By: Kent H.B. No. 4305

A BILL TO BE ENTITLED

AN ACT

relating to a prohibition against performing or ordering the performance of an autopsy contrary to a decedent's religious beliefs.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 49, Code of Criminal Procedure, is amended by adding Subchapter C to read as follows:

SUBCHAPTER C. AUTOPSY CONTRARY TO DECEDENT'S RELIGIOUS BELIEFS

Art. 49.26. EXISTENCE OF COMPELLING PUBLIC NECESSITY. For purposes of this subchapter, a compelling public necessity for the performance of an autopsy contrary to a decedent's religious beliefs exists if:

(1) the autopsy is essential to the criminal investigation of a homicide of which the decedent is the victim;

(2) the discovery of the cause of death is necessary to meet an immediate and substantial threat to the public health and an autopsy is essential to ascertain the cause of death;

(3) the cause of death of the decedent is not apparent after diligent investigation by the justice of the peace or medical examiner and the decedent:

(A) was younger than 12 years of age at the time of death; and

(B) was suspected of having been abused or neglected or of being a threat to public health; or

(4) the need for an autopsy is otherwise established by the justice of the peace or medical examiner under Article 49.29.

Art. 49.27. PROHIBITION AGAINST AUTOPSY CONTRARY TO DECEDENT'S RELIGIOUS BELIEFS. Unless there is a compelling public necessity for an autopsy, a justice of the peace or a medical examiner may not perform or order the performance of an autopsy on a decedent if:

(1) a member of the decedent's immediate family files an objection to the autopsy on the grounds that the autopsy would be contrary to the religious beliefs of the decedent; or

(2) there is an obvious reason for the justice of the peace or medical examiner to believe that an autopsy would be contrary to the decedent's religious beliefs.

Art. 49.28. WAITING PERIOD TO ALLOW ACTION TO PREVENT AUTOPSY. (a) If an objection is filed under Article 49.27(1) or there is an obvious reason to believe that an autopsy would be contrary to the decedent's religious beliefs as described by Article 49.27(2), but the justice of the peace or medical examiner believes that there is a compelling public necessity for an autopsy under Article 49.26(1), (2), or (3), the justice of the peace or medical examiner shall:

(1) send notice of the intent of the justice of the peace or medical examiner to perform or order the performance of an autopsy on the decedent to:

(A) the family member or friend who filed the objection to the autopsy; or

(B) if no objection was filed but there is an obvious reason to believe that the autopsy would be contrary to the decedent's religious beliefs, to a person appointed by a district court for that purpose; and

(2) refrain from performing or ordering the performance of the autopsy until the expiration of the 48-hour period following the time that notice is received under Subdivision (1).

(b) During the waiting period described by Subsection (a)(2), the objecting person or person appointed by the court may institute an action in district court to determine whether an autopsy should be performed.

(c) The court may dispense with the waiting period on an ex parte motion by the justice of the peace or medical examiner if the court determines that the delay may prejudice the accuracy of the autopsy.

Art. 49.29. ACTION BY JUSTICE OF PEACE OR MEDICAL EXAMINER FOR ORDER AUTHORIZING AUTOPSY. If an objection is filed under Article 49.27(1) or there is an obvious reason to believe that an autopsy would be contrary to the decedent's religious beliefs as described by Article 49.27(2), but the justice of the peace or medical examiner believes that there is a compelling public necessity for an autopsy not provided for under Article 49.26(1), (2), or (3), the justice of the peace or medical examiner may institute an action in district court for an order authorizing the autopsy.

Art. 49.30. COURT PROCEEDING TO DETERMINE NECESSITY OF AUTOPSY. (a) An action brought under this subchapter has preference over all other cases and shall be determined summarily on the petition and any oral or written proof offered by the parties.

(b) In an action under Article 49.28(b) or 49.29, the court shall issue an order authorizing an autopsy only if the court finds that:

(1) the justice of the peace or medical examiner establishes a compelling public necessity for the performance of the autopsy; or

(2) the objecting person or person appointed by the court fails to swear or affirm that an autopsy would be contrary to the decedent's religious beliefs.

(c) A justice of the peace or medical examiner may not perform or order the performance of an autopsy on the decedent while the action under Article 49.28(b) or 49.29 is pending.

Art. 49.31. RELEASE OF BODY FOR BURIAL. If a district court denies permission to perform an autopsy under this subchapter and a stay is not granted, the justice of the peace or medical examiner shall immediately release the body for burial.

Art. 49.32. INVASIVENESS OF AUTOPSY. A medical examiner or other person who performs an autopsy in accordance with an order issued under this subchapter shall use the least invasive means possible to satisfy the person's legal duties in conducting the autopsy.

SECTION 2. The change in law made by this Act applies only to an autopsy to be performed on a person who dies on or after the effective date of this Act. An autopsy to be performed on a person who dies before the effective date of this Act is governed by the law in effect when the person dies, and the former law is continued in effect for that purpose.

SECTION 3. This Act takes effect September 1, 2009.