By: Kent H.B. No. 4305
A BILL TO BE ENTITLED
AN ACT
relating to a prohibition against performing or ordering the
performance of an autopsy contrary to a decedent's religious
beliefs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 49, Code of Criminal Procedure, is
amended by adding Subchapter C to read as follows:
SUBCHAPTER C. AUTOPSY CONTRARY TO DECEDENT'S RELIGIOUS BELIEFS
Art. 49.26. EXISTENCE OF COMPELLING PUBLIC NECESSITY. For
purposes of this subchapter, a compelling public necessity for the
performance of an autopsy contrary to a decedent's religious
beliefs exists if:
(1) the autopsy is essential to the criminal
investigation of a homicide of which the decedent is the victim;
(2) the discovery of the cause of death is necessary to
meet an immediate and substantial threat to the public health and an
autopsy is essential to ascertain the cause of death;
(3) the cause of death of the decedent is not apparent
after diligent investigation by the justice of the peace or medical
examiner and the decedent:
(A) was younger than 12 years of age at the time
of death; and
(B) was suspected of having been abused or
neglected or of being a threat to public health; or
(4) the need for an autopsy is otherwise established
by the justice of the peace or medical examiner under Article 49.29.
Art. 49.27. PROHIBITION AGAINST AUTOPSY CONTRARY TO
DECEDENT'S RELIGIOUS BELIEFS. Unless there is a compelling public
necessity for an autopsy, a justice of the peace or a medical
examiner may not perform or order the performance of an autopsy on a
decedent if:
(1) a member of the decedent's immediate family files
an objection to the autopsy on the grounds that the autopsy would be
contrary to the religious beliefs of the decedent; or
(2) there is an obvious reason for the justice of the
peace or medical examiner to believe that an autopsy would be
contrary to the decedent's religious beliefs.
Art. 49.28. WAITING PERIOD TO ALLOW ACTION TO PREVENT
AUTOPSY. (a) If an objection is filed under Article 49.27(1) or
there is an obvious reason to believe that an autopsy would be
contrary to the decedent's religious beliefs as described by
Article 49.27(2), but the justice of the peace or medical examiner
believes that there is a compelling public necessity for an autopsy
under Article 49.26(1), (2), or (3), the justice of the peace or
medical examiner shall:
(1) send notice of the intent of the justice of the
peace or medical examiner to perform or order the performance of an
autopsy on the decedent to:
(A) the family member or friend who filed the
objection to the autopsy; or
(B) if no objection was filed but there is an
obvious reason to believe that the autopsy would be contrary to the
decedent's religious beliefs, to a person appointed by a district
court for that purpose; and
(2) refrain from performing or ordering the
performance of the autopsy until the expiration of the 48-hour
period following the time that notice is received under Subdivision
(1).
(b) During the waiting period described by Subsection
(a)(2), the objecting person or person appointed by the court may
institute an action in district court to determine whether an
autopsy should be performed.
(c) The court may dispense with the waiting period on an ex
parte motion by the justice of the peace or medical examiner if the
court determines that the delay may prejudice the accuracy of the
autopsy.
Art. 49.29. ACTION BY JUSTICE OF PEACE OR MEDICAL EXAMINER
FOR ORDER AUTHORIZING AUTOPSY. If an objection is filed under
Article 49.27(1) or there is an obvious reason to believe that an
autopsy would be contrary to the decedent's religious beliefs as
described by Article 49.27(2), but the justice of the peace or
medical examiner believes that there is a compelling public
necessity for an autopsy not provided for under Article 49.26(1),
(2), or (3), the justice of the peace or medical examiner may
institute an action in district court for an order authorizing the
autopsy.
Art. 49.30. COURT PROCEEDING TO DETERMINE NECESSITY OF
AUTOPSY. (a) An action brought under this subchapter has
preference over all other cases and shall be determined summarily
on the petition and any oral or written proof offered by the
parties.
(b) In an action under Article 49.28(b) or 49.29, the court
shall issue an order authorizing an autopsy only if the court finds
that:
(1) the justice of the peace or medical examiner
establishes a compelling public necessity for the performance of
the autopsy; or
(2) the objecting person or person appointed by the
court fails to swear or affirm that an autopsy would be contrary to
the decedent's religious beliefs.
(c) A justice of the peace or medical examiner may not
perform or order the performance of an autopsy on the decedent while
the action under Article 49.28(b) or 49.29 is pending.
Art. 49.31. RELEASE OF BODY FOR BURIAL. If a district court
denies permission to perform an autopsy under this subchapter and a
stay is not granted, the justice of the peace or medical examiner
shall immediately release the body for burial.
Art. 49.32. INVASIVENESS OF AUTOPSY. A medical examiner or
other person who performs an autopsy in accordance with an order
issued under this subchapter shall use the least invasive means
possible to satisfy the person's legal duties in conducting the
autopsy.
SECTION 2. The change in law made by this Act applies only
to an autopsy to be performed on a person who dies on or after the
effective date of this Act. An autopsy to be performed on a person
who dies before the effective date of this Act is governed by the
law in effect when the person dies, and the former law is continued
in effect for that purpose.
SECTION 3. This Act takes effect September 1, 2009.