(a) A physician, nurse, midwife, or other person in attendance at childbirth shall apply, or cause to be applied, to the child's eyes a 0.5% ophthalmic erythromycin ointment in each eye within two hours after birth. If this ointment is not available due to a disruption in distribution or manufacturing, a physician, nurse, midwife, or other person subject to this section shall apply or cause to be applied to the child's eyes an alternative treatment included in guidance issued by the Department of State Health Services (department) or the Centers for Disease Control and Prevention.
(b) Except as provided by subsection (c) of this section, a person commits an offense if the person is a physician, nurse, midwife, or other person in attendance with a pregnant woman either during pregnancy or at delivery and fails to perform a duty required by subsection (a) of this section. An offense under this section is a Class B misdemeanor under the Texas Health and Safety Code, §81.091(g).
(c) A physician, nurse, midwife, or other person in attendance at childbirth who is unable to apply the prophylaxis as required by this section due to the objection of a parent, managing conservator, or guardian of the newborn infant does not commit an offense under this section and is not subject to criminal, civil, or administrative liability or any professional disciplinary action for failure to administer the prophylaxis. The physician, nurse, midwife, or person shall ensure that the objection of the parent, managing conservator, or guardian is entered into the medical record of the infant.
(d) The department may provide an approved prophylaxis without charge to health-care providers if the newborn's financially responsible adult is unable to pay. The health-care provider shall not charge for the prophylaxis that is received free of charge from the department.
(e) Midwives shall follow the additional requirements in Texas Health and Safety Code, §81.091.

Source Note: The provisions of this §97.136 adopted to be effective March 16, 1994, 19 TexReg 1453; amended to be effective March 20, 2003, 28 TexReg 2335; amended to be effective December 4, 2008, 33 TexReg 9693; amended to be effective March 28, 2010, 35 TexReg 2311; amended to be effective June 6, 2018, 43 TexReg 3594