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.