1. (a) If an adult patient of a home and community support services agency or in a hospital or nursing home is comatose, incapacitated, or otherwise mentally or physically incapable of communication, an adult surrogate from the following list, in order of priority, who has decision-making capacity, is available after a reasonably diligent inquiry, and is willing to consent to medical treatment on behalf of the patient may consent to medical treatment on behalf of the patient:

   1. (1) the patient's spouse;
   2. (2) an adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker;
   3. (3) a majority of the patient's reasonably available adult children;
   4. (4) the patient's parents; or
   5. (5) the individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patient's nearest living relative, or a member of the clergy.
2. (b) Any dispute as to the right of a party to act as a surrogate decision-maker may be resolved only by a court of record having jurisdiction under Chapter V, Texas Probate Code.
3. (c) Any medical treatment consented to under Subsection (a) must be based on knowledge of what the patient would desire, if known.

4. (d) Notwithstanding any other provision of this chapter, a surrogate decision-maker may not consent to:

   1. (1) voluntary inpatient mental health services;
   2. (2) electro-convulsive treatment; or
   3. (3) the appointment of another surrogate decision-maker.

Added by Acts 1993, 73rd Leg., ch. 407, Sec. 1, eff. Sept. 1, 1993.

Acts 2007, 80th Leg., R.S., Ch. 1271 (H.B. 3473), Sec. 2, eff. September 1, 2007.