2009 Texas Code
CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 81. SEXUAL EXPLOITATION BY MENTAL HEALTH SERVICES PROVIDER  

CIVIL PRACTICE AND REMEDIES CODE

TITLE 4. LIABILITY IN TORT

CHAPTER 81. SEXUAL EXPLOITATION BY MENTAL HEALTH SERVICES

PROVIDER

Sec. 81.001. DEFINITIONS. In this chapter:

(1) "Mental health services" means assessment, diagnosis,

treatment, or counseling in a professional relationship to assist

an individual or group in:

(A) alleviating mental or emotional illness, symptoms,

conditions, or disorders, including alcohol or drug addiction;

(B) understanding conscious or subconscious motivations;

(C) resolving emotional, attitudinal, or relationship conflicts;

or

(D) modifying feelings, attitudes, or behaviors that interfere

with effective emotional, social, or intellectual functioning.

(2) "Mental health services provider" means an individual,

licensed or unlicensed, who performs or purports to perform

mental health services, including a:

(A) licensed social worker as defined by Section 505.002,

Occupations Code;

(B) chemical dependency counselor as defined by Section 504.001,

Occupations Code;

(C) licensed professional counselor as defined by Section

503.002, Occupations Code;

(D) licensed marriage and family therapist as defined by Section

502.002, Occupations Code;

(E) member of the clergy;

(F) physician who is practicing medicine as defined by Section

151.002, Occupations Code;

(G) psychologist offering psychological services as defined by

Section 501.003, Occupations Code; or

(H) special officer for mental health assignment certified under

Section 1701.404, Occupations Code.

(3) "Patient" means an individual who seeks or obtains mental

health services. The term includes a person who has contact with

a special officer for mental health assignment because of

circumstances relating to the person's mental health.

(4) "Sexual contact" means:

(A) "deviate sexual intercourse" as defined by Section 21.01,

Penal Code;

(B) "sexual contact" as defined by Section 21.01, Penal Code;

(C) "sexual intercourse" as defined by Section 21.01, Penal

Code; or

(D) requests by the mental health services provider for conduct

described by Paragraph (A), (B), or (C). "Sexual contact" does

not include conduct described by Paragraph (A) or (B) that is a

part of a professionally recognized medical treatment of a

patient.

(5) "Sexual exploitation" means a pattern, practice, or scheme

of conduct, which may include sexual contact, that can reasonably

be construed as being for the purposes of sexual arousal or

gratification or sexual abuse of any person. The term does not

include obtaining information about a patient's sexual history

within standard accepted practice while treating a sexual or

marital dysfunction.

(6) "Therapeutic deception" means a representation by a mental

health services provider that sexual contact with, or sexual

exploitation by, the mental health services provider is

consistent with, or a part of, a patient's or former patient's

treatment.

(7) "Mental health services," as defined by this section,

provided by a member of the clergy does not include religious,

moral, and spiritual counseling, teaching, and instruction.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 2.01, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 1102, Sec. 1, eff.

Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.731, eff.

Sept. 1, 2001.

Sec. 81.002. SEXUAL EXPLOITATION CAUSE OF ACTION. A mental

health services provider is liable to a patient or former patient

of the mental health services provider for damages for sexual

exploitation if the patient or former patient suffers, directly

or indirectly, a physical, mental, or emotional injury caused by,

resulting from, or arising out of:

(1) sexual contact between the patient or former patient and the

mental health services provider;

(2) sexual exploitation of the patient or former patient by the

mental health services provider; or

(3) therapeutic deception of the patient or former patient by

the mental health services provider.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 2.01, eff. Sept. 1,

1993.

Sec. 81.003. LIABILITY OF EMPLOYER. (a) An employer of a

mental health services provider is liable to a patient or former

patient of the mental health services provider for damages if the

patient or former patient is injured as described by Section

81.002 and the employer:

(1) fails to make inquiries of an employer or former employer,

whose name and address have been disclosed to the employer and

who employed the mental health services provider as a mental

health services provider within the five years before the date of

disclosure, concerning the possible occurrence of sexual

exploitation by the mental health services provider of patients

or former patients of the mental health services provider; or

(2) knows or has reason to know that the mental health services

provider engaged in the sexual exploitation of the patient or

former patient and the employer failed to:

(A) report the suspected sexual exploitation as required by

Section 81.006; or

(B) take necessary action to prevent or stop the sexual

exploitation by the mental health services provider.

(b) An employer or former employer of a mental health services

provider is liable to a patient or former patient of the mental

health services provider for damages if the patient or former

patient is injured as described by Section 81.002 and the

employer or former employer:

(1) knows of the occurrence of the sexual exploitation by the

mental health services provider of the patient or former patient;

(2) receives a specific request by an employer or prospective

employer of the mental health services provider, engaged in the

business of providing mental health services, concerning the

possible existence or nature of sexual exploitation by the mental

health services provider; and

(3) fails to disclose the occurrence of the sexual exploitation.

(c) An employer or former employer is liable under this section

only to the extent that the failure to take the action described

by Subsection (a) or (b) was a proximate and actual cause of

damages sustained.

(d) If a mental health professional who sexually exploits a

patient or former patient is a member of the clergy and the

sexual exploitation occurs when the professional is acting as a

member of the clergy, liability if any under this section is

limited to the church, congregation, or parish in which the

member of the clergy carried out the clergy member's pastoral

duties:

(1) at the time the sexual exploitation occurs, if the liability

is based on a violation of Subsection (a); or

(2) at the time of the previous occurrence of sexual

exploitation, if the liability is based on a violation of

Subsection (b).

(e) Nothing in Subsection (d) shall prevent the extension of

liability under this section beyond the local church,

congregation, or parish where the current or previous sexual

exploitation occurred, as appropriate under Subsection (d), if

the patient proves that officers or employees of the religious

denomination in question at the regional, state, or national

level:

(1) knew or should have known of the occurrences of sexual

exploitation by the mental health services provider;

(2) received reports of such occurrences and failed to take

necessary action to prevent or stop such sexual exploitation by

the mental health services provider and that such failure was a

proximate and actual cause of the damages; or

(3) knew or should have known of the mental health

professional's propensity to engage in sexual exploitation.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 2.01, eff. Sept. 1,

1993.

Sec. 81.004. DAMAGES. (a) A plaintiff who prevails in a suit

under this section may recover actual damages, including damages

for mental anguish even if an injury other than mental anguish is

not shown.

(b) In addition to an award under Subsection (a), a plaintiff

who prevails in a suit under this section may recover exemplary

damages and reasonable attorney fees.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 2.01, eff. Sept. 1,

1993.

Sec. 81.005. DEFENSES. (a) It is not a defense to an action

brought under Section 81.002 or 81.003 that the sexual

exploitation of the patient or former patient occurred:

(1) with the consent of the patient or former patient;

(2) outside the therapy or treatment sessions of the patient or

former patient; or

(3) off the premises regularly used by the mental health

services provider for the therapy or treatment sessions of the

patient or former patient.

(b) It is a defense to an action brought under Section 81.002 or

81.003 by a former patient that the person was not emotionally

dependent on the mental health services provider when the sexual

exploitation began and the mental health services provider

terminated mental health services with the patient more than two

years before the date the sexual exploitation began.

(c) A person is considered not emotionally dependent for

purposes of this chapter if the nature of the patient's or former

patient's emotional condition and the nature of the treatment

provided by the mental health services provider are not such that

the mental health services provider knows or has reason to

believe that the patient or former patient is unable to withhold

consent to the sexual exploitation.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 2.01, eff. Sept. 1,

1993.

Sec. 81.006. DUTY TO REPORT. (a) If a mental health services

provider or the employer of a mental health services provider has

reasonable cause to suspect that a patient has been the victim of

sexual exploitation by a mental health services provider during

the course of treatment, or if a patient alleges sexual

exploitation by a mental health services provider during the

course of treatment, the mental health services provider or the

employer shall report the alleged conduct not later than the 30th

day after the date the person became aware of the conduct or the

allegations to:

(1) the prosecuting attorney in the county in which the alleged

sexual exploitation occurred; and

(2) any state licensing board that has responsibility for the

mental health services provider's licensing.

(b) Before making a report under this section, the reporter

shall inform the alleged victim of the reporter's duty to report

and shall determine if the alleged victim wants to remain

anonymous.

(c) A report under this section need contain only the

information needed to:

(1) identify the reporter;

(2) identify the alleged victim, unless the alleged victim has

requested anonymity; and

(3) express suspicion that sexual exploitation has occurred.

(d) Information in a report is privileged information and is for

the exclusive use of the prosecuting attorney or state licensing

board that receives the information. A person who receives

privileged information may not disclose the information except to

the extent that disclosure is consistent with the authorized

purposes for which the person first obtained the information. The

identity of an alleged victim of sexual exploitation by a mental

health services provider may not be disclosed by the reporter, or

by a person who has received or has access to a report or record,

unless the alleged victim has consented to the disclosure in

writing.

(e) A person who intentionally violates Subsection (a) or (d) is

subject to disciplinary action by that person's appropriate

licensing board and also commits an offense. An offense under

this subsection is a Class C misdemeanor.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 2.01, eff. Sept. 1,

1993.

Sec. 81.007. LIMITED IMMUNITY FROM LIABILITY. (a) A person

who, in good faith, makes a report required by Section 81.006 is

immune from civil or criminal liability resulting from the filing

of that report.

(b) Reporting under this chapter is presumed to be done in good

faith.

(c) The immunity provided by this section does not apply to

liability resulting from sexual exploitation by a mental health

services provider of a patient or former patient.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 2.01, eff. Sept. 1,

1993.

Sec. 81.008. ADMISSION OF EVIDENCE. (a) In an action for

sexual exploitation, evidence of the plaintiff's sexual history

and reputation is not admissible unless:

(1) the plaintiff claims damage to sexual functioning; or

(2)(A) the defendant requests a hearing before trial and makes an

offer of proof of the relevancy of the history or reputation; and

(B) the court finds that the history or reputation is relevant

and that the probative value of the evidence outweighs its

prejudicial effect.

(b) The court may allow the admission only of specific

information or examples of the plaintiff's conduct that are

determined by the court to be relevant. The court's order shall

detail the information or conduct that is admissible and no other

such evidence may be introduced.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 2.01, eff. Sept. 1,

1993.

Sec. 81.009. LIMITATIONS. (a) Except as otherwise provided by

this section, an action under this chapter must be filed before

the third anniversary of the date the patient or former patient

understood or should have understood the conduct for which

liability is established under Section 81.002 or 81.003.

(b) If a patient or former patient entitled to file an action

under this chapter is unable to bring the action because of the

effects of the sexual exploitation, continued emotional

dependence on the mental health services provider, or threats,

instructions, or statements by the mental health services

provider, the deadline for filing an action under this chapter is

tolled during that period, except that the deadline may not be

tolled for more than 15 years.

(c) This section does not apply to a patient or former patient

who is a "child" or a "minor" as defined by Section 101.003,

Family Code, until that patient or former patient has reached the

age of 18. If the action is brought by a parent, guardian, or

other person having custody of the child or minor, it must be

brought within the period set forth in this section.

Added by Acts 1993, 73rd Leg., ch. 573, Sec. 2.01, eff. Sept. 1,

1993. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 7.07, eff.

Sept. 1, 1997.

Sec. 81.010. INJUNCTIVE RELIEF AGAINST GOVERNMENTAL UNITS. (a)

In this section, "governmental unit" has the meaning assigned by

Section 101.001(3)(B).

(b) Subject to Subsection (c), a patient, a former patient, or

another person acting on behalf of a patient or former patient

may bring an action under this section against a governmental

unit that is an employer of a mental health services provider,

including a special officer for mental health assignment, who

commits any conduct described by Section 81.002(1), (2), or (3)

in relation to the patient or former patient. In an action

brought under this subsection, the patient or former patient may

obtain:

(1) an order requiring the governmental unit to discharge the

mental health services provider who committed the conduct;

(2) court costs; and

(3) reasonable attorney's fees, as determined by the court.

(c) A patient, former patient, or person acting on behalf of a

patient or former patient may not bring an action under

Subsection (b) unless, 60 days before the date that action is to

be filed, the person notifies the governmental unit in writing of

its intention to bring an action under this section. The notice

must reasonably describe the facts giving rise to the claim. If,

before the 60th day after the date the notice is provided under

this section, the governmental unit discharges the mental health

services provider who committed the conduct with respect to which

the claim is filed, the person may not bring suit under

Subsection (b).

(d) Governmental immunity to suit is waived and abolished only

to the extent of the liability created by Subsection (b).

Added by Acts 1999, 76th Leg., ch. 1102, Sec. 2, eff. Sept. 1,

1999.

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