By Moncrief                                           S.B. No. 1260
         76R6188 CMR-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to certain advance directives for medical treatment;
 1-3     providing administrative penalties.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5                       ARTICLE 1.  ADVANCE DIRECTIVES
 1-6           SECTION 1.01.  Subtitle H, Title 2, Health and Safety Code,
 1-7     is amended by adding a chapter heading for Chapter 166 to read as
 1-8     follows:
 1-9                      CHAPTER 166.  ADVANCE DIRECTIVES
1-10           SECTION 1.02.  Subtitle H, Title 2, Health and Safety Code,
1-11     is amended by adding Subchapter A, Chapter 166, to read as follows:
1-12                      SUBCHAPTER A.  GENERAL PROVISIONS
1-13           Sec. 166.001.  SHORT TITLE.  This chapter may be cited as the
1-14     Advance Directives Act.
1-15           Sec. 166.002.  DEFINITIONS.  In this chapter:
1-16                 (1)  "Advance directive" means:
1-17                       (A)  a directive, as that term is defined by
1-18     Section 166.031;
1-19                       (B)  an out-of-hospital DNR order, as that term
1-20     is defined by Section 166.081; or
1-21                       (C)  a durable power of attorney for health care.
1-22                 (2)  "Attending physician" means a physician selected
1-23     by or assigned to a patient who has primary responsibility for a
1-24     patient's treatment and care.
 2-1                 (3)  "Competent" means possessing the ability, based on
 2-2     reasonable medical judgment, to understand and appreciate the
 2-3     nature and  consequences of a treatment decision, including the
 2-4     significant benefits and harms of and reasonable alternatives to a
 2-5     proposed treatment decision.
 2-6                 (4)  "Declarant" means a person who has executed or
 2-7     issued a directive under this chapter.
 2-8                 (5)  "Durable power of attorney for health care" means
 2-9     a document delegating to an agent authority to make health care
2-10     decisions executed or issued under Subchapter D.
2-11                 (6)  "Incompetent" means lacking the ability, based on
2-12     reasonable medical judgment, to understand and appreciate the
2-13     nature and consequences of a treatment decision, including the
2-14     significant benefits and harms of and reasonable alternatives to a
2-15     proposed treatment decision.
2-16                 (7)  "Life-sustaining procedure" means a medical
2-17     procedure, treatment, or intervention that uses mechanical or other
2-18     artificial means to sustain, restore, or supplant a vital function
2-19     and, when applied to a person in a terminal condition, serves only
2-20     to prolong the process of dying.  The term does not include the
2-21     administration of medication or the performance of a medical
2-22     procedure considered to be necessary to provide comfort or care or
2-23     to alleviate pain.
2-24                 (8)  "Physician" means:
2-25                       (A)  a physician licensed by the Texas State
2-26     Board of Medical Examiners; or
2-27                       (B)  a properly credentialed physician who holds
 3-1     a commission in the uniformed services of the United States and who
 3-2     is serving on active duty in this state.
 3-3                 (9)  "Terminal condition" means an incurable or
 3-4     irreversible condition caused by injury, disease, or illness that
 3-5     would produce death without the application of life-sustaining
 3-6     procedures, according to reasonable medical judgment, and in which
 3-7     the application of life-sustaining procedures serves only to
 3-8     postpone the moment of the patient's death.  A patient who has been
 3-9     admitted to a program under which the person receives hospice
3-10     services provided by a home and community support services agency
3-11     licensed under Chapter 142 is presumed to have a terminal condition
3-12     for purposes of this chapter.
3-13           Sec. 166.003.  WITNESSES.  In any circumstance in which this
3-14     chapter requires the execution of an advance directive or the
3-15     issuance of a nonwritten advance directive to be witnessed, at
3-16     least one of the witnesses must be a person who is not:
3-17                 (1)  a person designated by the declarant to make a
3-18     treatment decision;
3-19                 (2)  a person related to the declarant by blood or
3-20     marriage;
3-21                 (3)  a person entitled to any part of the declarant's
3-22     estate after the declarant's death under a will or codicil executed
3-23     by the declarant or by operation of law;
3-24                 (4)  the attending physician;
3-25                 (5)  an employee of the attending physician;
3-26                 (6)  an employee of a health care facility in which the
3-27     declarant is a patient if the employee is providing direct patient
 4-1     care to the declarant or is an officer, director, partner, or
 4-2     business office employee of the health care facility or of any
 4-3     parent organization of the health care facility; or
 4-4                 (7)  a person who, at the time the written directive is
 4-5     executed or at the time the nonwritten directive is issued, has a
 4-6     claim against any part of the declarant's estate after the
 4-7     declarant's death.
 4-8           Sec. 166.004.  STATEMENT RELATING TO ADVANCE DIRECTIVE.  (a)
 4-9     In this section, "health care provider" means:
4-10                 (1)  a hospital;
4-11                 (2)  an institution licensed under Chapter 242,
4-12     including a skilled nursing facility;
4-13                 (3)  a home and community support services agency;
4-14                 (4)  a personal care facility; and
4-15                 (5)  a special care facility.
4-16           (b)  A health care provider shall maintain written policies
4-17     regarding the implementation of advance directives.  The policies
4-18     must include a clear and precise statement of any procedure the
4-19     health care provider is unwilling or unable to withhold in
4-20     accordance with an advance directive.
4-21           (c)  Except as provided by Subsection (g), the health care
4-22     provider shall provide written notice to an individual of the
4-23     written policies described by Subsection (b).  The notice must be
4-24     provided at the earlier of:
4-25                 (1)  the time the individual is admitted to receive
4-26     services from the health care provider; or
4-27                 (2)  the time the health care provider begins providing
 5-1     care to the individual.
 5-2           (d)  If, at the time notice is to be provided under
 5-3     Subsection (c), the individual is incompetent or otherwise
 5-4     incapacitated and unable to receive the notice required by this
 5-5     section, the provider shall provide the required written notice, in
 5-6     the following order of preference, to:
 5-7                 (1)  the individual's legal guardian;
 5-8                 (2)  the individual's spouse;
 5-9                 (3)  the individual's adult child;
5-10                 (4)  the individual's parent;
5-11                 (5)  the person admitting the individual; or
5-12                 (6)  another person responsible for the health care
5-13     decisions of the individual.
5-14           (e)  If Subsection (d) applies and except as provided by
5-15     Subsection (f), if a health care provider is unable, after diligent
5-16     search, to locate an individual listed by Subsection (d), the
5-17     health care provider is not required to provide the notice.
5-18           (f)  If an individual who was incompetent or otherwise
5-19     incapacitated and unable to receive the required notice at the time
5-20     notice was to be provided under Subsection (c) later becomes able
5-21     to receive the notice, the health care provider shall provide the
5-22     written notice at the time the individual becomes able to receive
5-23     the notice.
5-24           (g)  This section does not apply to outpatient hospital
5-25     services, including emergency services.
5-26           Sec. 166.005.  ENFORCEABILITY OF ADVANCE DIRECTIVES EXECUTED
5-27     IN ANOTHER JURISDICTION.  An advance directive or similar
 6-1     instrument validly executed in another state or jurisdiction shall
 6-2     be given the same effect as an advance directive validly executed
 6-3     under the law of this state.  This section does not authorize the
 6-4     administration, withholding, or withdrawal of health care otherwise
 6-5     prohibited by the laws of this state.
 6-6           Sec. 166.006.  EFFECT OF ADVANCE DIRECTIVE ON INSURANCE
 6-7     POLICY AND PREMIUMS.  (a)  The fact that a person has executed or
 6-8     issued an advance directive does not:
 6-9                 (1)  restrict, inhibit, or impair in any manner the
6-10     sale, procurement, or issuance of a life insurance policy to that
6-11     person; or
6-12                 (2)  modify the terms of an existing life insurance
6-13     policy.
6-14           (b)  Notwithstanding the terms of any life insurance policy,
6-15     the fact that life-sustaining procedures are withheld or withdrawn
6-16     from an insured qualified patient under this chapter does not
6-17     legally impair or invalidate that person's life insurance policy.
6-18           (c)  The fact that a person has executed or issued or failed
6-19     to execute or issue an advance directive may not be considered in
6-20     any way in establishing insurance premiums.
6-21           Sec. 166.007.  EXECUTION OF ADVANCE DIRECTIVE MAY NOT BE
6-22     REQUIRED.  A physician, health facility, health care provider,
6-23     insurer, or health care service plan may not require a person to
6-24     execute or issue an advance directive as a condition for obtaining
6-25     insurance for health care services or receiving health care
6-26     services.
6-27           Sec. 166.008.  CONFLICT BETWEEN ADVANCE DIRECTIVES.  To the
 7-1     extent that a treatment decision or an advance directive validly
 7-2     executed or issued under this chapter conflicts with another
 7-3     treatment decision or an advance directive executed or issued under
 7-4     this chapter, the treatment decision made or instrument executed
 7-5     later in time controls.
 7-6           SECTION 1.03.  Chapter 672, Health and Safety Code, is
 7-7     transferred to Subtitle H, Title 2, Health and Safety Code, is
 7-8     redesignated as Subchapter B, Chapter 166, Health and Safety Code,
 7-9     and is amended to read as follows:
7-10        SUBCHAPTER B.  DIRECTIVE TO PHYSICIANS [CHAPTER 672.  NATURAL
7-11                                  DEATH ACT]
7-12           [Sec. 672.001.  SHORT TITLE.  This chapter may be cited as
7-13     the Natural Death Act.]
7-14           Sec. 166.031 [672.002].  DEFINITIONS.  In this subchapter
7-15     [chapter]:
7-16                 (1)  ["Attending physician" means the physician who has
7-17     primary responsibility for a patient's treatment and care.]
7-18                 [(2)  "Competent" means possessing the ability, based
7-19     on reasonable medical judgment, to understand and appreciate the
7-20     nature and consequences of a treatment decision, including the
7-21     significant benefits and harms of and reasonable alternatives to a
7-22     proposed treatment decision.]
7-23                 [(3)  "Declarant" means a person who has executed or
7-24     issued a directive under this chapter.]
7-25                 [(4)]  "Directive" means an instruction made under
7-26     Section 166.032, 166.034, or 166.035 [672.003, 672.005, or 672.006]
7-27     to administer, withhold, or withdraw life-sustaining procedures in
 8-1     the event of a terminal condition.
 8-2                 (2) [(5)  "Incompetent" means lacking the ability,
 8-3     based on reasonable medical judgment, to understand and appreciate
 8-4     the nature and consequences of a treatment decision, including the
 8-5     significant benefits and harms of and reasonable alternatives to a
 8-6     proposed treatment decision.]
 8-7                 [(6)  "Life-sustaining procedure" means a medical
 8-8     procedure or intervention that uses mechanical or other artificial
 8-9     means to sustain, restore, or supplant a vital function, and only
8-10     artificially postpones the moment of death of a patient in a
8-11     terminal condition whose death is imminent or will result within a
8-12     relatively short time without the application of the procedure.
8-13     The term does not include the administration of medication or the
8-14     performance of a medical procedure considered to be necessary to
8-15     provide comfort or care or to alleviate pain.]
8-16                 [(7)  "Physician" means a physician licensed by the
8-17     Texas State Board of Medical Examiners or a properly credentialed
8-18     physician who holds a commission in the uniformed services of the
8-19     United States and who is serving on active duty in this state.]
8-20                 [(8)]  "Qualified patient" means a patient with a
8-21     terminal condition that has been diagnosed and certified in writing
8-22     by the attending physician [and one other physician who have
8-23     personally examined the patient].
8-24                 [(9)  "Terminal condition" means an incurable or
8-25     irreversible condition caused by injury, disease, or illness that
8-26     would produce death without the application of life-sustaining
8-27     procedures, according to reasonable medical judgment, and in which
 9-1     the application of life-sustaining procedures serves only to
 9-2     postpone the moment of the patient's death.]
 9-3           Sec. 166.032 [672.003].  WRITTEN DIRECTIVE BY COMPETENT
 9-4     ADULT; NOTICE TO PHYSICIAN.  (a)  A competent adult may at any time
 9-5     execute a written directive.
 9-6           (b)  The declarant must sign the directive in the presence of
 9-7     two witnesses, at least one of whom must be a witness who qualifies
 9-8     under Section 166.003.  The [and those] witnesses must sign the
 9-9     directive.
9-10           (c)  [A witness may not be:]
9-11                 [(1)  a person designated by the declarant to make a
9-12     treatment decision;]
9-13                 [(2)  a person related to the declarant by blood or
9-14     marriage;]
9-15                 [(3)  a person entitled to any part of the declarant's
9-16     estate after the declarant's death under a will or codicil executed
9-17     by the declarant or by operation of law;]
9-18                 [(4)  the attending physician;]
9-19                 [(5)  an employee of the attending physician;]
9-20                 [(6)  an employee of a health care facility in which
9-21     the declarant is a patient if the employee is providing direct
9-22     patient care to the declarant or is an officer, director, partner,
9-23     or business office employee of the health care facility or of any
9-24     parent organization of the health care facility; or]
9-25                 [(7)  a person who, at the time the written directive
9-26     is executed or if the directive is a nonwritten directive issued
9-27     under Section 672.005, at the time the nonwritten directive is
 10-1    issued, has a claim against any part of the declarant's estate
 10-2    after the declarant's death.]
 10-3          [(d)]  A declarant may include in a directive directions
 10-4    other than those provided by Section 166.033 [672.004] and may
 10-5    designate in a directive a person to make a treatment decision for
 10-6    the declarant in the event the declarant becomes [comatose,]
 10-7    incompetent[,] or otherwise mentally or physically incapable of
 10-8    communication.
 10-9          (d) [(e)]  A declarant shall notify the attending physician
10-10    of the existence of a written directive.  If the declarant is
10-11    [comatose,] incompetent[,] or otherwise mentally or physically
10-12    incapable of communication, another person may notify the attending
10-13    physician of the existence of the written directive.  The attending
10-14    physician shall make the directive a part of the declarant's
10-15    medical record.
10-16          Sec. 166.033 [672.004].  FORM OF WRITTEN DIRECTIVE.  A
10-17    written directive may be in the following form:
10-18                         "DIRECTIVE TO PHYSICIANS
10-19          "Directive made this __________ day of __________ (month,
10-20    year).
10-21          "I ________________________, being of sound mind, wilfully
10-22    and voluntarily make known my desire that my life shall not be
10-23    artificially prolonged under the circumstances set forth in this
10-24    directive.
10-25          "1.  If at any time I should have an incurable or
10-26    irreversible condition caused by injury, disease, or illness
10-27    certified to be a terminal condition by a physician [two
 11-1    physicians], and if the application of life-sustaining procedures
 11-2    would serve only to artificially postpone the moment of my death,
 11-3    and if my attending physician determines that my death is imminent
 11-4    or will result within a relatively short time without the
 11-5    application of life-sustaining procedures, I direct that those
 11-6    procedures be withheld  or  withdrawn,  and  that  I  be permitted
 11-7    to  die naturally.
 11-8          "2.  In the absence of my ability to give directions
 11-9    regarding the use of those life-sustaining procedures, it is my
11-10    intention that this directive be honored by my family and
11-11    physicians as the final expression of my legal right to refuse
11-12    medical or surgical treatment and accept the consequences from that
11-13    refusal.
11-14          "3.  If I have been diagnosed as pregnant and that diagnosis
11-15    is known to my physician, this directive has no effect during my
11-16    pregnancy.
11-17          "4.  This directive is in effect until it is revoked.
11-18          "5.  I understand the full import of this directive and I am
11-19    emotionally and mentally competent to make this directive.
11-20          "6.  I understand that I may revoke this directive at any
11-21    time.
11-22                                           "Signed
11-23    _____________________________
11-24                                  _____________________________________
11-25                                  (City, County, and State of Residence)
11-26          I am not a person designated by the declarant to make a
11-27    treatment decision.  I am not related to the declarant by blood or
 12-1    marriage.  I would not be entitled to any portion of the
 12-2    declarant's estate on the declarant's death.  I am not the
 12-3    attending physician of the declarant or an employee of the
 12-4    attending physician.  I have no claim against any portion of the
 12-5    declarant's estate on the declarant's death.  Furthermore, if I am
 12-6    an employee of a health care facility in which the declarant is a
 12-7    patient, I am not involved in providing direct patient care to the
 12-8    declarant and am not an officer, director, partner, or  business
 12-9    office employee of the health care facility or  of  any  parent
12-10    organization of the health care facility.
12-11                            "Witness___________________________________
12-12                            "Witness__________________________________"
12-13          Sec. 166.034 [672.005].  ISSUANCE OF NONWRITTEN DIRECTIVE BY
12-14    COMPETENT ADULT QUALIFIED PATIENT.  (a)  A competent qualified
12-15    patient who is an adult may issue a directive by a nonwritten means
12-16    of communication.
12-17          (b)  A declarant must issue the nonwritten directive in the
12-18    presence of the attending physician and two witnesses, at least one
12-19    of whom must be a witness who qualifies under Section 166.003.
12-20    [The witnesses must  possess the same qualifications as are
12-21    required by Section 672.003(c).]
12-22          (c)  The physician shall make the fact of the existence of
12-23    the directive a part of the declarant's medical record, and the
12-24    names of the witnesses shall be entered [sign the entry] in the
12-25    medical  record.
12-26          Sec. 166.035 [672.006].  EXECUTION OF DIRECTIVE ON BEHALF OF
12-27    PATIENT YOUNGER THAN 18 YEARS OF AGE.  The following persons may
 13-1    execute a directive on behalf of a qualified patient who is younger
 13-2    than 18 years of age:
 13-3                (1)  the patient's spouse, if the spouse is an adult;
 13-4                (2)  the patient's parents; or
 13-5                (3)  the patient's legal guardian.
 13-6          Sec. 166.036.  NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT
 13-7    OF SPECIFIC FORM PROHIBITED.  (a)  A written directive executed
 13-8    under Section 166.033 or 166.035 is effective without regard to
 13-9    whether the document has been notarized.
13-10          (b)  A physician, health care facility, or health care
13-11    professional may not require that:
13-12                (1)  a directive be notarized; or
13-13                (2)  a person use a form provided by the physician,
13-14    health care facility, or health care professional.
13-15          Sec. 166.037 [672.007].  PATIENT DESIRE SUPERSEDES DIRECTIVE.
13-16    The desire of a competent qualified patient, including a competent
13-17    qualified patient younger than 18 years of age, supersedes the
13-18    effect of a directive.
13-19          Sec. 166.038 [672.008].  PROCEDURE WHEN DECLARANT IS
13-20    INCOMPETENT OR INCAPABLE OF COMMUNICATION.  (a)  This section
13-21    applies when an adult qualified patient has executed or issued a
13-22    directive and is [comatose,] incompetent[,] or otherwise mentally
13-23    or physically incapable of communication.
13-24          (b)  If the adult qualified patient has designated a person
13-25    to make a treatment decision as authorized by Section 166.032(c)
13-26    [672.003(d)], the attending physician and the designated person may
13-27    make a treatment decision to withhold or withdraw life-sustaining
 14-1    procedures from the patient.
 14-2          (c)  If the adult qualified patient has not designated a
 14-3    person to make a treatment decision, the attending physician shall
 14-4    comply with the directive unless the physician believes that the
 14-5    directive does not reflect the patient's present desire.
 14-6          Sec. 166.039 [672.009].  PROCEDURE WHEN PERSON HAS NOT
 14-7    EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF
 14-8    COMMUNICATION.  (a)  If an adult qualified patient has not executed
 14-9    or issued a directive and is [comatose,] incompetent[,] or
14-10    otherwise mentally or physically incapable of communication, the
14-11    attending physician and the patient's legal guardian or an agent
14-12    under a durable power of attorney for health care may make a
14-13    treatment decision that may include a decision to withhold or
14-14    withdraw life-sustaining procedures from the patient.
14-15          (b)  If the patient does not have a legal guardian or an
14-16    agent under a durable power of attorney for health care, the
14-17    attending  physician and one person from one [at least two persons,
14-18    if available,] of the following categories, in the following
14-19    priority, may make a treatment decision that may include a decision
14-20    to withhold or withdraw life-sustaining procedures:
14-21                (1)  the patient's spouse;
14-22                (2)  [a majority of] the patient's reasonably available
14-23    adult children;
14-24                (3)  the patient's parents; or
14-25                (4)  the patient's nearest living relative.
14-26          (c)  A treatment decision made under Subsection (a) or
14-27    (b)  must be based on knowledge of what the patient would desire,
 15-1    if known.
 15-2          (d)  A treatment decision made under Subsection (b) must be
 15-3    documented in the patient's medical record and signed by the
 15-4    attending physician.
 15-5          (e)  If the patient does not have a legal guardian and a
 15-6    person listed in Subsection (b) is not available, a treatment
 15-7    decision made under Subsection (b) must be concurred in [witnessed]
 15-8    by another physician who is not involved in the treatment of the
 15-9    patient or who is an authorized representative of the ethics
15-10    committee of the health care facility in which the person is a
15-11    patient.
15-12          (f)  The fact that an adult qualified patient has not
15-13    executed or issued a directive does not create a presumption that
15-14    the patient does not want a treatment decision to be made to
15-15    withhold or withdraw life-sustaining procedures.
15-16          (g)  A person listed in Subsection (b) who wishes to
15-17    challenge a treatment decision made under this section must apply
15-18    for temporary guardianship under Section 875, Texas Probate Code.
15-19    The court may waive applicable fees in that proceeding.
15-20          Sec. 166.040 [672.010].  PATIENT CERTIFICATION AND
15-21    PREREQUISITES FOR COMPLYING WITH DIRECTIVE.  (a)  An attending
15-22    physician who has been notified of the existence of a directive
15-23    shall provide for the declarant's certification as a qualified
15-24    patient on diagnosis of a terminal condition.
15-25          (b)  Before withholding or withdrawing life-sustaining
15-26    procedures from a qualified patient under this subchapter
15-27    [chapter], the attending physician must[:]
 16-1                [(1)  determine that the patient's death is imminent or
 16-2    will result within a relatively short time without application of
 16-3    those procedures;]
 16-4                [(2)  note that determination in the patient's medical
 16-5    record; and]
 16-6                [(3)]  determine that the steps proposed to be taken
 16-7    are in accord with this subchapter [chapter] and the patient's
 16-8    existing desires.
 16-9          Sec. 166.041 [672.011].  DURATION OF DIRECTIVE.  A directive
16-10    is effective until it is revoked as prescribed by Section 166.042
16-11    [672.012].
16-12          Sec. 166.042 [672.012].  REVOCATION OF DIRECTIVE.  (a)  A
16-13    declarant may revoke a directive at any time without regard to the
16-14    declarant's mental state or competency.  A directive may be revoked
16-15    by:
16-16                (1)  the declarant or someone in the declarant's
16-17    presence and at the declarant's direction canceling, defacing,
16-18    obliterating, burning, tearing, or otherwise destroying the
16-19    directive;
16-20                (2)  the declarant signing and dating a written
16-21    revocation that expresses the declarant's intent to revoke the
16-22    directive; or
16-23                (3)  the declarant orally stating the declarant's
16-24    intent to revoke the directive.
16-25          (b)  A written revocation executed as prescribed by
16-26    Subsection (a)(2) takes effect only when the declarant or a person
16-27    acting on behalf of the declarant notifies the attending physician
 17-1    of its existence or mails the revocation to the attending
 17-2    physician.  The attending physician or the physician's designee
 17-3    shall record in the patient's medical record the time and date when
 17-4    the physician received notice of the written revocation and shall
 17-5    enter the word "VOID" on each page of the copy of the directive in
 17-6    the patient's medical record.
 17-7          (c)  An oral revocation issued as prescribed by Subsection
 17-8    (a)(3) takes effect only when the declarant or a person acting on
 17-9    behalf of the declarant notifies the attending physician of the
17-10    revocation.  The attending physician or the physician's designee
17-11    shall record in the patient's medical record the time, date, and
17-12    place of the revocation, and, if different, the time, date, and
17-13    place that the physician received notice of the revocation.  The
17-14    attending physician or the physician's designees shall also enter
17-15    the word "VOID" on each page of the copy of the directive in the
17-16    patient's medical record.
17-17          (d)  Except as otherwise provided by this subchapter
17-18    [chapter], a person is not civilly or criminally liable for failure
17-19    to act on a revocation made under this section unless the person
17-20    has actual knowledge of the revocation.
17-21          Sec. 166.043 [672.013].  REEXECUTION OF DIRECTIVE.  A
17-22    declarant may at any time reexecute a directive in accordance with
17-23    the procedures prescribed by Section 166.032 [672.003], including
17-24    reexecution after the declarant is diagnosed as having a terminal
17-25    condition.
17-26          [Sec. 672.014.  EFFECT OF DIRECTIVE ON INSURANCE POLICY AND
17-27    PREMIUMS.  (a)  The fact that a person has executed or issued a
 18-1    directive under this chapter does not:]
 18-2                [(1)  restrict, inhibit, or impair in any manner the
 18-3    sale, procurement, or issuance of a life insurance policy to that
 18-4    person; or]
 18-5                [(2)  modify the terms of an existing life insurance
 18-6    policy.]
 18-7          [(b)  Notwithstanding the terms of any life insurance policy,
 18-8    the fact that life-sustaining procedures are withheld or withdrawn
 18-9    from an insured qualified patient under this chapter does not
18-10    legally impair or invalidate that person's life insurance policy.]
18-11          [(c)  A physician, health facility, health provider, insurer,
18-12    or health care service plan may not require a person to execute or
18-13    issue a directive as a condition for obtaining insurance for health
18-14    care services or receiving health care services.]
18-15          [(d)  The fact that a person has executed or issued or failed
18-16    to execute or issue a directive under this chapter may not be
18-17    considered in any way in establishing insurance premiums.]
18-18          Sec. 166.044 [672.015].  LIMITATION OF LIABILITY FOR
18-19    WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES.  (a)  A
18-20    physician or health care facility that causes life-sustaining
18-21    procedures to be withheld or withdrawn from a qualified patient in
18-22    accordance with this subchapter [chapter] is not civilly liable for
18-23    that action unless the physician or health care facility fails to
18-24    exercise reasonable  care when applying the patient's advance
18-25    directive [negligent].
18-26          (b)  A health professional, acting under the direction of a
18-27    physician, who participates in withholding or withdrawing
 19-1    life-sustaining procedures from a qualified patient in accordance
 19-2    with this subchapter [chapter] is not civilly liable for that
 19-3    action unless the health professional fails to exercise reasonable
 19-4    care when applying the patient's advance directive [negligent].
 19-5          (c)  A physician, or a health professional acting under the
 19-6    direction of a physician, who participates in withholding or
 19-7    withdrawing life-sustaining procedures from a qualified patient in
 19-8    accordance with this subchapter [chapter] is not criminally liable
 19-9    or guilty of unprofessional conduct as a result of that action
19-10    unless the physician or health professional fails to exercise
19-11    reasonable care when applying the patient's advance directive
19-12    [negligent].
19-13          (d)  The standard of care that a physician, health care
19-14    facility, or health care professional shall exercise under this
19-15    section is that degree of care that a physician, health care
19-16    facility, or health care professional, as applicable, of ordinary
19-17    prudence and skill would have exercised under the same or similar
19-18    circumstances.
19-19          Sec. 166.045 [672.016].  LIMITATION OF LIABILITY FOR FAILURE
19-20    TO EFFECTUATE DIRECTIVE.  (a)  A physician, health care facility,
19-21    or health care professional who has no knowledge of a directive is
19-22    not civilly or criminally liable for failing to act in accordance
19-23    with the directive.
19-24          (b)  A physician, or a health professional acting under the
19-25    direction of a physician, is subject to review and disciplinary
19-26    action by the appropriate licensing board [not civilly or
19-27    criminally liable]  for failing to effectuate a qualified patient's
 20-1    directive in violation of this subchapter or other laws of this
 20-2    state.  This subsection does not limit remedies available under
 20-3    other laws  of this state.
 20-4          (c)  If an attending physician refuses to comply with a
 20-5    directive or treatment decision, the physician shall make a
 20-6    reasonable effort to transfer the patient to another physician.
 20-7          Sec. 166.046 [672.017].  HONORING DIRECTIVE DOES NOT
 20-8    CONSTITUTE OFFENSE OF AIDING SUICIDE.  A person does not commit an
 20-9    offense under Section 22.08, Penal Code, by withholding or
20-10    withdrawing life-sustaining procedures from a qualified patient in
20-11    accordance with this subchapter [chapter].
20-12          Sec. 166.047 [672.018].  CRIMINAL PENALTY; PROSECUTION.
20-13    (a)  A person commits an offense if the person intentionally
20-14    conceals, cancels, defaces, obliterates, or damages another
20-15    person's directive without that person's consent.  An offense under
20-16    this subsection is a Class A misdemeanor.
20-17          (b)  A person is subject to prosecution for criminal homicide
20-18    under Chapter 19, Penal Code, if the person, with the intent to
20-19    cause life-sustaining procedures to be withheld or withdrawn from
20-20    another person contrary to the other person's desires, falsifies or
20-21    forges a directive or intentionally conceals or withholds personal
20-22    knowledge of a revocation and thereby directly causes
20-23    life-sustaining procedures to be withheld or withdrawn from the
20-24    other person with the result that the other person's death is
20-25    hastened.
20-26          Sec. 166.048 [672.019].  PREGNANT PATIENTS.  A person may not
20-27    withdraw or withhold life-sustaining procedures under this
 21-1    subchapter [chapter] from a pregnant patient.
 21-2          Sec. 166.049 [672.020].  MERCY KILLING NOT CONDONED.  This
 21-3    subchapter [chapter] does not condone, authorize, or approve mercy
 21-4    killing or permit an affirmative or deliberate act or omission to
 21-5    end life except to permit the natural process of dying as provided
 21-6    by this subchapter [chapter].
 21-7          Sec. 166.050 [672.021].  LEGAL RIGHT OR RESPONSIBILITY NOT
 21-8    AFFECTED.  This subchapter [chapter] does not impair or supersede
 21-9    any legal right or responsibility a person may have to effect the
21-10    withholding or withdrawal of life-sustaining procedures in a lawful
21-11    manner.
21-12          SECTION 1.04.  Chapter 674, Health and Safety Code, is
21-13    transferred to Subtitle H, Title 2, Health and Safety Code, is
21-14    redesignated as Subchapter C, Chapter 166, Health and Safety Code,
21-15    and is amended to read as follows:
21-16               SUBCHAPTER C [CHAPTER 674].  OUT-OF-HOSPITAL
21-17                         DO-NOT-RESUSCITATE ORDERS
21-18          Sec. 166.081 [674.001].  DEFINITIONS.  In this subchapter
21-19    [chapter]:
21-20                (1)  ["Attending physician" means the physician who has
21-21    primary responsibility for a person's treatment and care.]
21-22                [(2)  "Board" means the Texas Board of Health.]
21-23                [(3)]  "Cardiopulmonary resuscitation" includes a
21-24    component of cardiopulmonary resuscitation.
21-25                (2) [(4)  "Competent" means possessing the ability,
21-26    based on reasonable medical judgment, to understand and appreciate
21-27    the nature and consequences of a treatment decision, including the
 22-1    significant benefits and harms of, and reasonable alternatives to,
 22-2    a proposed treatment decision.]
 22-3                [(5)  "Declarant" means a person who has executed or
 22-4    issued an out-of-hospital do-not-resuscitate order under this
 22-5    chapter.]
 22-6                [(6)  "Department" means the Texas Department of
 22-7    Health.]
 22-8                [(7)]  "DNR identification device" means an
 22-9    identification device specified by the board under Section 166.101
22-10    [674.023] that is worn for the purpose of identifying a person who
22-11    has executed or issued an out-of-hospital DNR order or on whose
22-12    behalf an out-of-hospital DNR order has been executed or issued
22-13    under this subchapter [chapter].
22-14                (3) [(8)  "Durable power of attorney for health care"
22-15    means a document delegating to an agent the authority to make
22-16    health care decisions for a person in accordance with Chapter 135,
22-17    Civil Practice and Remedies Code.]
22-18                [(9)]  "Emergency medical services" has the meaning
22-19    assigned by Section 773.003.
22-20                (4) [(10)]  "Emergency medical services personnel" has
22-21    the meaning assigned by Section 773.003.
22-22                (5) [(11)]  "Health care professionals" means
22-23    physicians, nurses, and emergency medical services personnel and,
22-24    unless the context requires otherwise, includes hospital emergency
22-25    personnel.
22-26                (6) [(12)  "Incompetent" means lacking the ability,
22-27    based on reasonable medical judgment, to understand and appreciate
 23-1    the nature and consequences of a treatment decision, including the
 23-2    significant benefits and harms of, and reasonable alternatives to,
 23-3    a proposed treatment decision.]
 23-4                [(13)  "Life-sustaining procedure" means a medical
 23-5    procedure, treatment, or intervention that uses mechanical or other
 23-6    artificial means to sustain, restore, or supplant a spontaneous
 23-7    vital function and, when applied to a person in a terminal
 23-8    condition, serves only to prolong the process of dying.  The term
 23-9    does not include the administration of medication or the
23-10    performance of a medical procedure considered to be necessary to
23-11    provide comfort or care or to alleviate pain or the provision of
23-12    water or nutrition.]
23-13                [(14)]  "Out-of-hospital DNR order":
23-14                      (A)  means a legally binding out-of-hospital
23-15    do-not-resuscitate order, in the form specified by the board under
23-16    Section 166.083 [674.003], prepared and signed by the attending
23-17    physician of a person [who has been diagnosed as having a terminal
23-18    condition], that documents the instructions of a person or the
23-19    person's legally authorized representative and directs health care
23-20    professionals acting in an out-of-hospital setting not to initiate
23-21    or continue the following life-sustaining procedures:
23-22                            (i)  cardiopulmonary resuscitation;
23-23                            (ii)  [endotrachacheal intubation or other
23-24    means of] advanced airway management;
23-25                            (iii)  artificial ventilation;
23-26                            (iv)  defibrillation;
23-27                            (v)  transcutaneous cardiac pacing; and
 24-1                            (vi)  [the administration of cardiac
 24-2    resuscitation medications; and]
 24-3                            [(vii)]  other life-sustaining procedures
 24-4    specified by the board under Section 166.101(a) [674.023(a)]; and
 24-5                      (B)  does not include authorization to withhold
 24-6    medical interventions or therapies considered necessary to provide
 24-7    comfort or care or to alleviate pain or to provide water or
 24-8    nutrition.
 24-9                (7) [(15)]  "Out-of-hospital setting" means any setting
24-10    outside of a licensed acute care hospital in which health care
24-11    professionals are called for assistance, including long-term care
24-12    facilities, in-patient hospice facilities, private homes, and
24-13    vehicles during transport.
24-14                (8) [(16)  "Physician" means a physician licensed by
24-15    the Texas State Board of Medical Examiners or a properly
24-16    credentialed physician who holds a commission in the uniformed
24-17    services of the United States and who is serving on active duty in
24-18    this state.]
24-19                [(17)]  "Proxy" means a person designated and
24-20    authorized by a directive executed or issued in accordance with
24-21    Subchapter B [Chapter 672] to make a treatment decision for another
24-22    person in the event the other person becomes [comatose,]
24-23    incompetent[,] or otherwise mentally or physically incapable of
24-24    communication.
24-25                (9) [(18)]  "Qualified relatives" means those persons
24-26    authorized to execute or issue an out-of-hospital DNR order on
24-27    behalf of a person who is [comatose,] incompetent[,] or otherwise
 25-1    mentally or physically incapable of communication under Section
 25-2    166.088 [674.008].
 25-3                (10) [(19)]  "Statewide out-of-hospital DNR protocol"
 25-4    means a set of statewide standardized procedures adopted by the
 25-5    board under Section 166.101(a) [674.023] for withholding
 25-6    cardiopulmonary resuscitation and certain other life-sustaining
 25-7    procedures by health care professionals acting in out-of-hospital
 25-8    settings.
 25-9                [(20)  "Terminal condition" means an incurable or
25-10    irreversible condition caused by injury, disease, or illness that
25-11    would produce death without the application of life-sustaining
25-12    procedures, according to reasonable medical judgment, and in which
25-13    the application of life-sustaining procedures serves only to
25-14    postpone the moment of the person's death.]
25-15          Sec. 166.082 [674.002].  OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE
25-16    TO PHYSICIANS.  (a)  A competent person [who has been diagnosed by
25-17    a physician as having a terminal condition] may at any time execute
25-18    a written out-of-hospital DNR order directing health care
25-19    professionals acting in an out-of-hospital setting to withhold
25-20    cardiopulmonary resuscitation and certain other life-sustaining
25-21    procedures designated by the board.
25-22          (b)  The declarant must sign the out-of-hospital DNR order in
25-23    the presence of two witnesses, at least one of whom must be a
25-24    witness who qualifies under Section 166.003.  The [and those]
25-25    witnesses must sign the  order.  The attending physician of the
25-26    declarant must sign the order and shall make the fact of the
25-27    existence of the order and the reasons for execution of the order a
 26-1    part of the declarant's medical record.
 26-2          (c)  [A witness must have the same qualifications as those
 26-3    provided by Section 672.003(c).]
 26-4          [(d)]  If the person is incompetent but previously executed
 26-5    or issued a directive to physicians in accordance with Subchapter B
 26-6    [Chapter 672], the physician may rely on the directive as the
 26-7    person's instructions to issue an out-of-hospital DNR order and
 26-8    shall place a copy of the directive in the person's medical record.
 26-9    The physician shall sign the order in lieu of the person signing
26-10    under Subsection (b).
26-11          (d) [(e)]  If the person is incompetent but previously
26-12    executed or issued a directive to physicians in accordance with
26-13    Subchapter B [Chapter 672] designating a proxy, the proxy may make
26-14    any decisions required of the designating person as to an
26-15    out-of-hospital DNR order and shall sign the order in lieu of the
26-16    person signing under Subsection (b).
26-17          (e) [(f)]  If the person is now incompetent but previously
26-18    executed or issued a durable power of attorney for health care [in
26-19    accordance with Chapter 135, Civil Practice and Remedies Code,]
26-20    designating an agent, the agent may make any decisions required of
26-21    the designating person as to an out-of-hospital DNR order and shall
26-22    sign the order in lieu of the person signing under Subsection (b).
26-23          (f) [(g)]  The board, on the recommendation of the
26-24    department, shall by rule adopt procedures for the disposition and
26-25    maintenance of records of an original out-of-hospital DNR order and
26-26    any copies of the order.
26-27          (g) [(h)]  An out-of-hospital DNR order is effective on its
 27-1    execution.
 27-2          Sec. 166.083 [674.003].  FORM OF OUT-OF-HOSPITAL DNR ORDER.
 27-3    (a)  A written out-of-hospital DNR order shall be in the standard
 27-4    form specified by board rule as recommended by the department.
 27-5          (b)  The standard form of an out-of-hospital DNR order
 27-6    specified by the board must, at a minimum, contain the following:
 27-7                (1)  a distinctive single-page format that readily
 27-8    identifies the document as an out-of-hospital DNR order;
 27-9                (2)  a title that readily identifies the document as an
27-10    out-of-hospital DNR order;
27-11                (3)  the printed or typed name of the person;
27-12                (4)  a statement that the physician signing the
27-13    document is the attending physician of the person[, that the
27-14    physician has diagnosed the person as having a terminal condition,]
27-15    and that the physician is directing health care professionals
27-16    acting in out-of-hospital settings not to initiate or continue
27-17    certain life-sustaining procedures on behalf of the person, and a
27-18    listing of those procedures not to be initiated or continued;
27-19                (5)  a statement that the person understands that the
27-20    person may revoke the out-of-hospital DNR order at any time by
27-21    destroying the order and removing the DNR identification device, if
27-22    any, or by communicating to health care professionals at the scene
27-23    the person's desire to revoke the out-of-hospital DNR order;
27-24                (6)  places for the printed names and signatures of the
27-25    witnesses and attending physician of the person and the medical
27-26    license number of the attending physician;
27-27                (7)  a separate section for execution of the document
 28-1    by the legal guardian of the person, the person's proxy, an agent
 28-2    of the person having a durable power of attorney for health care,
 28-3    or the attending physician attesting to the issuance of an
 28-4    out-of-hospital DNR order by nonwritten means of communication or
 28-5    acting in accordance with a previously executed or previously
 28-6    issued directive to physicians under Section 166.082(c)
 28-7    [674.002(d)] that includes the following:
 28-8                      (A)  a statement that the legal guardian, the
 28-9    proxy, the agent, the person by nonwritten means of communication,
28-10    or the physician directs that the listed life-sustaining procedures
28-11    should not be initiated or continued in behalf of the person; and
28-12                      (B)  places for the printed names and signatures
28-13    of the witnesses and, as applicable, the legal guardian, proxy,
28-14    agent, or physician;
28-15                (8)  a separate section for execution of the document
28-16    by at least one [two] qualified relative [relatives] of the person
28-17    when the person does not have a legal guardian, proxy, or agent
28-18    having a durable power of attorney for health care and is
28-19    [comatose,] incompetent[,] or otherwise mentally or physically
28-20    incapable of communication, including:
28-21                      (A)  a statement that the relative [relatives] of
28-22    the person is [are] qualified to make a treatment decision to
28-23    withhold  cardiopulmonary resuscitation and certain other
28-24    designated life-sustaining procedures under Section 166.088
28-25    [674.008] and, based on the known desires of the person or a
28-26    determination of the best interest of the person, directs [direct]
28-27    that the listed life-sustaining procedures should not be initiated
 29-1    or continued in behalf of the person; and
 29-2                      (B)  places for the printed names and signatures
 29-3    of the witnesses and qualified relative [relatives] of the person;
 29-4                (9)  a place for entry of the date of execution of the
 29-5    document;
 29-6                (10)  a statement that the document is in effect on the
 29-7    date of its execution and remains in effect until the death of the
 29-8    person or until the document is revoked;
 29-9                (11)  a statement that the document must accompany the
29-10    person during transport;
29-11                (12)  a statement regarding the proper disposition of
29-12    the document or copies of the document, as the board determines
29-13    appropriate; and
29-14                (13)  a statement at the bottom of the document, with
29-15    places for the signature of each person executing the document,
29-16    that the document has been properly completed.
29-17          (c)  The board may, by rule and as recommended by the
29-18    department, modify the standard form of the out-of-hospital DNR
29-19    order described by Subsection (b)  in order to accomplish the
29-20    purposes of this subchapter [chapter].
29-21          (d)  A photocopy or other complete facsimile of the original
29-22    written out-of-hospital DNR order executed under this subchapter
29-23    may be used for any purpose for which the original written order
29-24    may be used under this subchapter.
29-25          Sec. 166.084 [674.004].  ISSUANCE OF OUT-OF-HOSPITAL DNR
29-26    ORDER BY NONWRITTEN COMMUNICATION.  (a)  A competent person who is
29-27    an adult may issue an out-of-hospital DNR order by nonwritten
 30-1    communication.
 30-2          (b)  A declarant must issue the nonwritten out-of-hospital
 30-3    DNR order in the presence of the attending physician and two
 30-4    witnesses, at least one of whom must be a witness who qualifies
 30-5    under Section 166.003.  [The  witnesses must possess the same
 30-6    qualifications as those provided by Section 672.003(c).]
 30-7          (c)  The attending physician and witnesses shall sign the
 30-8    out-of-hospital DNR order in the [that] place of the document
 30-9    provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending
30-10    physician shall sign the document in the place required by Section
30-11    166.083(b)(13) [674.003(b)(13)].  The physician shall make the fact
30-12    of the existence of the out-of-hospital DNR order a part of the
30-13    declarant's medical record and the witnesses shall sign that entry
30-14    in the medical record.
30-15          (d)  An out-of-hospital DNR order issued in the manner
30-16    provided by this section is valid and shall be honored by
30-17    responding health care professionals as if executed in the manner
30-18    provided by Section 166.082 [674.002].
30-19          Sec. 166.085 [674.005].  EXECUTION OF OUT-OF-HOSPITAL DNR
30-20    ORDER ON BEHALF OF A MINOR.  The following persons may execute an
30-21    out-of-hospital DNR order on behalf of a minor:
30-22                (1)  the minor's parents;
30-23                (2)  the minor's legal guardian; or
30-24                (3)  the minor's managing conservator.
30-25          Sec. 166.086 [674.006].  DESIRE OF PERSON SUPERSEDES
30-26    OUT-OF-HOSPITAL DNR ORDER.  The desire of a competent person,
30-27    including a competent minor, supersedes the effect of an
 31-1    out-of-hospital DNR order executed or issued by or on behalf of the
 31-2    person when the desire is communicated to responding health care
 31-3    professionals as provided by this subchapter [chapter].
 31-4          Sec. 166.087 [674.007].  PROCEDURE WHEN DECLARANT IS
 31-5    INCOMPETENT OR INCAPABLE OF COMMUNICATION.  (a)  This section
 31-6    applies when a person 18 years of age or older has executed or
 31-7    issued an out-of-hospital DNR order and subsequently becomes
 31-8    [comatose,] incompetent[,] or otherwise mentally or physically
 31-9    incapable of communication.
31-10          (b)  If the adult person has designated a person to make a
31-11    treatment decision as authorized by Section 166.032(c)
31-12    [672.003(d)], the attending physician and the designated person
31-13    shall comply with the out-of-hospital DNR order.
31-14          (c)  If the adult person has not designated a person to make
31-15    a treatment decision as authorized by Section 166.032(c)
31-16    [672.003(d)], the attending physician shall comply with the
31-17    out-of-hospital DNR order unless the physician believes that the
31-18    order does not reflect the person's present desire.
31-19          Sec. 166.088 [674.008].  PROCEDURE WHEN PERSON HAS NOT
31-20    EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR
31-21    INCAPABLE OF COMMUNICATION.  (a)  If an adult person has not
31-22    executed or issued an out-of-hospital DNR order and is [comatose,]
31-23    incompetent[,] or otherwise mentally or physically incapable of
31-24    communication, the attending physician and the person's legal
31-25    guardian, proxy, or agent having a durable power of attorney for
31-26    health care may execute an out-of-hospital DNR order on behalf of
31-27    the person.
 32-1          (b)  If the person does not have a legal guardian, proxy, or
 32-2    agent under a durable power of attorney for health care, the
 32-3    attending physician and at least one [two] qualified relative from
 32-4    a category listed by Section 166.039(b), subject to the priority
 32-5    established under that subsection, [relatives] may execute an
 32-6    out-of-hospital DNR  order in the same manner as a treatment
 32-7    decision made under Section 166.039(b) [672.009(b)].
 32-8          (c)  A decision to execute an out-of-hospital DNR order made
 32-9    under Subsection (a) or (b) must be based on knowledge of what the
32-10    person would desire, if known.
32-11          (d)  An out-of-hospital DNR order executed under Subsection
32-12    (b) must be made in the presence of at least two witnesses, at
32-13    least one of whom must be a witness who qualifies under Section
32-14    161.003 [who possess the same qualifications that are required by
32-15    Section 672.003(c)].
32-16          (e)  The fact that an adult person has not executed or issued
32-17    an out-of-hospital DNR order does not create a presumption that the
32-18    person does not want a treatment decision made to withhold
32-19    cardiopulmonary resuscitation and certain other designated
32-20    life-sustaining procedures designated by the board.
32-21          (f)  A person listed in Section 166.039(b) who wishes to
32-22    challenge a decision made under this section must apply for
32-23    temporary guardianship under Section 875, Texas Probate Code.  The
32-24    court may waive applicable fees in that proceeding.
32-25          Sec. 166.089 [674.009].  COMPLIANCE WITH OUT-OF-HOSPITAL DNR
32-26    ORDER.  (a)  When responding to a call for assistance, health care
32-27    professionals shall honor an out-of-hospital DNR order in
 33-1    accordance with the statewide out-of-hospital DNR protocol and,
 33-2    where applicable, locally adopted out-of-hospital DNR protocols not
 33-3    in conflict with the statewide protocol if:
 33-4                (1)  the responding health care professionals discover
 33-5    an executed or issued out-of-hospital DNR order form on their
 33-6    arrival at the scene; and
 33-7                (2)  the responding health care professionals comply
 33-8    with this section.
 33-9          (b)  If the person is wearing a DNR identification device,
33-10    the responding health care professionals must comply with Section
33-11    166.090 [674.010].
33-12          (c)  The responding health care professionals must establish
33-13    the identity of the person as the person who executed or issued the
33-14    out-of-hospital DNR order or for whom the out-of-hospital DNR order
33-15    was executed or issued.
33-16          (d)  The responding health care professionals must determine
33-17    that the out-of-hospital DNR order form appears to be valid in that
33-18    it includes:
33-19                (1)  written responses in the places designated on the
33-20    form for the names, signatures, and other information required of
33-21    persons executing or issuing, or witnessing the execution or
33-22    issuance of, the order;
33-23                (2)  a date in the place designated on the form for the
33-24    date the order was executed or issued; and
33-25                (3)  the signature of the declarant or persons
33-26    executing or issuing the order and the attending physician in the
33-27    appropriate places designated on the form for indicating that the
 34-1    order form has been properly completed.
 34-2          (e)  If the conditions prescribed by Subsections (a) through
 34-3    (d) are not determined to apply by the responding health care
 34-4    professionals at the scene, the out-of-hospital DNR order may not
 34-5    be honored and life-sustaining procedures otherwise required by law
 34-6    or local emergency medical services protocols shall be initiated or
 34-7    continued.  Health care professionals acting in out-of-hospital
 34-8    settings are not required to accept or interpret an out-of-hospital
 34-9    DNR order that does not meet the requirements of this subchapter
34-10    [chapter].
34-11          (f)  The out-of-hospital DNR order form or a copy of the
34-12    form, when available, must accompany the person during transport.
34-13          (g)  A record shall be made and maintained of the
34-14    circumstances of each emergency medical services response in which
34-15    an out-of-hospital DNR order or DNR identification device is
34-16    encountered, in accordance with the statewide out-of-hospital DNR
34-17    protocol and any applicable local out-of-hospital DNR protocol not
34-18    in conflict with the statewide protocol.
34-19          (h)  An out-of-hospital DNR order executed or issued and
34-20    documented or evidenced in the manner prescribed by this subchapter
34-21    [chapter] is valid and shall be honored by responding health care
34-22    professionals unless the person or persons found at the scene:
34-23                (1)  identify themselves as the declarant or as the
34-24    attending physician, legal guardian, qualified relative, or agent
34-25    of the person having a durable power of attorney for health care
34-26    who executed or issued the out-of-hospital DNR order on behalf of
34-27    the person; and
 35-1                (2)  request that cardiopulmonary resuscitation or
 35-2    certain other life-sustaining procedures designated by the board be
 35-3    initiated or continued.
 35-4          (i)  If the policies of a health care facility preclude
 35-5    compliance with the out-of-hospital DNR order of a person or an
 35-6    out-of-hospital DNR order issued by an attending physician on
 35-7    behalf of a person who is admitted to or a resident of the
 35-8    facility, or if the facility is unwilling to accept DNR
 35-9    identification devices as evidence of the existence of an
35-10    out-of-hospital DNR order, that facility shall take all reasonable
35-11    steps to notify the person or, if the person is incompetent, the
35-12    person's guardian or the person or persons having authority to make
35-13    health care treatment decisions on behalf of the person, of the
35-14    facility's policy and shall take all reasonable steps to effect the
35-15    transfer of the person to the person's home or to a facility where
35-16    the provisions of this subchapter [chapter] can be carried out.
35-17          Sec. 166.090 [674.010].  DNR IDENTIFICATION DEVICE.  (a)  A
35-18    person who has a valid out-of-hospital DNR order under this
35-19    subchapter [chapter] may wear a DNR identification device around
35-20    the neck or on the wrist as prescribed by board rule adopted under
35-21    Section 166.101 [674.023].
35-22          (b)  The presence of a DNR identification device on the body
35-23    of a person is conclusive evidence that the person has executed or
35-24    issued a valid out-of-hospital DNR order or has a valid
35-25    out-of-hospital DNR order executed or issued on the person's
35-26    behalf.  Responding health care professionals shall honor the DNR
35-27    identification device as if a valid out-of-hospital DNR order form
 36-1    executed or issued by the person were found in the possession of
 36-2    the person.
 36-3          Sec. 166.091 [674.011].  DURATION OF OUT-OF-HOSPITAL DNR
 36-4    ORDER.  An out-of-hospital DNR order is effective until it is
 36-5    revoked as prescribed by Section 166.092 [674.012].
 36-6          Sec. 166.092 [674.012].  REVOCATION OF OUT-OF-HOSPITAL DNR
 36-7    ORDER.  (a)  A declarant may revoke an out-of-hospital DNR order at
 36-8    any time without regard to the declarant's mental state or
 36-9    competency.  An order may be revoked by:
36-10                (1)  the declarant or someone in the declarant's
36-11    presence and at the declarant's direction destroying the order form
36-12    and removing the DNR identification device, if any;
36-13                (2)  a person who identifies himself or herself as the
36-14    legal guardian, as a qualified relative, or as the agent of the
36-15    declarant having a durable power of attorney for health care who
36-16    executed the out-of-hospital DNR order or another person in the
36-17    person's presence and at the person's direction destroying the
36-18    order form and removing the DNR identification device, if any;
36-19                (3)  the declarant communicating the declarant's intent
36-20    to revoke the order; or
36-21                (4)  a person who identifies himself or herself as the
36-22    legal guardian, a qualified relative, or the agent of the declarant
36-23    having a durable power of attorney for health care who executed the
36-24    out-of-hospital DNR order orally stating the person's intent to
36-25    revoke the order.
36-26          (b)  An oral revocation under Subsection (a)(3) or (a)(4)
36-27    takes effect only when the declarant or a person who identifies
 37-1    himself or herself as the legal guardian, a qualified relative, or
 37-2    the agent of the declarant having a durable power of attorney for
 37-3    health care who executed the out-of-hospital DNR order communicates
 37-4    the intent to revoke the order to the responding health care
 37-5    professionals or the attending physician at the scene.  The
 37-6    responding health care professionals shall record the time, date,
 37-7    and place of the revocation in accordance with the statewide
 37-8    out-of-hospital DNR protocol and rules adopted by the board and any
 37-9    applicable local out-of-hospital DNR protocol.  The attending
37-10    physician or the physician's designee shall record in the person's
37-11    medical record the time, date, and place of the revocation and, if
37-12    different, the time, date, and place that the physician received
37-13    notice of the revocation.  The attending physician or the
37-14    physician's designee shall also enter the word "VOID" on each page
37-15    of the copy of the order in the person's medical record.
37-16          (c)  Except as otherwise provided by this subchapter
37-17    [chapter], a person is not civilly or criminally liable for failure
37-18    to act on a revocation made under this section unless the person
37-19    has actual knowledge of the revocation.
37-20          Sec. 166.093 [674.013].  REEXECUTION OF OUT-OF-HOSPITAL DNR
37-21    ORDER.  A declarant may at any time reexecute or reissue an
37-22    out-of-hospital DNR order in accordance with the procedures
37-23    prescribed by Section 166.082 [674.002], including reexecution or
37-24    reissuance after the declarant is diagnosed as having a terminal
37-25    condition.
37-26          [Sec. 674.014.  CONFLICT WITH NATURAL DEATH ACT OR DURABLE
37-27    POWER OF ATTORNEY FOR HEALTH CARE.  To the extent that an
 38-1    out-of-hospital DNR order conflicts with a directive or treatment
 38-2    decision executed or issued under Chapter 672 or a durable power of
 38-3    attorney for health care executed or issued in accordance with
 38-4    Chapter 135, Civil Practice and Remedies Code, the instrument
 38-5    executed later in time controls.]
 38-6          [Sec. 674.015.  EFFECT OF OUT-OF-HOSPITAL DNR ORDER ON
 38-7    INSURANCE POLICY AND PREMIUMS.  (a)  The fact that a person has
 38-8    executed or issued an out-of-hospital DNR order under this chapter
 38-9    does not:]
38-10                [(1)  restrict, inhibit, or impair in any manner the
38-11    sale, procurement, or issuance of a life insurance policy to that
38-12    person; or]
38-13                [(2)  modify the terms of an existing life insurance
38-14    policy.]
38-15          [(b)  Notwithstanding the terms of any life insurance policy,
38-16    the fact that cardiopulmonary resuscitation or certain other
38-17    life-sustaining procedures designated by the board are withheld
38-18    from an insured person under this chapter does not legally impair
38-19    or invalidate that person's life insurance policy and may not be a
38-20    factor for the purpose of determining the payability of benefits or
38-21    the cause of death under the life insurance policy.]
38-22          [(c)  A physician, health facility, health care provider,
38-23    insurer, or health care service plan may not require a person to
38-24    execute or issue an out-of-hospital DNR order as a condition for
38-25    obtaining insurance for health care services or receiving health
38-26    care services.]
38-27          [(d)  The fact that a person has executed or issued or failed
 39-1    to execute or issue an out-of-hospital DNR order under this chapter
 39-2    may not be considered in any way in establishing insurance
 39-3    premiums.]
 39-4          Sec. 166.094 [674.016].  LIMITATION ON LIABILITY FOR
 39-5    WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER
 39-6    LIFE-SUSTAINING PROCEDURES.  (a)  A health care professional or
 39-7    health care facility or entity that in good faith causes
 39-8    cardiopulmonary resuscitation or certain other life-sustaining
 39-9    procedures designated by the board to be withheld from a person in
39-10    accordance with this subchapter [chapter] is not civilly liable for
39-11    that action.
39-12          (b)  A health care professional or health care facility or
39-13    entity that in good faith participates in withholding
39-14    cardiopulmonary resuscitation or certain other life-sustaining
39-15    procedures designated by the board from a person in accordance with
39-16    this subchapter [chapter] is not civilly liable for that action.
39-17          (c)  A health care professional or health care facility or
39-18    entity that in good faith participates in withholding
39-19    cardiopulmonary resuscitation or certain other life-sustaining
39-20    procedures designated by the board from a person in accordance with
39-21    this subchapter [chapter] is not criminally liable or guilty of
39-22    unprofessional conduct as a result of that action.
39-23          (d)  A health care professional or health care facility or
39-24    entity that in good faith causes or participates in withholding
39-25    cardiopulmonary resuscitation or certain other life-sustaining
39-26    procedures designated by the board from a person in accordance with
39-27    this subchapter [chapter] and rules adopted under this subchapter
 40-1    [chapter] is not in violation of any other licensing or regulatory
 40-2    laws or rules of this state and is not subject to any disciplinary
 40-3    action or sanction by any licensing or regulatory agency of this
 40-4    state as a result of that action.
 40-5          Sec. 166.095 [674.017].  LIMITATION ON LIABILITY FOR FAILURE
 40-6    TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER.  (a)  A health care
 40-7    professional or health care facility or entity that has no actual
 40-8    knowledge of an out-of-hospital DNR order is not civilly or
 40-9    criminally liable for failing to act in accordance with the order.
40-10          (b)  A health care professional or health care facility or
40-11    entity is subject to review and disciplinary action by the
40-12    appropriate licensing board [not civilly or criminally liable] for
40-13    failing to effectuate an out-of-hospital DNR order.  This
40-14    subsection does  not limit remedies available under other laws of
40-15    this state.
40-16          (c)  If an attending physician refuses to execute or comply
40-17    with an out-of-hospital DNR order, the physician shall inform the
40-18    person, the legal guardian or qualified relatives of the person, or
40-19    the agent of the person having a durable power of attorney for
40-20    health care and, if the person or another authorized to act on
40-21    behalf of the person so directs, shall make a reasonable effort to
40-22    transfer the person to another physician who is willing to execute
40-23    or comply with an out-of-hospital DNR order.
40-24          Sec. 166.096 [674.018].  HONORING OUT-OF-HOSPITAL DNR ORDER
40-25    DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE.  A person does not
40-26    commit an offense under Section 22.08, Penal Code, by withholding
40-27    cardiopulmonary resuscitation or certain other life-sustaining
 41-1    procedures designated by the board from a person in accordance with
 41-2    this subchapter [chapter].
 41-3          Sec. 166.097 [674.019].  CRIMINAL PENALTY; PROSECUTION.
 41-4    (a)  A person commits an offense if the person intentionally
 41-5    conceals, cancels, defaces, obliterates, or damages another
 41-6    person's out-of-hospital DNR order or DNR identification device
 41-7    without that person's consent or the consent of the person or
 41-8    persons authorized to execute or issue an out-of-hospital DNR order
 41-9    on behalf of the person under this subchapter [chapter].  An
41-10    offense under this subsection is a Class A misdemeanor.
41-11          (b)  A person is subject to prosecution for criminal homicide
41-12    under Chapter 19, Penal Code, if the person, with the intent to
41-13    cause cardiopulmonary resuscitation or certain other
41-14    life-sustaining procedures designated by the board to be withheld
41-15    from another person contrary to the other person's desires,
41-16    falsifies or forges an out-of-hospital DNR order or intentionally
41-17    conceals or withholds personal knowledge of a revocation and
41-18    thereby directly causes cardiopulmonary resuscitation and certain
41-19    other life-sustaining procedures designated by the board to be
41-20    withheld from the other person with the result that the other
41-21    person's death is hastened.
41-22          Sec. 166.098 [674.020].  PREGNANT PERSONS.  A person may not
41-23    withhold cardiopulmonary resuscitation or certain other
41-24    life-sustaining procedures designated by the board under this
41-25    subchapter [chapter] from a person known by the responding health
41-26    care professionals to be pregnant.
41-27          Sec. 166.099 [674.021].  MERCY KILLING NOT CONDONED.  This
 42-1    subchapter [chapter] does not condone, authorize, or approve mercy
 42-2    killing or permit an affirmative or deliberate act or omission to
 42-3    end life except to permit the natural process of dying as provided
 42-4    by this subchapter [chapter].
 42-5          Sec. 166.100 [674.022].  LEGAL RIGHT OR RESPONSIBILITY NOT
 42-6    AFFECTED.  This subchapter [chapter] does not impair or supersede
 42-7    any legal right or responsibility a person may have under a
 42-8    constitution, other statute, regulation, or court decision to
 42-9    effect the withholding of cardiopulmonary resuscitation or certain
42-10    other life-sustaining procedures designated by the board.
42-11          Sec. 166.101 [674.023].  DUTIES OF DEPARTMENT AND BOARD.
42-12    (a)  The board shall, on the recommendation of the department,
42-13    adopt all reasonable and necessary rules to carry out the purposes
42-14    of this subchapter [chapter], including rules:
42-15                (1)  adopting a statewide out-of-hospital DNR order
42-16    protocol that sets out standard procedures for the withholding of
42-17    cardiopulmonary resuscitation and certain other life-sustaining
42-18    procedures by health care professionals acting in out-of-hospital
42-19    settings;
42-20                (2)  designating life-sustaining procedures that may be
42-21    included in an out-of-hospital DNR order, including all procedures
42-22    listed in Sections 166.081(6)(A)(i) through (v) [Section
42-23    674.001(14)(A)(i) through (vi)]; and
42-24                (3)  governing recordkeeping in circumstances in which
42-25    an out-of-hospital DNR order or DNR identification device is
42-26    encountered by responding health care professionals.
42-27          (b)  The rules adopted by the board under Subsection (a) are
 43-1    not effective until approved by the Texas State Board of Medical
 43-2    Examiners.
 43-3          (c)  Local emergency medical services authorities may adopt
 43-4    local out-of-hospital DNR order protocols if the local protocols do
 43-5    not conflict with the statewide out-of-hospital DNR order protocol
 43-6    adopted by the board.
 43-7          (d)  The board by rule shall specify a distinctive standard
 43-8    design for a necklace and a bracelet DNR identification device that
 43-9    signifies, when worn by a person, that the possessor has executed
43-10    or issued a valid out-of-hospital DNR order under this subchapter
43-11    [chapter] or is a person for whom a valid out-of-hospital DNR order
43-12    has been executed or issued.
43-13          (e)  The department shall report to the board from time to
43-14    time regarding issues identified in emergency medical services
43-15    responses in which an out-of-hospital DNR order or DNR
43-16    identification device is encountered.  The report may contain
43-17    recommendations to the board for necessary modifications to the
43-18    form of the standard out-of-hospital DNR order or the designated
43-19    life-sustaining procedures listed in the standard out-of-hospital
43-20    DNR order, the statewide out-of-hospital DNR order protocol, or the
43-21    DNR identification devices.
43-22          [Sec. 674.024.  RECOGNITION OF OUT-OF-HOSPITAL DNR ORDER
43-23    EXECUTED OR ISSUED IN OTHER STATE.  An out-of-hospital DNR order
43-24    executed, issued, or authorized in another state or a territory or
43-25    possession of the United States in compliance with the law of that
43-26    jurisdiction is effective for purposes of this chapter.]
43-27          SECTION 1.05.  Chapter 135, Civil Practice and Remedies Code,
 44-1    is transferred to Subtitle H, Title 2, Health and Safety Code, is
 44-2    redesignated as Subchapter D, Chapter 166, Health and Safety Code,
 44-3    and is amended to read as follows:
 44-4        SUBCHAPTER D [CHAPTER 135].  DURABLE POWER OF ATTORNEY FOR
 44-5                                HEALTH CARE
 44-6          Sec. 166.151 [135.001].  DEFINITIONS.  In this subchapter
 44-7    [chapter]:
 44-8                (1)  "Adult" means a person 18 years of age or older or
 44-9    a person under 18 years of age who has had the disabilities of
44-10    minority removed.
44-11                (2)  "Agent" means an adult to whom authority to make
44-12    health care decisions is delegated under a durable power of
44-13    attorney for health care.
44-14                (3)  ["Attending physician" means the physician,
44-15    selected by or assigned to a patient, who has primary
44-16    responsibility for the treatment and care of the patient.]
44-17                [(4)  "Capacity to make health care decisions" means
44-18    the ability to understand and appreciate the nature and
44-19    consequences of a health care decision, including the significant
44-20    benefits and harms of and reasonable alternatives to any proposed
44-21    health care.]
44-22                [(5)  "Durable power of attorney for health care" means
44-23    a document delegating to an agent the authority to make health care
44-24    decisions as provided by this chapter.]
44-25                [(6)  "Health care decision" means consent, refusal to
44-26    consent, or withdrawal of consent to health care, treatment,
44-27    service, or procedure to maintain, diagnose, or treat an
 45-1    individual's physical or mental condition.]
 45-2                [(7)]  "Health care provider" means an individual or
 45-3    facility licensed, certified, or otherwise authorized to administer
 45-4    health care, for profit or otherwise, in the ordinary course of
 45-5    business or professional practice and includes a physician.
 45-6                (4) [(8)  "Physician" means:]
 45-7                      [(A)  a physician licensed by the Texas State
 45-8    Board of Medical Examiners; or]
 45-9                      [(B)  a physician with proper credentials who
45-10    holds a commission in a branch of the armed services of the United
45-11    States and who is serving on active duty in this state.]
45-12                [(9)]  "Principal" means an adult who has executed a
45-13    durable power of attorney for health care.
45-14                (5) [(10)]  "Residential care provider" means an
45-15    individual or facility licensed, certified, or otherwise authorized
45-16    to operate, for profit or otherwise, a residential care home.
45-17          Sec. 166.152 [135.002].  SCOPE AND DURATION OF AUTHORITY.
45-18    (a)  Subject to this subchapter [chapter] or any express limitation
45-19    on the authority of the agent contained in the durable power of
45-20    attorney for health care, the agent may make any health care
45-21    decision on the principal's behalf that the principal could make if
45-22    the principal were competent [but for the principal's lack of
45-23    capacity to make health care decisions].
45-24          (b)  An agent may exercise authority only if the principal's
45-25    attending physician certifies in writing and files the
45-26    certification in the principal's medical record that, based on the
45-27    attending physician's reasonable medical judgment, the principal is
 46-1    incompetent [lacks capacity to make health care decisions].
 46-2          (c)  Notwithstanding any other provisions of this subchapter
 46-3    [chapter], treatment may not be given to or withheld from the
 46-4    principal if the principal objects regardless of whether, at the
 46-5    time of the objection:
 46-6                (1)  a durable power of attorney for health care is in
 46-7    effect; or
 46-8                (2)  the principal is competent [has the capacity to
 46-9    make health care decisions].
46-10          (d)  The principal's attending physician shall make
46-11    reasonable efforts to inform the principal of any proposed
46-12    treatment or of any proposal to withdraw or withhold treatment
46-13    before implementing an agent's directive.
46-14          (e)  After consultation with the attending physician and
46-15    other health care providers, the agent shall make a health care
46-16    decision:
46-17                (1)  according to the agent's knowledge of the
46-18    principal's wishes, including the principal's religious and moral
46-19    beliefs; or
46-20                (2)  if the agent does not know the principal's wishes,
46-21    according to the agent's assessment of the principal's best
46-22    interests.
46-23          (f)  Notwithstanding any other provision of this subchapter
46-24    [chapter], an agent may not consent to:
46-25                (1)  voluntary inpatient mental health services;
46-26                (2)  convulsive treatment;
46-27                (3)  psychosurgery;
 47-1                (4)  abortion; or
 47-2                (5)  neglect of the principal through the omission of
 47-3    care primarily intended to provide for the comfort of the
 47-4    principal.
 47-5          (g)  The power of attorney is effective indefinitely on
 47-6    execution as provided by this subchapter [chapter] and delivery of
 47-7    the document to the agent, unless it is revoked as provided by this
 47-8    subchapter [chapter] or the principal becomes competent [regains
 47-9    the capacity to make health care decisions].  If the durable power
47-10    of attorney includes an expiration date and on that date the
47-11    principal is incompetent [lacks the capacity to make health care
47-12    decisions], the power of attorney continues to be effective until
47-13    the principal becomes competent [regains the capacity to make
47-14    health care decisions] unless it is revoked as provided by this
47-15    subchapter [chapter].
47-16          Sec. 166.153 [135.003].  PERSONS WHO MAY NOT EXERCISE
47-17    AUTHORITY OF AGENT.  A person may not exercise the authority of an
47-18    agent while the person serves as:
47-19                (1)  the principal's health care provider;
47-20                (2)  an employee of the principal's health care
47-21    provider unless the person is a relative of the principal;
47-22                (3)  the principal's residential care provider; or
47-23                (4)  an employee of the principal's residential care
47-24    provider unless the person is a relative of the principal.
47-25          Sec. 166.154 [135.004].  EXECUTION AND WITNESSES.  (a)  The
47-26    durable power of attorney for health care must be signed by the
47-27    principal in the presence of [at least] two [or more subscribing]
 48-1    witnesses, at least one of whom must be a witness who qualifies
 48-2    under Section 166.003.  The witnesses must sign the document.
 48-3          (b)  [A witness may not, at the time of execution, be:]
 48-4                [(1)  the agent;]
 48-5                [(2)  the principal's health or residential care
 48-6    provider or the provider's employee;]
 48-7                [(3)  the principal's spouse or heir;]
 48-8                [(4)  a person entitled to any part of the estate of
 48-9    the principal on the death of the principal under a will or deed in
48-10    existence or by operation of law; or]
48-11                [(5)  any other person who has any claim against the
48-12    estate of the principal.]
48-13          [(c)  The witnesses shall affirm that, at the time the
48-14    durable power of attorney for health care was signed, the
48-15    principal:]
48-16                [(1)  appeared to be of sound mind to make a health
48-17    care decision;]
48-18                [(2)  stated in the witness's presence that the
48-19    principal was aware of the nature of the durable power of attorney
48-20    for health care and that the principal was signing the document
48-21    voluntarily and free from any duress; and]
48-22                [(3)  requested that the witness serve as a witness to
48-23    the principal's execution of the document].
48-24          [(d)]  If the principal is physically unable to sign, another
48-25    person may sign the durable power of attorney for health care with
48-26    the principal's name in the principal's presence and at the
48-27    principal's express direction.
 49-1          Sec. 166.155 [135.005].  REVOCATION.  (a)  A durable power of
 49-2    attorney for health care is revoked by:
 49-3                (1)  oral or written notification at any time by the
 49-4    principal to the agent or a licensed or certified health or
 49-5    residential care provider or by any other act evidencing a specific
 49-6    intent to revoke the power, without regard to whether the principal
 49-7    is competent or the principal's mental state[, competency, or
 49-8    capacity to make health care decisions];
 49-9                (2)  execution by the principal of a subsequent durable
49-10    power of attorney for health care; or
49-11                (3)  the divorce of the principal and spouse, if the
49-12    spouse is the principal's agent, unless the durable power of
49-13    attorney provides otherwise.
49-14          (b)  A principal's licensed or certified health or
49-15    residential care provider who is informed of or provided with a
49-16    revocation of a durable power of attorney for health care shall
49-17    immediately record the revocation in the principal's medical record
49-18    and give notice of the revocation to the agent and any known health
49-19    and residential care providers currently responsible for the
49-20    principal's care.
49-21          Sec. 166.156 [135.006].  APPOINTMENT OF GUARDIAN.  (a)  On
49-22    motion filed in connection with a petition for appointment of a
49-23    guardian or, if a guardian has been appointed, on petition of the
49-24    guardian, a probate court shall determine whether to suspend or
49-25    revoke the authority of the agent.
49-26          (b)  The court shall consider the preferences of the
49-27    principal as expressed in the durable power of attorney for health
 50-1    care.
 50-2          (c)  During the pendency of the court's determination under
 50-3    Subsection (a), the guardian has the sole authority to make any
 50-4    health care decisions unless the court orders otherwise.  If a
 50-5    guardian has not been appointed, the agent has the authority to
 50-6    make any health care decisions unless the court orders otherwise.
 50-7          (d)  A person, including any attending physician or health or
 50-8    residential care provider, who does not have actual knowledge of
 50-9    the appointment of a guardian or an order of the court granting
50-10    authority to someone other than the agent to make health care
50-11    decisions is not subject to criminal or civil liability and has not
50-12    engaged in unprofessional conduct for implementing an agent's
50-13    health care decision.
50-14          Sec. 166.157 [135.007].  DISCLOSURE OF MEDICAL INFORMATION.
50-15    Subject to any limitations in the durable power of attorney for
50-16    health care, an agent may, for the purpose of making a health care
50-17    decision:
50-18                (1)  request, review, and receive any information, oral
50-19    or written, regarding the principal's physical or mental health,
50-20    including medical and hospital records;
50-21                (2)  execute a release or other document required to
50-22    obtain the information; and
50-23                (3)  consent to the disclosure of the information.
50-24          Sec. 166.158 [135.008].  DUTY OF HEALTH OR RESIDENTIAL CARE
50-25    PROVIDER.  (a)  A principal's health or residential care provider
50-26    and an employee of the provider who knows of the existence of the
50-27    principal's durable power of attorney for health care shall follow
 51-1    a directive of the principal's agent to the extent it is consistent
 51-2    with the desires of the principal, this subchapter [chapter], and
 51-3    the durable power of attorney for health care.
 51-4          (b)  The attending physician does not have a duty to verify
 51-5    that the agent's directive is consistent with the principal's
 51-6    wishes or religious or moral beliefs.
 51-7          (c)  A principal's health or residential care provider who
 51-8    finds it impossible to follow a directive by the agent because of a
 51-9    conflict with this subchapter [chapter] or the durable power of
51-10    attorney for health care shall inform the agent as soon as is
51-11    reasonably possible.  The agent may select another attending
51-12    physician.
51-13          (d)  This subchapter [chapter] may not be construed to
51-14    require a health or residential care provider who is not a
51-15    physician to act in a manner contrary to a physician's order.
51-16          Sec. 166.159 [135.009].  DISCRIMINATION RELATING TO EXECUTION
51-17    OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE.  A health or
51-18    residential care provider, health care service plan, insurer
51-19    issuing disability insurance, self-insured employee benefit plan,
51-20    or nonprofit hospital service plan may not:
51-21                (1)  charge a person a different rate solely because
51-22    the person has executed a durable power of attorney for health
51-23    care;
51-24                (2)  require a person to execute a durable power of
51-25    attorney for health care before:
51-26                      (A)  admitting the person to a hospital, nursing
51-27    home, or residential care home;
 52-1                      (B)  insuring the person; or
 52-2                      (C)  allowing the person to receive health or
 52-3    residential care; or
 52-4                (3)  refuse health or residential care to a person
 52-5    solely because the person has executed a durable power of attorney
 52-6    for health care.
 52-7          Sec. 166.160 [135.010].  LIMITATION ON LIABILITY.  (a)  An
 52-8    agent is not subject to criminal or civil liability for a health
 52-9    care decision if the decision is made in good faith under the terms
52-10    of the durable power of attorney for health care and the provisions
52-11    of this subchapter [chapter].
52-12          (b)  An attending physician, health or residential care
52-13    provider, or a person acting as an agent for or under the
52-14    physician's or provider's control is not subject to criminal or
52-15    civil liability and has not engaged in unprofessional conduct for
52-16    an act or omission if the act or omission:
52-17                (1)  is done in good faith under the terms of the
52-18    durable power of attorney for health care, the directives of the
52-19    agent, and the provisions of this subchapter [chapter]; and
52-20                (2)  does not constitute a failure to exercise
52-21    reasonable [due] care in the provision of health care services.
52-22          (c)  The standard of care that the attending physician,
52-23    health or residential care provider, or person acting as an agent
52-24    for or under the physician's or provider's control shall exercise
52-25    under Subsection (b) is that degree of care that an attending
52-26    physician, health or residential care provider, or person acting as
52-27    an agent for or under the physician's or providers's control, as
 53-1    applicable, of ordinary prudence and skill would have exercised
 53-2    under the same or similar circumstances.
 53-3          (d) [(c)]  An attending physician, health or residential care
 53-4    provider, or person acting as an agent for or under the physician's
 53-5    or provider's control has not engaged in unprofessional conduct
 53-6    for:
 53-7                (1)  failure to act as required by the directive of an
 53-8    agent or a durable power of attorney for health care if the
 53-9    physician, provider, or person was not provided with a copy of the
53-10    durable power of attorney for health care or had no knowledge of a
53-11    directive; or
53-12                (2)  acting as required by an agent's directive if the
53-13    durable power of attorney for health care has expired or been
53-14    revoked but the physician, provider, or person does not have
53-15    knowledge of the expiration or revocation.
53-16          Sec. 166.161 [135.011].  LIABILITY FOR HEALTH CARE COSTS.
53-17    Liability for the cost of health care provided as a result of the
53-18    agent's decision is the same as if the health care were provided as
53-19    a result of the principal's decision.
53-20          [Sec. 135.012.  NATURAL DEATH ACT.  To the extent that a
53-21    durable power of attorney for health care conflicts with a
53-22    directive or treatment decision executed under the Natural Death
53-23    Act (Chapter 672, Health and Safety Code), the instrument executed
53-24    later in time controls.  A physician who withholds or withdraws
53-25    life-sustaining procedures from a principal with a terminal
53-26    condition as required by an agent's directive is not required to
53-27    comply with the Natural Death Act.]
 54-1          [Sec. 135.013.  ENFORCEABILITY OF DURABLE POWER OF ATTORNEY
 54-2    EXECUTED IN ANOTHER JURISDICTION.  This chapter does not limit the
 54-3    enforceability of a durable power of attorney for health care or
 54-4    similar instrument executed in another state or jurisdiction if the
 54-5    instrument complies with the law of the state or jurisdiction.]
 54-6          Sec. 166.162 [135.014].  DISCLOSURE STATEMENT.  A durable
 54-7    power of attorney for health care is not effective unless the
 54-8    principal, before executing the durable power of attorney for
 54-9    health care, signs a statement that the principal has received a
54-10    disclosure statement and has read and understood its contents.
54-11          Sec. 166.163 [135.015].  FORM OF DISCLOSURE STATEMENT.  The
54-12    disclosure statement must be in substantially the following form:
54-13           INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY
54-14                              FOR HEALTH CARE
54-15    THIS IS AN IMPORTANT LEGAL DOCUMENT.  BEFORE SIGNING THIS DOCUMENT,
54-16    YOU SHOULD KNOW THESE IMPORTANT FACTS:
54-17          Except to the extent you state otherwise, this document gives
54-18    the person you name as your agent the authority to make any and all
54-19    health care decisions for you in accordance with your wishes,
54-20    including your religious and moral beliefs, when you are no longer
54-21    capable of making them yourself.  Because "health care" means any
54-22    treatment, service, or procedure to maintain, diagnose, or treat
54-23    your physical or mental condition, your agent has the power to make
54-24    a broad range of health care decisions for you.  Your agent may
54-25    consent, refuse to consent, or withdraw consent to medical
54-26    treatment and may make decisions about withdrawing or withholding
54-27    life-sustaining treatment.  Your agent may not consent to voluntary
 55-1    inpatient mental health services, convulsive treatment,
 55-2    psychosurgery, or abortion.  A physician must comply with your
 55-3    agent's instructions or allow you to be transferred to another
 55-4    physician.
 55-5          Your agent's authority begins when your doctor certifies that
 55-6    you lack the capacity to make health care decisions.
 55-7          Your agent is obligated to follow your instructions when
 55-8    making decisions on your behalf.  Unless you state otherwise, your
 55-9    agent has the same authority to make decisions about your health
55-10    care as you would have had.
55-11          It is important that you discuss this document with your
55-12    physician or other health care provider before you sign it to make
55-13    sure that you understand the nature and range of decisions that may
55-14    be made on your behalf.  If you do not have a physician, you should
55-15    talk with someone else who is knowledgeable about these issues and
55-16    can answer your questions.  You do not need a lawyer's assistance
55-17    to complete this document, but if there is anything in this
55-18    document that you do not understand, you should ask a lawyer to
55-19    explain it to you.
55-20          The person you appoint as agent should be someone you know
55-21    and trust.  The person must be 18 years of age or older or a person
55-22    under 18 years of age who has had the disabilities of minority
55-23    removed.  If you appoint your health or residential care provider
55-24    (e.g., your physician or an employee of a home health agency,
55-25    hospital, nursing home, or residential care home, other than a
55-26    relative), that person has to choose between acting as your agent
55-27    or as your health or residential care provider; the law does not
 56-1    permit a person to do both at the same time.
 56-2          You should inform the person you appoint that you want the
 56-3    person to be your health care agent.  You should discuss this
 56-4    document with your agent and your physician and give each a signed
 56-5    copy.  You should indicate on the document itself the people and
 56-6    institutions who have signed copies.  Your agent is not liable for
 56-7    health care decisions made in good faith on your behalf.
 56-8          Even after you have signed this document, you have the right
 56-9    to make health care decisions for yourself as long as you are able
56-10    to do so and treatment cannot be given to you or stopped over your
56-11    objection.  You have the right to revoke the authority granted to
56-12    your agent by informing your agent or your health or residential
56-13    care provider orally or in writing or by your execution of a
56-14    subsequent durable power of attorney for health care.  Unless you
56-15    state otherwise, your appointment of a spouse dissolves on divorce.
56-16          This document may not be changed or modified.  If you want to
56-17    make changes in the document, you must make an entirely new one.
56-18          You may wish to designate an alternate agent in the event
56-19    that your agent is unwilling, unable, or ineligible to act as your
56-20    agent.  Any alternate agent you designate has the same authority to
56-21    make health care decisions for you.
56-22    THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE
56-23    PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES.  THE FOLLOWING
56-24    PERSONS MAY NOT ACT AS ONE OF THE WITNESSES:
56-25                (1)  the person you have designated as your agent;
56-26                (2)  a person related to you by blood or marriage [your
56-27    health or residential care provider or an employee of your health
 57-1    or residential care provider];
 57-2                (3)  a person entitled to any part of your estate after
 57-3    your death under a will or codicil executed by you or by operation
 57-4    of law [your spouse];
 57-5                (4)  your attending physician [lawful heirs or
 57-6    beneficiaries named in your will or a deed]; [or]
 57-7                (5)  an employee of your attending physician;
 57-8                (6)  an employee of a health care facility in which you
 57-9    are a patient if the employee is providing direct patient care to
57-10    you or is an officer, director, partner, or business office
57-11    employee of the health care facility or of any parent organization
57-12    of the health care facility; or
57-13                (7)  a person who, at the time this power of attorney
57-14    is executed, has a claim against any part of your estate after your
57-15    death [creditors or persons who have a claim against you].
57-16          Sec. 166.164 [135.016].  FORM OF DURABLE POWER OF ATTORNEY.
57-17    The durable power of attorney for health care must be in
57-18    substantially the following form:
57-19                 DURABLE POWER OF ATTORNEY FOR HEALTH CARE
57-20    DESIGNATION OF HEALTH CARE AGENT. 
57-21          I,_______________________________(insert your name)  appoint:
57-22          Name:________________________________________________________
57-23          Address:_____________________________________________________
57-24                      Phone____________________________________________
57-25    as my agent to make any and all health care decisions for me,
57-26    except to the extent I state otherwise in this document.  This
57-27    durable power of attorney for health care takes effect if I become
 58-1    unable to make my own health care decisions and this fact is
 58-2    certified in writing by my physician.
 58-3    LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS
 58-4    FOLLOWS:_______________________________________________________
 58-5    _______________________________________________________________
 58-6    DESIGNATION OF ALTERNATE AGENT.
 58-7          (You are not required to designate an alternate agent but you
 58-8    may do so.  An alternate agent may make the same health care
 58-9    decisions as the designated agent if the designated agent is unable
58-10    or unwilling to act as your agent.  If the agent designated is your
58-11    spouse, the designation is automatically revoked by law if your
58-12    marriage is dissolved.)
58-13          If the person designated as my agent is unable or unwilling
58-14    to make health care decisions for me, I designate the following
58-15    persons to serve as my agent to make health care decisions for me
58-16    as authorized by this document, who serve in the following order:
58-17          A.  First Alternate Agent
58-18                Name:________________________________________
58-19                Address:_____________________________________
58-20                      Phone__________________________________
58-21          B.  Second Alternate Agent
58-22                Name:________________________________________
58-23                Address:_____________________________________
58-24                      Phone__________________________________
58-25                The original of this document is kept at:
58-26                ______________________________________________________
58-27                ______________________________________________________
 59-1                ______________________________________________________
 59-2    The following individuals or institutions have signed copies:
 59-3                Name:_________________________________________________
 59-4                Address:______________________________________________
 59-5                ______________________________________________________
 59-6                Name:_________________________________________________
 59-7                Address:______________________________________________
 59-8                ______________________________________________________
 59-9    DURATION.
59-10          I understand that this power of attorney exists indefinitely
59-11    from the date I execute this document unless I establish a shorter
59-12    time or revoke the power of attorney.  If I am unable to make
59-13    health care decisions for myself when this power of attorney
59-14    expires, the authority I have granted my agent continues to exist
59-15    until the time I become able to make health care decisions for
59-16    myself.
59-17    (IF APPLICABLE)  This power of attorney ends on the following
59-18    date:_____
59-19    PRIOR DESIGNATIONS REVOKED.
59-20          I revoke any prior durable power of attorney for health care.
59-21    ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
59-22          I have been provided with a disclosure statement explaining
59-23    the effect of this document.  I have read and understand that
59-24    information contained in the disclosure statement.
59-25          (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)
59-26          I sign my name to this durable power of attorney for health
59-27    care on _____________ day of __________________(month, year) [19]
 60-1    at _________________________________________________________
 60-2                             (City and State) 
 60-3        _________________________________________________________ 
 60-4                               (Signature) 
 60-5        _________________________________________________________ 
 60-6                               (Print Name) 
 60-7    STATEMENT OF FIRST WITNESS [WITNESSES].
 60-8          [I declare under penalty of perjury that the principal has
 60-9    identified himself or herself to me, that the principal signed or
60-10    acknowledged this durable power of attorney in my presence, that I
60-11    believe the principal to be of sound mind, that the principal has
60-12    affirmed that the principal is aware of the nature of the document
60-13    and is signing it voluntarily and free from duress, that the
60-14    principal requested that I serve as witness to the principal's
60-15    execution of this document, that] I am not the person appointed as
60-16    agent by this document.[, and that] I am not related to the
60-17    principal by blood or marriage.  I would not be entitled to any
60-18    portion of the principal's estate on the principal's death.  I am
60-19    not the attending physician of the principal or an employee of the
60-20    attending physician.  I have no claim against any portion of the
60-21    principal's estate on the principal's death. Furthermore, I am not
60-22    an employee of a health care facility in which the principal is a
60-23    patient, I am not involved in providing direct patient care to the
60-24    principal, and I am not an officer, director, partner, or  business
60-25    office employee of the health care facility or of any  parent
60-26    organization of the health care facility [a provider of health or
60-27    residential care, an employee of a provider of health or
 61-1    residential care, the operator of a community care facility, or an
 61-2    employee of an operator of a health care facility.]
 61-3          [I declare that I am not related to the principal by blood,
 61-4    marriage, or adoption and that to the best of my knowledge I am not
 61-5    entitled to any part of the estate of the principal on the death of
 61-6    the principal under a will or by operation of law].
 61-7          [Witness] Signature:____________________________________
 61-8          Print Name:______________________Date:__________________
 61-9          Address:________________________________________________
61-10          [Witness] Signature:____________________________________
61-11          Print Name:______________________Date:__________________
61-12          Address:________________________________________________
61-13          Sec. 166.165 [135.017].  CIVIL ACTION.  (a)  A person who is
61-14    a near relative of the principal or a responsible adult who is
61-15    directly interested in the principal, including a guardian, social
61-16    worker, physician, or clergyman, may bring an action in district
61-17    court to request that the durable power of attorney for health care
61-18    be revoked because the principal, at the time the durable power of
61-19    attorney for health care was signed:
61-20                (1)  was not competent [of sound mind to make a health
61-21    care decision]; or
61-22                (2)  was under duress, fraud, or undue influence.
61-23          (b)  The action may be brought in the county of the
61-24    principal's residence or the residence of the person bringing the
61-25    action.
61-26          (c)  During the pendency of the action, the authority of the
61-27    agent to make health care decisions continues in effect unless the
 62-1    district court orders otherwise.
 62-2          Sec. 166.166 [135.018].  OTHER RIGHTS OR RESPONSIBILITIES NOT
 62-3    AFFECTED.  This subchapter [chapter] does not limit or impair any
 62-4    legal right or responsibility that any person, including a
 62-5    physician or health or residential care provider, may have to make
 62-6    or implement health care decisions on behalf of a person.
 62-7                     ARTICLE 2.  CONFORMING AMENDMENTS
 62-8          SECTION 2.01.  Subsection (a), Section 313.003, Health and
 62-9    Safety Code, is amended to read as follows:
62-10          (a)  This chapter does not apply to:
62-11                (1)  a decision to withhold or withdraw life-sustaining
62-12    treatment from qualified terminal patients under Subchapter B,
62-13    Chapter 166 [the terms of Chapter 672];
62-14                (2)  a health care decision made under a durable power
62-15    of attorney for health care under Subchapter D, Chapter 166
62-16    [Chapter 135, Civil Practice and Remedies Code], or under Chapter
62-17    XII, Texas Probate Code;
62-18                (3)  consent to medical treatment of minors under
62-19    Chapter 32 [35], Family Code;
62-20                (4)  consent for emergency care under Chapter 773;
62-21                (5)  hospital patient transfers under Chapter 241; or
62-22                (6)  a patient's legal guardian who has the authority
62-23    to make a decision regarding the patient's medical treatment.
62-24          SECTION 2.02.  Subchapter A, Chapter 142, Health and Safety
62-25    Code, is amended by adding Section 142.0145 to read as follows:
62-26          Sec. 142.0145.  VIOLATION OF LAW RELATING TO ADVANCE
62-27    DIRECTIVES.  (a)  The department shall assess an administrative
 63-1    penalty against a home and community support services agency that
 63-2    violates Section 166.004.
 63-3          (b)  A penalty assessed under this section shall be $500.
 63-4          (c)  The penalty shall be assessed in accordance with
 63-5    department rules. The rules must provide for notice and an
 63-6    opportunity for a hearing.
 63-7          SECTION 2.03.  Subsections (a) and (c), Section 241.059,
 63-8    Health and Safety Code, are amended to read as follows:
 63-9          (a)  The commissioner of health may assess an administrative
63-10    penalty against a hospital that violates this chapter, a rule
63-11    adopted pursuant to this chapter, a special license provision, an
63-12    order or emergency order issued by the commissioner or the
63-13    commissioner's designee, or another enforcement procedure permitted
63-14    under this chapter. The commissioner shall assess an administrative
63-15    penalty against a hospital that violates Section 166.004.
63-16          (c)  The penalty may not exceed $1,000 for each violation,
63-17    except that the penalty for a violation of Section 166.004 shall be
63-18    $500.  Each day of a continuing violation, other than a violation
63-19    of Section 166.004, may be considered a separate violation.
63-20          SECTION 2.04.  Subchapter C, Chapter 242, Health and Safety
63-21    Code, is amended by adding Section 242.0663 to read as follows:
63-22          Sec. 242.0663.  VIOLATION OF LAW RELATING TO ADVANCE
63-23    DIRECTIVES.  (a)  The department shall assess an administrative
63-24    penalty under this subchapter against an institution that violates
63-25    Section 166.004.
63-26          (b)  Notwithstanding Sections 242.066(b)  and (c), a penalty
63-27    assessed in accordance with this section shall be $500 and a
 64-1    separate penalty may not be assessed for a separate day of a
 64-2    continuing violation.
 64-3          (c)  Section 242.0665 does not apply to a penalty assessed in
 64-4    accordance with this section.
 64-5          SECTION 2.05.  Subchapter C, Chapter 247, Health and Safety
 64-6    Code, is amended by adding Section 247.0455 to read as follows:
 64-7          Sec. 247.0455.  VIOLATION OF LAW RELATING TO ADVANCE
 64-8    DIRECTIVES.  (a)  The department shall assess an administrative
 64-9    penalty against a personal care facility that violates Section
64-10    166.004.
64-11          (b)  A penalty assessed under this section shall be $500.
64-12          (c)  The penalty shall be assessed in accordance with
64-13    department rules.  The rules must provide for notice and an
64-14    opportunity for a hearing.
64-15          SECTION 2.06.  Subchapter C, Chapter 248, Health and Safety
64-16    Code, is amended by adding Section 248.0545 to read as follows:
64-17          Sec. 248.0545.  VIOLATION OF LAW RELATING TO ADVANCE
64-18    DIRECTIVES.  (a)  The department shall assess an administrative
64-19    penalty against a special care facility that violates Section
64-20    166.004.
64-21          (b)  A penalty assessed under this section shall be $500.
64-22          (c)  The penalty shall be assessed in accordance with
64-23    department rules.  The rules must provide for notice and an
64-24    opportunity for a hearing.
64-25                ARTICLE 3.  TRANSITION AND EMERGENCY CLAUSE
64-26          SECTION 3.01.  This Act takes effect January 1, 2000.
64-27          SECTION 3.02.  The change in law made by this Act does not
 65-1    affect the validity of a document executed under Chapter 672 or
 65-2    674, Health and Safety Code, or Chapter 135, Civil Practice and
 65-3    Remedies Code, before the effective date of this Act.  A document
 65-4    executed before the effective date of this Act is governed by the
 65-5    law in effect on the date the document was executed, and that law
 65-6    continues in effect for that purpose.
 65-7          SECTION 3.03.  (a) The change in law made by this Act applies
 65-8    only to the punishment for an offense committed on or after the
 65-9    effective date of this Act.  For purposes of this section, an
65-10    offense is committed before the effective date of this Act if any
65-11    element of the offense occurs before the effective date.
65-12          (b)  An offense committed before the effective date of this
65-13    Act is covered by the law in effect when the offense was committed,
65-14    and the former law is continued in effect for that purpose.
65-15          SECTION 3.04.  The importance of this legislation and the
65-16    crowded condition of the calendars in both houses create an
65-17    emergency and an imperative public necessity that the
65-18    constitutional rule requiring bills to be read on three several
65-19    days in each house be suspended, and this rule is hereby suspended.