Decenher 2$, 1987 

Honorable Charles D. Penick Opinion No. .Jk-837 

Criminal District Attorney 

Bastrop County Courthouse Re: Whether artificial or 

Bastrop, Texas 78602 tube feeding constitutes a 

life-sustaining procedure 

for purposes of article 

4590h, V.T.C.S. (RQ-1036) 

Dear Mr. Penick: 

In your inquiry you ask the following question: 

If a patient cf a nursing home who meets 

the definitions of a Declarant and qualified 

patient of article ~4590h, V.T.C.S., the 

Natural Death Act, is unable to,feed him or 

herself and it becomes necessary to tube 

feed or artificially feed that person, must 

the hospital feed that patient artificially 

or does the procedure for artificially 

feeding 'or tube feeding fall under the 

definition of a life sustaining procedure as 

defined in section 2, subsection 4, of 

article 4590h? 

Article 4590h, V.T.C.S., makes it possible for any 

competent adult person, at any time, to execute a 

directive for the withholding or withdrawal of 

life-sustaining procedures in the event of a terminal 

condition. Provisions of the act relating to the 

execution of such a document provide as follows: 

Sec. 2. In this Act: 

.(I) 'Attending physician' means the 

physician who has primary responsibility for 

the treatment and care of the patient. 

(2) 'Declarant' means a oerson who has 

executed or issued a directive under this 

&&. * 

p. 4026 
Honorable Charles D. Penick - Page 2 LTI+837) 

(3) 'Directive' means: 

(A) a document voluntarily executed by 

the declarant as prescribed by Section 3(a) 

of this Act: 

(B) a nonwritten directive issued by the 

declarant as prescribed by Section 3(b) of 

this Act: or 

(c) a document executed as prescribed by 

Section 4D of this Act. 

(4) 'Life-sustaining procedure' means a 

medical procedure or intervention which 

utilizes mechanical or other artificial 

means to sustain, restore, or supplant a 

vital function, which, when applied to a 

qualified patient, would serve only to 

artificially prolong the moment of death and 

where, in the judgment of the attending 

physician, noted in the qualified patient's 

medical records, death is imminent whether 

or not such procedures are utilized. 

'Life-sustaining procedure' shall not 

include the administration of medication or 

the performance of any medical procedure 

deemed necessary to provide comfort or care 

or alleviate pain. 

(5) 'Physician' means a physician and 

surgeon licensed by the Texas State Board of 

Medical Examiners or a properly credentialed 

physician holding a commission in the 

uniformed services of the United States who 

is serving on active duty in this state. 

(6) 'Oualified oatient' means a natient 

diaanosed and certified in writina to be 

afflicted with a terminal condition bv two 

phvsicians, one of whom shall be the 

attending physician, who have personally 

examined the patient. 

(7) 'Terminal condition' means an 

incurable condition caused by injury, 

disease, or illness, which, regardless of 

the application of life-sustaining 

procedures, would, within reasonable medical 

'judgment, produce death, and where the 

? 

? 

? 

p. 4027 
Honorable Charles D. Penick - Page 3 UM-837) 

application of life-sustaining procedures 

serves only to postpone the moment of death 

of the patient. 

Directive for withholding or withdrawal 

of life-sustaining procedures in 

event of terminal condition 

Sec. 3. (a) Any competent adult person 

may, at any time, execute a directive for 

the withholding or withdrawal of lifesustaining procedures in the event of a 

terminal condition. The directive shall be 

signed by the declarant in the presence of 

two witnesses not related to the declarant 

by blood or marriage and who would not be 

entitled to any portion of the estate of the 

declarant on his decease under any will of 

the declarant or codicil thereto or by 

operation of law. In addition, a witness to 

a directive shall not be the attending 

physician, an employee of the attending 

physician or a health facility in which the 

declarant is a patient, a patient in a 

health care facility in which the declarant 

is a patient, or any person who has a claim 

against any portion of the estate of the 

declarant upon his decease at the time of 

the execution of the directive. The two 

witnesses to the declarant's signature shall 

sign the directive. 

(b) A competent qualified patient who is 

an adult may issue a directive by a 

nonwritten means of communication. The 

declarant must issue the directive in the 

presence of the attending physician and two 

witnesses. The witnesses must possess the 

same qualifications as are required by 

Subsection (a) of this section. The 

physician shall make the fact of the 

existence of the directive a part of the 

declarant's'medical record and the witnesses 

shall sign said entry in the declarant's 

medical record. 

(0) A declarant shall notify the 

attending physician of the existence of a 

written directive. If the declarant is 

comatose, incompetent, or otherwise mentally 

p. 4028 
Honorable Charles D. Penick - Page 4 UM-837) 

or physically incapable of communication, 

another person may notify the physician of 

the existence of a written directive. The 

physician shall make the directive a part of 

the declarant's medical record. 

[subsection (d) sets forth a form that w 

be used by a declarant] 

(e) The directive may include other 

directions, including a designation of 

another person to make a treatment decisiorl 

in accordance with Section 4A of this Act 

for the declarant if the declarant is 

comatose, incompe=ent, or otherwise mentally 

or physically incapable of communication. 

(Emphasis added.) 

A sommon thread running throughout the act is the 

expression of the legislature's intent that the desire o_f 

a aualified declarant shall b~follow~. The followiho 

oraJisions of the act reflect the paramount importancs Oi 

the declarcnt's wishes and provide for penal sanctions for 

any person who takes any action to defeat the desire cf 

the dcclarant. The following sections oi the act reflect ? 

su.2h legislative intent, as .follows: 

Sec. 4. (a) A directive mav be revat anv time bv the d~eclarant. without reaard 

-mental state or comvetengy .~ . . . 

. . . . 

Sec. 4A. The desireof 

patient who is comvetent s.1 at all times 

m directive. If an 

adult qualified patient is comatose, in;,ompetent, or otherwise mentally or physically 

incapable of communication and has issued a 

directive under this Act without designating 

a person to make a treatment decision, tile 

attending physician shall comply with the 

directive unless the Dhvsician believes that 

the direct=does not reflect the wresent 

desire of the natient. 

. . . . 

Sec. 4C. (a) If an adult qualified 

patient is comatose, incompetent, or 

p. 4029 
Honorable Charles D. Penick - Page 5 UM-837) 

,P, 

r 

otherwise mentally or physically incapable 

of communication, and the person has not 

issued a directive under this Act, the 

attending physician and the legal guardian 

of the patient may make a treatment decision 

that may, based on knowledae of what the 

patient would desire, if known, include a 

decision to withhold or withdraw lifesustaining procedures from the patient. 

(b) If the patient does not have a legal 

guardian, the attending physician and at 

least two, if available, of the following 

categories of persons, in the following 

priority, may make a treatment decision that 

may, based on knowledae of what the oatient 

would desire, if known . . . . 

. . . . 

Sec. 4D. (a) The following persons may 

execute a directive on behalf of a qualified 

patient who is under 

(1) the patient's 

is an adult: 

18 years of age: 

spouse, if the spouse 

(2) the patient's parents; or 

(3) the patient's legal guardian. 

(b) The desire of a oualified natient who 

is under 18 vears of aae and who * 

comnetent shall at all times suversede tit: 

effect of a directive executed in accordance 

with this section. 

. . . . 

Sec. 7. (a) .Before withholding or 

withdrawing life-sustaining procedures from 

a qualified patient under this Act, the 

attending physician shall determine that all 

steps proposed to be undertaken are in 

accord with the provisions of this Act and 

the existina desires of the aualified 

patient. 

. . . . 

p. 4030 
Honorable Charles D. Penick - Page 6 (JM-837) 

Sec. 8. (c) No nhvsician. health 

facilitv. or other health nrovider, and no 

health care service vlan. or insurer issuina 

a- . insurance, mav reoulre anv nerson to execute 

a directive as a condition for being insured 

for, or receiving, health care services nor 

may the execution or failure to execute a 

directive be considered in any way in 

establishing the premiums for insurance.~ 

Sec. 9. A person who willfully conceals, 

cancels, defaces, obliterates, or damages 

the directive of another without such 

declarant's consent shall be guilty of a s 

Class A misdemeanor. A person who falsifies 

or forges the directive of another, or 

willfully conceals or withholds personal 

knowledge of a revocation as provided in 

Section 4 of this Act, with the intent to 

cause a withdrawal of life-sustaining 

procedures contrar v to the wishes of the 

declarant, and thereby,.because of any such 

act, directly causes~ life-sustaining 

procedures to be withheld or withdrawn and 

death' to thereby be hastened, shall be 

subject to prosecution for criminal homicide 

under the provisions of the Penal Code. 

(Emphasis added.) 

The question you pose is limited to the issue of 

whether artificially feeding or tube feeding is a lifesustaining procedure as~those items are defined in the 

act. You assume that the patient is a "declarant@' and a 

"aualified watient" as those terms are defined in section 

2 of article 4590h. Senator Ray ,Farabee, sponsor in the 

Texas Senate of the "Natural Death Act" (Acts 1977, 65th 

Leg., ch. 398, at 1085), writing in 41 Texas Bar J. 241 

(1978), noted that it was impossible to establish criteria 

in determining when a person is in a "terminal condition" 

or what will constitute a "life-sustaining procedure." We 

believe the following observations by Senator Farabee to 

be pertinent to your inquiry. 

The law does not attempt to establish 

criteria to determine when a person is to be 

deemed 'terminal' for the purposes of 

implementing such a directive. It does 

outline a general statement of the 

circumstances in which it will be legally 

effective. Restrictive criteria would 

p. 4031 
, 

P 

Honorable Charles D. Penick - Page 7 UM-837) 

render the law almost immediately obsolete 

in the face of emerging medical advances. 

Only the medical profession can determine 

when a patient's prognosis is hopeless and 

the death process irreversible. 

Similarlv. the statute does not itemize 

what Drocedures are to be reaarded as 

'life-sustainins' and senarate from standard 

medical treatment which mav be aiven 

reaardless of a natient's condition. Such 

distinctions must be made bv medical nractitioners accordins to accewted medical 

standards. For instance, many physicians 

maintain that therapy, such as the use of 

antibiotics, qualifies as 'extraordinary' 

when the patient is a cancerous, comatose 

go-year old. On the other hand, administration of pain-killing drugs falls in a 

separate category. (Emphasis supplied). 

Turning to other jurisdictions, in Corbett 

D'Alessandro, 487 So.Zd 368, 371 (Fla. Dist. Ct. Ap;: 

1986), the matter of what constitutes a "life-sustaining 

procedure11 was addressed as follows: 

Judge Hersey, in his opinion for the 

fourth district in Kennedv v. Bludworth, 432 

So.2d at 619, in a statement not commented 

upon but apparently approved by our supreme 

court in Kennedv v. Bludworth, 452 So.2d 

291, wrote: 'Life sustaining procedures are 

medical procedures which utilize mechanical 

or other artificial means to sustain, 

restore or supplant a vital function, which 

serve only or primarily to prolong the 

moment of death, and where, in the judgment. 

of the attending and consulting physicians, 

as reflected in the patient's medical 

records, death is imminent if such 

procedures are not utilized.' 

Although artificial or tube feeding may constitute a 

life-maintaining procedure within the meaning of article 

4590h, V.T.C.S., whether it will serve to artificially 

prolong the moment of death is a question which depends 

upon the expertise of the medical profession for its 

resolution in each individual case. While the resolution 

of this question is for the medical profession, the 

legislature has made it plain that care should be taken 

p. 4032 
Honorable Charles D. Penick - Page 8 (JM-837) 

, 

that a oualified declarant's wishes be observed in 

withdrawing life-sustaining procedures when there is a 

terminal condition. 

SUMMARY 

Although artificial or tube feeding may 

constitute a life-maintaining procedure 

within the meaning of article 459013, 

V.T.C.S., whether it will serve to 

artificially prolong the moment of death is 

a question which depends upon the expertise 

of the medical profession for its resolution 

in each individual case. The article 4399, 

V.T.C.S., opinion process was not intended 

to resolve factual disputes. 

Jzh 

MATTOX 

Attorney General of Texas 

MARYKKLLKR 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 4033