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AN ACT
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relating to procedures for obtaining informed consent before |
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certain postmortem examinations or autopsies. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. This Act shall be known as the Jerry Carswell |
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Memorial Act. |
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SECTION 2. Chapter 49, Code of Criminal Procedure, is |
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amended by adding Subchapter C to read as follows: |
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SUBCHAPTER C. INFORMED CONSENT FOR POSTMORTEM EXAMINATION OR |
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AUTOPSY |
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Art. 49.31. APPLICABILITY. This subchapter does not apply |
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to an autopsy that: |
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(1) is ordered by the Texas Department of Criminal |
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Justice or an authorized official of the department in accordance |
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with Section 501.055, Government Code; or |
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(2) a justice of the peace or medical examiner |
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determines is required under this chapter or other law. |
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Art. 49.32. CONSENT TO POSTMORTEM EXAMINATION OR AUTOPSY. |
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(a) Except as provided by Subsection (b) of this article, a |
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physician may not perform, or assist in the performance of, a |
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postmortem examination or autopsy on the body of a deceased person |
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unless the physician obtains the written informed consent of a |
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person authorized to provide consent under Article 49.33 of this |
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code. The consent must be provided on the form prescribed under |
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Article 49.34 of this code. |
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(b) If, after due diligence, a physician is unable to |
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identify or contact a person authorized to give consent under |
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Article 49.33 of this code, the physician may, as authorized by a |
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medical examiner, justice of the peace, or county judge, as |
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appropriate, perform a postmortem examination or autopsy on the |
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body of a deceased person not less than 24 hours and not more than 48 |
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hours from the time of the decedent's death or the time the |
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physician or other person took possession of the body. |
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Art. 49.33. PERSONS AUTHORIZED TO CONSENT TO POSTMORTEM |
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EXAMINATION OR AUTOPSY. (a) Subject to Subsections (b) and (c) of |
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this article, consent for a postmortem examination or autopsy may |
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be given by any member of the following classes of persons who is |
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reasonably available, in the order of priority listed: |
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(1) the spouse of the decedent; |
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(2) the person acting as guardian of the person of the |
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decedent at the time of death or the executor or administrator of |
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the decedent's estate; |
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(3) the adult children of the decedent; |
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(4) the parents of the decedent; and |
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(5) the adult siblings of the decedent. |
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(b) If there is more than one member of a class listed in |
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Subsection (a)(2), (3), (4), or (5) of this article entitled to give |
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consent to a postmortem examination or autopsy, consent may be |
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given by a member of the class unless another member of the class |
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files an objection with the physician, medical examiner, justice of |
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the peace, or county judge. If an objection is filed, the consent |
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may be given only by a majority of the members of the class who are |
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reasonably available. |
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(c) A person may not give consent under this article if, at |
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the time of the decedent's death, a person in a class granted higher |
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priority under Subsection (a) of this article is reasonably |
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available to give consent or to file an objection to a postmortem |
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examination or autopsy. |
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Art. 49.34. POSTMORTEM EXAMINATION OR AUTOPSY CONSENT FORM. |
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The commissioner of state health services, in consultation with the |
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Texas Medical Board, shall prescribe a standard written consent |
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form for a postmortem examination or autopsy. The form must: |
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(1) include the name of the hospital or other |
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institution and the department that will perform the examination or |
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autopsy; |
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(2) include a statement that the removal from the |
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deceased person's body and retention by the physician of organs, |
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fluids, prosthetic devices, or tissue may be required for purposes |
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of comprehensive evaluation or accurate determination of a cause of |
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death; |
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(3) provide the family of the deceased person with an |
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opportunity to place restrictions or special limitations on the |
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examination or autopsy; |
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(4) include a separate section regarding the |
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disposition of organs, fluids, prosthetic devices, or tissue after |
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the examination or autopsy, including a prioritized list of the |
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persons authorized to control that disposition, as provided by |
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Chapter 692A, Health and Safety Code; |
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(5) provide for documented and witnessed consent; |
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(6) allow authorization for the release of human |
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remains to a funeral home or individual designated by the person |
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giving consent for the postmortem examination or autopsy; |
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(7) include information regarding the rights |
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described by Article 49.35 of this code; |
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(8) list the circumstances under which a medical |
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examiner is required by law to conduct an investigation, inquest, |
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or autopsy under Article 49.25 of this code; |
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(9) include a statement that the form is required by |
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state law; and |
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(10) be written in plain language designed to be |
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easily understood by the average person. |
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Art. 49.35. RIGHT TO NONAFFILIATED PHYSICIAN. (a) A person |
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authorized to consent to a postmortem examination or autopsy under |
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Article 49.33 of this code may request that a physician who is not |
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affiliated with the hospital or other institution where the |
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deceased person died: |
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(1) perform the postmortem examination or autopsy at |
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another hospital or institution; or |
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(2) review the postmortem examination or autopsy |
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conducted by a physician affiliated with the hospital or other |
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institution where the deceased person died. |
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(b) A representative of the hospital or other institution |
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shall inform the person of the person's right to request the |
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performance or review of a postmortem examination or autopsy by a |
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nonaffiliated physician under Subsection (a) before the person |
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consents to the postmortem examination or autopsy. |
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(c) A person requesting a nonaffiliated physician to |
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perform or review a postmortem examination or autopsy shall bear |
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the additional costs incurred as a result of the nonaffiliated |
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physician's performance or review of the examination or autopsy |
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under Subsection (a) of this article. |
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SECTION 3. Section 501.055(d), Government Code, is amended |
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to read as follows: |
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(d) If the next of kin consents to the autopsy or does not |
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within eight hours of the time of death file an objection with |
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[object to] the department about the autopsy, the department or an |
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authorized official of the department shall order an autopsy to be |
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conducted on the inmate. The order of an autopsy under this |
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subsection constitutes consent to an autopsy for the purposes of |
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Article 49.32 [49.13(b)], Code of Criminal Procedure. |
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SECTION 4. Article 49.13, Code of Criminal Procedure, is |
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repealed. |
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SECTION 5. (a) Not later than December 31, 2011, the |
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Department of State Health Services shall prescribe the written |
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consent form required under Article 49.34, Code of Criminal |
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Procedure, as added by this Act. |
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(b) Notwithstanding Subchapter C, Chapter 49, Code of |
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Criminal Procedure, as added by this Act, a physician is not |
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required to comply with the requirements of that subchapter until |
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January 1, 2012. |
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SECTION 6. (a) Except as provided by Subsection (b) of this |
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section, this Act takes effect September 1, 2011. |
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(b) Sections 3 and 4 of this Act take effect January 1, 2012. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 1009 was passed by the House on May 4, |
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2011, by the following vote: Yeas 137, Nays 0, 2 present, not |
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voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 1009 was passed by the Senate on May |
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25, 2011, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: _____________________ |
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Date |
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_____________________ |
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Governor |