             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-0819-12



                         ROBERT RANDALL KRAUSE, Appellant

                                                 v.

                                    THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTEENTH COURT OF APPEALS
                             HARRIS COUNTY

       J OHNSON, J., filed a concurring opinion.

                            CONCURRING OPINION


       There seems to be confusion on the meanings of “emergency medical services” (EMS) and

“emergency medical technician” (EMT). The governing statute is Health and Safety Code Chapter

773, which “may be cited as the Emergency Health Care Act.” Id. at § 773.001. Section 773.002

states, “The purpose of this chapter is to provide for the prompt and efficient transportation of sick

and injured patients, after necessary stabilization, and to encourage public access to that

transportation in each area of the state.”
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         The terms at issue are defined in Section 773.003. “‘Emergency medical services’ means

services used to respond to an individual’s perceived need for immediate medical care and to prevent

death or aggravation of physiological or psychological illness or injury.” Id. at (8). I understand that

to mean an entity with employees who provide medical assistance as first responders to emergencies

such as fires, traffic accidents, heart attacks, strokes, and violent crime. “‘Emergency medical

services personnel’ means: (A) emergency care attendant; (B) emergency medical technicians; (C)

emergency medical technicians—intermediate; (D) emergency medical technicians—paramedic; or

(E) licensed paramedic.” Id. at (10). All of these definitions must be considered in the context of

the statute: “to provide for the prompt and efficient transportation of sick and injured patients, after

necessary stabilization . . ..”1 Id. at (10). I understand this to mean the medically trained persons

who are employed by an emergency medical service to transport an ill or injured person.2

         The enumerated types of emergency medical services personnel in Section 773.003 are based

on the level of training. Sections 773.046-773.0495 set out the standards for such personnel. An

emergency care attendant must be certified as “minimally proficient to provide emergency

prehospital care by providing initial aid that promotes comfort and avoids aggravation of an injury

or illness,” otherwise known as first aid. Such a person is not required to have a high-school

diploma or a GED. Section 773.046. Escalating training levels are required for the other categories,

         1
           Of the 17 statutes other than Transp. Code § 773 in which the phrase “emergency medical services
personnel” appears, ten specify that it is as defined in 773.003, and one defines the term as an individual certified by
the Department of State Health Services. One expands the definition to include hospital emergency facility staff in
the event of a major disaster. The remaining five use the phrase without a stated definition.

         2
           “Emergency medical services personnel” is not synonymous with “EMT.” EMTs are not EMTs because
they are employed by emergency medical services; they are EMTs because of their training. EMTs may be
employed in hospital emergency rooms and perform procedures as first responders to those who need such assistance
and arrive by private transportation. They may also work for private ambulance services that transport sick persons
in non-emergency situations, in doctor’s offices taking vital-sign data, on location for filming movies, and at sporting
events.
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with paramedics being “minimally proficient to provide advanced life support that includes initiation

under medical supervision of certain procedures,” including intravenous therapy, intubation,

defibrillation, and drug therapy and must also have completed “a curriculum that includes college-

level course work . . ..” Section 773.0495.

             The person who drew appellant’s blood, Ms. Lopez, was classified by her employer, the

hospital, as an EMT–I. Such a person is certified “as minimally proficient to provide emergency

prehospital care by initiating under medical supervision certain procedures, including intravenous

therapy and endotracheal or esophageal intubation.” Section 773.048. Presumably, if she is

“minimally proficient” at inserting an IV needle into a vein, she is also “minimally proficient” at

inserting a needle into a vein to withdraw a sample of blood.3 A change of job title by her employer

did not affect her standing as an EMT-I.

             It is clear from the language of the statute that the legislature intended to regulate those who

transport patients from the scene of the injury to a hospital. Ms. Lopez was in no way involved in

the transportation of injured or ill patients and so, by the clear language of the statute, is not

“emergency medical services personnel” for the purposes of Transportation Code § 724.017. She

was employed by the hospital to draw samples of blood, was qualified to do so, and had an office

in the hospital for that purpose. And her office in the hospital was a sanitary place. An ambulance

is likely to become an unsanitary place, contaminated with any number of substances such as soot

from a fire, exsanguinated blood from the patient or other persons, and dirt, vegetation, and glass

fragments from a traffic accident. Under such conditions, the taking of a blood draw by a member



         3
              Phlebotomists, who spend all day every day drawing blood samples for medical tests, are not regulated by
the state.
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of the ambulance crew is not appropriate. The goal of transportation is to get the patient to the

hospital alive. Drawing blood for a test for blood-alcohol concentration is probably not high on the

to-do list, nor should it be.

        I think that Ms. Lopez is just the sort of “qualified technician” that the legislature had in mind

when it established rules for who should be performing blood draws pursuant to Texas

Transportation Code § 724.017.

        With these comments, I join the opinion of the Court.



Filed: May 8, 2013
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