Texas 2011 - 82nd Regular

Texas House Bill HB1009 Compare Versions

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1	1	By: Callegari (Senate Sponsor - Hegar) H.B. No. 1009
2	2	(In the Senate - Received from the House May 5, 2011;
3	3	May 9, 2011, read first time and referred to Committee on Criminal
4	4	Justice; May 21, 2011, reported favorably by the following vote:
5	5	Yeas 6, Nays 0; May 21, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to procedures for obtaining informed consent before
11	11	certain postmortem examinations or autopsies.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. This Act shall be known as the Jerry Carswell
14	14	Memorial Act.
15	15	SECTION 2. Chapter 49, Code of Criminal Procedure, is
16	16	amended by adding Subchapter C to read as follows:
17	17	SUBCHAPTER C. INFORMED CONSENT FOR POSTMORTEM EXAMINATION OR
18	18	AUTOPSY
19	19	Art. 49.31. APPLICABILITY. This subchapter does not apply
20	20	to an autopsy that:
21	21	(1) is ordered by the Texas Department of Criminal
22	22	Justice or an authorized official of the department in accordance
23	23	with Section 501.055, Government Code; or
24	24	(2) a justice of the peace or medical examiner
25	25	determines is required under this chapter or other law.
26	26	Art. 49.32. CONSENT TO POSTMORTEM EXAMINATION OR AUTOPSY.
27	27	(a) Except as provided by Subsection (b) of this article, a
28	28	physician may not perform, or assist in the performance of, a
29	29	postmortem examination or autopsy on the body of a deceased person
30	30	unless the physician obtains the written informed consent of a
31	31	person authorized to provide consent under Article 49.33 of this
32	32	code. The consent must be provided on the form prescribed under
33	33	Article 49.34 of this code.
34	34	(b) If, after due diligence, a physician is unable to
35	35	identify or contact a person authorized to give consent under
36	36	Article 49.33 of this code, the physician may, as authorized by a
37	37	medical examiner, justice of the peace, or county judge, as
38	38	appropriate, perform a postmortem examination or autopsy on the
39	39	body of a deceased person not less than 24 hours and not more than 48
40	40	hours from the time of the decedent's death or the time the
41	41	physician or other person took possession of the body.
42	42	Art. 49.33. PERSONS AUTHORIZED TO CONSENT TO POSTMORTEM
43	43	EXAMINATION OR AUTOPSY. (a) Subject to Subsections (b) and (c) of
44	44	this article, consent for a postmortem examination or autopsy may
45	45	be given by any member of the following classes of persons who is
46	46	reasonably available, in the order of priority listed:
47	47	(1) the spouse of the decedent;
48	48	(2) the person acting as guardian of the person of the
49	49	decedent at the time of death or the executor or administrator of
50	50	the decedent's estate;
51	51	(3) the adult children of the decedent;
52	52	(4) the parents of the decedent; and
53	53	(5) the adult siblings of the decedent.
54	54	(b) If there is more than one member of a class listed in
55	55	Subsection (a)(2), (3), (4), or (5) of this article entitled to give
56	56	consent to a postmortem examination or autopsy, consent may be
57	57	given by a member of the class unless another member of the class
58	58	files an objection with the physician, medical examiner, justice of
59	59	the peace, or county judge. If an objection is filed, the consent
60	60	may be given only by a majority of the members of the class who are
61	61	reasonably available.
62	62	(c) A person may not give consent under this article if, at
63	63	the time of the decedent's death, a person in a class granted higher
64	64	priority under Subsection (a) of this article is reasonably
65	65	available to give consent or to file an objection to a postmortem
66	66	examination or autopsy.
67	67	Art. 49.34. POSTMORTEM EXAMINATION OR AUTOPSY CONSENT FORM.
68	68	The commissioner of state health services, in consultation with the
69	69	Texas Medical Board, shall prescribe a standard written consent
70	70	form for a postmortem examination or autopsy. The form must:
71	71	(1) include the name of the hospital or other
72	72	institution and the department that will perform the examination or
73	73	autopsy;
74	74	(2) include a statement that the removal from the
75	75	deceased person's body and retention by the physician of organs,
76	76	fluids, prosthetic devices, or tissue may be required for purposes
77	77	of comprehensive evaluation or accurate determination of a cause of
78	78	death;
79	79	(3) provide the family of the deceased person with an
80	80	opportunity to place restrictions or special limitations on the
81	81	examination or autopsy;
82	82	(4) include a separate section regarding the
83	83	disposition of organs, fluids, prosthetic devices, or tissue after
84	84	the examination or autopsy, including a prioritized list of the
85	85	persons authorized to control that disposition, as provided by
86	86	Chapter 692A, Health and Safety Code;
87	87	(5) provide for documented and witnessed consent;
88	88	(6) allow authorization for the release of human
89	89	remains to a funeral home or individual designated by the person
90	90	giving consent for the postmortem examination or autopsy;
91	91	(7) include information regarding the rights
92	92	described by Article 49.35 of this code;
93	93	(8) list the circumstances under which a medical
94	94	examiner is required by law to conduct an investigation, inquest,
95	95	or autopsy under Article 49.25 of this code;
96	96	(9) include a statement that the form is required by
97	97	state law; and
98	98	(10) be written in plain language designed to be
99	99	easily understood by the average person.
100	100	Art. 49.35. RIGHT TO NONAFFILIATED PHYSICIAN. (a) A person
101	101	authorized to consent to a postmortem examination or autopsy under
102	102	Article 49.33 of this code may request that a physician who is not
103	103	affiliated with the hospital or other institution where the
104	104	deceased person died:
105	105	(1) perform the postmortem examination or autopsy at
106	106	another hospital or institution; or
107	107	(2) review the postmortem examination or autopsy
108	108	conducted by a physician affiliated with the hospital or other
109	109	institution where the deceased person died.
110	110	(b) A representative of the hospital or other institution
111	111	shall inform the person of the person's right to request the
112	112	performance or review of a postmortem examination or autopsy by a
113	113	nonaffiliated physician under Subsection (a) before the person
114	114	consents to the postmortem examination or autopsy.
115	115	(c) A person requesting a nonaffiliated physician to
116	116	perform or review a postmortem examination or autopsy shall bear
117	117	the additional costs incurred as a result of the nonaffiliated
118	118	physician's performance or review of the examination or autopsy
119	119	under Subsection (a) of this article.
120	120	SECTION 3. Section 501.055(d), Government Code, is amended
121	121	to read as follows:
122	122	(d) If the next of kin consents to the autopsy or does not
123	123	within eight hours of the time of death file an objection with
124	124	[object to] the department about the autopsy, the department or an
125	125	authorized official of the department shall order an autopsy to be
126	126	conducted on the inmate. The order of an autopsy under this
127	127	subsection constitutes consent to an autopsy for the purposes of
128	128	Article 49.32 [49.13(b)], Code of Criminal Procedure.
129	129	SECTION 4. Article 49.13, Code of Criminal Procedure, is
130	130	repealed.
131	131	SECTION 5. (a) Not later than December 31, 2011, the
132	132	Department of State Health Services shall prescribe the written
133	133	consent form required under Article 49.34, Code of Criminal
134	134	Procedure, as added by this Act.
135	135	(b) Notwithstanding Subchapter C, Chapter 49, Code of
136	136	Criminal Procedure, as added by this Act, a physician is not
137	137	required to comply with the requirements of that subchapter until
138	138	January 1, 2012.
139	139	SECTION 6. (a) Except as provided by Subsection (b) of this
140	140	section, this Act takes effect September 1, 2011.
141	141	(b) Sections 3 and 4 of this Act take effect January 1, 2012.
142	142	* * * * *