identify an individual patient or physician. Section 161.032(a) of the 

Texas Health and Safety Code exempts a hospital district’s 

proceedings as a medical peer review committee from the 

requirements of the Open Meetings Act. 

Y UrsvelytN ) 4JbYJOkIN COkNYN 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVJN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General - Opinion Committee