By: Wentworth S.B. No. 312
(In the Senate - Filed November 21, 2008; February 11, 2009,
read first time and referred to Committee on Jurisprudence;
April 20, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 0; April 20, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 312 By: Wentworth
A BILL TO BE ENTITLED
AN ACT
relating to the regulation and certification of medical examiners
and the conduct of autopsy and inquest investigations by justices
of the peace and medical examiners; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 49.01, Code of Criminal Procedure, is
amended to read as follows:
Art. 49.01. DEFINITIONS. In this chapter [article]:
(1) "Autopsy" means a post mortem examination of the
body of a person, including an external examination of the body
[X-rays] and an examination of the internal organs [and structures
after dissection], to determine the cause and manner of death or the
nature of any pathological changes that may have contributed to the
death or to obtain information or material for evidentiary or
identification purposes. The forensic pathologist or physician
performing the autopsy may limit the individuals in attendance at
the examination and may vary the extent of the examination. The
examination may include:
(A) radiographs;
(B) a microscopic examination;
(C) retention of an organ part or whole organ;
(D) an anthropologic examination;
(E) a dental examination;
(F) any other procedure considered necessary by
the examining forensic pathologist or physician; or
(G) at the discretion of the medical examiner,
the medical examiner's designee, or the justice of the peace, as
appropriate, an in-person examination of the scene of death or
injury or an examination of the scene through reports or
photographs related to the injury or death.
(1-a) "Forensic pathologist" means a physician who is
board certified in anatomic and forensic pathology by the American
Board of Pathology.
(2) "Inquest" means an investigation into the cause
and circumstances of the death of a person, and a determination,
made with or without a formal court hearing, as to whether the death
was caused by an unlawful act or omission. The term includes each
level of investigation, from rudimentary information gathering to a
complete autopsy examination and formal hearing.
(3) "Inquest hearing" means a formal court hearing
held to determine whether the death of a person was caused by an
unlawful act or omission and, if the death was caused by an unlawful
act or omission, to obtain evidence to form the basis of a criminal
prosecution.
(4) "Institution" means any place where health care
services are rendered, including a hospital, clinic, health
facility, nursing home, extended-care facility, out-patient
facility, foster-care facility, and retirement home.
(5) "Physician" means a practicing doctor of medicine
or doctor of osteopathic medicine who is licensed by the Texas
[State Board of] Medical Board [Examiners] under Subtitle B, Title
3, Occupations Code.
SECTION 2. Section 1, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. OFFICE AUTHORIZED. Subject to the provisions of
this Article [Act], the Commissioners Court of any county having a
population of more than one million [and not having a reputable
medical school as defined in Articles 4501 and 4503, Revised Civil
Statutes of Texas,] shall establish and maintain the office of
medical examiner, and the Commissioners Court of any county may
establish and provide for the maintenance of the office of medical
examiner. Population shall be according to the last preceding
federal census.
SECTION 3. Subsection (b), Section 1-a, Article 49.25, Code
of Criminal Procedure, is amended to read as follows:
(b) There may be only one chief medical examiner in a
medical examiners district, although the chief medical examiner
[he] may employ, within the district, necessary staff personnel,
including deputy medical examiners. When a county becomes a part of
a medical examiners district, the effect is the same within the
county as if the office of medical examiner had been established in
that county alone. A [The] district medical examiner has all the
powers and duties within the district that a medical examiner who
serves in a single county has within that county.
SECTION 4. Section 2, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 2. APPOINTMENTS AND QUALIFICATIONS. (a) The
commissioners court shall appoint the chief medical examiner, who
serves [shall serve] at the pleasure of the commissioners court.
The chief medical examiner must be:
(1) board certified in anatomic and forensic pathology
by the American Board of Pathology; and
(2) [No person shall be appointed medical examiner
unless he is] a physician licensed by the Texas [State Board of]
Medical Board [Examiners. To the greatest extent possible, the
medical examiner shall be appointed from persons having training
and experience in pathology, toxicology, histology and other
medico-legal sciences].
(b) The chief medical examiner shall devote the [so much of
his] time and energy [as is] necessary to perform [in the
performance of] the duties conferred by this Article.
SECTION 5. Section 3, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 3. ASSISTANTS. (a) The chief medical examiner may,
subject to the approval of the commissioners court, employ the
[such] deputy medical examiners, medical, dental, or anthropologic
consultants, scientific experts, trained technicians, officers,
and employees [as may be] necessary to properly perform [the proper
performance of] the duties imposed by this Article on [upon] the
chief medical examiner.
(b) A deputy medical examiner must:
(1) be board certified in anatomic and forensic
pathology; or
(2) have satisfactorily completed accredited
residency and fellowship training programs in anatomic and forensic
pathology and, not later than the third anniversary of the date the
training programs were completed, obtain board certification in
anatomic and forensic pathology.
SECTION 6. Section 4, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 4. SALARIES. The commissioners court shall establish
and pay the salaries and compensations of the chief medical
examiner and the chief medical examiner's [his] staff.
SECTION 7. Section 5, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 5. OFFICES; ACCREDITATION REQUIRED. (a) The
commissioners court shall:
(1) provide the chief medical examiner and the chief
medical examiner's [his] staff with adequate office space; and
(2) [shall] provide laboratory facilities or make
arrangements for the use of existing laboratory facilities in the
county, if [so] requested by the chief medical examiner.
(b) Each office of medical examiner must:
(1) submit an application for accreditation
inspection to the National Association of Medical Examiners or
another equivalent accreditation organization designated by the
Department of Public Safety of the State of Texas not later than the
second anniversary of the date on which the office is established;
and
(2) be accredited by the National Association of
Medical Examiners or the designated organization not later than the
second anniversary of the date the application for accreditation
inspection is submitted under Subdivision (1).
SECTION 8. Section 6, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 6. DEATH INVESTIGATIONS. (a) A chief [Any] medical
examiner, or the chief medical examiner's [his] duly authorized
deputy medical examiner, shall [be authorized, and it shall be his
duty, to] hold inquests with or without a jury in the [within his]
county in which the office is established[,] in the following
cases:
(1) [1.] When a person dies [shall die] within
twenty-four hours after the person is:
(A) admitted [admission] to a hospital or
institution;
(B) confined [or] in prison or in jail; or
(C) placed in law enforcement custody;
(2) [2.] When any person:
(A) is killed;
(B) [or] from any cause dies an unnatural death,
except under sentence of the law;
(C) [or] dies in the absence of one or more good
witnesses; or
(D) dies as a result of medical treatment or
therapy;
(3) [3.] When the body or a body part of a person is
found and[,] the cause or circumstances of death are unknown[, and:
[(A) the person is identified; or
[(B) the person is unidentified];
(4) [4.] When the circumstances of the death of any
person [are such as to] lead to suspicion that the person died [he
came to his death] by unlawful means;
(5) [5.] When any person commits suicide, or the
circumstances of the person's [his] death [are such as to] lead to
suspicion that the person [he] committed suicide;
(6) [6.] When a person dies who has not [without
having] been attended during the preceding year by a duly licensed
and practicing physician[, and the local health officer or
registrar required to report the cause of death under Section
193.005, Health and Safety Code, does not know the cause of death.
When the local health officer or registrar of vital statistics
whose duty it is to certify the cause of death does not know the
cause of death, he shall so notify the medical examiner of the
county in which the death occurred and request an inquest];
(7) [7.] When the person is a child [who is] younger
than six years of age and the death is reported under Chapter 264,
Family Code; [and]
(8) When an unidentified person dies; and
(9) [8.] When a person dies who has been attended
immediately preceding the person's [his] death by a duly licensed
and practicing physician or physicians[,] and the [such] physician
or physicians [are not certain as to the cause of death and] are
unable to certify to a reasonable degree of medical probability
[with certainty] the cause of death as required by Section 193.005
[193.004], Health and Safety Code.
(a-1) If a physician is unable to certify the cause of death
to a reasonable degree of medical probability, [In case of such
uncertainty] the attending physician or physicians, or the
superintendent or general manager of the hospital or institution in
which the deceased [shall have] died, shall [so] report the
inability to the medical examiner of the county in which the death
occurred[,] and request an inquest.
(a-2) If a medical examiner determines after performing an
inquest that the death is due to natural causes and the deceased
person was attended by a physician at the time of death or during
the preceding year, the medical examiner may waive the medical
examiner's authority to further investigate the case. If the
medical examiner waives the authority to further investigate the
case, the attending physician shall certify the cause of death.
(b) The inquests authorized and required by this Article
shall be held by the chief medical examiner of the county in which
the death occurred.
(c) In making such investigations and holding such
inquests, the chief medical examiner or an authorized deputy
medical examiner may administer oaths and take affidavits. In the
absence of next of kin or legal representatives of the deceased, the
chief medical examiner or authorized deputy medical examiner shall
take charge of the body and all property found with it.
(d) A medical examiner may subpoena medical records, law
enforcement records, or other types of records required to perform
the duties imposed under this section.
SECTION 9. Section 6a, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 6a. ORGAN TRANSPLANT DONORS; NOTICE; INQUESTS.
(a) When death occurs to an individual designated a prospective
organ donor for transplantation by a licensed physician under
circumstances requiring the chief medical examiner of the county in
which death occurred, or the chief medical examiner's authorized
deputy medical examiner, to hold an inquest, the chief medical
examiner, or a member of the chief medical examiner's [his] staff,
shall [will] be [so] notified by the administrative head of the
facility in which the prospective donor is located [transplantation
is to be performed].
(b) When notified pursuant to Subsection (a) of this
Section, the chief medical examiner or the chief medical examiner's
deputy medical examiner shall perform an inquest on the deceased
prospective organ donor.
(c) Subject to the procedures and requirements established
by Section 693.002, Health and Safety Code, a medical examiner may:
(1) determine before or after the medical examiner
examines the body of the deceased that the release of organs or
tissues for transplant purposes will likely hinder the
determination of the cause or manner of death or compromise an
evidentiary aspect of the examination; and
(2) based on the determination, prohibit or limit the
extent of the organ or tissue removal.
SECTION 10. Subsection (b), Section 7, Article 49.25, Code
of Criminal Procedure, is amended to read as follows:
(b) A person investigating the [a] death of an unidentified
person [described by Subdivision 3(B) of Section 6(a)] shall report
the death to the missing children and missing persons information
clearinghouse of the Department of Public Safety and the national
crime information center not later than the 10th working day after
the date the investigation began.
SECTION 11. Section 8, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 8. REMOVAL OF BODIES. When any death under
circumstances set out in Section 6 of this Article occurs [shall
have occurred], the body shall not be disturbed or removed from the
position in which it is found by any person without authorization
from the chief medical examiner or an authorized deputy medical
examiner, except for the purpose of preserving the [such] body from
loss or destruction or maintaining the flow of traffic on a highway,
railroad, or airport.
SECTION 12. Section 9, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 9. AUTOPSY. (a) If the cause of death is [shall be]
determined beyond a reasonable doubt as a result of the
investigation, the medical examiner shall prepare [file] a report
on the investigation [thereof] setting forth specifically the cause
of death and file the report with the district attorney or criminal
district attorney, or in a county in which there is no district
attorney or criminal district attorney with the county attorney, of
the county in which the death occurred.
(b) If in the opinion of the medical examiner an autopsy is
necessary to determine the cause or manner of death, to better
determine any pathological or injurious process present, or to
obtain evidence for a potential legal proceeding or for
identification purposes, or if the autopsy [such] is requested by
the district attorney or criminal district attorney, or county
attorney where there is no district attorney or criminal district
attorney, the autopsy shall be [immediately] performed by the chief
medical examiner or a duly authorized deputy medical examiner. In
[those] cases where a complete autopsy is considered [deemed]
unnecessary by the medical examiner to ascertain the cause of
death, the medical examiner may perform a limited autopsy or
external inspection of the body that may include [involving the]
taking [of] blood samples or any other samples of body fluids,
tissues, or organs[, in order] to ascertain the cause of death or
whether a crime has been committed.
(c) If [In] the identity [case] of a body of a human being
[whose identity] is unknown, the medical examiner may authorize the
[such] investigative and laboratory tests and processes [as are]
required to determine the [its] identity and [as well as] the cause
of death.
(d) The extent of an autopsy is solely at the discretion of
the medical examiner.
(e) A medical examiner is not required to notify or seek any
approval from a deceased person's next of kin to perform an autopsy
or any other type of examination related to an autopsy.
(f) On [In performing an autopsy the medical examiner or
authorized deputy may use the facilities of any city or county
hospital within the county or such other facilities as are made
available. Upon] completion of the autopsy, the medical examiner
shall prepare [file] a report setting forth the findings in detail
and file the report with the office of the district attorney or
criminal district attorney of the county, or if there is no district
attorney or criminal district attorney, with the county attorney of
the county.
(g) [(b)] A medical examination on an unidentified person
shall include the following information to enable a timely and
accurate identification of the person:
(1) all available fingerprints and palm prints;
(2) dental charts and radiographs (X-rays) of the
person's teeth;
(3) [frontal and lateral] facial photographs with
scale indicated;
(4) notation [and photographs, with scale indicated,]
of a significant scar, mark, tattoo, or item of clothing or other
personal effect found with or near the body;
(5) notation of any identified antemortem medical
conditions; and
(6) notation of observations pertinent to the
estimation of time of death[; and
[(7) precise documentation of the location of burial
of the remains].
(h) [(c)] A medical examination on an unidentified person
may include the following information to enable a timely and
accurate identification of the person:
(1) full body radiographs (X-rays); and
(2) [hair] specimens from the body for DNA
characterization and comparison [with roots].
(i) A medical examiner performing an autopsy of a deceased
person may retain an organ or part of an organ if the medical
examiner determines that retaining the organ or organ part is
necessary for further examination and testing. After completing
the examination or testing on the organ or organ part, the medical
examiner shall:
(1) retain the organ or organ part as required by law
or by published professional or accreditation standards;
(2) dispose of the organ or organ part as a hazardous
biological specimen; or
(3) release the organ or organ part to the funeral
establishment or crematory under Subsection (m)(2).
(j) A medical examiner may not be required to perform an
autopsy on a person whose death resulted from a highly infectious
disease or a chemical or radiological agent that presents a hazard
to the medical examiner, the medical examiner's staff, or the
public.
(k) Except as provided by Subsection (l), a medical examiner
may not perform an autopsy on a deceased person if the medical
examiner receives before the performance of the autopsy a notarized
affidavit signed by the person before the person's death that
states the person's objection for religious reasons to the
performance of an autopsy on the person after the person's death.
(l) A medical examiner may perform an autopsy on a deceased
person following receipt of a notarized affidavit under Subsection
(k) if the chief medical examiner determines a compelling public
necessity exists to perform the autopsy on the deceased person
despite the objection.
(m) If the medical examiner performs the autopsy despite
receipt of a notarized affidavit under Subsection (k), the medical
examiner shall:
(1) use the least invasive means possible in the
performance of the autopsy; and
(2) notwithstanding Subsection (i), release to the
funeral establishment or crematory any organ or organ part retained
by the medical examiner, except as required by law or by published
professional or accreditation standards.
(n) In this section, "compelling public necessity" means:
(1) a criminal homicide investigation in which the
deceased person is the victim;
(2) an immediate and substantial threat to public
health;
(3) the death of a child under 12 years of age for
which the cause of death is not apparent and neglect or a threat to
public health was suspected;
(4) the cause or manner of death of the deceased person
is not apparent after a diligent investigation by the medical
examiner; or
(5) the autopsy is required by law.
SECTION 13. Section 10, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 10. DISINTERMENTS AND CREMATIONS. (a) The [When a
body upon which an inquest ought to have been held has been
interred, the] medical examiner may cause a body that has been
interred and on which an inquest should have been held [it] to be
disinterred for the purpose of holding the [such] inquest.
(b) A [Before any] body on[, upon] which an inquest is
authorized by [the provisions of] this Article may not[, can] be
[lawfully] cremated unless[,] an examination is [autopsy shall be]
performed on the body [thereon] as provided in this Article[,] or a
certificate that the examination [no autopsy] was not necessary is
[shall be] furnished by the medical examiner.
(c) Before a [any] dead body may [can] be [lawfully]
cremated, the owner or operator of the crematory shall demand and be
furnished with a certificate, signed by the medical examiner of the
county in which the death occurred stating [showing] that:
(1) an examination [autopsy] was performed on the
[said] body; or
(2) an examination on the body [that no autopsy
thereon] was not necessary.
(d) The [It shall be the duty of the] medical examiner shall
[to] determine whether or not, from all the circumstances
surrounding the death, an examination [autopsy] is necessary prior
to issuing a certificate under [the provisions of] this section.
(e) The owner or operator of a crematory requesting
authorization to cremate a body shall provide the medical examiner
with a legible and properly completed death certificate.
(f) A medical examiner is not required to perform an
examination [No autopsy shall be required by the medical examiner]
as a prerequisite to cremation if the [in case] death was [is]
caused by [the] pestilential or highly infectious diseases [of
Asiatic cholera, bubonic plague, typhus fever, or smallpox].
(g) All certificates furnished to the owner or operator of a
crematory by any medical examiner, under the terms of this Article,
shall be preserved by the [such] owner or operator until the second
anniversary of [such crematory for a period of two years from] the
date of the body's cremation [of said body].
(h) A medical examiner is not required to perform an autopsy
on the body of a deceased person whose death was caused by a
communicable disease during a public health disaster.
SECTION 14. Section 10a, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 10a. WAITING PERIOD BETWEEN DEATH AND CREMATION.
(a) The body of a deceased person shall not be cremated within 48
hours after the time of death as indicated on the regular death
certificate, unless:
(1) the death certificate indicates death was caused
by [the] pestilential or highly infectious diseases; [of Asiatic
cholera, bubonic plague, typhus fever, or smallpox,] or
(2) [unless] the time requirement is waived in writing
by the county medical examiner or, in counties without [not having]
a county medical examiner, a justice of the peace.
(b) In a public health disaster, the commissioner of state
[public] health services may designate other communicable diseases
for which cremation within 48 hours of the time of death is
authorized.
SECTION 15. Section 11, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 11. RECORDS. (a) The medical examiner shall:
(1) keep full and complete records properly indexed
that include[, giving] the name if known of every person whose death
is investigated, the place where the body was found, the date, and
the cause and manner of death;[,] and
(2) [shall] issue a death certificate.
(b) The full report and detailed findings of the autopsy, if
any, shall be a part of the record.
(c) [Copies of all records shall promptly be delivered to
the proper district, county, or criminal district attorney in any
case where further investigation is advisable.] The records are
subject to required public disclosure in accordance with Chapter
552, Government Code, except that a photograph or x-ray of a body
taken during a medical examiner investigation [an autopsy] is
excepted from required public disclosure in accordance with Chapter
552, Government Code, but is subject to disclosure:
(1) under a subpoena or authority of other law; or
(2) if the photograph or x-ray is of the body of a
person who died while in the custody of law enforcement.
SECTION 16. Section 12, Article 49.25, Code of Criminal
Procedure, is amended to read as follows:
Sec. 12. TRANSFER OF DUTIES OF JUSTICE OF PEACE. When the
commissioners court of any county establishes [shall establish] the
office of medical examiner, all powers and duties of justices of the
peace in the [such] county relating to the investigation of deaths
and inquests [shall] vest in the office of the medical examiner.
Any subsequent General Law pertaining to the duties of justices of
the peace in death investigations and inquests [shall] apply to the
medical examiner in the county [such counties as] to the extent not
inconsistent with this Article, and all laws or parts of laws
otherwise in conflict with this Article [herewith] are [hereby]
declared [to be] inapplicable to this Article.
SECTION 17. Subsection (a), Section 14, Article 49.25, Code
of Criminal Procedure, is amended to read as follows:
(a) A person commits an offense if the person knowingly
violates this article or knowingly provides false information to a
medical examiner in the performance by the medical examiner of an
investigation under this article.
SECTION 18. Section 13, Article 49.25, Code of Criminal
Procedure, is repealed.
SECTION 19. Article 49.25, Code of Criminal Procedure, is
amended by adding Sections 13A and 13B to read as follows:
Sec. 13A. FEES. A medical examiner may charge reasonable
fees for services provided by the medical examiner's office under
this Article, including cremation approvals, court testimonies,
consultations, and depositions.
Sec. 13B. EDUCATION AND RESEARCH. (a) A medical examiner
may use for educational or teaching purposes photographs taken
during a death investigation.
(b) A medical examiner's office may engage in educational
and research activities that do not interfere with the performance
of the duties imposed on the office under this Article.
SECTION 20. (a) Notwithstanding Sections 2 and 3, Article
49.25, Code of Criminal Procedure, as amended by this Act, a person
serving as the chief medical examiner or a deputy medical examiner
for a medical examiners district or county in this state on the
effective date of this Act is not required to be board certified in
anatomic and forensic pathology by the American Board of Pathology
to continue to hold that position of chief medical examiner or
deputy medical examiner for that district or county.
(b) Notwithstanding Section 5, Article 49.25, Code of
Criminal Procedure, as amended by this Act, the office of a medical
examiner that was established on or before the effective date of
this Act for a medical examiners district or county in this state is
not required to obtain accreditation by the National Association of
Medical Examiners or an equivalent organization designated by the
Department of Public Safety of the State of Texas before September
1, 2013.
SECTION 21. This Act takes effect September 1, 2009.
* * * * *