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2009 Texas Code
HEALTH AND SAFETY CODE
TITLE 2. HEALTH
CHAPTER 166. ADVANCE DIRECTIVES

HEALTH AND SAFETY CODE

TITLE 2. HEALTH

SUBTITLE H. PUBLIC HEALTH PROVISIONS

CHAPTER 166. ADVANCE DIRECTIVES

SUBCHAPTER A. GENERAL PROVISIONS

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

Advance Directives Act.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.02, eff. Sept. 1,

1999.

Sec. 166.002. DEFINITIONS. In this chapter:

(1) "Advance directive" means:

(A) a directive, as that term is defined by Section 166.031;

(B) an out-of-hospital DNR order, as that term is defined by

Section 166.081; or

(2) "Artificial nutrition and hydration" means the provision of

nutrients or fluids by a tube inserted in a vein, under the skin

in the subcutaneous tissues, or in the stomach (gastrointestinal

tract).

(3) "Attending physician" means a physician selected by or

assigned to a patient who has primary responsibility for a

patient's treatment and care.

(4) "Competent" means possessing the ability, based on

reasonable medical judgment, to understand and appreciate the

nature and consequences of a treatment decision, including the

significant benefits and harms of and reasonable alternatives to

a proposed treatment decision.

(5) "Declarant" means a person who has executed or issued a

directive under this chapter.

(5-a) "Digital signature" means an electronic identifier

intended by the person using it to have the same force and effect

as the use of a manual signature.

(5-b) "Electronic signature" means a facsimile, scan, uploaded

image, computer-generated image, or other electronic

representation of a manual signature that is intended by the

person using it to have the same force and effect of law as a

manual signature.

(6) "Ethics or medical committee" means a committee established

under Sections 161.031-161.033.

(7) "Health care or treatment decision" means consent, refusal

to consent, or withdrawal of consent to health care, treatment,

service, or a procedure to maintain, diagnose, or treat an

individual's physical or mental condition, including such a

decision on behalf of a minor.

(8) "Incompetent" means lacking the ability, based on reasonable

medical judgment, to understand and appreciate the nature and

consequences of a treatment decision, including the significant

benefits and harms of and reasonable alternatives to a proposed

treatment decision.

(9) "Irreversible condition" means a condition, injury, or

illness:

(A) that may be treated but is never cured or eliminated;

(B) that leaves a person unable to care for or make decisions

for the person's own self; and

accordance with the prevailing standard of medical care, is

fatal.

(10) "Life-sustaining treatment" means treatment that, based on

reasonable medical judgment, sustains the life of a patient and

without which the patient will die. The term includes both

life-sustaining medications and artificial life support, such as

mechanical breathing machines, kidney dialysis treatment, and

artificial nutrition and hydration. The term does not include the

administration of pain management medication or the performance

of a medical procedure considered to be necessary to provide

comfort care, or any other medical care provided to alleviate a

patient's pain.

(11) "Medical power of attorney" means a document delegating to

an agent authority to make health care decisions executed or

issued under Subchapter D.

(12) "Physician" means:

(A) a physician licensed by the Texas State Board of Medical

Examiners; or

(B) a properly credentialed physician who holds a commission in

the uniformed services of the United States and who is serving on

active duty in this state.

(13) "Terminal condition" means an incurable condition caused by

injury, disease, or illness that according to reasonable medical

judgment will produce death within six months, even with

available life-sustaining treatment provided in accordance with

the prevailing standard of medical care. A patient who has been

admitted to a program under which the person receives hospice

services provided by a home and community support services agency

licensed under Chapter 142 is presumed to have a terminal

condition for purposes of this chapter.

(14) "Witness" means a person who may serve as a witness under

Section 166.003.

(15) "Cardiopulmonary resuscitation" means any medical

intervention used to restore circulatory or respiratory function

that has ceased.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.02, eff. Sept. 1,

1999. Amended by Acts 2003, 78th Leg., ch. 1228, Sec. 1, eff.

June 20, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

461, Sec. 1, eff. September 1, 2009.

Sec. 166.003. WITNESSES. In any circumstance in which this

chapter requires the execution of an advance directive or the

issuance of a nonwritten advance directive to be witnessed:

(1) each witness must be a competent adult; and

(2) at least one of the witnesses must be a person who is not:

(A) a person designated by the declarant to make a treatment

decision;

(B) a person related to the declarant by blood or marriage;

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

the declarant or by operation of law;

(D) the attending physician;

(E) an employee of the attending physician;

(F) an employee of a health care facility in which the declarant

is a patient if the employee is providing direct patient care to

the declarant or is an officer, director, partner, or business

office employee of the health care facility or of any parent

organization of the health care facility; or

(G) a person who, at the time the written advance directive is

executed or, if the directive is a nonwritten directive issued

under this chapter, at the time the nonwritten directive is

issued, has a claim against any part of the declarant's estate

after the declarant's death.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.02, eff. Sept. 1,

1999.

Sec. 166.004. STATEMENT RELATING TO ADVANCE DIRECTIVE. (a) In

this section, "health care provider" means:

(1) a hospital;

(2) an institution licensed under Chapter 242, including a

skilled nursing facility;

(3) a home and community support services agency;

(4) a personal care facility; and

(5) a special care facility.

(b) A health care provider shall maintain written policies

regarding the implementation of advance directives. The policies

must include a clear and precise statement of any procedure the

health care provider is unwilling or unable to provide or

withhold in accordance with an advance directive.

provider shall provide written notice to an individual of the

written policies described by Subsection (b). The notice must be

provided at the earlier of:

(1) the time the individual is admitted to receive services from

the health care provider; or

(2) the time the health care provider begins providing care to

the individual.

(d) If, at the time notice is to be provided under Subsection

(c), the individual is incompetent or otherwise incapacitated and

unable to receive the notice required by this section, the

provider shall provide the required written notice, in the

following order of preference, to:

(1) the individual's legal guardian;

(2) a person responsible for the health care decisions of the

individual;

(3) the individual's spouse;

(4) the individual's adult child;

(5) the individual's parent; or

(6) the person admitting the individual.

(e) If Subsection (d) applies and except as provided by

Subsection (f), if a health care provider is unable, after

diligent search, to locate an individual listed by Subsection

(d), the health care provider is not required to provide the

notice.

(f) If an individual who was incompetent or otherwise

incapacitated and unable to receive the notice required by this

section at the time notice was to be provided under Subsection

provider shall provide the written notice at the time the

individual becomes able to receive the notice.

(g) This section does not apply to outpatient hospital services,

including emergency services.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.02, eff. Sept. 1,

1999.

Sec. 166.005. ENFORCEABILITY OF ADVANCE DIRECTIVES EXECUTED IN

ANOTHER JURISDICTION. An advance directive or similar instrument

validly executed in another state or jurisdiction shall be given

the same effect as an advance directive validly executed under

the law of this state. This section does not authorize the

administration, withholding, or withdrawal of health care

otherwise prohibited by the laws of this state.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.02, eff. Sept. 1,

1999.

Sec. 166.006. EFFECT OF ADVANCE DIRECTIVE ON INSURANCE POLICY

AND PREMIUMS. (a) The fact that a person has executed or issued

an advance directive does not:

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

procurement, or issuance of a life insurance policy to that

person; or

(2) modify the terms of an existing life insurance policy.

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

fact that life-sustaining treatment is withheld or withdrawn from

an insured qualified patient under this chapter does not legally

impair or invalidate that person's life insurance policy and may

not be a factor for the purpose of determining, under the life

insurance policy, whether benefits are payable or the cause of

death.

execute or issue an advance directive may not be considered in

any way in establishing insurance premiums.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.02, eff. Sept. 1,

1999.

Sec. 166.007. EXECUTION OF ADVANCE DIRECTIVE MAY NOT BE

REQUIRED. A physician, health facility, health care provider,

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

execute or issue an advance directive as a condition for

obtaining insurance for health care services or receiving health

care services.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.02, eff. Sept. 1,

1999.

Sec. 166.008. CONFLICT BETWEEN ADVANCE DIRECTIVES. To the

extent that a treatment decision or an advance directive validly

executed or issued under this chapter conflicts with another

treatment decision or an advance directive executed or issued

under this chapter, the treatment decision made or instrument

executed later in time controls.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.02, eff. Sept. 1,

1999.

Sec. 166.009. CERTAIN LIFE-SUSTAINING TREATMENT NOT REQUIRED.

This chapter may not be construed to require the provision of

life-sustaining treatment that cannot be provided to a patient

without denying the same treatment to another patient.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.02, eff. Sept. 1,

1999.

Sec. 166.010. APPLICABILITY OF FEDERAL LAW RELATING TO CHILD

ABUSE AND NEGLECT. This chapter is subject to applicable federal

law and regulations relating to child abuse and neglect to the

extent applicable to the state based on its receipt of federal

funds.

Added by Acts 2003, 78th Leg., ch. 1228, Sec. 2, eff. June 20,

2003.

Sec. 166.011. DIGITAL OR ELECTRONIC SIGNATURE. (a) For an

advance directive in which a signature by a declarant, witness,

or notary public is required or used, the declarant, witness, or

notary public may sign the directive or a written revocation of

the directive using:

(1) a digital signature that:

(A) uses an algorithm approved by the department;

(B) is unique to the person using it;

(D) is under the sole control of the person using it;

(E) is linked to data in a manner that invalidates the digital

signature if the data is changed;

(F) persists with the document and not by association in

separate files; and

(G) is bound to a digital certificate; or

(2) an electronic signature that:

(A) is capable of verification;

(B) is under the sole control of the person using it;

electronic signature if the data is changed; and

(D) persists with the document and not by association in

separate files.

(b) In approving an algorithm for purposes of Subsection

(a)(1)(A), the department may consider an algorithm approved by

the National Institute of Standards and Technology.

Commission by rule shall modify the advance directive forms

required under this chapter as necessary to provide for the use

of a digital or electronic signature that complies with the

requirements of this section.

Added by Acts 2009, 81st Leg., R.S., Ch.

461, Sec. 2, eff. September 1, 2009.

SUBCHAPTER B. DIRECTIVE TO PHYSICIANS

Sec. 166.031. DEFINITIONS. In this subchapter:

(1) "Directive" means an instruction made under Section 166.032,

166.034, or 166.035 to administer, withhold, or withdraw

life-sustaining treatment in the event of a terminal or

irreversible condition.

(2) "Qualified patient" means a patient with a terminal or

irreversible condition that has been diagnosed and certified in

writing by the attending physician.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 208, eff. Sept. 1,

1991; Acts 1993, 73rd Leg., ch. 107, Sec. 5.04, eff. Aug. 30,

1993. Renumbered from Sec. 672.002 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.032. WRITTEN DIRECTIVE BY COMPETENT ADULT; NOTICE TO

PHYSICIAN. (a) A competent adult may at any time execute a

written directive.

(b) Except as provided by Subsection (b-1), the declarant must

sign the directive in the presence of two witnesses who qualify

under Section 166.003, at least one of whom must be a witness who

qualifies under Section 166.003(2). The witnesses must sign the

directive.

(b-1) The declarant, in lieu of signing in the presence of

witnesses, may sign the directive and have the signature

acknowledged before a notary public.

those provided by Section 166.033 and may designate in a

directive a person to make a treatment decision for the declarant

in the event the declarant becomes incompetent or otherwise

mentally or physically incapable of communication.

(d) A declarant shall notify the attending physician of the

existence of a written directive. If the declarant is incompetent

or otherwise mentally or physically incapable of communication,

another person may notify the attending physician of the

existence of the written directive. The attending physician shall

make the directive a part of the declarant's medical record.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 209, eff. Sept. 1,

1991; Acts 1997, 75th Leg., ch. 291, Sec. 1, eff. Jan. 1, 1998.

Renumbered from Sec. 672.003 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

461, Sec. 3, eff. September 1, 2009.

Sec. 166.033. FORM OF WRITTEN DIRECTIVE. A written directive

may be in the following form:

DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES

Instructions for completing this document:

This is an important legal document known as an Advance

Directive. It is designed to help you communicate your wishes

about medical treatment at some time in the future when you are

unable to make your wishes known because of illness or injury.

These wishes are usually based on personal values. In particular,

you may want to consider what burdens or hardships of treatment

you would be willing to accept for a particular amount of benefit

obtained if you were seriously ill.

You are encouraged to discuss your values and wishes with your

family or chosen spokesperson, as well as your physician. Your

physician, other health care provider, or medical institution may

provide you with various resources to assist you in completing

your advance directive. Brief definitions are listed below and

may aid you in your discussions and advance planning. Initial the

treatment choices that best reflect your personal preferences.

Provide a copy of your directive to your physician, usual

hospital, and family or spokesperson. Consider a periodic review

of this document. By periodic review, you can best assure that

the directive reflects your preferences.

In addition to this advance directive, Texas law provides for two

other types of directives that can be important during a serious

illness. These are the Medical Power of Attorney and the

Out-of-Hospital Do-Not-Resuscitate Order. You may wish to discuss

these with your physician, family, hospital representative, or

other advisers. You may also wish to complete a directive related

to the donation of organs and tissues.

DIRECTIVE

I, __________, recognize that the best health care is based upon

a partnership of trust and communication with my physician. My

physician and I will make health care decisions together as long

as I am of sound mind and able to make my wishes known. If there

comes a time that I am unable to make medical decisions about

myself because of illness or injury, I direct that the following

treatment preferences be honored:

If, in the judgment of my physician, I am suffering with a

terminal condition from which I am expected to die within six

months, even with available life-sustaining treatment provided in

accordance with prevailing standards of medical care:

__________

I request that all treatments other than those needed to

keep me comfortable be discontinued or withheld and my

physician allow me to die as gently as possible; OR

__________

I request that I be kept alive in this terminal condition

using available life-sustaining treatment. (THIS SELECTION

DOES NOT APPLY TO HOSPICE CARE.)

If, in the judgment of my physician, I am suffering with an

irreversible condition so that I cannot care for myself or make

decisions for myself and am expected to die without

life-sustaining treatment provided in accordance with prevailing

standards of care:

__________

I request that all treatments other than those needed to

keep me comfortable be discontinued or withheld and my

physician allow me to die as gently as possible; OR

__________

I request that I be kept alive in this irreversible

condition using available life-sustaining treatment. (THIS

SELECTION DOES NOT APPLY TO HOSPICE CARE.)

Additional requests: (After discussion with your physician, you

may wish to consider listing particular treatments in this space

that you do or do not want in specific circumstances, such as

artificial nutrition and fluids, intravenous antibiotics, etc. Be

sure to state whether you do or do not want the particular

treatment.)

________________________________________________________________

After signing this directive, if my representative or I elect

hospice care, I understand and agree that only those treatments

needed to keep me comfortable would be provided and I would not

be given available life-sustaining treatments.

If I do not have a Medical Power of Attorney, and I am unable to

make my wishes known, I designate the following person(s) to make

treatment decisions with my physician compatible with my personal

values:

1. __________

2. __________

(If a Medical Power of Attorney has been executed, then an agent

already has been named and you should not list additional names

in this document.)

If the above persons are not available, or if I have not

designated a spokesperson, I understand that a spokesperson will

be chosen for me following standards specified in the laws of

Texas. If, in the judgment of my physician, my death is imminent

within minutes to hours, even with the use of all available

medical treatment provided within the prevailing standard of

care, I acknowledge that all treatments may be withheld or

removed except those needed to maintain my comfort. I understand

that under Texas law this directive has no effect if I have been

diagnosed as pregnant. This directive will remain in effect until

I revoke it. No other person may do so.

Signed__________ Date__________ City, County, State of Residence

__________

Two competent adult witnesses must sign below, acknowledging the

signature of the declarant. The witness designated as Witness 1

may not be a person designated to make a treatment decision for

the patient and may not be related to the patient by blood or

marriage. This witness may not be entitled to any part of the

estate and may not have a claim against the estate of the

patient. This witness may not be the attending physician or an

employee of the attending physician. If this witness is an

employee of a health care facility in which the patient is being

cared for, this witness may not be involved in providing direct

patient care to the patient. This witness may not be an officer,

director, partner, or business office employee of a health care

facility in which the patient is being cared for or of any parent

organization of the health care facility.

Witness 1 __________ Witness 2 __________

Definitions:

"Artificial nutrition and hydration" means the provision of

nutrients or fluids by a tube inserted in a vein, under the skin

in the subcutaneous tissues, or in the stomach (gastrointestinal

tract).

"Irreversible condition" means a condition, injury, or illness:

(1) that may be treated, but is never cured or eliminated;

(2) that leaves a person unable to care for or make decisions

for the person's own self; and

(3) that, without life-sustaining treatment provided in

accordance with the prevailing standard of medical care, is

fatal.

Explanation: Many serious illnesses such as cancer, failure of

major organs (kidney, heart, liver, or lung), and serious brain

disease such as Alzheimer's dementia may be considered

irreversible early on. There is no cure, but the patient may be

kept alive for prolonged periods of time if the patient receives

life-sustaining treatments. Late in the course of the same

illness, the disease may be considered terminal when, even with

treatment, the patient is expected to die. You may wish to

consider which burdens of treatment you would be willing to

accept in an effort to achieve a particular outcome. This is a

very personal decision that you may wish to discuss with your

physician, family, or other important persons in your life.

"Life-sustaining treatment" means treatment that, based on

reasonable medical judgment, sustains the life of a patient and

without which the patient will die. The term includes both

life-sustaining medications and artificial life support such as

mechanical breathing machines, kidney dialysis treatment, and

artificial hydration and nutrition. The term does not include the

administration of pain management medication, the performance of

a medical procedure necessary to provide comfort care, or any

other medical care provided to alleviate a patient's pain.

"Terminal condition" means an incurable condition caused by

injury, disease, or illness that according to reasonable medical

judgment will produce death within six months, even with

available life-sustaining treatment provided in accordance with

the prevailing standard of medical care.

Explanation: Many serious illnesses may be considered

irreversible early in the course of the illness, but they may not

be considered terminal until the disease is fairly advanced. In

thinking about terminal illness and its treatment, you again may

wish to consider the relative benefits and burdens of treatment

and discuss your wishes with your physician, family, or other

important persons in your life.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 209, eff. Sept. 1,

1991; Acts 1997, 75th Leg., ch. 291, Sec. 2, eff. Jan. 1, 1998.

Renumbered from Sec. 672.004 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.034. ISSUANCE OF NONWRITTEN DIRECTIVE BY COMPETENT

ADULT QUALIFIED PATIENT. (a) A competent qualified patient who

is an adult may issue a directive by a nonwritten means of

communication.

(b) A declarant must issue the nonwritten directive in the

presence of the attending physician and two witnesses who qualify

under Section 166.003, at least one of whom must be a witness who

qualifies under Section 166.003(2).

directive a part of the declarant's medical record, and the names

of the witnesses shall be entered in the medical record.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.005 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.035. EXECUTION OF DIRECTIVE ON BEHALF OF PATIENT

YOUNGER THAN 18 YEARS OF AGE. The following persons may execute

a directive on behalf of a qualified patient who is younger than

18 years of age:

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

(2) the patient's parents; or

(3) the patient's legal guardian.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.006 by Acts 1999, 76th Leg., ch. 450,

Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.036. NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT OF

SPECIFIC FORM PROHIBITED. (a) Except as provided by Section

166.032(b-1), a written directive executed under Section 166.033

or 166.035 is effective without regard to whether the document

has been notarized.

(b) A physician, health care facility, or health care

professional may not require that:

(1) a directive be notarized; or

(2) a person use a form provided by the physician, health care

facility, or health care professional.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.03, eff. Sept. 1,

1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

461, Sec. 4, eff. September 1, 2009.

Sec. 166.037. PATIENT DESIRE SUPERSEDES DIRECTIVE. The desire

of a qualified patient, including a qualified patient younger

than 18 years of age, supersedes the effect of a directive.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.007 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.038. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR

INCAPABLE OF COMMUNICATION. (a) This section applies when an

adult qualified patient has executed or issued a directive and is

incompetent or otherwise mentally or physically incapable of

communication.

(b) If the adult qualified patient has designated a person to

make a treatment decision as authorized by Section 166.032(c),

the attending physician and the designated person may make a

treatment decision in accordance with the declarant's directions.

to make a treatment decision, the attending physician shall

comply with the directive unless the physician believes that the

directive does not reflect the patient's present desire.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from 672.008 and amended by Acts 1999, 76th Leg., ch.

450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.039. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED A

DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION. (a)

If an adult qualified patient has not executed or issued a

directive and is incompetent or otherwise mentally or physically

incapable of communication, the attending physician and the

patient's legal guardian or an agent under a medical power of

attorney may make a treatment decision that may include a

decision to withhold or withdraw life-sustaining treatment from

the patient.

(b) If the patient does not have a legal guardian or an agent

under a medical power of attorney, the attending physician and

one person, if available, from one of the following categories,

in the following priority, may make a treatment decision that may

include a decision to withhold or withdraw life-sustaining

treatment:

(1) the patient's spouse;

(2) the patient's reasonably available adult children;

(3) the patient's parents; or

(4) the patient's nearest living relative.

be based on knowledge of what the patient would desire, if known.

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

documented in the patient's medical record and signed by the

attending physician.

(e) If the patient does not have a legal guardian and a person

listed in Subsection (b) is not available, a treatment decision

made under Subsection (b) must be concurred in by another

physician who is not involved in the treatment of the patient or

who is a representative of an ethics or medical committee of the

health care facility in which the person is a patient.

(f) The fact that an adult qualified patient has not executed or

issued a directive does not create a presumption that the patient

does not want a treatment decision to be made to withhold or

withdraw life-sustaining treatment.

(g) A person listed in Subsection (b) who wishes to challenge a

treatment decision made under this section must apply for

temporary guardianship under Section 875, Texas Probate Code. The

court may waive applicable fees in that proceeding.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1997, 75th Leg., ch. 291, Sec. 3, eff. Jan. 1,

1998. Renumbered from Sec. 672.009 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.040. PATIENT CERTIFICATION AND PREREQUISITES FOR

COMPLYING WITH DIRECTIVE. (a) An attending physician who has

been notified of the existence of a directive shall provide for

the declarant's certification as a qualified patient on diagnosis

of a terminal or irreversible condition.

(b) Before withholding or withdrawing life-sustaining treatment

from a qualified patient under this subchapter, the attending

physician must determine that the steps proposed to be taken are

in accord with this subchapter and the patient's existing

desires.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 14, Sec. 6.01,

eff. Nov. 12, 1991. Renumbered from Sec. 672.010 and amended by

Acts 1999, 76th Leg., ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.041. DURATION OF DIRECTIVE. A directive is effective

until it is revoked as prescribed by Section 166.042.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.011 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.042. REVOCATION OF DIRECTIVE. (a) A declarant may

revoke a directive at any time without regard to the declarant's

mental state or competency. A directive may be revoked by:

(1) the declarant or someone in the declarant's presence and at

the declarant's direction canceling, defacing, obliterating,

burning, tearing, or otherwise destroying the directive;

(2) the declarant signing and dating a written revocation that

expresses the declarant's intent to revoke the directive; or

(3) the declarant orally stating the declarant's intent to

revoke the directive.

(b) A written revocation executed as prescribed by Subsection

(a)(2) takes effect only when the declarant or a person acting on

behalf of the declarant notifies the attending physician of its

existence or mails the revocation to the attending physician. The

attending physician or the physician's designee shall record in

the patient's medical record the time and date when the physician

received notice of the written revocation and shall enter the

word "VOID" on each page of the copy of the directive in the

patient's medical record.

takes effect only when the declarant or a person acting on behalf

of the declarant notifies the attending physician of the

revocation. The attending physician or the physician's designee

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

place of the revocation, and, if different, the time, date, and

place that the physician received notice of the revocation. The

attending physician or the physician's designees shall also enter

the word "VOID" on each page of the copy of the directive in the

patient's medical record.

(d) Except as otherwise provided by this subchapter, a person is

not civilly or criminally liable for failure to act on a

revocation made under this section unless the person has actual

knowledge of the revocation.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.012 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.043. REEXECUTION OF DIRECTIVE. A declarant may at any

time reexecute a directive in accordance with the procedures

prescribed by Section 166.032, including reexecution after the

declarant is diagnosed as having a terminal or irreversible

condition.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.013 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.044. LIMITATION OF LIABILITY FOR WITHHOLDING OR

WITHDRAWING LIFE-SUSTAINING PROCEDURES. (a) A physician or

health care facility that causes life-sustaining treatment to be

withheld or withdrawn from a qualified patient in accordance with

this subchapter is not civilly liable for that action unless the

physician or health care facility fails to exercise reasonable

care when applying the patient's advance directive.

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

physician, who participates in withholding or withdrawing

life-sustaining treatment from a qualified patient in accordance

with this subchapter is not civilly liable for that action unless

the health professional fails to exercise reasonable care when

applying the patient's advance directive.

direction of a physician, who participates in withholding or

withdrawing life-sustaining treatment from a qualified patient in

accordance with this subchapter is not criminally liable or

guilty of unprofessional conduct as a result of that action

unless the physician or health professional fails to exercise

reasonable care when applying the patient's advance directive.

(d) The standard of care that a physician, health care facility,

or health care professional shall exercise under this section is

that degree of care that a physician, health care facility, or

health care professional, as applicable, of ordinary prudence and

skill would have exercised under the same or similar

circumstances in the same or a similar community.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.015 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.045. LIABILITY FOR FAILURE TO EFFECTUATE DIRECTIVE.

(a) A physician, health care facility, or health care

professional who has no knowledge of a directive is not civilly

or criminally liable for failing to act in accordance with the

directive.

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

direction of a physician, is subject to review and disciplinary

action by the appropriate licensing board for failing to

effectuate a qualified patient's directive in violation of this

subchapter or other laws of this state. This subsection does not

limit remedies available under other laws of this state.

or treatment decision and does not wish to follow the procedure

established under Section 166.046, life-sustaining treatment

shall be provided to the patient, but only until a reasonable

opportunity has been afforded for the transfer of the patient to

another physician or health care facility willing to comply with

the directive or treatment decision.

(d) A physician, health professional acting under the direction

of a physician, or health care facility is not civilly or

criminally liable or subject to review or disciplinary action by

the person's appropriate licensing board if the person has

complied with the procedures outlined in Section 166.046.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.016 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.046. PROCEDURE IF NOT EFFECTUATING A DIRECTIVE OR

TREATMENT DECISION. (a) If an attending physician refuses to

honor a patient's advance directive or a health care or treatment

decision made by or on behalf of a patient, the physician's

refusal shall be reviewed by an ethics or medical committee. The

attending physician may not be a member of that committee. The

patient shall be given life-sustaining treatment during the

review.

(b) The patient or the person responsible for the health care

decisions of the individual who has made the decision regarding

the directive or treatment decision:

(1) may be given a written description of the ethics or medical

committee review process and any other policies and procedures

related to this section adopted by the health care facility;

(2) shall be informed of the committee review process not less

than 48 hours before the meeting called to discuss the patient's

directive, unless the time period is waived by mutual agreement;

(3) at the time of being so informed, shall be provided:

(A) a copy of the appropriate statement set forth in Section

166.052; and

(B) a copy of the registry list of health care providers and

referral groups that have volunteered their readiness to consider

accepting transfer or to assist in locating a provider willing to

accept transfer that is posted on the website maintained by the

Texas Health Care Information Council under Section 166.053; and

(4) is entitled to:

(A) attend the meeting; and

(B) receive a written explanation of the decision reached during

the review process.

must be included in the patient's medical record.

(d) If the attending physician, the patient, or the person

responsible for the health care decisions of the individual does

not agree with the decision reached during the review process

under Subsection (b), the physician shall make a reasonable

effort to transfer the patient to a physician who is willing to

comply with the directive. If the patient is a patient in a

health care facility, the facility's personnel shall assist the

physician in arranging the patient's transfer to:

(1) another physician;

(2) an alternative care setting within that facility; or

(3) another facility.

(e) If the patient or the person responsible for the health care

decisions of the patient is requesting life-sustaining treatment

that the attending physician has decided and the review process

has affirmed is inappropriate treatment, the patient shall be

given available life-sustaining treatment pending transfer under

Subsection (d). The patient is responsible for any costs incurred

in transferring the patient to another facility. The physician

and the health care facility are not obligated to provide

life-sustaining treatment after the 10th day after the written

decision required under Subsection (b) is provided to the patient

or the person responsible for the health care decisions of the

patient unless ordered to do so under Subsection (g).

(e-1) If during a previous admission to a facility a patient's

attending physician and the review process under Subsection (b)

have determined that life-sustaining treatment is inappropriate,

and the patient is readmitted to the same facility within six

months from the date of the decision reached during the review

process conducted upon the previous admission, Subsections (b)

through (e) need not be followed if the patient's attending

physician and a consulting physician who is a member of the

ethics or medical committee of the facility document on the

patient's readmission that the patient's condition either has not

improved or has deteriorated since the review process was

conducted.

(f) Life-sustaining treatment under this section may not be

entered in the patient's medical record as medically unnecessary

treatment until the time period provided under Subsection (e) has

expired.

(g) At the request of the patient or the person responsible for

the health care decisions of the patient, the appropriate

district or county court shall extend the time period provided

under Subsection (e) only if the court finds, by a preponderance

of the evidence, that there is a reasonable expectation that a

physician or health care facility that will honor the patient's

directive will be found if the time extension is granted.

(h) This section may not be construed to impose an obligation on

a facility or a home and community support services agency

licensed under Chapter 142 or similar organization that is beyond

the scope of the services or resources of the facility or agency.

This section does not apply to hospice services provided by a

home and community support services agency licensed under Chapter

142.

Added by Acts 1999, 76th Leg., ch. 450, Sec. 1.03, eff. Sept. 1,

1999. Amended by Acts 2003, 78th Leg., ch. 1228, Sec. 3, 4, eff.

June 20, 2003.

Sec. 166.047. HONORING DIRECTIVE DOES NOT CONSTITUTE OFFENSE OF

AIDING SUICIDE. A person does not commit an offense under

Section 22.08, Penal Code, by withholding or withdrawing

life-sustaining treatment from a qualified patient in accordance

with this subchapter.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.017 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.048. CRIMINAL PENALTY; PROSECUTION. (a) A person

commits an offense if the person intentionally conceals, cancels,

defaces, obliterates, or damages another person's directive

without that person's consent. An offense under this subsection

is a Class A misdemeanor.

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

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

cause life-sustaining treatment to be withheld or withdrawn from

another person contrary to the other person's desires, falsifies

or forges a directive or intentionally conceals or withholds

personal knowledge of a revocation and thereby directly causes

life-sustaining treatment to be withheld or withdrawn from the

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

hastened.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.018 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.049. PREGNANT PATIENTS. A person may not withdraw or

withhold life-sustaining treatment under this subchapter from a

pregnant patient.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.019 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.050. MERCY KILLING NOT CONDONED. This subchapter does

not condone, authorize, or approve mercy killing or permit an

affirmative or deliberate act or omission to end life except to

permit the natural process of dying as provided by this

subchapter.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.020 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.051. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. This

subchapter does not impair or supersede any legal right or

responsibility a person may have to effect the withholding or

withdrawal of life-sustaining treatment in a lawful manner,

provided that if an attending physician or health care facility

is unwilling to honor a patient's advance directive or a

treatment decision to provide life-sustaining treatment,

life-sustaining treatment is required to be provided the patient,

but only until a reasonable opportunity has been afforded for

transfer of the patient to another physician or health care

facility willing to comply with the advance directive or

treatment decision.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Renumbered from Sec. 672.021 and amended by Acts 1999, 76th Leg.,

ch. 450, Sec. 1.03, eff. Sept. 1, 1999.

Sec. 166.052. STATEMENTS EXPLAINING PATIENT'S RIGHT TO TRANSFER.

(a) In cases in which the attending physician refuses to honor

an advance directive or treatment decision requesting the

provision of life-sustaining treatment, the statement required by

Section 166.046(b)(2)(A) shall be in substantially the following

form:

When There Is A Disagreement About Medical Treatment: The

Physician Recommends Against Life-Sustaining Treatment That You

Wish To Continue

You have been given this information because you have requested

life-sustaining treatment,* which the attending physician

believes is not appropriate. This information is being provided

to help you understand state law, your rights, and the resources

available to you in such circumstances. It outlines the process

for resolving disagreements about treatment among patients,

families, and physicians. It is based upon Section 166.046 of the

Texas Advance Directives Act, codified in Chapter 166 of the

Texas Health and Safety Code.

When an attending physician refuses to comply with an advance

directive or other request for life-sustaining treatment because

of the physician's judgment that the treatment would be

inappropriate, the case will be reviewed by an ethics or medical

committee. Life-sustaining treatment will be provided through the

review.

You will receive notification of this review at least 48 hours

before a meeting of the committee related to your case. You are

entitled to attend the meeting. With your agreement, the meeting

may be held sooner than 48 hours, if possible.

You are entitled to receive a written explanation of the decision

reached during the review process.

If after this review process both the attending physician and the

ethics or medical committee conclude that life-sustaining

treatment is inappropriate and yet you continue to request such

treatment, then the following procedure will occur:

1. The physician, with the help of the health care facility, will

assist you in trying to find a physician and facility willing to

provide the requested treatment.

2. You are being given a list of health care providers and

referral groups that have volunteered their readiness to consider

accepting transfer, or to assist in locating a provider willing

to accept transfer, maintained by the Texas Health Care

Information Council. You may wish to contact providers or

referral groups on the list or others of your choice to get help

in arranging a transfer.

3. The patient will continue to be given life-sustaining

treatment until he or she can be transferred to a willing

provider for up to 10 days from the time you were given the

committee's written decision that life-sustaining treatment is

not appropriate.

4. If a transfer can be arranged, the patient will be responsible

for the costs of the transfer.

5. If a provider cannot be found willing to give the requested

treatment within 10 days, life-sustaining treatment may be

withdrawn unless a court of law has granted an extension.

6. You may ask the appropriate district or county court to extend

the 10-day period if the court finds that there is a reasonable

expectation that a physician or health care facility willing to

provide life-sustaining treatment will be found if the extension

is granted.

*"Life-sustaining treatment" means treatment that, based on

reasonable medical judgment, sustains the life of a patient and

without which the patient will die. The term includes both

life-sustaining medications and artificial life support, such as

mechanical breathing machines, kidney dialysis treatment, and

artificial nutrition and hydration. The term does not include the

administration of pain management medication or the performance

of a medical procedure considered to be necessary to provide

comfort care, or any other medical care provided to alleviate a

patient's pain.

(b) In cases in which the attending physician refuses to comply

with an advance directive or treatment decision requesting the

withholding or withdrawal of life-sustaining treatment, the

statement required by Section 166.046(b)(3)(A) shall be in

substantially the following form:

When There Is A Disagreement About Medical Treatment: The

Physician Recommends Life-Sustaining Treatment That You Wish To

Stop

You have been given this information because you have requested

the withdrawal or withholding of life-sustaining treatment* and

the attending physician refuses to comply with that request. The

information is being provided to help you understand state law,

your rights, and the resources available to you in such

circumstances. It outlines the process for resolving

disagreements about treatment among patients, families, and

physicians. It is based upon Section 166.046 of the Texas Advance

Directives Act, codified in Chapter 166 of the Texas Health and

Safety Code.

When an attending physician refuses to comply with an advance

directive or other request for withdrawal or withholding of

life-sustaining treatment for any reason, the case will be

reviewed by an ethics or medical committee. Life-sustaining

treatment will be provided through the review.

You will receive notification of this review at least 48 hours

before a meeting of the committee related to your case. You are

entitled to attend the meeting. With your agreement, the meeting

may be held sooner than 48 hours, if possible.

You are entitled to receive a written explanation of the decision

reached during the review process.

If you or the attending physician do not agree with the decision

reached during the review process, and the attending physician

still refuses to comply with your request to withhold or withdraw

life-sustaining treatment, then the following procedure will

occur:

1. The physician, with the help of the health care facility, will

assist you in trying to find a physician and facility willing to

withdraw or withhold the life-sustaining treatment.

2. You are being given a list of health care providers and

referral groups that have volunteered their readiness to consider

accepting transfer, or to assist in locating a provider willing

to accept transfer, maintained by the Texas Health Care

Information Council. You may wish to contact providers or

referral groups on the list or others of your choice to get help

in arranging a transfer.

*"Life-sustaining treatment" means treatment that, based on

reasonable medical judgment, sustains the life of a patient and

without which the patient will die. The term includes both

life-sustaining medications and artificial life support, such as

mechanical breathing machines, kidney dialysis treatment, and

artificial nutrition and hydration. The term does not include the

administration of pain management medication or the performance

of a medical procedure considered to be necessary to provide

comfort care, or any other medical care provided to alleviate a

patient's pain.

chooses, include any additional information concerning the

physician's or facility's policy, perspective, experience, or

review procedure.

Added by Acts 2003, 78th Leg., ch. 1228, Sec. 5, eff. June 20,

2003.

Sec. 166.053. REGISTRY TO ASSIST TRANSFERS. (a) The Texas

Health Care Information Council shall maintain a registry listing

the identity of and contact information for health care providers

and referral groups, situated inside and outside this state, that

have voluntarily notified the council they may consider accepting

or may assist in locating a provider willing to accept transfer

of a patient under Section 166.045 or 166.046.

(b) The listing of a provider or referral group in the registry

described in this section does not obligate the provider or group

to accept transfer of or provide services to any particular

patient.

current registry list on its website in a form appropriate for

easy comprehension by patients and persons responsible for the

health care decisions of patients and shall provide a clearly

identifiable link from its home page to the registry page. The

list shall separately indicate those providers and groups that

have indicated their interest in assisting the transfer of:

(1) those patients on whose behalf life-sustaining treatment is

being sought;

(2) those patients on whose behalf the withholding or withdrawal

of life-sustaining treatment is being sought; and

(3) patients described in both Subdivisions (1) and (2).

(d) The registry list described in this section shall include

the following disclaimer:

"This registry lists providers and groups that have indicated to

the Texas Health Care Information Council their interest in

assisting the transfer of patients in the circumstances

described, and is provided for information purposes only. Neither

the Texas Health Care Information Council nor the State of Texas

endorses or assumes any responsibility for any representation,

claim, or act of the listed providers or groups."

Added by Acts 2003, 78th Leg., ch. 1228, Sec. 5, eff. June 20,

2003.

SUBCHAPTER C. OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDERS

Sec. 166.081. DEFINITIONS. In this subchapter:

(1) Repealed by Acts 2003, 78th Leg., ch. 1228, Sec. 8.

(2) "DNR identification device" means an identification device

specified by the board under Section 166.101 that is worn for the

purpose of identifying a person who has executed or issued an

out-of-hospital DNR order or on whose behalf an out-of-hospital

DNR order has been executed or issued under this subchapter.

(3) "Emergency medical services" has the meaning assigned by

Section 773.003.

(4) "Emergency medical services personnel" has the meaning

assigned by Section 773.003.

(5) "Health care professionals" means physicians, physician

assistants, nurses, and emergency medical services personnel and,

unless the context requires otherwise, includes hospital

emergency personnel.

(6) "Out-of-hospital DNR order":

(A) means a legally binding out-of-hospital do-not-resuscitate

order, in the form specified by the board under Section 166.083,

prepared and signed by the attending physician of a person, that

documents the instructions of a person or the person's legally

authorized representative and directs health care professionals

acting in an out-of-hospital setting not to initiate or continue

the following life-sustaining treatment:

(i) cardiopulmonary resuscitation;

(ii) advanced airway management;

(iii) artificial ventilation;

(iv) defibrillation;

(v) transcutaneous cardiac pacing; and

(vi) other life-sustaining treatment specified by the board

under Section 166.101(a); and

(B) does not include authorization to withhold medical

interventions or therapies considered necessary to provide

comfort care or to alleviate pain or to provide water or

nutrition.

(7) "Out-of-hospital setting" means a location in which health

care professionals are called for assistance, including long-term

care facilities, in-patient hospice facilities, private homes,

hospital outpatient or emergency departments, physician's

offices, and vehicles during transport.

(8) "Proxy" means a person designated and authorized by a

directive executed or issued in accordance with Subchapter B to

make a treatment decision for another person in the event the

other person becomes incompetent or otherwise mentally or

physically incapable of communication.

(9) "Qualified relatives" means those persons authorized to

execute or issue an out-of-hospital DNR order on behalf of a

person who is incompetent or otherwise mentally or physically

incapable of communication under Section 166.088.

(10) "Statewide out-of-hospital DNR protocol" means a set of

statewide standardized procedures adopted by the board under

Section 166.101(a) for withholding cardiopulmonary resuscitation

and certain other life-sustaining treatment by health care

professionals acting in out-of-hospital settings.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.001 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999; Acts 2003, 78th

Leg., ch. 1228, Sec. 8, eff. June 20, 2003.

Sec. 166.082. OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE TO

PHYSICIANS. (a) A competent person may at any time execute a

written out-of-hospital DNR order directing health care

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

cardiopulmonary resuscitation and certain other life-sustaining

treatment designated by the board.

(b) Except as provided by this subsection, the declarant must

sign the out-of-hospital DNR order in the presence of two

witnesses who qualify under Section 166.003, at least one of whom

must be a witness who qualifies under Section 166.003(2). The

witnesses must sign the order. The attending physician of the

declarant must sign the order and shall make the fact of the

existence of the order and the reasons for execution of the order

a part of the declarant's medical record. The declarant, in lieu

of signing in the presence of witnesses, may sign the

out-of-hospital DNR order and have the signature acknowledged

before a notary public.

issued a directive to physicians in accordance with Subchapter B,

the physician may rely on the directive as the person's

instructions to issue an out-of-hospital DNR order and shall

place a copy of the directive in the person's medical record.

The physician shall sign the order in lieu of the person signing

under Subsection (b) and may use a digital or electronic

signature authorized under Section 166.011.

(d) If the person is incompetent but previously executed or

issued a directive to physicians in accordance with Subchapter B

designating a proxy, the proxy may make any decisions required of

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

shall sign the order in lieu of the person signing under

Subsection (b).

(e) If the person is now incompetent but previously executed or

issued a medical power of attorney designating an agent, the

agent may make any decisions required of the designating person

as to an out-of-hospital DNR order and shall sign the order in

lieu of the person signing under Subsection (b).

(f) The board, on the recommendation of the department, shall by

rule adopt procedures for the disposition and maintenance of

records of an original out-of-hospital DNR order and any copies

of the order.

(g) An out-of-hospital DNR order is effective on its execution.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.002 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

461, Sec. 5, eff. September 1, 2009.

Sec. 166.083. FORM OF OUT-OF-HOSPITAL DNR ORDER. (a) A written

out-of-hospital DNR order shall be in the standard form specified

by board rule as recommended by the department.

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

by the board must, at a minimum, contain the following:

(1) a distinctive single-page format that readily identifies the

document as an out-of-hospital DNR order;

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

out-of-hospital DNR order;

(3) the printed or typed name of the person;

(4) a statement that the physician signing the document is the

attending physician of the person and that the physician is

directing health care professionals acting in out-of-hospital

settings, including a hospital emergency department, not to

initiate or continue certain life-sustaining treatment on behalf

of the person, and a listing of those procedures not to be

initiated or continued;

(5) a statement that the person understands that the person may

revoke the out-of-hospital DNR order at any time by destroying

the order and removing the DNR identification device, if any, or

by communicating to health care professionals at the scene the

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

(6) places for the printed names and signatures of the witnesses

or the notary public's acknowledgment and for the printed name

and signature of the attending physician of the person and the

medical license number of the attending physician;

(7) a separate section for execution of the document by the

legal guardian of the person, the person's proxy, an agent of the

person having a medical power of attorney, or the attending

physician attesting to the issuance of an out-of-hospital DNR

order by nonwritten means of communication or acting in

accordance with a previously executed or previously issued

directive to physicians under Section 166.082(c) that includes

the following:

(A) a statement that the legal guardian, the proxy, the agent,

the person by nonwritten means of communication, or the physician

directs that each listed life-sustaining treatment should not be

initiated or continued in behalf of the person; and

(B) places for the printed names and signatures of the witnesses

and, as applicable, the legal guardian, proxy, agent, or

physician;

(8) a separate section for execution of the document by at least

one qualified relative of the person when the person does not

have a legal guardian, proxy, or agent having a medical power of

attorney and is incompetent or otherwise mentally or physically

incapable of communication, including:

(A) a statement that the relative of the person is qualified to

make a treatment decision to withhold cardiopulmonary

resuscitation and certain other designated life-sustaining

treatment under Section 166.088 and, based on the known desires

of the person or a determination of the best interest of the

person, directs that each listed life-sustaining treatment should

not be initiated or continued in behalf of the person; and

(B) places for the printed names and signatures of the witnesses

and qualified relative of the person;

(9) a place for entry of the date of execution of the document;

(10) a statement that the document is in effect on the date of

its execution and remains in effect until the death of the person

or until the document is revoked;

(11) a statement that the document must accompany the person

during transport;

(12) a statement regarding the proper disposition of the

document or copies of the document, as the board determines

appropriate; and

(13) a statement at the bottom of the document, with places for

the signature of each person executing the document, that the

document has been properly completed.

modify the standard form of the out-of-hospital DNR order

described by Subsection (b) in order to accomplish the purposes

of this subchapter.

(d) A photocopy or other complete facsimile of the original

written out-of-hospital DNR order executed under this subchapter

may be used for any purpose for which the original written order

may be used under this subchapter.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.003 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

461, Sec. 6, eff. September 1, 2009.

Sec. 166.084. ISSUANCE OF OUT-OF-HOSPITAL DNR ORDER BY

NONWRITTEN COMMUNICATION. (a) A competent person who is an

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

communication.

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

order in the presence of the attending physician and two

witnesses who qualify under Section 166.003, at least one of whom

must be a witness who qualifies under Section 166.003(2).

out-of-hospital DNR order in the place of the document provided

by Section 166.083(b)(7) and the attending physician shall sign

the document in the place required by Section 166.083(b)(13). The

physician shall make the fact of the existence of the

out-of-hospital DNR order a part of the declarant's medical

record and the names of the witnesses shall be entered in the

medical record.

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

by this section is valid and shall be honored by responding

health care professionals as if executed in the manner provided

by Section 166.082.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.004 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.085. EXECUTION OF OUT-OF-HOSPITAL DNR ORDER ON BEHALF

OR A MINOR. (a) The following persons may execute an

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

(1) the minor's parents;

(2) the minor's legal guardian; or

(3) the minor's managing conservator.

(b) A person listed under Subsection (a) may not execute an

out-of-hospital DNR order unless the minor has been diagnosed by

a physician as suffering from a terminal or irreversible

condition.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.005 by Acts 1999, 76th Leg., ch.

450, Sec. 1.04, eff. Sept. 1, 1999. Amended by Acts 2003, 78th

Leg., ch. 1228, Sec. 6, eff. June 20, 2003.

Sec. 166.086. DESIRE OF PERSON SUPERSEDES OUT-OF-HOSPITAL DNR

ORDER. The desire of a competent person, including a competent

minor, supersedes the effect of an out-of-hospital DNR order

executed or issued by or on behalf of the person when the desire

is communicated to responding health care professionals as

provided by this subchapter.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.006 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.087. PROCEDURE WHEN DECLARANT IS INCOMPETENT OR

INCAPABLE OF COMMUNICATION. (a) This section applies when a

person 18 years of age or older has executed or issued an

out-of-hospital DNR order and subsequently becomes incompetent or

otherwise mentally or physically incapable of communication.

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

treatment decision as authorized by Section 166.032(c), the

attending physician and the designated person shall comply with

the out-of-hospital DNR order.

treatment decision as authorized by Section 166.032(c), the

attending physician shall comply with the out-of-hospital DNR

order unless the physician believes that the order does not

reflect the person's present desire.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.007 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.088. PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED

OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR INCAPABLE OF

COMMUNICATION. (a) If an adult person has not executed or

issued an out-of-hospital DNR order and is incompetent or

otherwise mentally or physically incapable of communication, the

attending physician and the person's legal guardian, proxy, or

agent having a medical power of attorney may execute an

out-of-hospital DNR order on behalf of the person.

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

agent under a medical power of attorney, the attending physician

and at least one qualified relative from a category listed by

Section 166.039(b), subject to the priority established under

that subsection, may execute an out-of-hospital DNR order in the

same manner as a treatment decision made under Section

166.039(b).

under Subsection (a) or (b) must be based on knowledge of what

the person would desire, if known.

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

must be made in the presence of at least two witnesses who

qualify under Section 166.003, at least one of whom must be a

witness who qualifies under Section 166.003(2).

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

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

person does not want a treatment decision made to withhold

cardiopulmonary resuscitation and certain other designated

life-sustaining treatment designated by the board.

(f) If there is not a qualified relative available to act for

the person under Subsection (b), an out-of-hospital DNR order

must be concurred in by another physician who is not involved in

the treatment of the patient or who is a representative of the

ethics or medical committee of the health care facility in which

the person is a patient.

(g) A person listed in Section 166.039(b) who wishes to

challenge a decision made under this section must apply for

temporary guardianship under Section 875, Texas Probate Code. The

court may waive applicable fees in that proceeding.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.008 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.089. COMPLIANCE WITH OUT-OF-HOSPITAL DNR ORDER. (a)

When responding to a call for assistance, health care

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

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

where applicable, locally adopted out-of-hospital DNR protocols

not in conflict with the statewide protocol if:

(1) the responding health care professionals discover an

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

arrival at the scene; and

(2) the responding health care professionals comply with this

section.

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

responding health care professionals must comply with Section

166.090.

identity of the person as the person who executed or issued the

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

order was executed or issued.

(d) The responding health care professionals must determine that

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

includes:

(1) written responses in the places designated on the form for

the names, signatures, and other information required of persons

executing or issuing, or witnessing or acknowledging as

applicable, the execution or issuance of, the order;

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

order was executed or issued; and

(3) the signature or digital or electronic signature of the

declarant or persons executing or issuing the order and the

attending physician in the appropriate places designated on the

form for indicating that the order form has been properly

completed.

(e) If the conditions prescribed by Subsections (a) through (d)

are not determined to apply by the responding health care

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

be honored and life-sustaining procedures otherwise required by

law or local emergency medical services protocols shall be

initiated or continued. Health care professionals acting in

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

an out-of-hospital DNR order that does not meet the requirements

of this subchapter.

(f) The out-of-hospital DNR order form or a copy of the form,

when available, must accompany the person during transport.

(g) A record shall be made and maintained of the circumstances

of each emergency medical services response in which an

out-of-hospital DNR order or DNR identification device is

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

protocol and any applicable local out-of-hospital DNR protocol

not in conflict with the statewide protocol.

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

documented or evidenced in the manner prescribed by this

subchapter is valid and shall be honored by responding health

care professionals unless the person or persons found at the

scene:

(1) identify themselves as the declarant or as the attending

physician, legal guardian, qualified relative, or agent of the

person having a medical power of attorney who executed or issued

the out-of-hospital DNR order on behalf of the person; and

(2) request that cardiopulmonary resuscitation or certain other

life-sustaining treatment designated by the board be initiated or

continued.

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

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

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

behalf of a person who is admitted to or a resident of the

facility, or if the facility is unwilling to accept DNR

identification devices as evidence of the existence of an

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

reasonable steps to notify the person or, if the person is

incompetent, the person's guardian or the person or persons

having authority to make health care treatment decisions on

behalf of the person, of the facility's policy and shall take all

reasonable steps to effect the transfer of the person to the

person's home or to a facility where the provisions of this

subchapter can be carried out.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.009 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

461, Sec. 7, eff. September 1, 2009.

Sec. 166.090. DNR IDENTIFICATION DEVICE. (a) A person who has

a valid out-of-hospital DNR order under this subchapter may wear

a DNR identification device around the neck or on the wrist as

prescribed by board rule adopted under Section 166.101.

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

person is conclusive evidence that the person has executed or

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

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

behalf. Responding health care professionals shall honor the DNR

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

form executed or issued by the person were found in the

possession of the person.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.010 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.091. DURATION OF OUT-OF-HOSPITAL DNR ORDER. An

out-of-hospital DNR order is effective until it is revoked as

prescribed by Section 166.092.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.011 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.092. REVOCATION OF OUT-OF-HOSPITAL DNR ORDER. (a) A

declarant may revoke an out-of-hospital DNR order at any time

without regard to the declarant's mental state or competency. An

order may be revoked by:

(1) the declarant or someone in the declarant's presence and at

the declarant's direction destroying the order form and removing

the DNR identification device, if any;

(2) a person who identifies himself or herself as the legal

guardian, as a qualified relative, or as the agent of the

declarant having a medical power of attorney who executed the

out-of-hospital DNR order or another person in the person's

presence and at the person's direction destroying the order form

and removing the DNR identification device, if any;

(3) the declarant communicating the declarant's intent to revoke

the order; or

(4) a person who identifies himself or herself as the legal

guardian, a qualified relative, or the agent of the declarant

having a medical power of attorney who executed the

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

revoke the order.

(b) An oral revocation under Subsection (a)(3) or (a)(4) takes

effect only when the declarant or a person who identifies himself

or herself as the legal guardian, a qualified relative, or the

agent of the declarant having a medical power of attorney who

executed the out-of-hospital DNR order communicates the intent to

revoke the order to the responding health care professionals or

the attending physician at the scene. The responding health care

professionals shall record the time, date, and place of the

revocation in accordance with the statewide out-of-hospital DNR

protocol and rules adopted by the board and any applicable local

out-of-hospital DNR protocol. The attending physician or the

physician's designee shall record in the person's medical record

the time, date, and place of the revocation and, if different,

the time, date, and place that the physician received notice of

the revocation. The attending physician or the physician's

designee shall also enter the word "VOID" on each page of the

copy of the order in the person's medical record.

not civilly or criminally liable for failure to act on a

revocation made under this section unless the person has actual

knowledge of the revocation.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16

1995. Renumbered from Sec. 674.012 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.093. REEXECUTION OF OUT-OF-HOSPITAL DNR ORDER. A

declarant may at any time reexecute or reissue an out-of-hospital

DNR order in accordance with the procedures prescribed by Section

166.082, including reexecution or reissuance after the declarant

is diagnosed as having a terminal or irreversible condition.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.013 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.094. LIMITATION ON LIABILITY FOR WITHHOLDING

CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER LIFE-SUSTAINING

PROCEDURES. (a) A health care professional or health care

facility or entity that in good faith causes cardiopulmonary

resuscitation or certain other life-sustaining treatment

designated by the board to be withheld from a person in

accordance with this subchapter is not civilly liable for that

action.

(b) A health care professional or health care facility or entity

that in good faith participates in withholding cardiopulmonary

resuscitation or certain other life-sustaining treatment

designated by the board from a person in accordance with this

subchapter is not civilly liable for that action.

that in good faith participates in withholding cardiopulmonary

resuscitation or certain other life-sustaining treatment

designated by the board from a person in accordance with this

subchapter is not criminally liable or guilty of unprofessional

conduct as a result of that action.

(d) A health care professional or health care facility or entity

that in good faith causes or participates in withholding

cardiopulmonary resuscitation or certain other life-sustaining

treatment designated by the board from a person in accordance

with this subchapter and rules adopted under this subchapter is

not in violation of any other licensing or regulatory laws or

rules of this state and is not subject to any disciplinary action

or sanction by any licensing or regulatory agency of this state

as a result of that action.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.016 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.095. LIMITATION ON LIABILITY FOR FAILURE TO EFFECTUATE

OUT-OF-HOSPITAL DNR ORDER. (a) A health care professional or

health care facility or entity that has no actual knowledge of an

out-of-hospital DNR order is not civilly or criminally liable for

failing to act in accordance with the order.

(b) A health care professional or health care facility or entity

is subject to review and disciplinary action by the appropriate

licensing board for failing to effectuate an out-of-hospital DNR

order. This subsection does not limit remedies available under

other laws of this state.

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

person, the legal guardian or qualified relatives of the person,

or the agent of the person having a medical power of attorney

and, if the person or another authorized to act on behalf of the

person so directs, shall make a reasonable effort to transfer the

person to another physician who is willing to execute or comply

with an out-of-hospital DNR order.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.017 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.096. HONORING OUT-OF-HOSPITAL DNR ORDER DOES NOT

CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit

an offense under Section 22.08, Penal Code, by withholding

cardiopulmonary resuscitation or certain other life-sustaining

treatment designated by the board from a person in accordance

with this subchapter.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.018 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.097. CRIMINAL PENALTY; PROSECUTION. (a) A person

commits an offense if the person intentionally conceals, cancels,

defaces, obliterates, or damages another person's out-of-hospital

DNR order or DNR identification device without that person's

consent or the consent of the person or persons authorized to

execute or issue an out-of-hospital DNR order on behalf of the

person under this subchapter. An offense under this subsection is

a Class A misdemeanor.

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

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

cause cardiopulmonary resuscitation or certain other

life-sustaining treatment designated by the board to be withheld

from another person contrary to the other person's desires,

falsifies or forges an out-of-hospital DNR order or intentionally

conceals or withholds personal knowledge of a revocation and

thereby directly causes cardiopulmonary resuscitation and certain

other life-sustaining treatment designated by the board to be

withheld from the other person with the result that the other

person's death is hastened.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.019 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.098. PREGNANT PERSONS. A person may not withhold

cardiopulmonary resuscitation or certain other life-sustaining

treatment designated by the board under this subchapter from a

person known by the responding health care professionals to be

pregnant.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.020 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.099. MERCY KILLING NOT CONDONED. This subchapter does

not condone, authorize, or approve mercy killing or permit an

affirmative or deliberate act or omission to end life except to

permit the natural process of dying as provided by this

subchapter.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.021 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.100. LEGAL RIGHT OR RESPONSIBILITY NOT AFFECTED. This

subchapter does not impair or supersede any legal right or

responsibility a person may have under a constitution, other

statute, regulation, or court decision to effect the withholding

of cardiopulmonary resuscitation or certain other life-sustaining

treatment designated by the board.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.022 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.101. DUTIES OF DEPARTMENT AND BOARD. (a) The board

shall, on the recommendation of the department, adopt all

reasonable and necessary rules to carry out the purposes of this

subchapter, including rules:

(1) adopting a statewide out-of-hospital DNR order protocol that

sets out standard procedures for the withholding of

cardiopulmonary resuscitation and certain other life-sustaining

treatment by health care professionals acting in out-of-hospital

settings;

(2) designating life-sustaining treatment that may be included

in an out-of-hospital DNR order, including all procedures listed

in Sections 166.081(6)(A)(i) through (v); and

(3) governing recordkeeping in circumstances in which an

out-of-hospital DNR order or DNR identification device is

encountered by responding health care professionals.

(b) The rules adopted by the board under Subsection (a) are not

effective until approved by the Texas State Board of Medical

Examiners.

out-of-hospital DNR order protocols if the local protocols do not

conflict with the statewide out-of-hospital DNR order protocol

adopted by the board.

(d) The board by rule shall specify a distinctive standard

design for a necklace and a bracelet DNR identification device

that signifies, when worn by a person, that the possessor has

executed or issued a valid out-of-hospital DNR order under this

subchapter or is a person for whom a valid out-of-hospital DNR

order has been executed or issued.

(e) The department shall report to the board from time to time

regarding issues identified in emergency medical services

responses in which an out-of-hospital DNR order or DNR

identification device is encountered. The report may contain

recommendations to the board for necessary modifications to the

form of the standard out-of-hospital DNR order or the designated

life-sustaining procedures listed in the standard out-of-hospital

DNR order, the statewide out-of-hospital DNR order protocol, or

the DNR identification devices.

Added by Acts 1995, 74th Leg., ch. 965, Sec. 10, eff. June 16,

1995. Renumbered from Sec. 674.023 and amended by Acts 1999, 76th

Leg., ch. 450, Sec. 1.04, eff. Sept. 1, 1999.

Sec. 166.102. PHYSICIAN'S DNR ORDER MAY BE HONORED BY HEALTH

CARE PERSONNEL OTHER THAN EMERGENCY MEDICAL SERVICES PERSONNEL.

(a) Except as provided by Subsection (b), a licensed nurse or

person providing health care services in an out-of-hospital

setting may honor a physician's do-not-resuscitate order.

(b) When responding to a call for assistance, emergency medical

services personnel shall honor only a properly executed or issued

out-of-hospital DNR order or prescribed DNR identification device

in accordance with this subchapter.

Added by Acts 2003, 78th Leg., ch. 1228, Sec. 7, eff. June 20,

2003.

SUBCHAPTER D. MEDICAL POWER OF ATTORNEY

Sec. 166.151. DEFINITIONS. In this subchapter:

(1) "Adult" means a person 18 years of age or older or a person

under 18 years of age who has had the disabilities of minority

removed.

(2) "Agent" means an adult to whom authority to make health care

decisions is delegated under a medical power of attorney.

(3) "Health care provider" means an individual or facility

licensed, certified, or otherwise authorized to administer health

care, for profit or otherwise, in the ordinary course of business

or professional practice and includes a physician.

(4) "Principal" means an adult who has executed a medical power

of attorney.

(5) "Residential care provider" means an individual or facility

licensed, certified, or otherwise authorized to operate, for

profit or otherwise, a residential care home.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.001 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.152. SCOPE AND DURATION OF AUTHORITY. (a) Subject to

this subchapter or any express limitation on the authority of the

agent contained in the medical power of attorney, the agent may

make any health care decision on the principal's behalf that the

principal could make if the principal were competent.

(b) An agent may exercise authority only if the principal's

attending physician certifies in writing and files the

certification in the principal's medical record that, based on

the attending physician's reasonable medical judgment, the

principal is incompetent.

treatment may not be given to or withheld from the principal if

the principal objects regardless of whether, at the time of the

objection:

(1) a medical power of attorney is in effect; or

(2) the principal is competent.

(d) The principal's attending physician shall make reasonable

efforts to inform the principal of any proposed treatment or of

any proposal to withdraw or withhold treatment before

implementing an agent's advance directive.

(e) After consultation with the attending physician and other

health care providers, the agent shall make a health care

decision:

(1) according to the agent's knowledge of the principal's

wishes, including the principal's religious and moral beliefs; or

(2) if the agent does not know the principal's wishes, according

to the agent's assessment of the principal's best interests.

(f) Notwithstanding any other provision of this subchapter, an

agent may not consent to:

(1) voluntary inpatient mental health services;

(2) convulsive treatment;

(3) psychosurgery;

(4) abortion; or

(5) neglect of the principal through the omission of care

primarily intended to provide for the comfort of the principal.

(g) The power of attorney is effective indefinitely on execution

as provided by this subchapter and delivery of the document to

the agent, unless it is revoked as provided by this subchapter or

the principal becomes competent. If the medical power of attorney

includes an expiration date and on that date the principal is

incompetent, the power of attorney continues to be effective

until the principal becomes competent unless it is revoked as

provided by this subchapter.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.002 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.153. PERSONS WHO MAY NOT EXERCISE AUTHORITY OF AGENT.

A person may not exercise the authority of an agent while the

person serves as:

(1) the principal's health care provider;

(2) an employee of the principal's health care provider unless

the person is a relative of the principal;

(3) the principal's residential care provider; or

(4) an employee of the principal's residential care provider

unless the person is a relative of the principal.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.003 by Acts 1999, 76th Leg., ch. 450, Sec. 1.05, eff. Sept.

1, 1999.

Sec. 166.154. EXECUTION. (a) Except as provided by Subsection

(b), the medical power of attorney must be signed by the

principal in the presence of two witnesses who qualify under

Section 166.003, at least one of whom must be a witness who

qualifies under Section 166.003(2). The witnesses must sign the

document.

(b) The principal, in lieu of signing in the presence of the

witnesses, may sign the medical power of attorney and have the

signature acknowledged before a notary public.

person may sign the medical power of attorney with the

principal's name in the principal's presence and at the

principal's express direction. The person may use a digital or

electronic signature authorized under Section 166.011.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.004 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

461, Sec. 8, eff. September 1, 2009.

Sec. 166.155. REVOCATION. (a) A medical power of attorney is

revoked by:

(1) oral or written notification at any time by the principal to

the agent or a licensed or certified health or residential care

provider or by any other act evidencing a specific intent to

revoke the power, without regard to whether the principal is

competent or the principal's mental state;

(2) execution by the principal of a subsequent medical power of

attorney; or

(3) the divorce of the principal and spouse, if the spouse is

the principal's agent, unless the medical power of attorney

provides otherwise.

(b) A principal's licensed or certified health or residential

care provider who is informed of or provided with a revocation of

a medical power of attorney shall immediately record the

revocation in the principal's medical record and give notice of

the revocation to the agent and any known health and residential

care providers currently responsible for the principal's care.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.005 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.156. APPOINTMENT OF GUARDIAN. (a) On motion filed in

connection with a petition for appointment of a guardian or, if a

guardian has been appointed, on petition of the guardian, a

probate court shall determine whether to suspend or revoke the

authority of the agent.

(b) The court shall consider the preferences of the principal as

expressed in the medical power of attorney.

Subsection (a), the guardian has the sole authority to make any

health care decisions unless the court orders otherwise. If a

guardian has not been appointed, the agent has the authority to

make any health care decisions unless the court orders otherwise.

(d) A person, including any attending physician or health or

residential care provider, who does not have actual knowledge of

the appointment of a guardian or an order of the court granting

authority to someone other than the agent to make health care

decisions is not subject to criminal or civil liability and has

not engaged in unprofessional conduct for implementing an agent's

health care decision.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.006 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.157. DISCLOSURE OF MEDICAL INFORMATION. Subject to any

limitations in the medical power of attorney, an agent may, for

the purpose of making a health care decision:

(1) request, review, and receive any information, oral or

written, regarding the principal's physical or mental health,

including medical and hospital records;

(2) execute a release or other document required to obtain the

information; and

(3) consent to the disclosure of the information.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.007 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.158. DUTY OF HEALTH OR RESIDENTIAL CARE PROVIDER. (a)

A principal's health or residential care provider and an employee

of the provider who knows of the existence of the principal's

medical power of attorney shall follow a directive of the

principal's agent to the extent it is consistent with the desires

of the principal, this subchapter, and the medical power of

attorney.

(b) The attending physician does not have a duty to verify that

the agent's directive is consistent with the principal's wishes

or religious or moral beliefs.

it impossible to follow a directive by the agent because of a

conflict with this subchapter or the medical power of attorney

shall inform the agent as soon as is reasonably possible. The

agent may select another attending physician. The procedures

established under Sections 166.045 and 166.046 apply if the

agent's directive concerns providing, withholding, or withdrawing

life-sustaining treatment.

(d) This subchapter may not be construed to require a health or

residential care provider who is not a physician to act in a

manner contrary to a physician's order.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.008 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.159. DISCRIMINATION RELATING TO EXECUTION OF MEDICAL

POWER OF ATTORNEY. A health or residential care provider, health

care service plan, insurer issuing disability insurance,

self-insured employee benefit plan, or nonprofit hospital service

plan may not:

(1) charge a person a different rate solely because the person

has executed a medical power of attorney;

(2) require a person to execute a medical power of attorney

before:

(A) admitting the person to a hospital, nursing home, or

residential care home;

(B) insuring the person; or

(3) refuse health or residential care to a person solely because

the person has executed a medical power of attorney.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.009 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.160. LIMITATION ON LIABILITY. (a) An agent is not

subject to criminal or civil liability for a health care decision

if the decision is made in good faith under the terms of the

medical power of attorney and the provisions of this subchapter.

(b) An attending physician, health or residential care provider,

or a person acting as an agent for or under the physician's or

provider's control is not subject to criminal or civil liability

and has not engaged in unprofessional conduct for an act or

omission if the act or omission:

(1) is done in good faith under the terms of the medical power

of attorney, the directives of the agent, and the provisions of

this subchapter; and

(2) does not constitute a failure to exercise reasonable care in

the provision of health care services.

residential care provider, or person acting as an agent for or

under the physician's or provider's control shall exercise under

Subsection (b) is that degree of care that an attending

physician, health or residential care provider, or person acting

as an agent for or under the physician's or provider's control,

as applicable, of ordinary prudence and skill would have

exercised under the same or similar circumstances in the same or

similar community.

(d) An attending physician, health or residential care provider,

or person acting as an agent for or under the physician's or

provider's control has not engaged in unprofessional conduct for:

(1) failure to act as required by the directive of an agent or a

medical power of attorney if the physician, provider, or person

was not provided with a copy of the medical power of attorney or

had no knowledge of a directive; or

(2) acting as required by an agent's directive if the medical

power of attorney has expired or been revoked but the physician,

provider, or person does not have knowledge of the expiration or

revocation.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.010 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.161. LIABILITY FOR HEALTH CARE COSTS. Liability for

the cost of health care provided as a result of the agent's

decision is the same as if the health care were provided as a

result of the principal's decision.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.011 by Acts 1999, 76th Leg., ch. 450, Sec. 1.05, eff. Sept.

1, 1999.

Sec. 166.162. DISCLOSURE STATEMENT. A medical power of attorney

is not effective unless the principal, before executing the

medical power of attorney, signs a statement that the principal

has received a disclosure statement and has read and understood

its contents.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.014 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.163. FORM OF DISCLOSURE STATEMENT. The disclosure

statement must be in substantially the following form:

INFORMATION CONCERNING THE MEDICAL POWER OF ATTORNEY

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS

DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

Except to the extent you state otherwise, this document gives the

person you name as your agent the authority to make any and all

health care decisions for you in accordance with your wishes,

including your religious and moral beliefs, when you are no

longer capable of making them yourself. Because "health care"

means any treatment, service, or procedure to maintain, diagnose,

or treat your physical or mental condition, your agent has the

power to make a broad range of health care decisions for you.

Your agent may consent, refuse to consent, or withdraw consent to

medical treatment and may make decisions about withdrawing or

withholding life-sustaining treatment. Your agent may not consent

to voluntary inpatient mental health services, convulsive

treatment, psychosurgery, or abortion. A physician must comply

with your agent's instructions or allow you to be transferred to

another physician.

Your agent's authority begins when your doctor certifies that you

lack the competence to make health care decisions.

Your agent is obligated to follow your instructions when making

decisions on your behalf. Unless you state otherwise, your agent

has the same authority to make decisions about your health care

as you would have had.

It is important that you discuss this document with your

physician or other health care provider before you sign it to

make sure that you understand the nature and range of decisions

that may be made on your behalf. If you do not have a physician,

you should talk with someone else who is knowledgeable about

these issues and can answer your questions. You do not need a

lawyer's assistance to complete this document, but if there is

anything in this document that you do not understand, you should

ask a lawyer to explain it to you.

The person you appoint as agent should be someone you know and

trust. The person must be 18 years of age or older or a person

under 18 years of age who has had the disabilities of minority

removed. If you appoint your health or residential care provider

(e.g., your physician or an employee of a home health agency,

hospital, nursing home, or residential care home, other than a

relative), that person has to choose between acting as your agent

or as your health or residential care provider; the law does not

permit a person to do both at the same time.

You should inform the person you appoint that you want the person

to be your health care agent. You should discuss this document

with your agent and your physician and give each a signed copy.

You should indicate on the document itself the people and

institutions who have signed copies. Your agent is not liable for

health care decisions made in good faith on your behalf.

Even after you have signed this document, you have the right to

make health care decisions for yourself as long as you are able

to do so and treatment cannot be given to you or stopped over

your objection. You have the right to revoke the authority

granted to your agent by informing your agent or your health or

residential care provider orally or in writing or by your

execution of a subsequent medical power of attorney. Unless you

state otherwise, your appointment of a spouse dissolves on

divorce.

This document may not be changed or modified. If you want to make

changes in the document, you must make an entirely new one.

You may wish to designate an alternate agent in the event that

your agent is unwilling, unable, or ineligible to act as your

agent. Any alternate agent you designate has the same authority

to make health care decisions for you.

THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN THE

PRESENCE OF TWO COMPETENT ADULT WITNESSES. THE FOLLOWING PERSONS

MAY NOT ACT AS ONE OF THE WITNESSES:

(1) the person you have designated as your agent;

(2) a person related to you by blood or marriage;

(3) a person entitled to any part of your estate after your

death under a will or codicil executed by you or by operation of

law;

(4) your attending physician;

(5) an employee of your attending physician;

(6) an employee of a health care facility in which you are a

patient if the employee is providing direct patient care to you

or is an officer, director, partner, or business office employee

of the health care facility or of any parent organization of the

health care facility; or

(7) a person who, at the time this power of attorney is

executed, has a claim against any part of your estate after your

death.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.015 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.164. FORM OF MEDICAL POWER OF ATTORNEY. The medical

power of attorney must be in substantially the following form:

MEDICAL POWER OF ATTORNEY DESIGNATION OF HEALTH CARE AGENT.

I,__________(insert your name) appoint:

Name:___________________________________________________________

Address:________________________________________________________

Phone___________________________________________________________

as my agent to make any and all health care decisions for me,

except to the extent I state otherwise in this document. This

medical power of attorney takes effect if I become unable to make

my own health care decisions and this fact is certified in

writing by my physician.

LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS

FOLLOWS:_____________________________________________________

_____________________________________________________

DESIGNATION OF ALTERNATE AGENT.

(You are not required to designate an alternate agent but you may

do so. An alternate agent may make the same health care decisions

as the designated agent if the designated agent is unable or

unwilling to act as your agent. If the agent designated is your

spouse, the designation is automatically revoked by law if your

marriage is dissolved.)

If the person designated as my agent is unable or unwilling to

make health care decisions for me, I designate the following

persons to serve as my agent to make health care decisions for me

as authorized by this document, who serve in the following order:

A. First Alternate Agent

Name:_____________________________________________

Address:__________________________________________

Phone________________________________________

B. Second Alternate Agent

Name:_____________________________________________

Address:__________________________________________

Phone________________________________________

The original of this document is kept at:

__________________________________________________

The following individuals or institutions have signed copies:

Name:_____________________________________________

Address:__________________________________________

__________________________________________________

Name:_____________________________________________

Address:__________________________________________

__________________________________________________

DURATION.

I understand that this power of attorney exists indefinitely from

the date I execute this document unless I establish a shorter

time or revoke the power of attorney. If I am unable to make

health care decisions for myself when this power of attorney

expires, the authority I have granted my agent continues to exist

until the time I become able to make health care decisions for

myself.

(IF APPLICABLE) This power of attorney ends on the following

date: __________

PRIOR DESIGNATIONS REVOKED.

I revoke any prior medical power of attorney.

ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.

I have been provided with a disclosure statement explaining the

effect of this document. I have read and understand that

information contained in the disclosure statement.

(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)

I sign my name to this medical power of attorney on __________

day of __________ (month, year) at

_____________________________________________

(City and State)

_____________________________________________

(Signature)

_____________________________________________

(Print Name)

STATEMENT OF FIRST WITNESS.

I am not the person appointed as agent by this document. I am not

related to the principal by blood or marriage. I would not be

entitled to any portion of the principal's estate on the

principal's death. I am not the attending physician of the

principal or an employee of the attending physician. I have no

claim against any portion of the principal's estate on the

principal's death. Furthermore, if I am an employee of a health

care facility in which the principal is a patient, I am not

involved in providing direct patient care to the principal and am

not an officer, director, partner, or business office employee of

the health care facility or of any parent organization of the

health care facility.

Signature:________________________________________________

Print Name:___________________________________ Date:______

Address:__________________________________________________

SIGNATURE OF SECOND WITNESS.

Signature:________________________________________________

Print Name:___________________________________ Date:______

Address:__________________________________________________

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.016 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.165. CIVIL ACTION. (a) A person who is a near

relative of the principal or a responsible adult who is directly

interested in the principal, including a guardian, social worker,

physician, or clergyman, may bring an action in district court to

request that the medical power of attorney be revoked because the

principal, at the time the medical power of attorney was signed:

(1) was not competent; or

(2) was under duress, fraud, or undue influence.

(b) The action may be brought in the county of the principal's

residence or the residence of the person bringing the action.

agent to make health care decisions continues in effect unless

the district court orders otherwise.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.017 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

Sec. 166.166. OTHER RIGHTS OR RESPONSIBILITIES NOT AFFECTED.

This subchapter does not limit or impair any legal right or

responsibility that any person, including a physician or health

or residential care provider, may have to make or implement

health care decisions on behalf of a person, provided that if an

attending physician or health care facility is unwilling to honor

a patient's advance directive or a treatment decision to provide

life-sustaining treatment, life-sustaining treatment is required

to be provided the patient, but only until a reasonable

opportunity has been afforded for transfer of the patient to

another physician or health care facility willing to comply with

the advance directive or treatment decision.

Added by Acts 1991, 72nd Leg., ch. 16, Sec. 3.02(a), eff. Aug.

26, 1991. Renumbered from Civil Practice & Remedies Code Sec.

135.018 and amended by Acts 1999, 76th Leg., ch. 450, Sec. 1.05,

eff. Sept. 1, 1999.

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2009 Texas Code HEALTH AND SAFETY CODE TITLE 2. HEALTH CHAPTER 166. ADVANCE DIRECTIVES

2009 Texas Code
HEALTH AND SAFETY CODE
TITLE 2. HEALTH
CHAPTER 166. ADVANCE DIRECTIVES