By:  Moncrief                                          S.B. No. 414

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to certain advance directives for medical treatment;

 1-2     providing administrative penalties.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4                       ARTICLE 1.  ADVANCE DIRECTIVES

 1-5           SECTION 1.01.  Subtitle H, Title 2, Health and Safety Code,

 1-6     is amended by adding a chapter heading for Chapter 166 to read as

 1-7     follows:

 1-8                      CHAPTER 166.  ADVANCE DIRECTIVES

 1-9           SECTION 1.02.  Subtitle H, Title 2, Health and Safety Code,

1-10     is amended by adding Subchapter A, Chapter 166, to read as follows:

1-11                      SUBCHAPTER A.  GENERAL PROVISIONS

1-12           Sec. 166.001.  SHORT TITLE.  This chapter may be cited as the

1-13     Advance Directives Act.

1-14           Sec. 166.002.  DEFINITIONS.  In this chapter:

1-15                 (1)  "Advance directive" means:

1-16                       (A)  a directive, as that term is defined by

1-17     Section 166.031; or

1-18                       (B)  an out-of-hospital DNR order, as that term

1-19     is defined by Section 166.081.

1-20                 (2)  "Attending physician" means a physician selected

1-21     by or assigned to a patient who has primary responsibility for a

1-22     patient's treatment and care.

1-23                 (3)  "Competent" means possessing the ability, based on

 2-1     reasonable medical judgment, to understand and appreciate the

 2-2     nature and consequences of a treatment decision, including the

 2-3     significant benefits and harms of and reasonable alternatives to a

 2-4     proposed treatment decision.

 2-5                 (4)  "Declarant" means a person who has executed or

 2-6     issued a directive under this chapter.

 2-7                 (5)  "Durable power of attorney for health care" means

 2-8     a durable power of attorney for health care executed or issued

 2-9     under Subchapter D.

2-10                 (6)  "Incompetent" means lacking the ability, based on

2-11     reasonable medical judgment, to understand and appreciate the

2-12     nature and consequences of a treatment decision, including the

2-13     significant benefits and harms of and reasonable alternatives to a

2-14     proposed treatment decision.

2-15                 (7)  "Life-sustaining procedure" means a medical

2-16     procedure, treatment, or intervention that uses mechanical or other

2-17     artificial means to sustain, restore, or supplant a vital function

2-18     and, when applied to a person in a terminal condition, serves only

2-19     to prolong the process of dying.  The term does not include the

2-20     administration of medication or the performance of a medical

2-21     procedure considered to be necessary to provide comfort or care or

2-22     to alleviate pain.

2-23                 (8)  "Physician" means:

2-24                       (A)  a physician licensed by the Texas State

2-25     Board of Medical Examiners; or

 3-1                       (B)  a properly credentialed physician who holds

 3-2     a commission in the uniformed services of the United States and who

 3-3     is serving on active duty in this state.

 3-4                 (9)  "Terminal condition" means an incurable or

 3-5     irreversible condition caused by injury, disease, or illness that

 3-6     would produce death without the application of life-sustaining

 3-7     procedures, according to reasonable medical judgment, and in which

 3-8     the application of life-sustaining procedures serves only to

 3-9     postpone the moment of the patient's death.  A patient who has been

3-10     admitted to a program under which the person receives hospice

3-11     services provided by a home and community support services agency

3-12     licensed under Chapter 142 is presumed to have a terminal condition

3-13     for purposes of this chapter.

3-14                 (10)  "Witness" means a person who may serve as a

3-15     witness under Section 166.003.

3-16           Sec. 166.003.  WITNESSES.  (a)  In any circumstance in which

3-17     this chapter requires the execution of an advance directive or the

3-18     issuance of a nonwritten advance directive to be witnessed, a

3-19     witness may not be:

3-20                 (1)  related to the declarant by blood or marriage;

3-21                 (2)  entitled to any part of the declarant's estate

3-22     after the declarant's death under a will or codicil executed by the

3-23     declarant or by operation of law;

3-24                 (3)  the attending physician;

3-25                 (4)  an employee of the attending physician;

 4-1                 (5)  a patient in a health care facility in which the

 4-2     declarant is a patient;

 4-3                 (6)  a person who, at the time the directive is

 4-4     executed or the nonwritten directive is issued, has a claim against

 4-5     any part of the declarant's estate after the declarant's death; or

 4-6                 (7)  an employee of a health care facility in which the

 4-7     declarant is a patient if the employee is providing direct patient

 4-8     care or is directly involved in the financial affairs of the

 4-9     facility.

4-10           (b)  For purposes of Subsection (a)(7), a person is directly

4-11     involved in the financial affairs of a health care facility if the

4-12     person serves as an officer, director, partner, or business office

4-13     employee of the health care facility or of any parent organization

4-14     of the health care facility.

4-15           Sec. 166.004.  STATEMENT RELATING TO ADVANCE DIRECTIVE.

4-16     (a)  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           (b)  The health care provider shall provide written notice to

4-22     an individual of the written policies described by Subsection (a).

4-23     The notice must be provided at the earlier of:

4-24                 (1)  the time the individual is admitted to receive

4-25     services from the health care provider; or

 5-1                 (2)  the time the health care provider begins providing

 5-2     care to the individual.

 5-3           (c)  If, at the time notice is to be provided under

 5-4     Subsection (b), the individual is incompetent or otherwise

 5-5     incapacitated and unable to receive the notice required by this

 5-6     section, the provider shall provide the required written notice, in

 5-7     the following order of preference, to:

 5-8                 (1)  the individual's legal guardian;

 5-9                 (2)  the individual's adult child;

5-10                 (3)  the individual's parent;

5-11                 (4)  the person admitting the individual; or

5-12                 (5)  another person responsible for the health care

5-13     decisions of the individual.

5-14           (d)  If Subsection (c) applies and except as provided by

5-15     Subsection (e), if a health care provider is unable, after diligent

5-16     search, to locate an individual listed by Subsection (c), the

5-17     health care provider is not required to provide the required

5-18     notice.

5-19           (e)  If an individual who was incompetent or otherwise

5-20     incapacitated and unable to receive the notice required by this

5-21     section at the time notice was to be provided under Subsection (b)

5-22     later becomes able to receive the notice, the health care provider

5-23     shall provide the written notice at the time the individual becomes

5-24     able to receive the notice.

5-25           (f)  In this section, health care provider means:

 6-1                 (1)  a hospital, including a rural primary care

 6-2     hospital;

 6-3                 (2)  an institution licensed under Chapter 242,

 6-4     including skilled nursing facilities;

 6-5                 (3)  a home and community support services agency;

 6-6                 (4)  a personal care facility; and

 6-7                 (5)  a special care facility.

 6-8           SECTION 1.03.  Chapter 672, Health and Safety Code, is

 6-9     transferred to Subtitle H, Title 2, Health and Safety Code, is

6-10     redesignated as Subchapter B, Chapter 166, Health and Safety Code,

6-11     and is amended to read as follows:

6-12               SUBCHAPTER B [CHAPTER 672].  NATURAL DEATH [ACT]

6-13           [Sec. 672.001.  SHORT TITLE.  This chapter may be cited as

6-14     the Natural Death Act.]

6-15           Sec. 166.031 [672.002].  DEFINITIONS.  In this subchapter

6-16     [chapter]:

6-17                 (1)  ["Attending physician" means the physician who has

6-18     primary responsibility for a patient's treatment and care.]

6-19                 [(2)  "Competent" means possessing the ability, based

6-20     on reasonable medical judgment, to understand and appreciate the

6-21     nature and consequences of a treatment decision, including the

6-22     significant benefits and harms of and reasonable alternatives to a

6-23     proposed treatment decision.]

6-24                 [(3)  "Declarant" means a person who has executed or

6-25     issued a directive under this chapter.]

 7-1                 [(4)]  "Directive" means an instruction made under

 7-2     Section 166.032, 166.034, or 166.035 [672.003, 672.005, or 672.006]

 7-3     to withhold or withdraw life-sustaining procedures in the event of

 7-4     a terminal condition.

 7-5                 (2) [(5)  "Incompetent" means lacking the ability,

 7-6     based on reasonable medical judgment, to understand and appreciate

 7-7     the nature and consequences of a treatment decision, including the

 7-8     significant benefits and harms of and reasonable alternatives to a

 7-9     proposed treatment decision.]

7-10                 [(6)  "Life-sustaining procedure" means a medical

7-11     procedure or intervention that uses mechanical or other artificial

7-12     means to sustain, restore, or supplant a vital function, and only

7-13     artificially postpones the moment of death of a patient in a

7-14     terminal condition whose death is imminent or will result within a

7-15     relatively short time without the application of the procedure.

7-16     The term does not include the administration of medication or the

7-17     performance of a medical procedure considered to be necessary to

7-18     provide comfort or care or to alleviate pain.]

7-19                 [(7)  "Physician" means a physician licensed by the

7-20     Texas State Board of Medical Examiners or  a properly credentialed

7-21     physician who holds a commission in the uniformed services of the

7-22     United States and who is serving on active duty in this state.]

7-23                 [(8)]  "Qualified patient" means a patient with a

7-24     terminal condition that has been diagnosed and certified in writing

7-25     by the attending physician and one other physician who have

 8-1     personally examined the patient.

 8-2                 [(9)  "Terminal condition" means an incurable or

 8-3     irreversible condition caused by injury, disease, or illness that

 8-4     would produce death without the application of life-sustaining

 8-5     procedures, according to reasonable medical judgment, and in which

 8-6     the application of life-sustaining procedures serves only to

 8-7     postpone the moment of the patient's death.]

 8-8           Sec. 166.032 [672.003].  WRITTEN DIRECTIVE BY COMPETENT

 8-9     ADULT; NOTICE TO PHYSICIAN.  (a)  A competent adult may at any time

8-10     execute a written directive.

8-11           (b)  The declarant must sign the directive in the presence of

8-12     two witnesses, and those witnesses must sign the directive.

8-13           (c)  [A witness may not be:]

8-14                 [(1)  related to the declarant by blood or marriage;]

8-15                 [(2)  entitled to any part of the declarant's estate

8-16     after the declarant's death under a will or codicil executed by the

8-17     declarant or by operation of law;]

8-18                 [(3)  the attending physician;]

8-19                 [(4)  an employee of the attending physician;]

8-20                 [(5)  an employee of a health care facility in which

8-21     the declarant is a patient if the employee is providing direct

8-22     patient care to the declarant or is directly involved in the

8-23     financial affairs of the facility;]

8-24                 [(6)  a patient in a health care facility in which the

8-25     declarant is a patient; or]

 9-1                 [(7)  a person who, at the time the directive is

 9-2     executed, has a claim against any part of the declarant's estate

 9-3     after the declarant's death.]

 9-4           [(d)]  A declarant may include in a directive directions

 9-5     other than those provided by Section 166.033 [672.004] and may

 9-6     designate in a directive a person to make a treatment decision for

 9-7     the declarant in the event the declarant becomes comatose,

 9-8     incompetent, or otherwise mentally or physically incapable of

 9-9     communication.

9-10           (d) [(e)]  A declarant shall notify the attending physician

9-11     of the existence of a written directive.  If the declarant is

9-12     comatose, incompetent, or otherwise mentally or physically

9-13     incapable of communication, another person may notify the attending

9-14     physician of the existence of the written directive.  The attending

9-15     physician shall make the directive a part of the declarant's

9-16     medical record.

9-17           Sec. 166.033 [672.004].  FORM OF WRITTEN DIRECTIVE.  A

9-18     written directive may be in the following form:

9-19                                 "DIRECTIVE

9-20                                TO PHYSICIANS

9-21           "Directive made this __________ day of __________ (month,

9-22     year).

9-23           "I ________________________, being of sound mind, wilfully

9-24     and voluntarily make known my desire that my life shall not be

9-25     artificially prolonged under the circumstances set forth in this

 10-1    directive.

 10-2          "1.  If at any time I should have an incurable or

 10-3    irreversible condition caused by injury, disease, or illness

 10-4    certified to be a terminal condition by two physicians, and if the

 10-5    application of life-sustaining procedures would serve only to

 10-6    artificially postpone the moment of my death, and if my attending

 10-7    physician determines that my death is imminent or will result

 10-8    within a relatively short time without the application of

 10-9    life-sustaining procedures, I direct that those procedures be

10-10    withheld or withdrawn, and that I be permitted to die naturally.

10-11          "2.  In the absence of my ability to give directions

10-12    regarding the use of those life-sustaining procedures, it is my

10-13    intention that this directive be honored by my family and

10-14    physicians as the final expression of my legal right to refuse

10-15    medical or surgical treatment and accept the consequences from that

10-16    refusal.

10-17          "3.  If I have been diagnosed as pregnant and that diagnosis

10-18    is known to my physician, this directive has no effect during my

10-19    pregnancy.

10-20          "4.  This directive is in effect until it is revoked.

10-21          "5.  I understand the full import of this directive and I am

10-22    emotionally and mentally competent to make this directive.

10-23          "6.  I understand that I may revoke this directive at any

10-24    time.

 11-1                                 "Signed ______________________________

 11-2                                 (City, County, and State of Residence)

 11-3          I am not related to the declarant by blood or marriage.  I

 11-4    would not be entitled to any portion of the declarant's estate on

 11-5    the declarant's death.  I am not the attending physician of the

 11-6    declarant or an employee of the attending physician.  I am not a

 11-7    patient in the health care facility in which the declarant is a

 11-8    patient.  I have no claim against any portion of the declarant's

 11-9    estate on the declarant's death.  Furthermore, if I am an employee

11-10    of a health care facility in which the declarant is a patient, I am

11-11    not involved in providing direct patient care to the declarant and

11-12    am not an officer, director, partner, or  business office employee

11-13    of the health care facility or  of  any  parent  organization of

11-14    the health care [directly involved in the financial affairs of the

11-15    health] facility.

11-16                                "Witness_______________________________

11-17                                "Witness______________________________"

11-18          Sec. 166.034 [672.005].  ISSUANCE OF NONWRITTEN DIRECTIVE BY

11-19    COMPETENT ADULT QUALIFIED PATIENT.  (a)  A competent qualified

11-20    patient who is an adult may issue a directive by a nonwritten means

11-21    of communication.

11-22          (b)  A declarant must issue the nonwritten directive in the

11-23    presence of the attending physician and two witnesses.  [The

11-24    witnesses must possess the same qualifications as are required by

11-25    Section 672.003(c).]

 12-1          (c)  The physician shall make the fact of the existence of

 12-2    the directive a part of the declarant's medical record and the

 12-3    witnesses shall sign the entry in the medical record.

 12-4          Sec. 166.035 [672.006].  EXECUTION OF DIRECTIVE ON BEHALF OF

 12-5    PATIENT YOUNGER THAN 18 YEARS OF AGE.  The following persons may

 12-6    execute a directive on behalf of a qualified patient who is younger

 12-7    than 18 years of age:

 12-8                (1)  the patient's spouse, if the spouse is an adult;

 12-9                (2)  the patient's parents; or

12-10                (3)  the patient's legal guardian.

12-11          Sec. 166.036.  NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT

12-12    OF SPECIFIC FORM PROHIBITED.  (a)  A written directive executed

12-13    under Section 166.033 or 166.035 is effective without regard to

12-14    whether the document has been notarized.

12-15          (b)  A physician, health care facility, or health care

12-16    professional may not require that:

12-17                (1)  a directive be notarized; or

12-18                (2)  a person use a form provided by the physician,

12-19    health care facility, or health care professional.

12-20          Sec. 166.037 [672.007].  PATIENT DESIRE SUPERSEDES DIRECTIVE.

12-21    The desire of a competent qualified patient, including a competent

12-22    qualified patient younger than 18 years of age, supersedes the

12-23    effect of a directive.

12-24          Sec. 166.038 [672.008].  PROCEDURE WHEN DECLARANT IS

12-25    INCOMPETENT OR INCAPABLE OF COMMUNICATION.  (a)  This section

 13-1    applies when an adult qualified patient has executed or issued a

 13-2    directive and is comatose, incompetent, or otherwise mentally or

 13-3    physically incapable of communication.

 13-4          (b)  If the adult qualified patient has designated a person

 13-5    to make a treatment decision as authorized by Section 166.032(c)

 13-6    [672.003(d)], the attending physician and the designated person may

 13-7    make a treatment decision to withhold or withdraw life-sustaining

 13-8    procedures from the patient.

 13-9          (c)  If the adult qualified patient has not designated a

13-10    person to make a treatment decision, the attending physician shall

13-11    comply with the directive unless the physician believes that the

13-12    directive does not reflect the patient's present desire.

13-13          Sec. 166.039 [672.009].  PROCEDURE WHEN PERSON HAS NOT

13-14    EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF

13-15    COMMUNICATION.  (a)  If an adult qualified patient has not executed

13-16    or issued a directive and is comatose, incompetent, or otherwise

13-17    mentally or physically incapable of communication, the attending

13-18    physician and the patient's legal guardian or an agent under a

13-19    durable power of attorney for health care may make a treatment

13-20    decision that may include a decision to withhold or withdraw

13-21    life-sustaining procedures from the patient.

13-22          (b)  If the patient does not have a legal guardian or an

13-23    agent under a durable power of attorney for health care, the

13-24    attending physician and one person from one [at least two persons,

13-25    if available,] of the following categories, in the following

 14-1    priority, may make a treatment decision that may include a decision

 14-2    to withhold or withdraw life-sustaining procedures:

 14-3                (1)  the patient's spouse;

 14-4                (2)  [a majority of] the patient's reasonably available

 14-5    adult children;

 14-6                (3)  the patient's parents; or

 14-7                (4)  the patient's nearest living relative.

 14-8          (c)  A treatment decision made under Subsection (a) or (b)

 14-9    must be based on knowledge of what the patient would desire, if

14-10    known.

14-11          (d)  A treatment decision made under Subsection (b) must be

14-12    made in the presence of at least two witnesses who possess the same

14-13    qualifications and are subject to the same restrictions as provided

14-14    [as are required] by Section 166.003 [672.003(c)].

14-15          (e)  The fact that an adult qualified patient has not

14-16    executed or issued a directive does not create a presumption that

14-17    the patient does not want a treatment decision to be made to

14-18    withhold or withdraw life-sustaining procedures.

14-19          Sec. 166.040 [672.010].  PATIENT CERTIFICATION AND

14-20    PREREQUISITES FOR COMPLYING WITH DIRECTIVE.  (a)  An attending

14-21    physician who has been notified of the existence of a directive

14-22    shall provide for the declarant's certification as a qualified

14-23    patient on diagnosis of a terminal condition.

14-24          (b)  Before withholding or withdrawing life-sustaining

14-25    procedures from a qualified patient under this subchapter

 15-1    [chapter], the attending physician must:

 15-2                (1)  determine that the patient's death is imminent or

 15-3    will result within a relatively short time without application of

 15-4    those procedures;

 15-5                (2)  note that determination in the patient's medical

 15-6    record; and

 15-7                (3)  determine that the steps proposed to be taken are

 15-8    in accord with this subchapter [chapter] and the patient's existing

 15-9    desires.

15-10          Sec. 166.041 [672.011].  DURATION OF DIRECTIVE.  A directive

15-11    is effective until it is revoked as prescribed by Section 166.042

15-12    [672.012].

15-13          Sec. 166.042 [672.012].  REVOCATION OF DIRECTIVE.  (a)  A

15-14    declarant may revoke a directive at any time without regard to the

15-15    declarant's mental state or competency.  A directive may be revoked

15-16    by:

15-17                (1)  the declarant or someone in the declarant's

15-18    presence and at the declarant's direction canceling, defacing,

15-19    obliterating, burning, tearing, or otherwise destroying the

15-20    directive;

15-21                (2)  the declarant signing and dating a written

15-22    revocation that expresses the declarant's intent to revoke the

15-23    directive; or

15-24                (3)  the declarant orally stating the declarant's

15-25    intent to revoke the directive.

 16-1          (b)  A written revocation executed as prescribed by

 16-2    Subsection (a)(2) takes effect only when the declarant or a person

 16-3    acting on behalf of the declarant notifies the attending physician

 16-4    of its existence or mails the revocation to the attending

 16-5    physician.  The attending physician or the physician's designee

 16-6    shall record in the patient's medical record the time and date when

 16-7    the physician received notice of the written revocation and shall

 16-8    enter the word "VOID" on each page of the copy of the directive in

 16-9    the patient's medical record.

16-10          (c)  An oral revocation issued as prescribed by Subsection

16-11    (a)(3) takes effect only when the declarant or a person acting on

16-12    behalf of the declarant notifies the attending physician of the

16-13    revocation.  The attending physician or the physician's designee

16-14    shall record in the patient's medical record the time, date, and

16-15    place of the revocation, and, if different, the time, date, and

16-16    place that the physician received notice of the revocation.  The

16-17    attending physician or the physician's designees shall also enter

16-18    the word "VOID" on each page of the copy of the directive in the

16-19    patient's medical record.

16-20          (d)  Except as otherwise provided by this subchapter

16-21    [chapter], a person is not civilly or criminally liable for failure

16-22    to act on a revocation made under this section unless the person

16-23    has actual knowledge of the revocation.

16-24          Sec. 166.043 [672.013].  REEXECUTION OF DIRECTIVE.  A

16-25    declarant may at any time reexecute a directive in accordance with

 17-1    the procedures prescribed by Section 166.032 [672.003], including

 17-2    reexecution after the declarant is diagnosed as having a terminal

 17-3    condition.

 17-4          Sec. 166.044 [672.014].  EFFECT OF DIRECTIVE ON INSURANCE

 17-5    POLICY AND PREMIUMS.  (a)  The fact that a person has executed or

 17-6    issued a directive under this subchapter [chapter] does not:

 17-7                (1)  restrict, inhibit, or impair in any manner the

 17-8    sale, procurement, or issuance of a life insurance policy to that

 17-9    person; or

17-10                (2)  modify the terms of an existing life insurance

17-11    policy.

17-12          (b)  Notwithstanding the terms of any life insurance policy,

17-13    the fact that life-sustaining procedures are withheld or withdrawn

17-14    from an insured qualified patient under this subchapter [chapter]

17-15    does not legally impair or invalidate that person's life insurance

17-16    policy.

17-17          (c)  A physician, health facility, health provider, insurer,

17-18    or health care service plan may not require a person to execute or

17-19    issue a directive as a condition for obtaining insurance for health

17-20    care services or receiving health care services.

17-21          (d)  The fact that a person has executed or issued or failed

17-22    to execute or issue a directive under this subchapter [chapter] may

17-23    not be considered in any way in establishing insurance premiums.

17-24          Sec. 166.045 [672.015].  LIMITATION OF LIABILITY FOR

17-25    WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES.  (a)  A

 18-1    physician or health facility that, in good faith, causes

 18-2    life-sustaining procedures to be withheld or withdrawn from a

 18-3    qualified patient in accordance with this subchapter [chapter] is

 18-4    not civilly liable for that action [unless negligent].

 18-5          (b)  A health professional, acting under the direction of a

 18-6    physician, who participates, in good faith, in withholding or

 18-7    withdrawing life-sustaining procedures from a qualified patient in

 18-8    accordance with this subchapter [chapter] is not civilly liable for

 18-9    that action [unless negligent].

18-10          (c)  A physician, or a health professional acting under the

18-11    direction of a physician, who participates, in good faith, in

18-12    withholding or withdrawing life-sustaining procedures from a

18-13    qualified patient in accordance with this subchapter [chapter] is

18-14    not criminally liable or guilty of unprofessional conduct as a

18-15    result of that action [unless negligent].

18-16          Sec. 166.046 [672.016].  LIMITATION OF LIABILITY FOR FAILURE

18-17    TO EFFECTUATE DIRECTIVE.  (a)  A physician, health care facility,

18-18    or health care professional who has no knowledge of a directive is

18-19    not civilly or criminally liable for failing to act in accordance

18-20    with the directive.

18-21          (b)  A physician, or a health professional acting under the

18-22    direction of a physician, is not civilly or criminally liable for

18-23    failing to effectuate a qualified patient's directive.

18-24          (c)  If an attending physician refuses to comply with a

18-25    directive or treatment decision, the physician shall make a

 19-1    reasonable effort to transfer the patient to another physician.

 19-2          Sec. 166.047 [672.017].  HONORING DIRECTIVE DOES NOT

 19-3    CONSTITUTE OFFENSE OF AIDING SUICIDE.  A person does not commit an

 19-4    offense under Section 22.08, Penal Code, by withholding or

 19-5    withdrawing life-sustaining procedures from a qualified patient in

 19-6    accordance with this subchapter [chapter].

 19-7          Sec. 166.048 [672.018].  CRIMINAL PENALTY; PROSECUTION.

 19-8    (a)  A person commits an offense if the person intentionally

 19-9    conceals, cancels, defaces, obliterates, or damages another

19-10    person's directive without that person's consent.  An offense under

19-11    this subsection is a Class A misdemeanor.

19-12          (b)  A person is subject to prosecution for criminal homicide

19-13    under Chapter 19, Penal Code, if the person, with the intent to

19-14    cause life-sustaining procedures to be withheld or withdrawn from

19-15    another person contrary to the other person's desires, falsifies or

19-16    forges a directive or intentionally conceals or withholds personal

19-17    knowledge of a revocation and thereby directly causes

19-18    life-sustaining procedures to be withheld or withdrawn from the

19-19    other person with the result that the other person's death is

19-20    hastened.

19-21          Sec. 166.049 [672.019].  PREGNANT PATIENTS.  A person may not

19-22    withdraw or withhold life-sustaining procedures under this

19-23    subchapter [chapter] from a pregnant patient.

19-24          Sec. 166.050 [672.020].  MERCY KILLING NOT CONDONED.  This

19-25    subchapter [chapter] does not condone, authorize, or approve mercy

 20-1    killing or permit an affirmative or deliberate act or omission to

 20-2    end life except to permit the natural process of dying as provided

 20-3    by this subchapter [chapter].

 20-4          Sec. 166.051 [672.021].  LEGAL RIGHT OR RESPONSIBILITY NOT

 20-5    AFFECTED.  This subchapter [chapter] does not impair or supersede

 20-6    any legal right or responsibility a person may have to effect the

 20-7    withholding or withdrawal of life-sustaining procedures in a lawful

 20-8    manner.

 20-9          SECTION 1.04.  Chapter 674, Health and Safety Code, is

20-10    transferred to Subtitle H, Title 2, Health and Safety Code, is

20-11    redesignated as Subchapter C, Chapter 166, Health and Safety Code,

20-12    and is amended to read as follows:

20-13               SUBCHAPTER C [CHAPTER 674].  OUT-OF-HOSPITAL

20-14                         DO-NOT-RESUSCITATE ORDERS

20-15          Sec. 166.081 [674.001].  DEFINITIONS.  In this subchapter

20-16    [chapter]:

20-17                (1)  ["Attending physician" means the physician who has

20-18    primary responsibility for a person's treatment and care.]

20-19                [(2)  "Board" means the Texas Board of Health.]

20-20                [(3)]  "Cardiopulmonary resuscitation" includes a

20-21    component of cardiopulmonary resuscitation.

20-22                (2) [(4)  "Competent" means possessing the ability,

20-23    based on reasonable medical judgment, to understand and appreciate

20-24    the nature and consequences of a treatment decision, including the

20-25    significant benefits and harms of, and reasonable alternatives to,

 21-1    a proposed treatment decision.]

 21-2                [(5)  "Declarant" means a person who has executed or

 21-3    issued an out-of-hospital do-not-resuscitate order under this

 21-4    chapter.]

 21-5                [(6)  "Department" means the Texas Department of

 21-6    Health.]

 21-7                [(7)]  "DNR identification device" means an

 21-8    identification device specified by the board under Section 166.103

 21-9    [674.023] that is worn for the purpose of identifying a person who

21-10    has executed or issued an out-of-hospital DNR order or on whose

21-11    behalf an out-of-hospital DNR order has been executed or issued

21-12    under this subchapter [chapter].

21-13                (3) [(8)  "Durable power of attorney for health care"

21-14    means a document delegating to an agent the authority to make

21-15    health care decisions for a person in accordance with Chapter 135,

21-16    Civil Practice and Remedies Code.]

21-17                [(9)]  "Emergency medical services" has the meaning

21-18    assigned by Section 773.003.

21-19                (4) [(10)]  "Emergency medical services personnel" has

21-20    the meaning assigned by Section 773.003.

21-21                (5) [(11)]  "Health care professionals" means

21-22    physicians, nurses, and emergency medical services personnel and,

21-23    unless the context requires otherwise, includes hospital emergency

21-24    personnel.

21-25                (6) [(12)  "Incompetent" means lacking the ability,

 22-1    based on reasonable medical judgment, to understand and appreciate

 22-2    the nature and consequences of a treatment decision, including the

 22-3    significant benefits and harms of, and reasonable alternatives to,

 22-4    a proposed treatment decision.]

 22-5                [(13)  "Life-sustaining procedure" means a medical

 22-6    procedure, treatment, or intervention that uses mechanical or other

 22-7    artificial means to sustain, restore, or supplant a spontaneous

 22-8    vital function and, when applied to a person in a terminal

 22-9    condition, serves only to prolong the process of dying.  The term

22-10    does not include the administration of medication or the

22-11    performance of a medical procedure considered to be necessary to

22-12    provide comfort or care or to alleviate pain or the provision of

22-13    water or nutrition.]

22-14                [(14)]  "Out-of-hospital DNR order":

22-15                      (A)  means a legally binding out-of-hospital

22-16    do-not-resuscitate order, in the form specified by the board under

22-17    Section 166.083 [674.003], prepared and signed by the attending

22-18    physician of a person who has been diagnosed as having a terminal

22-19    condition, that documents the instructions of a person or the

22-20    person's legally authorized representative and directs health care

22-21    professionals acting in an out-of-hospital setting not to initiate

22-22    or continue the following life-sustaining procedures:

22-23                            (i)  cardiopulmonary resuscitation;

22-24                            (ii)  endotracheal intubation or other

22-25    means of advanced airway management;

 23-1                            (iii)  artificial ventilation;

 23-2                            (iv)  defibrillation;

 23-3                            (v)  transcutaneous cardiac pacing;

 23-4                            (vi)  the administration of cardiac

 23-5    resuscitation medications; and

 23-6                            (vii)  other life-sustaining procedures

 23-7    specified by the board under Section 166.103(a) [674.023(a)]; and

 23-8                      (B)  does not include authorization to withhold

 23-9    medical interventions or therapies considered necessary to provide

23-10    comfort or care or to alleviate pain or to provide water or

23-11    nutrition.

23-12                (7) [(15)]  "Out-of-hospital setting" means any setting

23-13    outside of a licensed acute care hospital in which health care

23-14    professionals are called for assistance, including long-term care

23-15    facilities, in-patient hospice facilities, private homes, and

23-16    vehicles during transport.

23-17                (8) [(16)  "Physician" means a physician licensed by

23-18    the Texas State Board of Medical Examiners or a properly

23-19    credentialed physician who holds a commission in the uniformed

23-20    services of the United States and who is serving on active duty in

23-21    this state.]

23-22                [(17)]  "Proxy" means a person designated and

23-23    authorized by a directive executed or issued in accordance with

23-24    Subchapter B [Chapter 672] to make a treatment decision for another

23-25    person in the event the other person becomes comatose, incompetent,

 24-1    or otherwise mentally or physically incapable of communication.

 24-2                (9) [(18)]  "Qualified relatives" means those persons

 24-3    authorized to execute or issue an out-of-hospital DNR order on

 24-4    behalf of a person who is comatose, incompetent, or otherwise

 24-5    mentally or physically incapable of communication under Section

 24-6    166.088 [674.008].

 24-7                (10) [(19)]  "Statewide out-of-hospital DNR protocol"

 24-8    means a set of statewide standardized procedures adopted by the

 24-9    board under Section 166.103 [674.023] for withholding

24-10    cardiopulmonary resuscitation and certain other life-sustaining

24-11    procedures by health care professionals acting in out-of-hospital

24-12    settings.

24-13                [(20)  "Terminal condition" means an incurable or

24-14    irreversible condition caused by injury, disease, or illness that

24-15    would produce death without the application of life-sustaining

24-16    procedures, according to reasonable medical judgment, and in which

24-17    the application of life-sustaining procedures serves only to

24-18    postpone the moment of the person's death.]

24-19          Sec. 166.082 [674.002].  OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE

24-20    TO PHYSICIANS.  (a)  A competent person who has been diagnosed by a

24-21    physician as having a terminal condition may at any time execute a

24-22    written out-of-hospital DNR order directing health care

24-23    professionals acting in an out-of-hospital setting to withhold

24-24    cardiopulmonary resuscitation and certain other life-sustaining

24-25    procedures designated by the board.

 25-1          (b)  The declarant must sign the out-of-hospital DNR order in

 25-2    the presence of two witnesses, and those witnesses must sign the

 25-3    order.  The attending physician of the declarant must sign the

 25-4    order and shall make the fact of the existence of the order and the

 25-5    reasons for execution of the order a part of the declarant's

 25-6    medical record.

 25-7          (c)  [A witness must have the same qualifications as those

 25-8    provided by Section 672.003(c).]

 25-9          [(d)]  If the person is incompetent but previously executed

25-10    or issued a directive to physicians in accordance with Subchapter B

25-11    [Chapter 672], the physician may rely on the directive as the

25-12    person's instructions to issue an out-of-hospital DNR order and

25-13    shall place a copy of the directive in the person's medical record.

25-14    The physician shall sign the order in lieu of the person signing

25-15    under Subsection (b).

25-16          (d) [(e)]  If the person is incompetent but previously

25-17    executed or issued a directive to physicians in accordance with

25-18    Subchapter B [Chapter 672] designating a proxy, the proxy may make

25-19    any decisions required of the designating person as to an

25-20    out-of-hospital DNR order and shall sign the order in lieu of the

25-21    person signing under Subsection (b).

25-22          (e) [(f)]  If the person is now incompetent but previously

25-23    executed or issued a durable power of attorney for health care [in

25-24    accordance with Chapter 135, Civil Practice and Remedies Code],

25-25    designating an agent, the agent may make any decisions required of

 26-1    the designating person as to an out-of-hospital DNR order and shall

 26-2    sign the order in lieu of the person signing under Subsection (b).

 26-3          (f) [(g)]  The board, on the recommendation of the

 26-4    department, shall by rule adopt procedures for the disposition and

 26-5    maintenance of records of an original out-of-hospital DNR order and

 26-6    any copies of the order.

 26-7          (g) [(h)]  An out-of-hospital DNR order is effective on its

 26-8    execution.

 26-9          Sec. 166.083 [674.003].  FORM OF OUT-OF-HOSPITAL DNR ORDER.

26-10    (a)  A written out-of-hospital DNR order shall be in the standard

26-11    form specified by board rule as recommended by the department.

26-12          (b)  The standard form of an out-of-hospital DNR order

26-13    specified by the board must, at a minimum, contain the following:

26-14                (1)  a distinctive single-page format that readily

26-15    identifies the document as an out-of-hospital DNR order;

26-16                (2)  a title that readily identifies the document as an

26-17    out-of-hospital DNR order;

26-18                (3)  the printed or typed name of the person;

26-19                (4)  a statement that the physician signing the

26-20    document is the attending physician of the person, that the

26-21    physician has diagnosed the person as having a terminal condition,

26-22    and that the physician is directing health care professionals

26-23    acting in out-of-hospital settings not to initiate or continue

26-24    certain life-sustaining procedures on behalf of the person, and a

26-25    listing of those procedures not to be initiated or continued;

 27-1                (5)  a statement that the person understands that the

 27-2    person may revoke the out-of-hospital DNR order at any time by

 27-3    destroying the order and removing the DNR identification device, if

 27-4    any, or by communicating to health care professionals at the scene

 27-5    the person's desire to revoke the out-of-hospital DNR order;

 27-6                (6)  places for the printed names and signatures of the

 27-7    witnesses and attending physician of the person and the medical

 27-8    license number of the attending physician;

 27-9                (7)  a separate section for execution of the document

27-10    by the legal guardian of the person, the person's proxy, an agent

27-11    of the person having a durable power of attorney for health care,

27-12    or the attending physician attesting to the issuance of an

27-13    out-of-hospital DNR order by nonwritten means of communication or

27-14    acting in accordance with a previously executed or previously

27-15    issued directive to physicians under Section 166.082(c)

27-16    [674.002(d)] that includes the following:

27-17                      (A)  a statement that the legal guardian, the

27-18    proxy, the agent, the person by nonwritten means of communication,

27-19    or the physician directs that the listed life-sustaining procedures

27-20    should not be initiated or continued in behalf of the person; and

27-21                      (B)  places for the printed names and signatures

27-22    of the witnesses and, as applicable, the legal guardian, proxy,

27-23    agent, or physician;

27-24                (8)  a separate section for execution of the document

27-25    by at least two qualified relatives of the person when the person

 28-1    does not have a legal guardian, proxy, or agent having a durable

 28-2    power of attorney for health care and is comatose, incompetent, or

 28-3    otherwise mentally or physically incapable of communication,

 28-4    including:

 28-5                      (A)  a statement that the relatives of the person

 28-6    are qualified to make a treatment decision to withhold

 28-7    cardiopulmonary resuscitation and certain other designated

 28-8    life-sustaining procedures under Section 166.088 [674.008] and,

 28-9    based on the known desires of the person or a determination of the

28-10    best interest of the person, direct that the listed life-sustaining

28-11    procedures should not be initiated or continued in behalf of the

28-12    person; and

28-13                      (B)  places for the printed names and signatures

28-14    of the witnesses and qualified relatives of the person;

28-15                (9)  a place for entry of the date of execution of the

28-16    document;

28-17                (10)  a statement that the document is in effect on the

28-18    date of its execution and remains in effect until the death of the

28-19    person or until the document is revoked;

28-20                (11)  a statement that the document must accompany the

28-21    person during transport;

28-22                (12)  a statement regarding the proper disposition of

28-23    the document or copies of the document, as the board determines

28-24    appropriate; and

28-25                (13)  a statement at the bottom of the document, with

 29-1    places for the signature of each person executing the document,

 29-2    that the document has been properly completed.

 29-3          (c)  The board may, by rule and as recommended by the

 29-4    department, modify the standard form of the out-of-hospital DNR

 29-5    order described by Subsection (b) in order to accomplish the

 29-6    purposes of this subchapter [chapter].

 29-7          Sec. 166.084 [674.004].  ISSUANCE OF OUT-OF-HOSPITAL DNR

 29-8    ORDER BY NONWRITTEN COMMUNICATION.  (a)  A competent person who is

 29-9    an adult may issue an out-of-hospital DNR order by nonwritten

29-10    communication.

29-11          (b)  A declarant must issue the nonwritten out-of-hospital

29-12    DNR order in the presence of the attending physician and two

29-13    witnesses.  [The witnesses must possess the same qualifications as

29-14    those provided by Section 672.003(c).]

29-15          (c)  The attending physician and witnesses shall sign the

29-16    out-of-hospital DNR order in the [that] place of the document

29-17    provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending

29-18    physician shall sign the document in the place required by Section

29-19    166.083(b)(13) [674.003(b)(13)].  The physician shall make the fact

29-20    of the existence of the out-of-hospital DNR order a part of the

29-21    declarant's medical record and the witnesses shall sign that entry

29-22    in the medical record.

29-23          (d)  An out-of-hospital DNR order issued in the manner

29-24    provided by this section is valid and shall be honored by

29-25    responding health care professionals as if executed in the manner

 30-1    provided by Section 166.082 [674.002].

 30-2          Sec. 166.085 [674.005].  EXECUTION OF OUT-OF-HOSPITAL DNR

 30-3    ORDER ON BEHALF OF A MINOR.  The following persons may execute an

 30-4    out-of-hospital DNR order on behalf of a minor:

 30-5                (1)  the minor's parents;

 30-6                (2)  the minor's legal guardian; or

 30-7                (3)  the minor's managing conservator.

 30-8          Sec. 166.086 [674.006].  DESIRE OF PERSON SUPERSEDES

 30-9    OUT-OF-HOSPITAL DNR ORDER.  The desire of a competent person,

30-10    including a competent minor, supersedes the effect of an

30-11    out-of-hospital DNR order executed or issued by or on behalf of the

30-12    person when the desire is communicated to responding health care

30-13    professionals as provided by this subchapter [chapter].

30-14          Sec. 166.087 [674.007].  PROCEDURE WHEN DECLARANT IS

30-15    INCOMPETENT OR INCAPABLE OF COMMUNICATION.  (a)  This section

30-16    applies when a person 18 years of age or older has executed or

30-17    issued an out-of-hospital DNR order and subsequently becomes

30-18    comatose, incompetent, or otherwise mentally or physically

30-19    incapable of communication.

30-20          (b)  If the adult person has designated a person to make a

30-21    treatment decision as authorized by Section 166.032(c)

30-22    [672.003(d)], the attending physician and the designated person

30-23    shall comply with the out-of-hospital DNR order.

30-24          (c)  If the adult person has not designated a person to make

30-25    a treatment decision as authorized by Section 166.032(c)

 31-1    [672.003(d)], the attending physician shall comply with the

 31-2    out-of-hospital DNR order unless the physician believes that the

 31-3    order does not reflect the person's present desire.

 31-4          Sec. 166.088 [674.008].  PROCEDURE WHEN PERSON HAS NOT

 31-5    EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR

 31-6    INCAPABLE OF COMMUNICATION.  (a)  If an adult person has not

 31-7    executed or issued an out-of-hospital DNR order and is comatose,

 31-8    incompetent, or otherwise mentally or physically incapable of

 31-9    communication, the attending physician and the person's legal

31-10    guardian, proxy, or agent having a durable power of attorney for

31-11    health care may execute an out-of-hospital DNR order on behalf of

31-12    the person.

31-13          (b)  If the person does not have a legal guardian, proxy, or

31-14    agent, the attending physician and at least two qualified relatives

31-15    may execute an out-of-hospital DNR order in the same manner as a

31-16    treatment decision made under Section 166.039(b) [672.009(b)].

31-17          (c)  A decision to execute an out-of-hospital DNR order made

31-18    under Subsection (a) or (b) must be based on knowledge of what the

31-19    person would desire, if known.

31-20          (d)  An out-of-hospital DNR order executed under Subsection

31-21    (b) must be made in the presence of at least two witnesses [who

31-22    possess the same qualifications that are required by Section

31-23    672.003(c)].

31-24          (e)  The fact that an adult person has not executed or issued

31-25    an out-of-hospital DNR order does not create a presumption that the

 32-1    person does not want a treatment decision made to withhold

 32-2    cardiopulmonary resuscitation and certain other designated

 32-3    life-sustaining procedures designated by the board.

 32-4          Sec. 166.089 [674.009].  COMPLIANCE WITH OUT-OF-HOSPITAL DNR

 32-5    ORDER.  (a)  When responding to a call for assistance, health care

 32-6    professionals shall honor an out-of-hospital DNR order in

 32-7    accordance with the statewide out-of-hospital DNR protocol and,

 32-8    where applicable, locally adopted out-of-hospital DNR protocols not

 32-9    in conflict with the statewide protocol if:

32-10                (1)  the responding health care professionals discover

32-11    an executed or issued out-of-hospital DNR order form on their

32-12    arrival at the scene; and

32-13                (2)  the responding health care professionals comply

32-14    with this section.

32-15          (b)  If the person is wearing a DNR identification device,

32-16    the responding health care professionals must comply with Section

32-17    166.090 [674.010].

32-18          (c)  The responding health care professionals must establish

32-19    the identity of the person as the person who executed or issued the

32-20    out-of-hospital DNR order or for whom the out-of-hospital DNR order

32-21    was executed or issued.

32-22          (d)  The responding health care professionals must determine

32-23    that the out-of-hospital DNR order form appears to be valid in that

32-24    it includes:

32-25                (1)  written responses in the places designated on the

 33-1    form for the names, signatures, and other information required of

 33-2    persons executing or issuing, or witnessing the execution or

 33-3    issuance of, the order;

 33-4                (2)  a date in the place designated on the form for the

 33-5    date the order was executed or issued; and

 33-6                (3)  the signature of the declarant or persons

 33-7    executing or issuing the order and the attending physician in the

 33-8    appropriate places designated on the form for indicating that the

 33-9    order form has been properly completed.

33-10          (e)  If the conditions prescribed by Subsections (a) through

33-11    (d) are not determined to apply by the responding health care

33-12    professionals at the scene, the out-of-hospital DNR order may not

33-13    be honored and life-sustaining procedures otherwise required by law

33-14    or local emergency medical services protocols shall be initiated or

33-15    continued.  Health care professionals acting in out-of-hospital

33-16    settings are not required to accept or interpret an out-of-hospital

33-17    DNR order that does not meet the requirements of this subchapter

33-18    [chapter].

33-19          (f)  The out-of-hospital DNR order form, when available, must

33-20    accompany the person during transport.

33-21          (g)  A record shall be made and maintained of the

33-22    circumstances of each emergency medical services response in which

33-23    an out-of-hospital DNR order or DNR identification device is

33-24    encountered, in accordance with the statewide out-of-hospital DNR

33-25    protocol and any applicable local out-of-hospital DNR protocol not

 34-1    in conflict with the statewide protocol.

 34-2          (h)  An out-of-hospital DNR order executed or issued and

 34-3    documented or evidenced in the manner prescribed by this subchapter

 34-4    [chapter] is valid and shall be honored by responding health care

 34-5    professionals unless the person or persons found at the scene:

 34-6                (1)  identify themselves as the declarant or as the

 34-7    attending physician, legal guardian, qualified relative, or agent

 34-8    of the person having a durable power of attorney for health care

 34-9    who executed or issued the out-of-hospital DNR order on behalf of

34-10    the person; and

34-11                (2)  request that cardiopulmonary resuscitation or

34-12    certain other life-sustaining procedures designated by the board be

34-13    initiated or continued.

34-14          (i)  If the policies of a health care facility preclude

34-15    compliance with the out-of-hospital DNR order of a person or an

34-16    out-of-hospital DNR order issued by an attending physician on

34-17    behalf of a person who is admitted to or a resident of the

34-18    facility, or if the facility is unwilling to accept DNR

34-19    identification devices as evidence of the existence of an

34-20    out-of-hospital DNR order, that facility shall take all reasonable

34-21    steps to notify the person or, if the person is incompetent, the

34-22    person's guardian or the person or persons having authority to make

34-23    health care treatment decisions on behalf of the person, of the

34-24    facility's policy and shall take all reasonable steps to effect the

34-25    transfer of the person to the person's home or to a facility where

 35-1    the provisions of this subchapter [chapter] can be carried out.

 35-2          Sec. 166.090 [674.010].  DNR IDENTIFICATION DEVICE.  (a)  A

 35-3    person who has a valid out-of-hospital DNR order under this

 35-4    subchapter [chapter] may wear a DNR identification device around

 35-5    the neck or on the wrist as prescribed by board rule adopted under

 35-6    Section 166.103 [674.023].

 35-7          (b)  The presence of a DNR identification device on the body

 35-8    of a person is conclusive evidence that the person has executed or

 35-9    issued a valid out-of-hospital DNR order or has a valid

35-10    out-of-hospital DNR order executed or issued on the person's

35-11    behalf.  Responding health care professionals shall honor the DNR

35-12    identification device as if a valid out-of-hospital DNR order form

35-13    executed or issued by the person were found in the possession of

35-14    the person.

35-15          Sec. 166.091 [674.011].  DURATION OF OUT-OF-HOSPITAL DNR

35-16    ORDER.  An out-of-hospital DNR order is effective until it is

35-17    revoked as prescribed by Section 166.092 [674.012].

35-18          Sec. 166.092 [674.012].  REVOCATION OF OUT-OF-HOSPITAL DNR

35-19    ORDER.  (a)  A declarant may revoke an out-of-hospital DNR order at

35-20    any time without regard to the declarant's mental state or

35-21    competency.  An order may be revoked by:

35-22                (1)  the declarant or someone in the declarant's

35-23    presence and at the declarant's direction destroying the order form

35-24    and removing the DNR identification device, if any;

35-25                (2)  a person who identifies himself or herself as the

 36-1    legal guardian, as a qualified relative, or as the agent of the

 36-2    declarant having a durable power of attorney for health care who

 36-3    executed the out-of-hospital DNR order or another person in the

 36-4    person's presence and at the person's direction destroying the

 36-5    order form and removing the DNR identification device, if any;

 36-6                (3)  the declarant communicating the declarant's intent

 36-7    to revoke the order; or

 36-8                (4)  a person who identifies himself or herself as the

 36-9    legal guardian, a qualified relative, or the agent of the declarant

36-10    having a durable power of attorney for health care who executed the

36-11    out-of-hospital DNR order orally stating the person's intent to

36-12    revoke the order.

36-13          (b)  An oral revocation under Subsection (a)(3) or (a)(4)

36-14    takes effect only when the declarant or a person who identifies

36-15    himself or herself as the legal guardian, a qualified relative, or

36-16    the agent of the declarant having a durable power of attorney for

36-17    health care who executed the out-of-hospital DNR order communicates

36-18    the intent to revoke the order to the responding health care

36-19    professionals or the attending physician at the scene.  The

36-20    responding health care professionals shall record the time, date,

36-21    and place of the revocation in accordance with the statewide

36-22    out-of-hospital DNR protocol and rules adopted by the board and any

36-23    applicable local out-of-hospital DNR protocol.  The attending

36-24    physician or the physician's designee shall record in the person's

36-25    medical record the time, date, and place of the revocation and, if

 37-1    different, the time, date, and place that the physician received

 37-2    notice of the revocation.  The attending physician or the

 37-3    physician's designee shall also enter the word "VOID" on each page

 37-4    of the copy of the order in the person's medical record.

 37-5          (c)  Except as otherwise provided by this subchapter

 37-6    [chapter], a person is not civilly or criminally liable for failure

 37-7    to act on a revocation made under this section unless the person

 37-8    has actual knowledge of the revocation.

 37-9          Sec. 166.093 [674.013].  REEXECUTION OF OUT-OF-HOSPITAL DNR

37-10    ORDER.  A declarant may at any time reexecute or reissue an

37-11    out-of-hospital DNR order in accordance with the procedures

37-12    prescribed by Section 166.082 [674.002], including reexecution or

37-13    reissuance after the declarant is diagnosed as having a terminal

37-14    condition.

37-15          Sec. 166.094 [674.014].  CONFLICT WITH NATURAL DEATH LAW

37-16    [ACT] OR DURABLE POWER OF ATTORNEY FOR HEALTH CARE.  To the extent

37-17    that an out-of-hospital DNR order conflicts with a directive or

37-18    treatment decision executed or issued under Subchapter B [Chapter

37-19    672] or a durable power of attorney for health care [executed or

37-20    issued in accordance with Chapter 135, Civil Practice and Remedies

37-21    Code], the instrument executed later in time controls.

37-22          Sec. 166.095 [674.015].  EFFECT OF OUT-OF-HOSPITAL DNR ORDER

37-23    ON INSURANCE POLICY AND PREMIUMS.  (a)  The fact that a person has

37-24    executed or issued an out-of-hospital DNR order under this

37-25    subchapter [chapter] does not:

 38-1                (1)  restrict, inhibit, or impair in any manner the

 38-2    sale, procurement, or issuance of a life insurance policy to that

 38-3    person; or

 38-4                (2)  modify the terms of an existing life insurance

 38-5    policy.

 38-6          (b)  Notwithstanding the terms of any life insurance policy,

 38-7    the fact that cardiopulmonary resuscitation or certain other

 38-8    life-sustaining procedures designated by the board are withheld

 38-9    from an insured person under this subchapter [chapter] does not

38-10    legally impair or invalidate that person's life insurance policy

38-11    and may not be a factor for the purpose of determining the

38-12    payability of benefits or the cause of death under the life

38-13    insurance policy.

38-14          (c)  A physician, health facility, health care provider,

38-15    insurer, or health care service plan may not require a person to

38-16    execute or issue an out-of-hospital DNR order as a condition for

38-17    obtaining insurance for health care services or receiving health

38-18    care services.

38-19          (d)  The fact that a person has executed or issued or failed

38-20    to execute or issue an out-of-hospital DNR order under this

38-21    subchapter [chapter] may not be considered in any way in

38-22    establishing insurance premiums.

38-23          Sec. 166.096 [674.016].  LIMITATION ON LIABILITY FOR

38-24    WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER

38-25    LIFE-SUSTAINING PROCEDURES.  (a)  A health care professional or

 39-1    health care facility or entity that in good faith causes

 39-2    cardiopulmonary resuscitation or certain other life-sustaining

 39-3    procedures designated by the board to be withheld from a person in

 39-4    accordance with this subchapter [chapter] is not civilly liable for

 39-5    that action.

 39-6          (b)  A health care professional or health care facility or

 39-7    entity that in good faith participates in withholding

 39-8    cardiopulmonary resuscitation or certain other life-sustaining

 39-9    procedures designated by the board from a person in accordance with

39-10    this subchapter [chapter] is not civilly liable for that action.

39-11          (c)  A health care professional or health care facility or

39-12    entity that in good faith participates in withholding

39-13    cardiopulmonary resuscitation or certain other life-sustaining

39-14    procedures designated by the board from a person in accordance with

39-15    this subchapter [chapter] is not criminally liable or guilty of

39-16    unprofessional conduct as a result of that action.

39-17          (d)  A health care professional or health care facility or

39-18    entity that in good faith causes or 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] and rules adopted under this subchapter

39-22    [chapter] is not in violation of any other licensing or regulatory

39-23    laws or rules of this state and is not subject to any disciplinary

39-24    action or sanction by any licensing or regulatory agency of this

39-25    state as a result of that action.

 40-1          Sec. 166.097 [674.017].  LIMITATION ON LIABILITY FOR FAILURE

 40-2    TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER.  (a)  A health care

 40-3    professional or health care facility or entity that has no actual

 40-4    knowledge of an out-of-hospital DNR order is not civilly or

 40-5    criminally liable for failing to act in accordance with the order.

 40-6          (b)  A health care professional or health care facility or

 40-7    entity is not civilly or criminally liable for failing to

 40-8    effectuate an out-of-hospital DNR order.

 40-9          (c)  If an attending physician refuses to execute or comply

40-10    with an out-of-hospital DNR order, the physician shall inform the

40-11    person, the legal guardian or qualified relatives of the person, or

40-12    the agent of the person having a durable power of attorney for

40-13    health care and, if the person or another authorized to act on

40-14    behalf of the person so directs, shall make a reasonable effort to

40-15    transfer the person to another physician who is willing to execute

40-16    or comply with an out-of-hospital DNR order.

40-17          Sec. 166.098 [674.018].  HONORING OUT-OF-HOSPITAL DNR ORDER

40-18    DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE.  A person does not

40-19    commit an offense under Section 22.08, Penal Code, by withholding

40-20    cardiopulmonary resuscitation or certain other life-sustaining

40-21    procedures designated by the board from a person in accordance with

40-22    this subchapter [chapter].

40-23          Sec. 166.099 [674.019].  CRIMINAL PENALTY; PROSECUTION.

40-24    (a)  A person commits an offense if the person intentionally

40-25    conceals, cancels, defaces, obliterates, or damages another

 41-1    person's out-of-hospital DNR order or DNR identification device

 41-2    without that person's consent or the consent of the person or

 41-3    persons authorized to execute or issue an out-of-hospital DNR order

 41-4    on behalf of the person under this subchapter [chapter].  An

 41-5    offense under this subsection is a Class A misdemeanor.

 41-6          (b)  A person is subject to prosecution for criminal homicide

 41-7    under Chapter 19, Penal Code, if the person, with the intent to

 41-8    cause cardiopulmonary resuscitation or certain other

 41-9    life-sustaining procedures designated by the board to be withheld

41-10    from another person contrary to the other person's desires,

41-11    falsifies or forges an out-of-hospital DNR order or intentionally

41-12    conceals or withholds personal knowledge of a revocation and

41-13    thereby directly causes cardiopulmonary resuscitation and certain

41-14    other life-sustaining procedures designated by the board to be

41-15    withheld from the other person with the result that the other

41-16    person's death is hastened.

41-17          Sec. 166.100 [674.020].  PREGNANT PERSONS.  A person may not

41-18    withhold cardiopulmonary resuscitation or certain other

41-19    life-sustaining procedures designated by the board under this

41-20    subchapter [chapter] from a person known by the responding health

41-21    care professionals to be pregnant.

41-22          Sec. 166.101 [674.021].  MERCY KILLING NOT CONDONED.  This

41-23    subchapter [chapter] does not condone, authorize, or approve mercy

41-24    killing or permit an affirmative or deliberate act or omission to

41-25    end life except to permit the natural process of dying as provided

 42-1    by this subchapter [chapter].

 42-2          Sec. 166.102 [674.022].  LEGAL RIGHT OR RESPONSIBILITY NOT

 42-3    AFFECTED.  This subchapter [chapter] does not impair or supersede

 42-4    any legal right or responsibility a person may have under a

 42-5    constitution, other statute, regulation, or court decision to

 42-6    effect the withholding of cardiopulmonary resuscitation or certain

 42-7    other life-sustaining procedures designated by the board.

 42-8          Sec. 166.103 [674.023].  DUTIES OF DEPARTMENT AND BOARD.

 42-9    (a)  The board shall, on the recommendation of the department,

42-10    adopt all reasonable and necessary rules to carry out the purposes

42-11    of this subchapter [chapter], including rules:

42-12                (1)  adopting a statewide out-of-hospital DNR order

42-13    protocol that sets out standard procedures for the withholding of

42-14    cardiopulmonary resuscitation and certain other life-sustaining

42-15    procedures by health care professionals acting in out-of-hospital

42-16    settings;

42-17                (2)  designating life-sustaining procedures that may be

42-18    included in an out-of-hospital DNR order, including all procedures

42-19    listed in Sections 166.081(6)(A)(i) through (vi) [Section

42-20    674.001(14)(A)(i) through (vi)]; and

42-21                (3)  governing recordkeeping in circumstances in which

42-22    an out-of-hospital DNR order or DNR identification device is

42-23    encountered by responding health care professionals.

42-24          (b)  The rules adopted by the board under Subsection (a) are

42-25    not effective until approved by the Texas State Board of Medical

 43-1    Examiners.

 43-2          (c)  Local emergency medical services authorities may adopt

 43-3    local out-of-hospital DNR order protocols if the local protocols do

 43-4    not conflict with the statewide out-of-hospital DNR order protocol

 43-5    adopted by the board.

 43-6          (d)  The board by rule shall specify a distinctive standard

 43-7    design for a necklace and a bracelet DNR identification device that

 43-8    signifies, when worn by a person, that the possessor has executed

 43-9    or issued a valid out-of-hospital DNR order under this subchapter

43-10    [chapter] or is a person for whom a valid out-of-hospital DNR order

43-11    has been executed or issued.

43-12          (e)  The department shall report to the board from time to

43-13    time regarding issues identified in emergency medical services

43-14    responses in which an out-of-hospital DNR order or DNR

43-15    identification device is encountered.  The report may contain

43-16    recommendations to the board for necessary modifications to the

43-17    form of the standard out-of-hospital DNR order or the designated

43-18    life-sustaining procedures listed in the standard out-of-hospital

43-19    DNR order, the statewide out-of-hospital DNR order protocol, or the

43-20    DNR identification devices.

43-21          Sec. 166.104 [674.024].  RECOGNITION OF OUT-OF-HOSPITAL DNR

43-22    ORDER EXECUTED OR ISSUED IN OTHER STATE.  An out-of-hospital DNR

43-23    order executed, issued, or authorized in another state or a

43-24    territory or possession of the United States in compliance with the

43-25    law of that jurisdiction is effective for purposes of this

 44-1    subchapter [chapter].

 44-2          SECTION 1.05.  Chapter 135, Civil Practice and Remedies Code,

 44-3    is transferred to Subtitle H, Title 2, Health and Safety Code, is

 44-4    redesignated as Subchapter D, Chapter 166, Health and Safety Code,

 44-5    and is amended to read as follows:

 44-6        SUBCHAPTER D [CHAPTER 135].  DURABLE POWER OF ATTORNEY FOR

 44-7                                HEALTH CARE

 44-8          Sec. 166.151 [135.001].  DEFINITIONS.  In this subchapter

 44-9    [chapter]:

44-10                (1)  "Adult" means a person 18 years of age or older or

44-11    a person under 18 years of age who has had the disabilities of

44-12    minority removed.

44-13                (2)  "Agent" means an adult to whom authority to make

44-14    health care decisions is delegated under a durable power of

44-15    attorney for health care.

44-16                (3)  ["Attending physician" means the physician,

44-17    selected by or assigned to a patient, who has primary

44-18    responsibility for the treatment and care of the patient.]

44-19                [(4)  "Capacity to make health care decisions" means

44-20    the ability to understand and appreciate the nature and

44-21    consequences of a health care decision, including the significant

44-22    benefits and harms of and reasonable alternatives to any proposed

44-23    health care.]

44-24                [(5)  "Durable power of attorney for health care" means

44-25    a document delegating to an agent the authority to make health care

 45-1    decisions as provided by this chapter.]

 45-2                [(6)  "Health care decision" means consent, refusal to

 45-3    consent, or withdrawal of consent to health care, treatment,

 45-4    service, or procedure to maintain, diagnose, or treat an

 45-5    individual's physical or mental condition.]

 45-6                [(7)]  "Health care provider" means an individual or

 45-7    facility licensed, certified, or otherwise authorized to administer

 45-8    health care, for profit or otherwise, in the ordinary course of

 45-9    business or professional practice and includes a physician.

45-10                (4) [(8)  "Physician" means:]

45-11                      [(A)  a physician licensed by the Texas State

45-12    Board of Medical Examiners; or]

45-13                      [(B)  a physician with proper credentials who

45-14    holds a commission in a branch of the armed services of the United

45-15    States and who is serving on active duty in this state.]

45-16                [(9)]  "Principal" means an adult who has executed a

45-17    durable power of attorney for health care.

45-18                (5) [(10)]  "Residential care provider" means an

45-19    individual or facility licensed, certified, or otherwise authorized

45-20    to operate, for profit or otherwise, a residential care home.

45-21          Sec. 166.152 [135.002].  SCOPE AND DURATION OF AUTHORITY.

45-22    (a)  Subject to this subchapter [chapter] or any express limitation

45-23    on the authority of the agent contained in the durable power of

45-24    attorney for health care, the agent may make any health care

45-25    decision on the principal's behalf that the principal could make if

 46-1    the principal were competent [but for the principal's lack of

 46-2    capacity to make health care decisions].

 46-3          (b)  An agent may exercise authority only if the principal's

 46-4    attending physician certifies in writing and files the

 46-5    certification in the principal's medical record that, based on the

 46-6    attending physician's reasonable medical judgment, the principal is

 46-7    incompetent [lacks capacity to make health care decisions].

 46-8          (c)  Notwithstanding any other provisions of this subchapter

 46-9    [chapter], treatment may not be given to or withheld from the

46-10    principal if the principal objects regardless of whether, at the

46-11    time of the objection:

46-12                (1)  a durable power of attorney for health care is in

46-13    effect; or

46-14                (2)  the principal is competent [has the capacity to

46-15    make health care decisions].

46-16          (d)  The principal's attending physician shall make

46-17    reasonable efforts to inform the principal of any proposed

46-18    treatment or of any proposal to withdraw or withhold treatment

46-19    before implementing an agent's directive.

46-20          (e)  After consultation with the attending physician and

46-21    other health care providers, the agent shall make a health care

46-22    decision:

46-23                (1)  according to the agent's knowledge of the

46-24    principal's wishes, including the principal's religious and moral

46-25    beliefs; or

 47-1                (2)  if the agent does not know the principal's wishes,

 47-2    according to the agent's assessment of the principal's best

 47-3    interests.

 47-4          (f)  Notwithstanding any other provision of this subchapter

 47-5    [chapter], an agent may not consent to:

 47-6                (1)  voluntary inpatient mental health services;

 47-7                (2)  convulsive treatment;

 47-8                (3)  psychosurgery;

 47-9                (4)  abortion; or

47-10                (5)  neglect of the principal through the omission of

47-11    care primarily intended to provide for the comfort of the

47-12    principal.

47-13          (g)  The power of attorney is effective indefinitely on

47-14    execution as provided by this subchapter [chapter] and delivery of

47-15    the document to the agent, unless it is revoked as provided by this

47-16    subchapter [chapter] or the principal becomes competent [regains

47-17    the capacity to make health care decisions].  If the durable power

47-18    of attorney includes an expiration date and on that date the

47-19    principal becomes incompetent [lacks the capacity to make health

47-20    care decisions], the power of attorney continues to be effective

47-21    until the principal becomes competent [regains the capacity to make

47-22    health care decisions] unless it is revoked as provided by this

47-23    subchapter [chapter].

47-24          Sec. 166.153 [135.003].  PERSONS WHO MAY NOT EXERCISE

47-25    AUTHORITY OF AGENT.  A person may not exercise the authority of an

 48-1    agent while the person serves as:

 48-2                (1)  the principal's health care provider;

 48-3                (2)  an employee of the principal's health care

 48-4    provider unless the person is a relative of the principal;

 48-5                (3)  the principal's residential care provider; or

 48-6                (4)  an employee of the principal's residential care

 48-7    provider unless the person is a relative of the principal.

 48-8          Sec. 166.154 [135.004].  EXECUTION AND WITNESSES.  (a)  The

 48-9    durable power of attorney for health care must be signed by the

48-10    principal in the presence of at least two [or more] subscribing

48-11    witnesses.

48-12          (b)  A witness must possess the qualifications and be subject

48-13    to the restrictions provided by Section 166.003.  In addition, a

48-14    witness may not, at the time of execution, be[:]

48-15                [(1)]  the agent[;]

48-16                [(2)  the principal's health or residential care

48-17    provider or the provider's employee;]

48-18                [(3)  the principal's spouse or heir;]

48-19                [(4)  a person entitled to any part of the estate of

48-20    the principal on the death of the principal under a will or deed in

48-21    existence or by operation of law; or]

48-22                [(5)  any other person who has any claim against the

48-23    estate] of the principal.

48-24          (c)  The witnesses shall affirm that, at the time the durable

48-25    power of attorney for health care was signed, the principal:

 49-1                (1)  appeared to be competent [of sound mind to make a

 49-2    health care decision];

 49-3                (2)  stated in the witness's presence that the

 49-4    principal was aware of the nature of the durable power of attorney

 49-5    for health care and that the principal was signing the document

 49-6    voluntarily and free from any duress; and

 49-7                (3)  requested that the witness serve as a witness to

 49-8    the principal's execution of the document.

 49-9          (d)  If the principal is physically unable to sign, another

49-10    person may sign the durable power of attorney for health care with

49-11    the principal's name in the principal's presence and at the

49-12    principal's express direction.

49-13          Sec. 166.155 [135.005].  REVOCATION.  (a)  A durable power of

49-14    attorney for health care is revoked by:

49-15                (1)  oral or written notification at any time by the

49-16    principal to the agent or a licensed or certified health or

49-17    residential care provider or by any other act evidencing a specific

49-18    intent to revoke the power, without regard to whether the principal

49-19    is competent or the principal's mental state[, competency, or

49-20    capacity to make health care decisions];

49-21                (2)  execution by the principal of a subsequent durable

49-22    power of attorney for health care; or

49-23                (3)  the divorce of the principal and spouse, if the

49-24    spouse is the principal's agent.

49-25          (b)  A principal's licensed or certified health or

 50-1    residential care provider who is informed of or provided with a

 50-2    revocation of a durable power of attorney for health care shall

 50-3    immediately record the revocation in the principal's medical record

 50-4    and give notice of the revocation to the agent and any known health

 50-5    and residential care providers currently responsible for the

 50-6    principal's care.

 50-7          Sec. 166.156 [135.006].  APPOINTMENT OF GUARDIAN.  (a)  On

 50-8    motion filed in connection with a petition for appointment of a

 50-9    guardian or, if a guardian has been appointed, on petition of the

50-10    guardian, a probate court shall determine whether to suspend or

50-11    revoke the authority of the agent.

50-12          (b)  The court shall consider the preferences of the

50-13    principal as expressed in the durable power of attorney for health

50-14    care.

50-15          (c)  During the pendency of the court's determination under

50-16    Subsection (a), the guardian has the sole authority to make any

50-17    health care decisions unless the court orders otherwise.  If a

50-18    guardian has not been appointed, the agent has the authority to

50-19    make any health care decisions unless the court orders otherwise.

50-20          (d)  A person, including any attending physician or health or

50-21    residential care provider, who does not have actual knowledge of

50-22    the appointment of a guardian or an order of the court granting

50-23    authority to someone other than the agent to make health care

50-24    decisions is not subject to criminal or civil liability and has not

50-25    engaged in unprofessional conduct for implementing an agent's

 51-1    health care decision.

 51-2          Sec. 166.157 [135.007].  DISCLOSURE OF MEDICAL INFORMATION.

 51-3    Subject to any limitations in the durable power of attorney for

 51-4    health care, an agent may, for the purpose of making a health care

 51-5    decision:

 51-6                (1)  request, review, and receive any information, oral

 51-7    or written, regarding the principal's physical or mental health,

 51-8    including medical and hospital records;

 51-9                (2)  execute a release or other document required to

51-10    obtain the information; and

51-11                (3)  consent to the disclosure of the information.

51-12          Sec. 166.158 [135.008].  DUTY OF HEALTH OR RESIDENTIAL CARE

51-13    PROVIDER.  (a)  A principal's health or residential care provider

51-14    and an employee of the provider who knows of the existence of the

51-15    principal's durable power of attorney for health care shall follow

51-16    a directive of the principal's agent to the extent it is consistent

51-17    with the desires of the principal, this subchapter [chapter], and

51-18    the durable power of attorney for health care.

51-19          (b)  The attending physician does not have a duty to verify

51-20    that the agent's directive is consistent with the principal's

51-21    wishes or religious or moral beliefs.

51-22          (c)  A principal's health or residential care provider who

51-23    finds it impossible to follow a directive by the agent because of a

51-24    conflict with this subchapter [chapter] or the durable power of

51-25    attorney for health care shall inform the agent as soon as is

 52-1    reasonably possible.  The agent may select another attending

 52-2    physician.

 52-3          (d)  This subchapter [chapter] may not be construed to

 52-4    require a health or residential care provider who is not a

 52-5    physician to act in a manner contrary to a physician's order.

 52-6          Sec. 166.159 [135.009].  DISCRIMINATION RELATING TO EXECUTION

 52-7    OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE.  A health or

 52-8    residential care provider, health care service plan, insurer

 52-9    issuing disability insurance, self-insured employee benefit plan,

52-10    or nonprofit hospital service plan may not:

52-11                (1)  charge a person a different rate solely because

52-12    the person has executed a durable power of attorney for health

52-13    care;

52-14                (2)  require a person to execute a durable power of

52-15    attorney for health care before:

52-16                      (A)  admitting the person to a hospital, nursing

52-17    home, or residential care home;

52-18                      (B)  insuring the person; or

52-19                      (C)  allowing the person to receive health or

52-20    residential care; or

52-21                (3)  refuse health or residential care to a person

52-22    solely because the person has executed a durable power of attorney

52-23    for health care.

52-24          Sec. 166.160 [135.010].  LIMITATION ON LIABILITY.  (a)  An

52-25    agent is not subject to criminal or civil liability for a health

 53-1    care decision if the decision is made in good faith under the terms

 53-2    of the durable power of attorney for health care and the provisions

 53-3    of this subchapter [chapter].

 53-4          (b)  An attending physician, health or residential care

 53-5    provider, or a person acting as an agent for or under the

 53-6    physician's or provider's control is not subject to criminal or

 53-7    civil liability and has not engaged in unprofessional conduct for

 53-8    an act or omission if the act or omission:

 53-9                (1)  is done in good faith under the terms of the

53-10    durable power of attorney for health care, the directives of the

53-11    agent, and the provisions of this subchapter [chapter]; and

53-12                (2)  does not constitute a failure to exercise due care

53-13    in the provision of health care services.

53-14          (c)  An attending physician, health or residential care

53-15    provider, or person acting as an agent for or under the physician's

53-16    or provider's control has not engaged in unprofessional conduct

53-17    for:

53-18                (1)  failure to act as required by the directive of an

53-19    agent or a durable power of attorney for health care if the

53-20    physician, provider, or person was not provided with a copy of the

53-21    durable power of attorney for health care or had no knowledge of a

53-22    directive; or

53-23                (2)  acting as required by an agent's directive if the

53-24    durable power of attorney for health care has expired or been

53-25    revoked but the physician, provider, or person does not have

 54-1    knowledge of the expiration or revocation.

 54-2          Sec. 166.161 [135.011].  LIABILITY FOR HEALTH CARE COSTS.

 54-3    Liability for the cost of health care provided as a result of the

 54-4    agent's decision is the same as if the health care were provided as

 54-5    a result of the principal's decision.

 54-6          Sec. 166.162 [135.012].  NATURAL DEATH LAW [ACT].  To the

 54-7    extent that a durable power of attorney for health care conflicts

 54-8    with a directive or treatment decision executed under Subchapter B

 54-9    [the Natural Death Act (Chapter 672, Health and Safety Code)], the

54-10    instrument executed later in time controls.  A physician who

54-11    withholds or withdraws life-sustaining procedures from a principal

54-12    with a terminal condition as required by an agent's directive is

54-13    not required to comply with Subchapter B [the Natural Death Act].

54-14          Sec. 166.163 [135.013].  ENFORCEABILITY OF DURABLE POWER OF

54-15    ATTORNEY EXECUTED IN ANOTHER JURISDICTION.  This subchapter

54-16    [chapter] does not limit the enforceability of a durable power of

54-17    attorney for health care or similar instrument executed in another

54-18    state or jurisdiction if the instrument complies with the law of

54-19    the state or jurisdiction.

54-20          Sec. 166.164 [135.014].  DISCLOSURE STATEMENT.  A durable

54-21    power of attorney for health care is not effective unless the

54-22    principal, before executing the durable power of attorney for

54-23    health care, signs a statement that the principal has received a

54-24    disclosure statement and has read and understood its contents.

54-25          Sec. 166.165 [135.015].  FORM OF DISCLOSURE STATEMENT.  The

 55-1    disclosure statement must be in substantially the following form:

 55-2         INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR

 55-3                                HEALTH CARE

 55-4          THIS IS AN IMPORTANT LEGAL DOCUMENT.  BEFORE SIGNING

 55-5          THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

 55-6                Except to the extent you state otherwise, this

 55-7          document gives the person you name as your agent the

 55-8          authority to make any and all health care decisions for

 55-9          you in accordance with your wishes, including your

55-10          religious and moral beliefs, when you are no longer

55-11          capable of making them yourself.  Because "health care"

55-12          means any treatment, service, or procedure to maintain,

55-13          diagnose, or treat your physical or mental condition,

55-14          your agent has the power to make a broad range of

55-15          health care decisions for you.  Your agent may consent,

55-16          refuse to consent, or withdraw consent to medical

55-17          treatment and may make decisions about withdrawing or

55-18          withholding life-sustaining treatment.  Your agent may

55-19          not consent to voluntary inpatient mental health

55-20          services, convulsive treatment, psychosurgery, or

55-21          abortion.  A physician must comply with your agent's

55-22          instructions or allow you to be transferred to another

55-23          physician.

55-24                Your agent's authority begins when your doctor

55-25          certifies that you lack the capacity to make health

 56-1          care decisions.

 56-2                Your agent is obligated to follow your

 56-3          instructions when making decisions on your behalf.

 56-4          Unless you state otherwise, your agent has the same

 56-5          authority to make decisions about your health care as

 56-6          you would have had.

 56-7                It is important that you discuss this document

 56-8          with your physician or other health care provider

 56-9          before you sign it to make sure that you understand the

56-10          nature and range of decisions that may be made on your

56-11          behalf.  If you do not have a physician, you should

56-12          talk with someone else who is knowledgeable about these

56-13          issues and can answer your questions.  You do not need

56-14          a lawyer's assistance to complete this document, but if

56-15          there is anything in this document that you do not

56-16          understand, you should ask a lawyer to explain it to

56-17          you.

56-18                The person you appoint as agent should be someone

56-19          you know and trust.  The person must be 18 years of age

56-20          or older or a person under 18 years of age who has had

56-21          the disabilities of minority removed.  If you appoint

56-22          your health or residential care provider (e.g., your

56-23          physician or an employee of a home health agency,

56-24          hospital, nursing home, or residential care home, other

56-25          than a relative), that person has to choose between

 57-1          acting as your agent or as your health or residential

 57-2          care provider; the law does not permit a person to do

 57-3          both at the same time.

 57-4                You should inform the person you appoint that you

 57-5          want the person to be your health care agent.  You

 57-6          should discuss this document with your agent and your

 57-7          physician and give each a signed copy.  You should

 57-8          indicate on the document itself the people and

 57-9          institutions who have signed copies.  Your agent is not

57-10          liable for health care decisions made in good faith on

57-11          your behalf.

57-12                Even after you have signed this document, you

57-13          have the right to make health care decisions for

57-14          yourself as long as you are able to do so and treatment

57-15          cannot be given to you or stopped over your objection.

57-16          You have the right to revoke the authority granted to

57-17          your agent by informing your agent or your health or

57-18          residential care provider orally or in writing or by

57-19          your execution of a subsequent durable power of

57-20          attorney for health care.  Unless you state otherwise,

57-21          your appointment of a spouse dissolves on divorce.

57-22                This document may not be changed or modified.  If

57-23          you want to make changes in the document, you must make

57-24          an entirely new one.

57-25                You may wish to designate an alternate agent in

 58-1          the event that your agent is unwilling, unable, or

 58-2          ineligible to act as your agent.  Any alternate agent

 58-3          you designate has the same authority to make health

 58-4          care decisions for you.

 58-5          THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED

 58-6          IN THE PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES.

 58-7          THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

 58-8                      (1)  the person you have designated as your

 58-9          agent;

58-10                      (2)  a person related to you by blood or

58-11          marriage [your health or residential care provider or

58-12          an employee of your health or residential care

58-13          provider];

58-14                      (3)  a person entitled to any part of your

58-15          estate after your death under a will or codicil

58-16          executed by you or by operation of law [your spouse];

58-17                      (4)  your attending physician [lawful heirs

58-18          or beneficiaries named in your will or a deed]; [or]

58-19                      (5)  an employee of the attending

58-20          physician;

58-21                      (6)  an employee of a health care facility

58-22          in which you are a patient if the employee is providing

58-23          direct patient care to you or is an officer, director,

58-24          partner, or business office employee of the health care

58-25          facility or of any parent organization of the health

 59-1          care facility;

 59-2                      (7)  a patient in a health care facility in

 59-3          which you are a patient; or

 59-4                      (8)  a person who, at the time this power

 59-5          of attorney is executed, has a claim against any part

 59-6          of your estate after your death [creditors or persons

 59-7          who have a claim against you].

 59-8          Sec. 166.166 [135.016].  FORM OF DURABLE POWER OF ATTORNEY.

 59-9    The durable power of attorney for health care must be in

59-10    substantially the following form:

59-11              DURABLE POWER OF ATTORNEY FOR HEALTH CARE

59-12          DESIGNATION OF HEALTH CARE AGENT.

59-13                I,_____________________________(insert your name)

59-14          appoint:

59-15                Name:____________________________________________

59-16                Address:_________________________________________

59-17                            Phone________________________________

59-18          as my agent to make any and all health care decisions

59-19          for me, except to the extent I state otherwise in this

59-20          document.  This durable power of attorney for health

59-21          care takes effect if I become unable to make my own

59-22          health care decisions and this fact is certified in

59-23          writing by my physician.

59-24          LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY

59-25          AGENT ARE AS FOLLOWS:___________________________

 60-1          _______________________________________________________

 60-2          DESIGNATION OF ALTERNATE AGENT.

 60-3                (You are not required to designate an alternate

 60-4          agent but you may do so.  An alternate agent may make

 60-5          the same health care decisions as the designated agent

 60-6          if the designated agent is unable or unwilling to act

 60-7          as your agent.  If the agent designated is your spouse,

 60-8          the designation is automatically revoked by law if your

 60-9          marriage is dissolved.)

60-10                If the person designated as my agent is unable or

60-11          unwilling to make health care decisions for me, I

60-12          designate the following persons to serve as my agent to

60-13          make health care decisions for me as authorized by this

60-14          document, who serve in the following order:

60-15                A.  First Alternate Agent

60-16                    Name:________________________________________

60-17                    Address:_____________________________________

60-18                                Phone____________________________

60-19                B.  Second Alternate Agent

60-20                    Name:________________________________________

60-21                    Address:_____________________________________

60-22                                Phone____________________________

60-23                    The original of this document is kept

60-24          at_____________________________________________________

60-25          _______________________________________________________

 61-1          _______________________________________________________

 61-2          The following individuals or institutions have signed

 61-3          copies:

 61-4                Name:____________________________________________

 61-5                Address:_________________________________________

 61-6                _________________________________________________

 61-7                Name:____________________________________________

 61-8                Address:_________________________________________

 61-9                _________________________________________________

61-10          DURATION.

61-11                I understand that this power of attorney exists

61-12          indefinitely from the date I execute this document

61-13          unless I establish a shorter time or revoke the power

61-14          of attorney.  If I am unable to make health care

61-15          decisions for myself when this power of attorney

61-16          expires, the authority I have granted my agent

61-17          continues to exist until the time I become able to make

61-18          health care decisions for myself.

61-19                (IF APPLICABLE) This power of attorney ends on

61-20          the following date:________________

61-21          PRIOR DESIGNATIONS REVOKED.

61-22                I revoke any prior durable power of attorney for

61-23          health care.

61-24          ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.

61-25                I have been provided with a disclosure statement

 62-1          explaining the effect of this document.  I have read

 62-2          and understand that information contained in the

 62-3          disclosure statement.

 62-4                (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)

 62-5          I sign my name to this durable power of attorney for

 62-6          health care on _____ day of ______________ 19 _________

 62-7             at_________________________________________________

 62-8                               (City and State)

 62-9             ___________________________________________________

62-10                                 (Signature)

62-11             ___________________________________________________

62-12                                 (Print Name)

62-13          STATEMENT OF WITNESSES.

62-14                I declare under penalty of perjury that the

62-15          principal has identified himself or herself to me, that

62-16          the principal signed or acknowledged this durable power

62-17          of attorney in my presence, that I believe the

62-18          principal to be of sound mind, that the principal has

62-19          affirmed that the principal is aware of the nature of

62-20          the document and is signing it voluntarily and free

62-21          from duress, that the principal requested that I serve

62-22          as witness to the principal's execution of this

62-23          document, that I am not the person appointed as agent

62-24          by this document, and that I am not related to the

62-25          principal by blood or marriage, I would not be entitled

 63-1          to any portion of the principal's estate on the

 63-2          principal's death, I am not the attending physician of

 63-3          the principal or an employee of the attending

 63-4          physician, I am not a patient in the health care

 63-5          facility in which the principal is a patient, and I

 63-6          have no claim against any portion of the principal's

 63-7          estate on the principal's death.  Furthermore, if I am

 63-8          an employee of a health care facility in which the

 63-9          principal is a patient, I am not involved in providing

63-10          direct patient care to the principal and am not an

63-11          officer, director, partner, or  business office

63-12          employee of the health care facility or  of  any

63-13          parent  organization of the health care facility [a

63-14          provider of health or residential care, an employee of

63-15          a provider of health or residential care, the operator

63-16          of a community care facility, or an employee of an

63-17          operator of a health care facility.]

63-18                [I declare that I am not related to the principal

63-19          by blood, marriage, or adoption and that to the best of

63-20          my knowledge I am not entitled to any part of the

63-21          estate of the principal on the death of the principal

63-22          under a will or by operation of law].

63-23          Witness Signature:_______________

63-24          Print Name:_____________________Date:____________

63-25          Address:_______________________________________________

 64-1          Witness Signature:_______________

 64-2          Print Name:_____________________Date:____________

 64-3          Address:_______________________________________________

 64-4          Sec. 166.167 [135.017].  CIVIL ACTION.  (a)  A person who is

 64-5    a near relative of the principal or a responsible adult who is

 64-6    directly interested in the principal, including a guardian, social

 64-7    worker, physician, or clergyman, may bring an action in district

 64-8    court to request that the durable power of attorney for health care

 64-9    be revoked because the principal, at the time the durable power of

64-10    attorney for health care was signed:

64-11                (1)  was not competent [of sound mind to make a health

64-12    care decision]; or

64-13                (2)  was under duress, fraud, or undue influence.

64-14          (b)  The action may be brought in the county of the

64-15    principal's residence or the residence of the person bringing the

64-16    action.

64-17          (c)  During the pendency of the action, the authority of the

64-18    agent to make health care decisions continues in effect unless the

64-19    district court orders otherwise.

64-20          Sec. 166.168 [135.018].  OTHER RIGHTS OR RESPONSIBILITIES NOT

64-21    AFFECTED.  This subchapter [chapter] does not limit or impair any

64-22    legal right or responsibility that any person, including a

64-23    physician or health or residential care provider, may have to make

64-24    or implement health care decisions on behalf of a person.

 65-1                     ARTICLE 2.  CONFORMING AMENDMENTS

 65-2          SECTION 2.01.  Subsection (a), Section 313.003, Health and

 65-3    Safety Code, is amended to read as follows:

 65-4          (a)  This chapter does not apply to:

 65-5                (1)  a decision to withhold or withdraw life-sustaining

 65-6    treatment from qualified terminal patients under Subchapter B,

 65-7    Chapter 166 [the terms of Chapter 672];

 65-8                (2)  a health care decision made under a durable power

 65-9    of attorney for health care under Subchapter D, Chapter 166

65-10    [Chapter 135, Civil Practice and Remedies Code], or under Chapter

65-11    XII, Texas Probate Code;

65-12                (3)  consent to medical treatment of minors under

65-13    Chapter 32 [35], Family Code;

65-14                (4)  consent for emergency care under Chapter 773;

65-15                (5)  hospital patient transfers under Chapter 241; or

65-16                (6)  a patient's legal guardian who has the authority

65-17    to make a decision regarding the patient's medical treatment.

65-18          SECTION 2.02.  Subchapter A, Chapter 142, Health and Safety

65-19    Code, is amended by adding Section 142.0145 to read as follows:

65-20          Sec. 142.0145.  VIOLATION OF LAW RELATING TO ADVANCE

65-21    DIRECTIVES.  (a)  The department shall assess an administrative

65-22    penalty against a home and community support services agency that

65-23    violates Section 166.004.

65-24          (b)  A penalty assessed under this section shall be $500.

65-25          (c)  The penalty shall be assessed in accordance with

 66-1    department rules.  The rules must provide for notice and an

 66-2    opportunity for a hearing.

 66-3          SECTION 2.03.  Subsections (a) and (c), Section 241.059,

 66-4    Health and Safety Code, are amended to read as follows:

 66-5          (a)  The commissioner of health may assess an administrative

 66-6    penalty against a hospital that violates this chapter, a rule

 66-7    adopted pursuant to this chapter, a special license provision, an

 66-8    order or emergency order issued by the commissioner or the

 66-9    commissioner's designee, or another enforcement procedure permitted

66-10    under this chapter.  The commissioner shall assess an

66-11    administrative penalty against a hospital that violates Section

66-12    166.004.

66-13          (c)  The penalty may not exceed $1,000 for each violation,

66-14    except that the penalty for a violation of Section 166.004 shall be

66-15    $500.  Each day of a continuing violation, other than a violation

66-16    of Section 166.004, may be considered a separate violation.

66-17          SECTION 2.04.  Subchapter C, Chapter 242, Health and Safety

66-18    Code, is amended by adding Section 242.071 to read as follows:

66-19          Sec. 242.071.  VIOLATION OF LAW RELATING TO ADVANCE

66-20    DIRECTIVES.  The commissioner shall assess an administrative

66-21    penalty under this subchapter against an institution that violates

66-22    Section 166.004.  Notwithstanding Sections 242.066(b) and (c), a

66-23    penalty assessed in accordance with this section shall be $500 and

66-24    a separate penalty may not be assessed for a separate day of a

66-25    continuing violation.

 67-1          SECTION 2.05.  Subchapter C, Chapter 247, Health and Safety

 67-2    Code, is amended by adding Section 247.0455 to read as follows:

 67-3          Sec. 247.0455.  VIOLATION OF LAW RELATING TO ADVANCE

 67-4    DIRECTIVES.  (a)  The department shall assess an administrative

 67-5    penalty against a personal care facility that violates Section

 67-6    166.004.

 67-7          (b)  A penalty assessed under this section shall be $500.

 67-8          (c)  The penalty shall be assessed in accordance with

 67-9    department rules.  The rules must provide for notice and an

67-10    opportunity for a hearing.

67-11          SECTION 2.06.  Subchapter C, Chapter 248, Health and Safety

67-12    Code, is amended by adding Section 248.0545 to read as follows:

67-13          Sec. 248.0545.  VIOLATION OF LAW RELATING TO ADVANCE

67-14    DIRECTIVES.  (a)  The department shall assess an administrative

67-15    penalty against a special care facility that violates Section

67-16    166.004.

67-17          (b)  A penalty assessed under this section shall be $500.

67-18          (c)  The penalty shall be assessed in accordance with

67-19    department rules.  The rules must provide for notice and an

67-20    opportunity for a hearing.

67-21                ARTICLE 3.  TRANSITION AND EMERGENCY CLAUSE

67-22          SECTION 3.01.  This Act takes effect January 1, 1998.

67-23          SECTION 3.02.  The change in law made by this Act does not

67-24    affect the validity of a document executed under Chapter 672 or

67-25    674, Health and Safety Code, or Chapter 135, Civil Practice and

 68-1    Remedies Code, before the effective date of this Act.  A document

 68-2    executed before the effective date of this Act is governed by the

 68-3    law in effect on the date the document was executed, and that law

 68-4    continues in effect for that purpose.

 68-5          SECTION 3.03.  (a)  The change in law made by this Act

 68-6    applies only to the punishment for an offense committed on or after

 68-7    the effective date of this Act.  For purposes of this section, an

 68-8    offense is committed before the effective date of this Act if any

 68-9    element of the offense occurs before the effective date.

68-10          (b)  An offense committed before the effective date of this

68-11    Act is covered by the law in effect when the offense was committed,

68-12    and the former law is continued in effect for that purpose.

68-13          SECTION 3.04.  The importance of this legislation and the

68-14    crowded condition of the calendars in both houses create an

68-15    emergency and an imperative public necessity that the

68-16    constitutional rule requiring bills to be read on three several

68-17    days in each house be suspended, and this rule is hereby suspended.