CIVIL PRACTICE & REMEDIES CODE
CHAPTER 81. SEXUAL EXPLOITATION BY MENTAL HEALTH SERVICES PROVIDER
§ 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, § 2.01, eff. Sept. 1,
1993. Amended by Acts 1999, 76th Leg., ch. 1102, § 1, eff. Sept.
1, 1999; Acts 2001, 77th Leg., ch. 1420, § 14.731, eff. Sept. 1,
2001.
§ 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, § 2.01, eff. Sept. 1,
1993.
§ 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, § 2.01, eff. Sept. 1,
1993.
§ 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, § 2.01, eff. Sept. 1,
1993.
§ 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, § 2.01, eff. Sept. 1,
1993.
§ 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, § 2.01, eff. Sept. 1,
1993.
§ 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, § 2.01, eff. Sept. 1,
1993.
§ 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, § 2.01, eff. Sept. 1,
1993.
§ 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, § 2.01, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 165, § 7.07, eff.
Sept. 1, 1997.
§ 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, § 2, eff. Sept. 1, 1999.
