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A BILL TO BE ENTITLED
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AN ACT
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relating to the regulation and certification of medical examiners |
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and the conduct of autopsy and inquest investigations by justices |
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of the peace and medical examiners. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 49.01, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 49.01. DEFINITIONS. In this chapter [article]: |
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(1) "Autopsy" means a post mortem examination of the |
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body of a person, including an external examination of the body |
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[X-rays] and an examination of the internal organs [and structures
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after dissection], to determine the cause and manner of death or the |
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nature of any pathological changes that may have contributed to the |
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death or to obtain information or material for evidentiary or |
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identification purposes. The forensic pathologist or physician |
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performing the autopsy may limit the individuals in attendance at |
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the examination and may vary the extent of the examination. The |
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examination may include: |
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(A) radiographs; |
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(B) a microscopic examination; |
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(C) retention of an organ part or whole organ; |
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(D) an anthropologic examination; |
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(E) a dental examination; |
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(F) any other procedure considered necessary by |
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the examining forensic pathologist or physician; or |
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(G) at the discretion of the medical examiner, |
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the medical examiner's designee, or the justice of the peace, as |
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appropriate, an in-person examination of the scene of death or |
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injury or an examination of the scene through reports or |
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photographs related to the injury or death. |
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(1-a) "Forensic pathologist" means a physician who is |
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board certified in anatomic and forensic pathology by the American |
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Board of Pathology. |
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(2) "Inquest" means an investigation into the cause |
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and circumstances of the death of a person, and a determination, |
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made with or without a formal court hearing, as to whether the death |
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was caused by an unlawful act or omission. The term includes each |
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level of investigation, from rudimentary information gathering to a |
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complete autopsy examination and formal hearing. |
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(3) "Inquest hearing" means a formal court hearing |
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held to determine whether the death of a person was caused by an |
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unlawful act or omission and, if the death was caused by an unlawful |
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act or omission, to obtain evidence to form the basis of a criminal |
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prosecution. |
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(4) "Institution" means any place where health care |
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services are rendered, including a hospital, clinic, health |
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facility, nursing home, extended-care facility, out-patient |
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facility, foster-care facility, and retirement home. |
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(5) "Physician" means a practicing doctor of medicine |
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or doctor of osteopathic medicine who is licensed by the Texas |
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[State Board of] Medical Board [Examiners] under Subtitle B, Title |
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3, Occupations Code. |
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SECTION 2. Article 49.04, Code of Criminal Procedure, is |
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amended by adding Subsection (a-1) to read as follows: |
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(a-1) A justice of the peace shall conduct an inquest into a |
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fetal death in the county served by the justice that occurs under |
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circumstances in which the fetus had attained at least 20 weeks of |
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gestation and: |
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(1) the justice suspects the maternal use of or |
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exposure to an unprescribed controlled substance may have caused |
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the fetal death; |
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(2) there is a history or evidence of maternal trauma |
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that the justice suspects may have caused the fetal death; |
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(3) the delivery of the fetus was not witnessed by |
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medical personnel; or |
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(4) the fetus was discovered deceased at a location |
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that is suspicious or unusual. |
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SECTION 3. Section 1, Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 1. OFFICE AUTHORIZED. Subject to the provisions of |
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this Article [Act], the Commissioners Court of any county having a |
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population of more than one million [and not having a reputable
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medical school as defined in Articles 4501 and 4503, Revised Civil
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Statutes of Texas,] shall establish and maintain the office of |
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medical examiner, and the Commissioners Court of any county may |
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establish and provide for the maintenance of the office of medical |
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examiner. Population shall be according to the last preceding |
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federal census. |
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SECTION 4. Section 1-a(b), Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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(b) There may be only one chief medical examiner in a |
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medical examiners district, although the chief medical examiner |
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[he] may employ, within the district, necessary staff personnel, |
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including deputy medical examiners. When a county becomes a part of |
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a medical examiners district, the effect is the same within the |
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county as if the office of medical examiner had been established in |
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that county alone. A [The] district medical examiner has all the |
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powers and duties within the district that a medical examiner who |
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serves in a single county has within that county. |
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SECTION 5. Section 2, Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 2. APPOINTMENTS AND QUALIFICATIONS. (a) The |
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commissioners court shall appoint the chief medical examiner, who |
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serves [shall serve] at the pleasure of the commissioners court. |
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The chief medical examiner must be: |
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(1) board certified in anatomic and forensic pathology |
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by the American Board of Pathology; and |
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(2) [No person shall be appointed medical examiner
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unless he is] a physician licensed by the Texas [State Board of] |
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Medical Board [Examiners. To the greatest extent possible, the
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medical examiner shall be appointed from persons having training
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and experience in pathology, toxicology, histology and other
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medico-legal sciences]. |
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(b) The chief medical examiner shall devote the [so much of
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his] time and energy [as is] necessary to perform [in the
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performance of] the duties conferred by this Article. |
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SECTION 6. Section 3, Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 3. ASSISTANTS. (a) The chief medical examiner may, |
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subject to the approval of the commissioners court, employ the |
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[such] deputy medical examiners, medical, dental, or anthropologic |
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consultants, scientific experts, trained technicians, officers, |
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and employees [as may be] necessary to properly perform [the proper
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performance of] the duties imposed by this Article on [upon] the |
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chief medical examiner. |
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(b) A deputy medical examiner must: |
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(1) be board certified in anatomic and forensic |
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pathology; or |
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(2) have satisfactorily completed accredited |
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residency and fellowship training programs in anatomic and forensic |
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pathology and, not later than the third anniversary of the date the |
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training programs were completed, obtain board certification in |
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anatomic and forensic pathology. |
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SECTION 7. Section 4, Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 4. SALARIES. The commissioners court shall establish |
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and pay the salaries and compensations of the chief medical |
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examiner and the chief medical examiner's [his] staff. |
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SECTION 8. Section 5, Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 5. OFFICES; ACCREDITATION REQUIRED. (a) The |
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commissioners court shall: |
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(1) provide the chief medical examiner and the chief |
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medical examiner's [his] staff with adequate office space; and |
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(2) [shall] provide laboratory facilities or make |
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arrangements for the use of existing laboratory facilities in the |
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county, if [so] requested by the chief medical examiner. |
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(b) Each office of medical examiner must: |
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(1) submit an application for accreditation |
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inspection to the National Association of Medical Examiners or |
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another equivalent accreditation organization designated by the |
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Department of Public Safety of the State of Texas not later than the |
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second anniversary of the date on which the office is established; |
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and |
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(2) be accredited by the National Association of |
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Medical Examiners or the designated organization not later than the |
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second anniversary of the date the application for accreditation |
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inspection is submitted under Subdivision (1). |
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SECTION 9. Section 6, Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 6. DEATH INVESTIGATIONS. (a) A chief [Any] medical |
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examiner, or the chief medical examiner's [his] duly authorized |
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deputy medical examiner, shall [be authorized, and it shall be his
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duty, to] hold inquests with or without a jury in the [within his] |
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county in which the office is established[,] in the following |
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cases: |
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(1) [1.] When a person dies [shall die] within |
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twenty-four hours after the person is: |
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(A) admitted [admission] to a hospital or |
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institution; |
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(B) confined [or] in prison or in jail; or |
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(C) placed in law enforcement custody; |
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(2) [2.] When any person: |
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(A) is killed; |
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(B) [or] from any cause dies an unnatural death, |
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except under sentence of the law; [or] |
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(C) dies in the absence of one or more good |
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witnesses; or |
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(D) dies as a result of medical treatment or |
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therapy; |
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(3) [3.] When the body or a body part of a person is |
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found and[,] the cause or circumstances of death are unknown[, and:
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[(A) the person is identified; or
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[(B) the person is unidentified]; |
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(4) [4.] When the circumstances of the death of any |
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person [are such as to] lead to suspicion that the person died [he
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came to his death] by unlawful means; |
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(5) [5.] When any person commits suicide, or the |
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circumstances of the person's [his] death [are such as to] lead to |
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suspicion that the person [he] committed suicide; |
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(6) [6.] When a person dies who has not [without
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having] been attended during the preceding year by a duly licensed |
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and practicing physician[, and the local health officer or
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registrar required to report the cause of death under Section
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193.005, Health and Safety Code, does not know the cause of death.
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When the local health officer or registrar of vital statistics
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whose duty it is to certify the cause of death does not know the
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cause of death, he shall so notify the medical examiner of the
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county in which the death occurred and request an inquest]; |
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(7) [7.] When the person is a child [who is] younger |
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than six years of age and the death is reported under Chapter 264, |
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Family Code; [and] |
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(8) When an unidentified person dies; |
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(9) [8.] When a person dies who has been attended |
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immediately preceding the person's [his] death by a duly licensed |
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and practicing physician or physicians[,] and the [such] physician |
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or physicians [are not certain as to the cause of death and] are |
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unable to certify to a reasonable degree of medical probability |
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[with certainty] the cause of death as required by Section 193.005 |
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[193.004], Health and Safety Code; and |
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(10) When a fetal death occurs under circumstances in |
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which a fetus had attained at least 20 weeks of gestation and: |
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(A) the medical examiner suspects the maternal |
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use of or exposure to an unprescribed controlled substance may have |
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caused the fetal death; |
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(B) there is a history or evidence of maternal |
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trauma that the medical examiner suspects may have caused the fetal |
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death; |
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(C) the delivery of the fetus was not witnessed |
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by medical personnel; or |
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(D) the fetus was discovered deceased at a |
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location that is suspicious or unusual. |
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(a-1) If a physician is unable to certify the cause of death |
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to a reasonable degree of medical probability, [In case of such
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uncertainty] the attending physician or physicians, or the |
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superintendent or general manager of the hospital or institution in |
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which the deceased [shall have] died, shall [so] report the |
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inability to the medical examiner of the county in which the death |
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occurred[,] and request an inquest. |
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(a-2) If a medical examiner determines after performing an |
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inquest that the death is due to natural causes and the deceased |
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person was attended by a physician at the time of death or during |
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the preceding year, the medical examiner may waive the medical |
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examiner's authority to further investigate the case. If the |
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medical examiner waives the authority to further investigate the |
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case, the attending physician shall certify the cause of death. |
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(b) The inquests authorized and required by this Article |
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shall be held by the chief medical examiner of the county in which |
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the death occurred. |
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(c) In making such investigations and holding such |
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inquests, the chief medical examiner or an authorized deputy |
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medical examiner may administer oaths and take affidavits. In the |
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absence of next of kin or legal representatives of the deceased, the |
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chief medical examiner or authorized deputy medical examiner shall |
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take charge of the body and all property found with it. |
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(d) A medical examiner may subpoena medical records, law |
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enforcement records, or other types of records required to perform |
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the duties imposed under this section. |
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SECTION 10. Section 6a, Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 6a. ORGAN TRANSPLANT DONORS; NOTICE; INQUESTS. (a) |
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When death occurs to an individual designated a prospective organ |
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donor for transplantation by a licensed physician under |
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circumstances requiring the chief medical examiner of the county in |
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which death occurred, or the chief medical examiner's authorized |
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deputy medical examiner, to hold an inquest, the chief medical |
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examiner, or a member of the chief medical examiner's [his] staff, |
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shall [will] be [so] notified by the administrative head of the |
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facility in which the transplantation is to be performed. |
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(b) When notified pursuant to Subsection (a) of this |
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Section, the chief medical examiner or the chief medical examiner's |
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deputy medical examiner shall perform an inquest on the deceased |
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prospective organ donor. |
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(c) This Section or other law may not be construed to limit |
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or restrict a medical examiner's authority relating to: |
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(1) the release of organs or tissues for transplant; |
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(2) custody of the deceased person's body; or |
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(3) the appropriate practice of forensic pathology. |
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(d) If a medical examiner determines that the release of |
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organs or tissues for transplant purposes will likely hinder the |
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determination of the cause or manner of death or compromise an |
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evidentiary aspect of the examination, the medical examiner may |
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prohibit or limit the extent of the organ or tissue removal. The |
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determination may be made before or after the medical examiner's |
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examination of the body. |
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SECTION 11. Section 7(b), Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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(b) A person investigating the [a] death of an unidentified |
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person [described by Subdivision 3(B) of Section 6(a)] shall report |
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the death to the missing children and missing persons information |
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clearinghouse of the Department of Public Safety and the national |
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crime information center not later than the 10th working day after |
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the date the investigation began. |
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SECTION 12. Section 8, Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 8. REMOVAL OF BODIES. When any death under |
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circumstances set out in Section 6 of this Article occurs [shall
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have occurred], the body shall not be disturbed or removed from the |
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position in which it is found by any person without authorization |
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from the chief medical examiner or an authorized deputy medical |
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examiner, except for the purpose of preserving the [such] body from |
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loss or destruction or maintaining the flow of traffic on a highway, |
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railroad, or airport. |
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SECTION 13. Section 9, Article 49.25, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 9. AUTOPSY. (a) If the cause of death is [shall be] |
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determined beyond a reasonable doubt as a result of the |
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investigation, the medical examiner shall prepare [file] a report |
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on the investigation [thereof] setting forth specifically the cause |
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of death [with the district attorney or criminal district attorney,
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or in a county in which there is no district attorney or criminal
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district attorney with the county attorney, of the county in which
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the death occurred]. |
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(b) If in the opinion of the medical examiner an autopsy is |
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necessary to determine the cause or manner of death, to better |
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determine any pathological or injurious process present, or to |
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obtain evidence for a potential legal proceeding or for |
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identification purposes[, or if such is requested by the district
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attorney or criminal district attorney, or county attorney where
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there is no district attorney or criminal district attorney], the |
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autopsy shall be [immediately] performed by the chief medical |
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examiner or a duly authorized deputy medical examiner. In [those] |
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cases where a complete autopsy is considered [deemed] unnecessary |
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by the medical examiner to ascertain the cause of death, the medical |
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examiner may perform a limited autopsy or external inspection of |
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the body that may include [involving the] taking [of] blood samples |
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or any other samples of body fluids, tissues, or organs[, in order] |
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to ascertain the cause of death or whether a crime has been |
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committed. |
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(c) If [In] the identity [case] of a body of a human being |
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[whose identity] is unknown, the medical examiner may authorize the |
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[such] investigative and laboratory tests and processes [as are] |
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required to determine the [its] identity and [as well as] the cause |
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of death. |
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(d) The extent of an autopsy is solely at the discretion of |
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the medical examiner. |
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(e) A medical examiner is not required to notify or seek any |
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approval from a deceased person's next of kin to perform an autopsy |
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or any other type of examination related to an autopsy. |
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(f) On [In performing an autopsy the medical examiner or
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authorized deputy may use the facilities of any city or county
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hospital within the county or such other facilities as are made
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available. Upon] completion of the autopsy, the medical examiner |
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shall prepare [file] a report setting forth the findings in detail |
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[with the office of the district attorney or criminal district
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attorney of the county, or if there is no district attorney or
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criminal district attorney, with the county attorney of the
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county]. |
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(g) [(b)] A medical examination on an unidentified person |
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shall include the following information to enable a timely and |
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accurate identification of the person: |
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(1) all available fingerprints and palm prints; |
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(2) dental charts and radiographs (X-rays) of the |
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person's teeth; |
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(3) [frontal and lateral] facial photographs with |
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scale indicated; |
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(4) notation [and photographs, with scale indicated,] |
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of a significant scar, mark, tattoo, or item of clothing or other |
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personal effect found with or near the body; |
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(5) notation of any identified antemortem medical |
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conditions; and |
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(6) notation of observations pertinent to the |
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estimation of time of death[; and
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[(7)
precise documentation of the location of burial
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of the remains]. |
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(h) [(c)] A medical examination on an unidentified person |
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may include the following information to enable a timely and |
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accurate identification of the person: |
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(1) full body radiographs (X-rays); and |
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(2) [hair] specimens from the body for DNA |
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characterization and comparison [with roots]. |
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(i) A medical examiner performing an autopsy of a deceased |
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person may retain an organ or part of an organ if the medical |
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examiner determines that retaining the organ or organ part is |
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necessary for further examination and testing. After completing |
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the examination or testing on the organ or organ part, the medical |
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examiner may dispose of the organ or organ part as a hazardous |
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biological specimen without notifying or obtaining permission from |
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the deceased person's next of kin. |
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(j) A medical examiner may not be required to perform an |
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autopsy on a person whose death resulted from a highly infectious |
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disease or a chemical or radiological agent that presents a hazard |
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to the medical examiner, the medical examiner's staff, or the |
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public. |
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SECTION 14. Section 10, Article 49.25, Code of Criminal |
|
Procedure, is amended to read as follows: |
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Sec. 10. DISINTERMENTS AND CREMATIONS. (a) The [When a
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body upon which an inquest ought to have been held has been
|
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interred, the] medical examiner may cause a body that has been |
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interred and on which an inquest should have been held [it] to be |
|
disinterred for the purpose of holding the [such] inquest. |
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(b) A [Before any] body on[, upon] which an inquest is |
|
authorized by [the provisions of] this Article may not[, can] be |
|
[lawfully] cremated unless[,] an examination is [autopsy shall be] |
|
performed on the body [thereon] as provided in this Article[,] or a |
|
certificate that the examination [no autopsy] was not necessary is |
|
[shall be] furnished by the medical examiner. |
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(c) Before a [any] dead body may [can] be [lawfully] |
|
cremated, the owner or operator of the crematory shall demand and be |
|
furnished with a certificate, signed by the medical examiner of the |
|
county in which the death occurred stating [showing] that: |
|
(1) an examination [autopsy] was performed on the |
|
[said] body; or |
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(2) an examination on the body [that no autopsy
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thereon] was not necessary. |
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(d) The [It shall be the duty of the] medical examiner shall |
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[to] determine whether or not, from all the circumstances |
|
surrounding the death, an examination [autopsy] is necessary prior |
|
to issuing a certificate under [the provisions of] this section. |
|
(e) The owner or operator of a crematory requesting |
|
authorization to cremate a body shall provide the medical examiner |
|
with a legible and properly completed death certificate. |
|
(f) A medical examiner is not required to perform an |
|
examination [No autopsy shall be required by the medical examiner] |
|
as a prerequisite to cremation if the [in case] death was [is] |
|
caused by [the] pestilential or highly infectious diseases [of
|
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Asiatic cholera, bubonic plague, typhus fever, or smallpox]. |
|
(g) All certificates furnished to the owner or operator of a |
|
crematory by any medical examiner, under the terms of this Article, |
|
shall be preserved by the [such] owner or operator until the second |
|
anniversary of [such crematory for a period of two years from] the |
|
date of the body's cremation [of said body]. |
|
(h) A medical examiner is not required to perform an autopsy |
|
on the body of a deceased person whose death was caused by a |
|
communicable disease during a public health disaster. |
|
SECTION 15. Section 10a, Article 49.25, Code of Criminal |
|
Procedure, is amended to read as follows: |
|
Sec. 10a. WAITING PERIOD BETWEEN DEATH AND CREMATION. (a) |
|
The body of a deceased person shall not be cremated within 48 hours |
|
after the time of death as indicated on the regular death |
|
certificate, unless: |
|
(1) the death certificate indicates death was caused |
|
by [the] pestilential or highly infectious diseases; [of Asiatic
|
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cholera, bubonic plague, typhus fever, or smallpox,] or |
|
(2) [unless] the time requirement is waived in writing |
|
by the county medical examiner or, in counties without [not having] |
|
a county medical examiner, a justice of the peace. |
|
(b) In a public health disaster, the commissioner of state |
|
[public] health services may designate other communicable diseases |
|
for which cremation within 48 hours of the time of death is |
|
authorized. |
|
SECTION 16. Section 11, Article 49.25, Code of Criminal |
|
Procedure, is amended to read as follows: |
|
Sec. 11. RECORDS. (a) The medical examiner shall: |
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(1) keep full and complete records properly indexed |
|
that include[, giving] the name if known of every person whose death |
|
is investigated, the place where the body was found, the date, and |
|
the cause and manner of death;[,] and |
|
(2) [shall] issue a death certificate. |
|
(b) The full report and detailed findings of the autopsy, if |
|
any, shall be a part of the record. |
|
(c) [Copies of all records shall promptly be delivered to
|
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the proper district, county, or criminal district attorney in any
|
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case where further investigation is advisable.] The records are |
|
subject to required public disclosure in accordance with Chapter |
|
552, Government Code, except that a photograph or x-ray of a body |
|
taken during a medical examiner investigation [an autopsy] is |
|
excepted from required public disclosure in accordance with Chapter |
|
552, Government Code, but is subject to disclosure: |
|
(1) under a subpoena or authority of other law; or |
|
(2) if the photograph or x-ray is of the body of a |
|
person who died while in the custody of law enforcement. |
|
SECTION 17. Section 12, Article 49.25, Code of Criminal |
|
Procedure, is amended to read as follows: |
|
Sec. 12. TRANSFER OF DUTIES OF JUSTICE OF PEACE. When the |
|
commissioners court of any county establishes [shall establish] the |
|
office of medical examiner, all powers and duties of justices of the |
|
peace in the [such] county relating to the investigation of deaths |
|
and inquests [shall] vest in the office of the medical examiner. |
|
Any subsequent General Law pertaining to the duties of justices of |
|
the peace in death investigations and inquests [shall] apply to the |
|
medical examiner in the county [such counties as] to the extent not |
|
inconsistent with this Article, and all laws or parts of laws |
|
otherwise in conflict with this Article [herewith] are [hereby] |
|
declared [to be] inapplicable to this Article. |
|
SECTION 18. Section 14(a), Article 49.25, Code of Criminal |
|
Procedure, is amended to read as follows: |
|
(a) A person commits an offense if the person knowingly |
|
violates this article or knowingly provides false information to a |
|
medical examiner in the performance by the medical examiner of an |
|
investigation under this article. |
|
SECTION 19. Section 13, Article 49.25, Code of Criminal |
|
Procedure, is repealed. |
|
SECTION 20. Article 49.25, Code of Criminal Procedure, is |
|
amended by adding Sections 13A and 13B to read as follows: |
|
Sec. 13A. FEES. A medical examiner may charge reasonable |
|
fees for services provided by the medical examiner's office under |
|
this Article, including cremation approvals, court testimonies, |
|
consultations, and depositions. |
|
Sec. 13B. EDUCATION AND RESEARCH. (a) A medical examiner |
|
may use for educational or teaching purposes photographs taken |
|
during a death investigation. |
|
(b) A medical examiner's office may engage in educational |
|
and research activities that do not interfere with the performance |
|
of the duties imposed on the office under this Article. |
|
SECTION 21. (a) Notwithstanding Section 2, Article 49.25, |
|
Code of Criminal Procedure, as amended by this Act, a person serving |
|
as the chief medical examiner or a deputy medical examiner for a |
|
medical examiners district or county in this state on the effective |
|
date of this Act is not required to be board certified in anatomic |
|
and forensic pathology by the American Board of Pathology in |
|
Anatomic and Forensic Pathology to continue to hold that position |
|
of chief medical examiner or deputy medical examiner for that |
|
district or county. |
|
(b) Notwithstanding Section 5, Article 49.25, Code of |
|
Criminal Procedure, as amended by this Act, the office of a medical |
|
examiner that was established on or before the effective date of |
|
this Act for a medical examiners district or county in this state is |
|
not required to obtain accreditation by the National Association of |
|
Medical Examiners or an equivalent organization designated by the |
|
Department of Public Safety of the State of Texas before September |
|
1, 2013. |
|
SECTION 22. This Act takes effect September 1, 2009. |