81R5109 SJM-F
By: Harris S.B. No. 2091
A BILL TO BE ENTITLED
AN ACT
relating to adoption of the Revised Uniform Anatomical Gift Act;
providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 8, Health and Safety Code, is
amended by adding Chapter 692A to read as follows:
CHAPTER 692A. REVISED UNIFORM ANATOMICAL GIFT ACT
Sec. 692A.001. SHORT TITLE. This chapter may be cited as
the Revised Uniform Anatomical Gift Act.
Sec. 692A.002. DEFINITIONS. In this chapter:
(1) "Adult" means an individual who is at least 18
years of age.
(2) "Agent" means an individual:
(A) authorized to make health care decisions on
the principal's behalf by a medical power of attorney; or
(B) expressly authorized to make an anatomical
gift on the principal's behalf by any other record signed by the
principal.
(3) "Anatomical gift" means a donation of all or part
of a human body to take effect after the donor's death for the
purpose of transplantation, therapy, research, or education.
(4) "Commissioner" means the commissioner of state
health services.
(5) "Decedent" means a deceased individual whose body
or part is or may be the source of an anatomical gift. The term
includes a stillborn infant and, subject to restrictions imposed by
law other than this chapter, a fetus.
(6) "Department" means the Department of State Health
Services.
(7) "Disinterested witness" means a witness other than
the spouse, child, parent, sibling, grandchild, grandparent, or
guardian of the individual who makes, amends, revokes, or refuses
to make an anatomical gift, or another adult who exhibited special
care and concern for the individual. The term does not include a
person to which an anatomical gift could pass under Section
692A.011.
(8) "Document of gift" means a donor card or other
record used to make an anatomical gift. The term includes a
statement or symbol on a driver's license, identification card, or
donor registry.
(9) "Donor" means an individual whose body or part is
the subject of an anatomical gift.
(10) "Donor registry" means a database that contains
records of anatomical gifts and amendments to or revocations of
anatomical gifts.
(11) "Driver's license" means a license or permit
issued by the Department of Public Safety to operate a vehicle,
whether or not conditions are attached to the license or permit.
(12) "Eye bank" means a person that is licensed,
accredited, or regulated under federal or state law to engage in the
recovery, screening, testing, processing, storage, or distribution
of human eyes or portions of human eyes.
(13) "Guardian" means a person appointed by a court to
make decisions regarding the support, care, education, health, or
welfare of an individual. The term does not include a guardian ad
litem.
(14) "Hospital" means a facility licensed as a
hospital under the law of any state or a facility operated as a
hospital by the United States, a state, or a subdivision of a state.
(15) "Identification card" means an identification
card issued by the Department of Public Safety.
(16) "Imminent death" means a patient who requires
mechanical ventilation, has a severe neurologic injury, and meets
certain clinical criteria indicating that neurologic death is near
or a patient for whom withdrawal of ventilatory support is being
considered.
(17) "Know" means to have actual knowledge.
(18) "Minor" means an individual who is under 18 years
of age.
(19) "Organ procurement organization" means a person
designated by the secretary of the United States Department of
Health and Human Services as an organ procurement organization.
(20) "Parent" means a parent whose parental rights
have not been terminated.
(21) "Part" means an organ, an eye, or tissue of a
human being. The term does not include the whole body.
(22) "Person" means an individual, corporation,
business trust, estate, trust, partnership, limited liability
company, association, joint venture, public corporation,
government or governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity.
(23) "Physician" means an individual authorized to
practice medicine or osteopathy under the law of any state.
(24) "Procurement organization" means an eye bank,
organ procurement organization, or tissue bank.
(25) "Prospective donor" means an individual who is
dead or near death and has been determined by a procurement
organization to have a part that could be medically suitable for
transplantation, therapy, research, or education. The term does not
include an individual who has made a refusal.
(26) "Reasonably available" means able to be contacted
by a procurement organization without undue effort and willing and
able to act in a timely manner consistent with existing medical
criteria necessary for the making of an anatomical gift.
(27) "Recipient" means an individual into whose body a
decedent's part has been or is intended to be transplanted.
(28) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(29) "Refusal" means a record created under Section
692A.007 that expressly states an intent to bar other persons from
making an anatomical gift of an individual's body or part.
(30) "Sign" means, with the present intent to
authenticate or adopt a record:
(A) to execute or adopt a tangible symbol; or
(B) to attach to or logically associate with the
record an electronic symbol, sound, or process.
(31) "State" means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands, or any territory or insular possession subject to the
jurisdiction of the United States.
(32) "Technician" means an individual determined to be
qualified to remove or process parts by an appropriate organization
that is licensed, accredited, or regulated under federal or state
law. The term includes an enucleator.
(33) "Timely notification" means notification of an
imminent death to the organ procurement organization within one
hour of the patient's meeting the criteria for imminent death and
before the withdrawal of any life sustaining therapies. With
respect to cardiac death, timely notification means notification to
the organ procurement organization within one hour of the cardiac
death.
(34) "Tissue" means a portion of the human body other
than an organ or an eye. The term does not include blood unless the
blood is donated for the purpose of research or education.
(35) "Tissue bank" means a person licensed,
accredited, or regulated under federal or state law to engage in the
recovery, screening, testing, processing, storage, or distribution
of tissue.
(36) "Transplant hospital" means a hospital that
furnishes organ transplants and other medical and surgical
specialty services required for the care of transplant patients.
(37) "Visceral organ" means the heart, kidney, or
liver or another organ or tissue that requires a patient support
system to maintain the viability of the organ or tissue.
Sec. 692A.003. APPLICABILITY. This chapter applies to an
anatomical gift or amendment to, revocation of, or refusal to make
an anatomical gift, whenever made.
Sec. 692A.004. PERSONS AUTHORIZED TO MAKE ANATOMICAL GIFT
BEFORE DONOR'S DEATH. Subject to Section 692A.008, an anatomical
gift of a donor's body or part may be made during the life of the
donor for the purpose of transplantation, therapy, research, or
education in the manner provided in Section 692A.005 by:
(1) the donor, if the donor is an adult or if the donor
is a minor and is:
(A) emancipated; or
(B) authorized under state law to apply for a
driver's license because the donor is at least 16 years of age;
(2) an agent of the donor, unless the medical power of
attorney or other record prohibits the agent from making an
anatomical gift;
(3) a parent of the donor, if the donor is an
unemancipated minor; or
(4) the donor's guardian.
Sec. 692A.005. MANNER OF MAKING ANATOMICAL GIFT BEFORE
DONOR'S DEATH. (a) A donor may make an anatomical gift:
(1) by authorizing a statement or symbol indicating
that the donor has made an anatomical gift to be imprinted on the
donor's driver's license or identification card;
(2) in a will;
(3) during a terminal illness or injury of the donor,
by any form of communication addressed to at least two adults, at
least one of whom is a disinterested witness; or
(4) as provided in Subsection (b).
(b) A donor or other person authorized to make an anatomical
gift under Section 692A.004 may make a gift by a donor card or other
record signed by the donor or other person making the gift or by
authorizing that a statement or symbol indicating the donor has
made an anatomical gift be included on a donor registry. If the
donor or other person is physically unable to sign a record, the
record may be signed by another individual at the direction of the
donor or other person and must:
(1) be witnessed by at least two adults, at least one
of whom is a disinterested witness, who have signed at the request
of the donor or the other person; and
(2) state that the record has been signed and
witnessed as provided in Subdivision (1).
(c) Revocation, suspension, expiration, or cancellation of
a driver's license or identification card on which an anatomical
gift is indicated does not invalidate the gift.
(d) An anatomical gift made by will takes effect on the
donor's death whether or not the will is probated. Invalidation of
the will after the donor's death does not invalidate the gift.
Sec. 692A.006. AMENDING OR REVOKING ANATOMICAL GIFT BEFORE
DONOR'S DEATH. (a) Subject to Section 692A.008, a donor or other
person authorized to make an anatomical gift under Section 692A.004
may amend or revoke an anatomical gift by:
(1) a record signed by:
(A) the donor;
(B) the other person; or
(C) subject to Subsection (b), another
individual acting at the direction of the donor or the other person
if the donor or other person is physically unable to sign; or
(2) a later-executed document of gift that amends or
revokes a previous anatomical gift or portion of an anatomical
gift, either expressly or by inconsistency.
(b) A record signed pursuant to Subsection (a)(1)(C) must:
(1) be witnessed by at least two adults, at least one
of whom is a disinterested witness, who have signed at the request
of the donor or the other person; and
(2) state that the record has been signed and
witnessed as provided in Subdivision (1).
(c) Subject to Section 692A.008, a donor or other person
authorized to make an anatomical gift under Section 692A.004 may
revoke an anatomical gift by the destruction or cancellation of the
document of gift, or the portion of the document of gift used to
make the gift, with the intent to revoke the gift.
(d) A donor may amend or revoke an anatomical gift that was
not made in a will by any form of communication during a terminal
illness or injury addressed to at least two adults, at least one of
whom is a disinterested witness.
(e) A donor who makes an anatomical gift in a will may amend
or revoke the gift in the manner provided for amendment or
revocation of wills or as provided in Subsection (a).
Sec. 692A.007. REFUSAL TO MAKE ANATOMICAL GIFT; EFFECT OF
REFUSAL. (a) An individual may refuse to make an anatomical gift
of the individual's body or part by:
(1) a record signed by:
(A) the individual; or
(B) subject to Subsection (b), another
individual acting at the direction of the individual if the
individual is physically unable to sign;
(2) the individual's will, whether or not the will is
admitted to probate or invalidated after the individual's death; or
(3) any form of communication made by the individual
during the individual's terminal illness or injury addressed to at
least two adults, at least one of whom is a disinterested witness.
(b) A record signed pursuant to Subsection (a)(1)(B) must:
(1) be witnessed by at least two adults, at least one
of whom is a disinterested witness, who have signed at the request
of the individual; and
(2) state that the record has been signed and
witnessed as provided in Subdivision (1).
(c) An individual who has made a refusal may amend or revoke
the refusal:
(1) in the manner provided in Subsection (a) for
making a refusal;
(2) by subsequently making an anatomical gift pursuant
to Section 692A.005 that is inconsistent with the refusal; or
(3) by destroying or canceling the record evidencing
the refusal, or the portion of the record used to make the refusal,
with the intent to revoke the refusal.
(d) Except as otherwise provided in Section 692A.008(h), in
the absence of an express, contrary indication by the individual
set forth in the refusal, an individual's unrevoked refusal to make
an anatomical gift of the individual's body or part bars all other
persons from making an anatomical gift of the individual's body or
part.
Sec. 692A.008. PRECLUSIVE EFFECT OF ANATOMICAL GIFT,
AMENDMENT, OR REVOCATION. (a) Except as otherwise provided in
Subsection (g) and subject to Subsection (f), in the absence of an
express, contrary indication by the donor, a person other than the
donor is barred from making, amending, or revoking an anatomical
gift of a donor's body or part if the donor made an anatomical gift
of the donor's body or part under Section 692A.005 or an amendment
to an anatomical gift of the donor's body or part under Section
692A.006.
(b) A donor's revocation of an anatomical gift of the
donor's body or part under Section 692A.006 is not a refusal and
does not bar another person specified in Section 692A.004 or
Section 692A.009 from making an anatomical gift of the donor's body
or part under Section 692A.005 or Section 692A.010.
(c) If a person other than the donor makes an unrevoked
anatomical gift of the donor's body or part under Section 692A.005
or an amendment to an anatomical gift of the donor's body or part
under Section 692A.006, another person may not make, amend, or
revoke the gift of the donor's body or part under Section 692A.010.
(d) A revocation of an anatomical gift of a donor's body or
part under Section 692A.006 by a person other than the donor does
not bar another person from making an anatomical gift of the body or
part under Section 692A.005 or Section 692A.010.
(e) In the absence of an express, contrary indication by the
donor or other person authorized to make an anatomical gift under
Section 692A.004, an anatomical gift of a part is neither a refusal
to give another part nor a limitation on the making of an anatomical
gift of another part at a later time by the donor or another person.
(f) In the absence of an express, contrary indication by the
donor or other person authorized to make an anatomical gift under
Section 692A.004, an anatomical gift of a part for one or more of
the purposes set forth in Section 692A.004 is not a limitation on
the making of an anatomical gift of the part for any of the other
purposes by the donor or any other person under Section 692A.005 or
Section 692A.010.
(g) If a donor who is an unemancipated minor dies, a parent
of the donor who is reasonably available may revoke or amend an
anatomical gift of the donor's body or part.
(h) If an unemancipated minor who signed a refusal dies, a
parent of the minor who is reasonably available may revoke the
minor's refusal.
Sec. 692A.009. WHO MAY MAKE ANATOMICAL GIFT OF DECEDENT'S
BODY OR PART. (a) Subject to Subsections (b) and (c) and unless
barred by Section 692A.007 or Section 692A.008, an anatomical gift
of a decedent's body or part for the purpose of transplantation,
therapy, research, or education may be made by any member of the
following classes of persons who is reasonably available, in the
order of priority listed:
(1) an agent of the decedent at the time of death who
could have made an anatomical gift under Section 692A.004(2)
immediately before the decedent's death;
(2) the spouse of the decedent;
(3) adult children of the decedent;
(4) parents of the decedent;
(5) adult siblings of the decedent;
(6) adult grandchildren of the decedent;
(7) grandparents of the decedent;
(8) an adult who exhibited special care and concern
for the decedent;
(9) the persons who were acting as the guardians of the
person of the decedent at the time of death;
(10) the hospital administrator; and
(11) any other person having the authority to dispose
of the decedent's body.
(b) If there is more than one member of a class listed in
Subsection (a)(1), (3), (4), (5), (6), (7), or (9) entitled to make
an anatomical gift, an anatomical gift may be made by a member of
the class unless that member or a person to which the gift may pass
under Section 692A.011 knows of an objection by another member of
the class. If an objection is known, the gift may be made only by a
majority of the members of the class who are reasonably available.
(c) A person may not make an anatomical gift if, at the time
of the decedent's death, a person in a prior class under Subsection
(a) is reasonably available to make or to object to the making of an
anatomical gift.
Sec. 692A.010. MANNER OF MAKING, AMENDING, OR REVOKING
ANATOMICAL GIFT OF DECEDENT'S BODY OR PART. (a) A person
authorized to make an anatomical gift under Section 692A.009 may
make an anatomical gift by a document of gift signed by the person
making the gift or by that person's oral communication that is
electronically recorded or is contemporaneously reduced to a record
and signed by the individual receiving the oral communication.
(b) Subject to Subsection (c), an anatomical gift by a
person authorized under Section 692A.009 may be amended or revoked
orally or in a record by any member of a prior class who is
reasonably available. If more than one member of the prior class is
reasonably available, the gift made by a person authorized under
Section 692A.009 may be:
(1) amended only if a majority of the reasonably
available members agree to the amending of the gift; or
(2) revoked only if a majority of the reasonably
available members agree to the revoking of the gift or if they are
equally divided as to whether to revoke the gift.
(c) A revocation under Subsection (b) is effective only if,
before an incision has been made to remove a part from the donor's
body or before the initiation of invasive procedures to prepare the
recipient, the procurement organization, transplant hospital, or
physician or technician knows of the revocation.
Sec. 692A.011. PERSONS THAT MAY RECEIVE ANATOMICAL GIFT;
PURPOSE OF ANATOMICAL GIFT. (a) An anatomical gift may be made to
the following persons named in the document of gift:
(1) a hospital, an accredited medical school, dental
school, college, or university, an organ procurement organization,
or another appropriate person for research or education;
(2) subject to Subsection (b), an individual
designated by the person making the anatomical gift if the
individual is the recipient of the part;
(3) an eye bank or tissue bank; or
(4) the Anatomical Board of the State of Texas.
(b) If an anatomical gift to an individual under Subsection
(a)(2) cannot be transplanted into the individual, the part passes
in accordance with Subsection (g) in the absence of an express,
contrary indication by the person making the anatomical gift.
(c) If an anatomical gift of one or more specific parts or of
all parts is made in a document of gift that does not name a person
described in Subsection (a) but identifies the purpose for which an
anatomical gift may be used, the following rules apply:
(1) if the part is an eye and the gift is for the
purpose of transplantation or therapy, the gift passes to the
appropriate eye bank;
(2) if the part is tissue and the gift is for the
purpose of transplantation or therapy, the gift passes to the
appropriate tissue bank;
(3) if the part is an organ and the gift is for the
purpose of transplantation or therapy, the gift passes to the
appropriate organ procurement organization as custodian of the
organ; and
(4) if the part is an organ, an eye, or tissue and the
gift is for the purpose of research or education, the gift passes to
the appropriate procurement organization.
(d) For the purpose of Subsection (c), if there is more than
one purpose of an anatomical gift set forth in the document of gift
but the purposes are not set forth in any priority, the gift must be
used for transplantation or therapy, if suitable. If the gift
cannot be used for transplantation or therapy, the gift may be used
for research or education.
(e) If an anatomical gift of one or more specific parts is
made in a document of gift that does not name a person described in
Subsection (a) and does not identify the purpose of the gift, the
gift may be used only for transplantation or therapy, and the gift
passes in accordance with Subsection (g).
(f) If a document of gift specifies only a general intent to
make an anatomical gift by words such as "donor," "organ donor," or
"body donor," or by a symbol or statement of similar import, the
gift may be used only for transplantation or therapy, and the gift
passes in accordance with Subsection (g).
(g) For purposes of Subsections (b), (e), and (f), the
following rules apply:
(1) if the part is an eye, the gift passes to the
appropriate eye bank;
(2) if the part is tissue, the gift passes to the
appropriate tissue bank; and
(3) if the part is an organ, the gift passes to the
appropriate organ procurement organization as custodian of the
organ.
(h) An anatomical gift of an organ for transplantation or
therapy, other than an anatomical gift under Subsection (a)(2),
passes to the organ procurement organization as custodian of the
organ.
(i) If an anatomical gift does not pass pursuant to
Subsections (a) through (h) or the decedent's body or part is not
used for transplantation, therapy, research, or education, custody
of the body or part passes to the person under obligation to dispose
of the body or part.
(j) A person may not accept an anatomical gift if the person
knows that the gift was not effectively made under Section 692A.005
or Section 692A.010 or if the person knows that the decedent made a
refusal under Section 692A.007 that was not revoked. For purposes
of this subsection, if a person knows that an anatomical gift was
made on a document of gift, the person is deemed to know of any
amendment or revocation of the gift or any refusal to make an
anatomical gift on the same document of gift.
(k) Except as otherwise provided in Subsection (a)(2),
nothing in this chapter affects the allocation of organs for
transplantation or therapy.
Sec. 692A.012. SEARCH AND NOTIFICATION. The donor card of a
person who is involved in an accident or other trauma shall
accompany the person to the hospital or other health care facility.
The driver's license or personal identification certificate
indicating an affirmative statement of gift of a person who is
involved in an accident or other trauma shall accompany the person
to the hospital or health care facility if the person does not have
a donor card.
Sec. 692A.013. DELIVERY OF DOCUMENT OF GIFT NOT REQUIRED;
RIGHT TO EXAMINE. (a) A document of gift need not be delivered
during the donor's lifetime to be effective.
(b) On or after an individual's death, a person in
possession of a document of gift or a refusal to make an anatomical
gift with respect to the individual shall allow examination and
copying of the document of gift or refusal by a person authorized to
make or object to the making of an anatomical gift with respect to
the individual or by a person to which the gift could pass under
Section 692A.011.
Sec. 692A.014. RIGHTS AND DUTIES OF PROCUREMENT
ORGANIZATION AND OTHERS. (a) When a hospital refers an individual
at or near death to a procurement organization, the organization
shall make a reasonable search of the records of the Department of
Public Safety and any donor registry that it knows exists for the
geographical area in which the individual resides to ascertain
whether the individual has made an anatomical gift.
(b) A procurement organization must be allowed reasonable
access to information in the records of the Department of Public
Safety to ascertain whether an individual at or near death is a
donor.
(c) When a hospital refers an individual at or near death to
a procurement organization, the organization may conduct any
reasonable examination necessary to ensure the medical suitability
of a part that is or could be the subject of an anatomical gift for
transplantation, therapy, research, or education from a donor or a
prospective donor. During the examination period, measures
necessary to ensure the medical suitability of the part may not be
withdrawn unless the hospital or procurement organization knows
that the individual expressed a contrary intent.
(d) Unless prohibited by law other than this chapter, at any
time after a donor's death, the person to which a part passes under
Section 692A.011 may conduct any reasonable examination necessary
to ensure the medical suitability of the body or part for its
intended purpose.
(e) Unless prohibited by law other than this chapter, an
examination under Subsection (c) or (d) may include an examination
of all medical and dental records of the donor or prospective donor.
(f) On the death of a minor who was a donor or had signed a
refusal, unless a procurement organization knows the minor is
emancipated, the procurement organization shall conduct a
reasonable search for the parents of the minor and provide the
parents with an opportunity to revoke or amend the anatomical gift
or revoke the refusal.
(g) On referral by a hospital under Subsection (a), a
procurement organization shall make a reasonable search for any
person listed in Section 692A.009 having priority to make an
anatomical gift on behalf of a prospective donor. If a procurement
organization receives information that an anatomical gift to any
other person was made, amended, or revoked, it shall promptly
advise the other person of all relevant information.
(h) Subject to Sections 692A.011(i) and 693.002, the rights
of the person to which a part passes under Section 692A.011 are
superior to the rights of all others with respect to the part. The
person may accept or reject an anatomical gift wholly or partly.
Subject to the terms of the document of gift and this chapter, a
person that accepts an anatomical gift of an entire body may allow
embalming, burial, or cremation, and use of remains in a funeral
service. If the gift is of a part, the person to which the part
passes under Section 692A.011, on the death of the donor and before
embalming, burial, or cremation, shall cause the part to be removed
without unnecessary mutilation.
(i) The physician who attends the decedent at death or the
physician who determines the time of the decedent's death may not
participate in the procedures for removing or transplanting a part
from the decedent.
(j) A physician or technician may remove a donated part from
the body of a donor that the physician or technician is qualified to
remove.
Sec. 692A.015. COORDINATION OF PROCUREMENT AND USE;
HOSPITAL PROCEDURES. Each hospital in this state shall enter into
agreements or affiliations with procurement organizations for
coordination of procurement and use of anatomical gifts. Each
hospital must have a protocol that ensures its maintenance of an
effective donation system in order to maximize organ, tissue, and
eye donation. The protocol must:
(1) be available to the public during the hospital's
normal business hours;
(2) establish a procedure for the timely notification
to an organ procurement organization of individuals whose death is
imminent or who have died in the hospital;
(3) establish procedures to ensure potential donors
are declared dead by an appropriate practitioner in an acceptable
time frame;
(4) establish procedures to ensure that hospital staff
and organ procurement organization staff maintain appropriate
medical treatment of potential donors while necessary testing and
placement of potential donated organs, tissues, and eyes take
place;
(5) ensure that all families are provided the
opportunity to donate organs, tissues, and eyes, including vascular
organs procured from asystolic donors;
(6) provide that the hospital use appropriately
trained persons from an organ procurement organization, tissue
bank, or eye bank to make inquiries relating to donations;
(7) provide for documentation of the inquiry and of
its disposition in the decedent's medical records;
(8) require an organ procurement organization, tissue
bank, or eye bank that makes inquiries relating to donations to
develop a protocol for making those inquiries;
(9) encourage sensitivity to families' beliefs and
circumstances in all discussions relating to the donations;
(10) provide that the organ procurement organization
determines medical suitability for organ donation and, in the
absence of alternative arrangements by the hospital, the organ
procurement organization determines medical suitability for tissue
and eye donation, using the definition of potential tissue and eye
donor and the notification protocol developed in consultation with
the tissue and eye banks identified by the hospital for this
purpose;
(11) ensure that the hospital works cooperatively with
the designated organ procurement organization, tissue bank, and eye
bank in educating staff on donation issues;
(12) ensure that the hospital works with the
designated organ procurement organization, tissue bank, and eye
bank in reviewing death records; and
(13) provide for monitoring of donation system
effectiveness, including rates of donation, protocols, and
policies, as part of the hospital's quality improvement program.
Sec. 692A.016. SALE OR PURCHASE OF PARTS PROHIBITED. (a)
Except as otherwise provided in Subsection (b), a person commits an
offense if the person for valuable consideration knowingly
purchases or sells a part for transplantation or therapy if removal
of a part from an individual is intended to occur after the
individual's death. An offense under this subsection is a Class A
misdemeanor.
(b) A person may charge a reasonable amount for the removal,
processing, preservation, quality control, storage,
transportation, implantation, or disposal of a part.
(c) If conduct that constitutes an offense under this
section also constitutes an offense under other law, the actor may
be prosecuted under this section, the other law, or both this
section and the other law.
Sec. 692A.017. OTHER PROHIBITED ACTS. (a) A person
commits an offense if the person, in order to obtain a financial
gain, intentionally falsifies, forges, conceals, defaces, or
obliterates a document of gift, an amendment or revocation of a
document of gift, or a refusal. An offense under this section is a
Class A misdemeanor.
(b) If conduct that constitutes an offense under this
section also constitutes an offense under other law, the actor may
be prosecuted under this section, the other law, or both this
section and the other law.
Sec. 692A.018. IMMUNITY. (a) A person who acts in good
faith in accordance with this chapter is not liable for civil
damages or subject to criminal prosecution for the person's action
if the prerequisites for an anatomical gift are met under the laws
applicable at the time and place the gift is made.
(b) A person that acts in accordance with this chapter or
with the applicable anatomical gift law of another state, or
attempts in good faith to do so, is not liable for the act in a civil
action, criminal prosecution, or administrative proceeding.
(c) A person who acts in good faith in accordance with this
chapter is not liable as a result of the action except in the case of
an act or omission of the person that is intentional, wilfully or
wantonly negligent, or done with conscious indifference or reckless
disregard. For purposes of this subsection, "good faith" in
determining the appropriate person authorized to make a donation
under Section 692A.009 means making a reasonable effort to locate
and contact the member or members of the highest priority class who
are reasonably available at or near the time of death.
(d) Neither a person making an anatomical gift nor the
donor's estate is liable for any injury or damage that results from
the making or use of the gift.
(e) In determining whether an anatomical gift has been made,
amended, or revoked under this chapter, a person may rely on
representations of an individual listed in Section 692A.009(a)(2),
(3), (4), (5), (6), (7), or (8) relating to the individual's
relationship to the donor or prospective donor unless the person
knows that the representation is untrue.
Sec. 692A.019. LAW GOVERNING VALIDITY; CHOICE OF LAW AS TO
EXECUTION OF DOCUMENT OF GIFT; PRESUMPTION OF VALIDITY. (a) A
document of gift is valid if executed in accordance with:
(1) this chapter;
(2) the laws of the state or country where it was
executed; or
(3) the laws of the state or country where the person
making the anatomical gift was domiciled, had a place of residence,
or was a national at the time the document of gift was executed.
(b) If a document of gift is valid under this section, the
law of this state governs the interpretation of the document of
gift.
(c) A person may presume that a document of gift or
amendment of an anatomical gift is valid unless that person knows
that it was not validly executed or was revoked.
Sec. 692A.020. GLENDA DAWSON DONATE LIFE-TEXAS REGISTRY;
EDUCATION PROGRAM. (a) In this section, "registry program" means
the donor education, awareness, and registry program established
under this section and known as the Glenda Dawson Donate Life-Texas
Registry.
(b) Any program or component of a program that the
department develops under this chapter shall be known as the Glenda
Dawson Donate Life-Texas Registry.
(c) The department shall affiliate with an entity, such as a
national or state association concerned with organ donation, to
promote the registry program in accordance with this section.
(d) In consultation with the Department of Public Safety and
organ procurement organizations, the department shall establish
the Glenda Dawson Donate Life-Texas Registry.
(e) The department shall enter into an agreement with an
organization selected by the commissioner under a competitive
proposal process for the establishment and maintenance of a
statewide Internet-based registry of organ, tissue, and eye donors.
Contingent on the continued availability of appropriations under
Subsection (k), the term of the initial agreement is two years and
may be renewed for two-year terms thereafter unless terminated in a
written notice to the other party by the department or organization
not later than the 180th day before the last day of a term.
(f) The Department of Public Safety at least monthly shall
electronically transfer to the organization selected by the
commissioner as provided by Subsection (e) the name, date of birth,
driver's license number, most recent address, and any other
relevant information in the possession of the Department of Public
Safety for any person who indicates on the person's driver's license
application under Section 521.401, Transportation Code, that the
person would like to make an anatomical gift and consents in writing
to the release of the information by the Department of Public Safety
to the organization for inclusion in the Internet-based registry.
(g) The contract between the department and the
organization selected by the commissioner as provided by Subsection
(e) must require the organization to:
(1) make information obtained from the Department of
Public Safety under Subsection (f) available to procurement
organizations;
(2) allow potential donors to submit information in
writing directly to the organization for inclusion in the
Internet-based registry;
(3) maintain the Internet-based registry in a manner
that allows procurement organizations to immediately access organ,
tissue, and eye donation information 24 hours a day, seven days a
week through electronic and telephonic methods; and
(4) protect the confidentiality and privacy of the
individuals providing information to the Internet-based registry,
regardless of the manner in which the information is provided.
(h) Except as otherwise provided by Subsection (g)(3) or
this subsection, the Department of Public Safety, the organization
selected by the commissioner under Subsection (e), or a procurement
organization may not sell, rent, or otherwise share any information
provided to the Internet-based registry. A procurement
organization may share any information provided to the registry
with an organ procurement organization or a health care provider or
facility providing medical care to a potential donor as necessary
to properly identify an individual at the time of donation.
(i) The Department of Public Safety, the organization
selected by the commissioner under Subsection (e), or the
procurement organizations may not use any demographic or specific
data provided to the Internet-based registry for any fund-raising
activities. Data may only be transmitted from the selected
organization to procurement organizations through electronic and
telephonic methods using secure, encrypted technology to preserve
the integrity of the data and the privacy of the individuals
providing information.
(j) In each office authorized to issue driver's licenses or
personal identification certificates, the Department of Public
Safety shall make available educational materials developed by the
Texas Organ, Tissue, and Eye Donor Council established under
Chapter 113, as added by Chapter 1186, Acts of the 79th Legislature,
Regular Session, 2005.
(k) The Department of Public Safety shall remit to the
comptroller the money collected under Sections 521.421(g) and
521.422(c), Transportation Code, as provided by those subsections.
A county assessor-collector shall remit to the comptroller any
money collected under Section 502.1745, Transportation Code, as
provided by that section. Money remitted to the comptroller in
accordance with those sections that is appropriated to the
department must be spent in accordance with the priorities
established by the department in consultation with the Texas Organ,
Tissue, and Eye Donor Council to pay the costs of:
(1) maintaining, operating, and updating the
Internet-based registry and establishing procedures for an
individual to be added to the registry; and
(2) designing and distributing educational materials
for prospective donors as required under this section.
(l) Any additional money over the amount necessary to
accomplish the purposes of Subsections (k)(1) and (2) may be used by
the department to provide education under this chapter or may be
awarded using a competitive grant process to organizations to
conduct organ, eye, and tissue donation education activities in
this state. A member of the Texas Organ, Tissue, and Eye Donor
Council may not receive a grant under this subsection.
(m) The department shall require the organization selected
under Subsection (e) to submit an annual written report to the
department that includes:
(1) the number of donors listed on the Internet-based
registry;
(2) changes in the number of donors listed on the
registry; and
(3) the demographic characteristics of listed donors,
to the extent the characteristics may be determined from
information provided on donor registry forms submitted by donors to
the organization.
(n) To the extent funds are available and as part of the
donor registry program, the department shall educate residents
about anatomical gifts. The program shall include information
about:
(1) the laws governing anatomical gifts, including
Subchapter Q, Chapter 521, Transportation Code, Chapter 693, and
this chapter;
(2) the procedures for becoming an organ, eye, or
tissue donor or donee; and
(3) the benefits of organ, eye, or tissue donation.
(o) In developing the registry program, the department in
consultation with the Texas Organ, Tissue, and Eye Donor Council
shall solicit broad-based input reflecting recommendations of all
interested groups, including representatives of patients,
providers, ethnic groups, and geographic regions.
(p) In consultation with the Texas Organ, Tissue, and Eye
Donor Council, the department may implement a training program for
all appropriate Department of Public Safety and Texas Department of
Transportation employees on the benefits of organ, tissue, and eye
donation and the procedures for individuals to be added to the
Internet-based registry. The department shall implement the
training program before the date that the registry is operational
and shall conduct the training on an ongoing basis for new
employees.
(q) The department shall develop a program to educate health
care providers and attorneys in this state about anatomical gifts.
(r) The department through the program shall encourage
attorneys to provide organ donation information to clients seeking
advice for end-of-life decisions.
(s) The department shall encourage medical and nursing
schools in this state to include mandatory organ donation education
in the schools' curricula.
(t) The department shall encourage medical schools in this
state to require a physician in a neurology or neurosurgery
residency program to complete an advanced course in organ donation
education.
Sec. 692A.021. EFFECT OF ANATOMICAL GIFT ON ADVANCE
DIRECTIVE. (a) In this section:
(1) "Advance directive" means a medical power of
attorney or a record signed or authorized by a prospective donor
containing the prospective donor's direction concerning a
health-care decision for the prospective donor.
(2) "Declaration" means a record signed by a
prospective donor specifying the circumstances under which a life
support system may be withheld or withdrawn from the prospective
donor.
(3) "Health-care decision" means any decision made
regarding the health care of the prospective donor.
(b) If a prospective donor has a declaration or advance
directive and the terms of the declaration or directive and the
express or implied terms of a potential anatomical gift are in
conflict with regard to the administration of measures necessary to
ensure the medical suitability of a part for transplantation or
therapy, the prospective donor's attending physician and
prospective donor shall confer to resolve the conflict. If the
prospective donor is incapable of resolving the conflict, an agent
acting under the prospective donor's declaration or directive, or,
if the agent is not reasonably available, another person authorized
by law other than this chapter to make health-care decisions on
behalf of the prospective donor, shall act on the prospective
donor's behalf to resolve the conflict. The conflict must be
resolved as expeditiously as possible. Information relevant to the
resolution of the conflict may be obtained from the appropriate
procurement organization and any other person authorized to make an
anatomical gift for the prospective donor under Section 692A.009.
Before resolution of the conflict, measures necessary to ensure the
medical suitability of the part may not be withheld or withdrawn
from the prospective donor.
(c) If the conflict cannot be resolved, an expedited review
of the matter must be initiated by an ethics or medical committee of
the appropriate health care facility.
Sec. 692A.022. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
In applying and construing this chapter, consideration must be
given to the need to promote uniformity of the law with respect to
the subject matter of this chapter among states that enact a law
substantially similar to this chapter.
Sec. 692A.023. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This chapter modifies, limits, and
supersedes the provisions of the Electronic Signatures in Global
and National Commerce Act (15 U.S.C. Section 7001 et seq.), but does
not modify, limit, or supersede Section 101(a) of that Act (15
U.S.C. Section 7001(a)), or authorize electronic delivery of any of
the notices described in Section 103 of that Act (15 U.S.C. Section
7003(b)).
SECTION 2. Section 241.153, Health and Safety Code, is
amended to read as follows:
Sec. 241.153. DISCLOSURE WITHOUT WRITTEN AUTHORIZATION. A
patient's health care information may be disclosed without the
patient's authorization if the disclosure is:
(1) directory information, unless the patient has
instructed the hospital not to make the disclosure or the directory
information is otherwise protected by state or federal law;
(2) to a health care provider who is rendering health
care to the patient when the request for the disclosure is made;
(3) to a transporting emergency medical services
provider for the purpose of:
(A) treatment or payment, as those terms are
defined by the regulations adopted under the Health Insurance
Portability and Accountability Act of 1996 (Pub. L. No. 104-191);
or
(B) the following health care operations
described by the regulations adopted under the Health Insurance
Portability and Accountability Act of 1996 (Pub. L. No. 104-191):
(i) quality assessment and improvement
activities;
(ii) specified insurance functions;
(iii) conducting or arranging for medical
reviews; or
(iv) competency assurance activities;
(4) to a member of the clergy specifically designated
by the patient;
(5) to a [qualified organ or tissue] procurement
organization as defined in Section 692A.002 [692.002] for the
purpose of making inquiries relating to donations according to the
protocol referred to in Section 692A.015 [692.013(d)];
(6) to a prospective health care provider for the
purpose of securing the services of that health care provider as
part of the patient's continuum of care, as determined by the
patient's attending physician;
(7) to a person authorized to consent to medical
treatment under Chapter 313 or to a person in a circumstance
exempted from Chapter 313 to facilitate the adequate provision of
treatment;
(8) to an employee or agent of the hospital who
requires health care information for health care education, quality
assurance, or peer review or for assisting the hospital in the
delivery of health care or in complying with statutory, licensing,
accreditation, or certification requirements and if the hospital
takes appropriate action to ensure that the employee or agent:
(A) will not use or disclose the health care
information for any other purpose; and
(B) will take appropriate steps to protect the
health care information;
(9) to a federal, state, or local government agency or
authority to the extent authorized or required by law;
(10) to a hospital that is the successor in interest to
the hospital maintaining the health care information;
(11) to the American Red Cross for the specific
purpose of fulfilling the duties specified under its charter
granted as an instrumentality of the United States government;
(12) to a regional poison control center, as the term
is used in Chapter 777, to the extent necessary to enable the center
to provide information and education to health professionals
involved in the management of poison and overdose victims,
including information regarding appropriate therapeutic use of
medications, their compatibility and stability, and adverse drug
reactions and interactions;
(13) to a health care utilization review agent who
requires the health care information for utilization review of
health care under Chapter 4201 [Article 21.58A], Insurance Code;
(14) for use in a research project authorized by an
institutional review board under federal law;
(15) to health care personnel of a penal or other
custodial institution in which the patient is detained if the
disclosure is for the sole purpose of providing health care to the
patient;
(16) to facilitate reimbursement to a hospital, other
health care provider, or the patient for medical services or
supplies;
(17) to a health maintenance organization for purposes
of maintaining a statistical reporting system as required by a rule
adopted by a state agency or regulations adopted under the federal
Health Maintenance Organization Act of 1973, as amended (42 U.S.C.
Section 300e et seq.);
(18) to satisfy a request for medical records of a
deceased or incompetent person pursuant to Section 74.051(e), Civil
Practice and Remedies Code;
(19) to comply with a court order except as provided by
Subdivision (20); or
(20) related to a judicial proceeding in which the
patient is a party and the disclosure is requested under a subpoena
issued under:
(A) the Texas Rules of Civil Procedure or Code of
Criminal Procedure; or
(B) Chapter 121, Civil Practice and Remedies
Code.
SECTION 3. Section 691.030(d), Health and Safety Code, is
amended to read as follows:
(d) The board may transport a body or anatomical specimen to
an authorized recipient in another state if the board determines
that the supply of bodies or anatomical specimens in this state
exceeds the need for bodies or anatomical specimens in this state
and if:
(1) the deceased donated his body in compliance with
Section 691.028 and at the time of the donation authorized the board
to transport the body outside this state; or
(2) the body was donated in compliance with Chapter
692A [692 (Texas Anatomical Gift Act)] and the person authorized to
make the donation under Section 692A.009 [692.004] authorized the
board to transport the body outside this state.
SECTION 4. Sections 693.002(a)(1), (2), and (4), Health and
Safety Code, are amended to read as follows:
(1) On a request from an [a qualified] organ
procurement organization, as defined by [in] Section 692A.002
[692.002], the medical examiner, justice of the peace, county
judge, or physician designated by the justice of the peace or county
judge may permit the removal of organs from a decedent who died
under circumstances requiring an inquest by the medical examiner,
justice of the peace, or county judge if consent is obtained
pursuant to Sections 692A.005 through 692A.010 or Section 693.003.
(2) If no autopsy is required, the organs to be
transplanted shall be released in a timely manner to the
[qualified] organ procurement organization, as defined by [in]
Section 692A.002 [692.002], for removal and transplantation.
(4) If the medical examiner is considering withholding
one or more organs of a potential donor for any reason, the medical
examiner shall be present during the removal of the organs. In such
case, the medical examiner may request a biopsy of those organs or
deny removal of the anatomical gift. If the medical examiner denies
removal of the anatomical gift, the medical examiner shall explain
in writing the reasons for the denial. The medical examiner shall
provide the explanation to:
(A) the [qualified] organ procurement
organization; and
(B) any person listed in Section 692A.009
[693.004] who consented to the removal.
SECTION 5. Section 693.002(b), Health and Safety Code, is
amended to read as follows:
(b) On a request from a [qualified] tissue bank [procurement
organization], as defined by [in] Section 692A.002 [692.002], the
medical examiner may permit the removal of tissue believed to be
clinically usable for transplants or other therapy or treatment
from a decedent who died under circumstances requiring an inquest
if consent is obtained pursuant to Sections 692A.005 through
692A.010 or Section 693.003 or, if consent is not required by those
sections [that section], no objection by a person listed in Section
692A.009 [693.004] is known by the medical examiner. If the medical
examiner denies removal of the tissue, the medical examiner shall
explain in writing the reasons for the denial. The medical examiner
shall provide the explanation to:
(1) the [qualified] tissue bank [procurement
organization]; and
(2) the person listed in Section 692A.009 [693.004]
who consented to the removal.
SECTION 6. Section 693.003, Health and Safety Code, is
amended to read as follows:
Sec. 693.003. CONSENT NOT REQUIRED IN CERTAIN
CIRCUMSTANCES. [(a) A medical examiner or a person acting on the
authority of a medical examiner may not remove a visceral organ
unless the medical examiner or person obtains the consent of a
person listed in Section 693.004.
[(b) If a person listed in Section 693.004 is known and
available within four hours after death is pronounced, a medical
examiner or a person acting on the authority of a medical examiner
may not remove a nonvisceral organ or tissue unless the medical
examiner or person obtains that person's consent.
[(c)] If a person listed in Section 692A.009 [693.004]
cannot be identified and contacted within four hours after death is
pronounced and the county court [medical examiner] determines that
no reasonable likelihood exists that a person can be identified and
contacted during the four-hour period, the county court [medical
examiner] may permit the removal of a nonvisceral organ or tissue.
SECTION 7. Section 693.005, Health and Safety Code, is
amended to read as follows:
Sec. 693.005. IMMUNITY FROM DAMAGES IN CIVIL ACTION. In a
civil action brought by a person listed in Section 692A.009
[693.004] who did not object before the removal of tissue or a body
part specified by Section 693.002, a medical examiner, justice of
the peace, county judge, medical facility, physician acting on
permission of a medical examiner, justice of the peace, or county
judge, or person assisting a physician is not liable for damages on
a theory of civil recovery based on a contention that the
plaintiff's consent was required before the body part or tissue
could be removed.
SECTION 8. Section 693.006, Health and Safety Code, is
amended to read as follows:
Sec. 693.006. REMOVAL OF CORNEAL TISSUE. On a request from
an eye bank, as defined in Section 692A.002 [692.002], the medical
examiner, justice of the peace, county judge, or physician
designated by the justice of the peace or county judge may permit
the removal of corneal tissue subject to the same provisions that
apply to removal of a visceral organ on the request of a [an organ]
procurement organization under this subchapter. The provisions of
Chapter 692A [this subchapter] relating to immunity and consent
apply to the removal of the corneal tissue.
SECTION 9. Sections 521.401(b) and (c), Transportation
Code, are amended to read as follows:
(b) The statement of gift may be shown on a donor's driver's
license or personal identification certificate or by a card
designed to be carried by the donor to evidence the donor's
intentions with respect to organ, tissue, and eye donation. A donor
card signed by the donor shall be given effect as if executed
pursuant to Section 692A.005 [692.003(d)], Health and Safety Code.
(c) Donor cards shall be provided to the department by
[qualified] organ [or tissue] procurement organizations, tissue
banks, or eye banks, as those terms are defined in Section 692A.002
[692.002], Health and Safety Code, or by the Glenda Dawson Donate
Life-Texas [Donor Education, Awareness, and] Registry [Program of
Texas] established under Chapter 692A [49], Health and Safety Code.
The department shall:
(1) provide to each applicant for the issuance of an
original, renewal, corrected, or duplicate driver's license or
personal identification certificate who applies in person, by mail,
over the Internet, or by other electronic means:
(A) the opportunity to indicate on the person's
driver's license or personal identification certificate that the
person is willing to make an anatomical gift, in the event of death,
in accordance with Section 692A.005 [692.003], Health and Safety
Code; and
(B) an opportunity for the person to consent in
writing to the department's provision of the person's name, date of
birth, driver's license number, most recent address, and other
information needed for identification purposes at the time of
donation to the organization selected by the commissioner of state
health services under Section 692A.020 [Chapter 49], Health and
Safety Code, for inclusion in the statewide Internet-based registry
of organ, tissue, and eye donors and for release to procurement
[qualified organ, tissue, and eye bank] organizations; and
(2) provide a means to distribute donor cards to
interested individuals in each office authorized to issue driver's
licenses or personal identification certificates.
SECTION 10. Section 651.407(f), Occupations Code, is
amended to read as follows:
(f) This section does not apply to a dead human body
obtained by a school or college of mortuary science under Chapter
691 or 692A [692], Health and Safety Code.
SECTION 11. The following provisions are repealed:
(1) Chapter 49, Health and Safety Code;
(2) Chapter 692, Health and Safety Code;
(3) Section 693.004, Health and Safety Code;
(4) Section 521.403, Transportation Code; and
(5) Section 521.404, Transportation Code.
SECTION 12. Notwithstanding the repeal of Chapter 49,
Health and Safety Code, by this Act, the Glenda Dawson Donate
Life-Texas Registry described by that chapter is continued in
effect in accordance with Chapter 692A, Health and Safety Code, as
added by this Act.
SECTION 13. This Act takes effect September 1, 2009.