By: Callegari (Senate Sponsor - Hegar) H.B. No. 1009
(In the Senate - Received from the House May 5, 2011;
May 9, 2011, read first time and referred to Committee on Criminal
Justice; May 21, 2011, reported favorably by the following vote:
Yeas 6, Nays 0; May 21, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to procedures for obtaining informed consent before
certain postmortem examinations or autopsies.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Jerry Carswell
Memorial Act.
SECTION 2. Chapter 49, Code of Criminal Procedure, is
amended by adding Subchapter C to read as follows:
SUBCHAPTER C. INFORMED CONSENT FOR POSTMORTEM EXAMINATION OR
AUTOPSY
Art. 49.31. APPLICABILITY. This subchapter does not apply
to an autopsy that:
(1) is ordered by the Texas Department of Criminal
Justice or an authorized official of the department in accordance
with Section 501.055, Government Code; or
(2) a justice of the peace or medical examiner
determines is required under this chapter or other law.
Art. 49.32. CONSENT TO POSTMORTEM EXAMINATION OR AUTOPSY.
(a) Except as provided by Subsection (b) of this article, a
physician may not perform, or assist in the performance of, a
postmortem examination or autopsy on the body of a deceased person
unless the physician obtains the written informed consent of a
person authorized to provide consent under Article 49.33 of this
code. The consent must be provided on the form prescribed under
Article 49.34 of this code.
(b) If, after due diligence, a physician is unable to
identify or contact a person authorized to give consent under
Article 49.33 of this code, the physician may, as authorized by a
medical examiner, justice of the peace, or county judge, as
appropriate, perform a postmortem examination or autopsy on the
body of a deceased person not less than 24 hours and not more than 48
hours from the time of the decedent's death or the time the
physician or other person took possession of the body.
Art. 49.33. PERSONS AUTHORIZED TO CONSENT TO POSTMORTEM
EXAMINATION OR AUTOPSY. (a) Subject to Subsections (b) and (c) of
this article, consent for a postmortem examination or autopsy may
be given by any member of the following classes of persons who is
reasonably available, in the order of priority listed:
(1) the spouse of the decedent;
(2) the person acting as guardian of the person of the
decedent at the time of death or the executor or administrator of
the decedent's estate;
(3) the adult children of the decedent;
(4) the parents of the decedent; and
(5) the adult siblings of the decedent.
(b) If there is more than one member of a class listed in
Subsection (a)(2), (3), (4), or (5) of this article entitled to give
consent to a postmortem examination or autopsy, consent may be
given by a member of the class unless another member of the class
files an objection with the physician, medical examiner, justice of
the peace, or county judge. If an objection is filed, the consent
may be given only by a majority of the members of the class who are
reasonably available.
(c) A person may not give consent under this article if, at
the time of the decedent's death, a person in a class granted higher
priority under Subsection (a) of this article is reasonably
available to give consent or to file an objection to a postmortem
examination or autopsy.
Art. 49.34. POSTMORTEM EXAMINATION OR AUTOPSY CONSENT FORM.
The commissioner of state health services, in consultation with the
Texas Medical Board, shall prescribe a standard written consent
form for a postmortem examination or autopsy. The form must:
(1) include the name of the hospital or other
institution and the department that will perform the examination or
autopsy;
(2) include a statement that the removal from the
deceased person's body and retention by the physician of organs,
fluids, prosthetic devices, or tissue may be required for purposes
of comprehensive evaluation or accurate determination of a cause of
death;
(3) provide the family of the deceased person with an
opportunity to place restrictions or special limitations on the
examination or autopsy;
(4) include a separate section regarding the
disposition of organs, fluids, prosthetic devices, or tissue after
the examination or autopsy, including a prioritized list of the
persons authorized to control that disposition, as provided by
Chapter 692A, Health and Safety Code;
(5) provide for documented and witnessed consent;
(6) allow authorization for the release of human
remains to a funeral home or individual designated by the person
giving consent for the postmortem examination or autopsy;
(7) include information regarding the rights
described by Article 49.35 of this code;
(8) list the circumstances under which a medical
examiner is required by law to conduct an investigation, inquest,
or autopsy under Article 49.25 of this code;
(9) include a statement that the form is required by
state law; and
(10) be written in plain language designed to be
easily understood by the average person.
Art. 49.35. RIGHT TO NONAFFILIATED PHYSICIAN. (a) A person
authorized to consent to a postmortem examination or autopsy under
Article 49.33 of this code may request that a physician who is not
affiliated with the hospital or other institution where the
deceased person died:
(1) perform the postmortem examination or autopsy at
another hospital or institution; or
(2) review the postmortem examination or autopsy
conducted by a physician affiliated with the hospital or other
institution where the deceased person died.
(b) A representative of the hospital or other institution
shall inform the person of the person's right to request the
performance or review of a postmortem examination or autopsy by a
nonaffiliated physician under Subsection (a) before the person
consents to the postmortem examination or autopsy.
(c) A person requesting a nonaffiliated physician to
perform or review a postmortem examination or autopsy shall bear
the additional costs incurred as a result of the nonaffiliated
physician's performance or review of the examination or autopsy
under Subsection (a) of this article.
SECTION 3. Section 501.055(d), Government Code, is amended
to read as follows:
(d) If the next of kin consents to the autopsy or does not
within eight hours of the time of death file an objection with
[object to] the department about the autopsy, the department or an
authorized official of the department shall order an autopsy to be
conducted on the inmate. The order of an autopsy under this
subsection constitutes consent to an autopsy for the purposes of
Article 49.32 [49.13(b)], Code of Criminal Procedure.
SECTION 4. Article 49.13, Code of Criminal Procedure, is
repealed.
SECTION 5. (a) Not later than December 31, 2011, the
Department of State Health Services shall prescribe the written
consent form required under Article 49.34, Code of Criminal
Procedure, as added by this Act.
(b) Notwithstanding Subchapter C, Chapter 49, Code of
Criminal Procedure, as added by this Act, a physician is not
required to comply with the requirements of that subchapter until
January 1, 2012.
SECTION 6. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2011.
(b) Sections 3 and 4 of this Act take effect January 1, 2012.
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