By: Hill H.B. No. 1435
73R4563 CAE-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to parental notification before an abortion may be
1-3 performed on a minor; providing a criminal penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle C, Title 2, Family Code, is amended by
1-6 adding Chapter 37 to read as follows:
1-7 CHAPTER 37. NOTICE OF ABORTION
1-8 Sec. 37.01. DEFINITIONS. In this chapter:
1-9 (1) "Abortion" means a medical procedure or act
1-10 committed on or with respect to a woman by any means, including
1-11 acting directly on the woman's body with an instrument or other
1-12 object or administering or prescribing a drug or other substance,
1-13 with the intent or with a representation that the procedure or act
1-14 is done to cause the death of an unborn child or to cause the
1-15 expulsion or removal of an unborn child from the womb of the woman
1-16 for a purpose other than for producing a live birth or for removing
1-17 fetal remains.
1-18 (2) "Guardian" means a court-appointed guardian of the
1-19 person of the minor.
1-20 (3) "Medical emergency" means a condition that, on the
1-21 basis of a physician's good faith clinical judgment, complicates
1-22 the medical condition of a pregnant woman and necessitates the
1-23 immediate abortion of her pregnancy to avert her death or to avoid
1-24 a serious risk of substantial and irreversible impairment of a
2-1 major bodily function.
2-2 (4) "Physician" means an individual licensed to
2-3 practice medicine in this state.
2-4 (5) "Unborn child" means an unborn offspring of a
2-5 human from the time of the offspring's conception, during
2-6 pregnancy, and until its live birth.
2-7 Sec. 37.02. PARENTAL NOTICE. (a) Except as provided by
2-8 Section 37.03 of this code, a person may not perform an abortion on
2-9 a pregnant minor unless:
2-10 (1) the person performing the abortion gives at least
2-11 48 hours actual notice, in person or by telephone, of the person's
2-12 intent to perform the abortion to:
2-13 (A) a parent of the minor if the minor has no
2-14 managing conservator or guardian; or
2-15 (B) a court-appointed managing conservator or
2-16 guardian;
2-17 (2) a person to whom notice may be given under
2-18 Subsection (a)(1) consents in writing to the performance of the
2-19 abortion;
2-20 (3) the judge of a court having probate jurisdiction
2-21 or the judge of a district court issues an order authorizing the
2-22 minor to consent to the abortion as provided by Section 37.04 or
2-23 37.05 of this code;
2-24 (4) a probate court or a district court, by its
2-25 inaction, constructively authorizes the minor to consent to the
2-26 abortion as provided by Section 37.04 or 37.05 of this code; or
2-27 (5) the person performing the abortion is a physician
3-1 who:
3-2 (A) concludes that a medical emergency exists
3-3 without sufficient time to provide the required notice; and
3-4 (B) certifies in writing to the Texas
3-5 Department of Health and in the patient's medical record the
3-6 medical indications supporting the physician's judgment that the
3-7 abortion was authorized by this subdivision.
3-8 (b) If a person to whom notice may be given under Subsection
3-9 (a)(1) of this section cannot be notified after a reasonable
3-10 effort, a person may perform an abortion if the person gives 48
3-11 hours constructive notice, by certified mail sent to the last known
3-12 address, to the person to whom notice may be given under Subsection
3-13 (a)(1) of this section. The period under this subsection begins
3-14 when the certified mail notice is mailed. If the person required
3-15 to be notified is not notified within the period, the abortion may
3-16 proceed even if the certified mail notice is not received.
3-17 (c) The Texas Department of Health shall prepare a form to
3-18 be used for making the certification required by Subsection (a)(5)
3-19 of this section.
3-20 (d) A person who violates this section commits an offense.
3-21 An offense under this section is a Class A misdemeanor.
3-22 Sec. 37.03. EXCEPTION TO PARENTAL NOTICE. (a) A person may
3-23 perform an abortion on a pregnant minor without satisfying the
3-24 requirement of Section 37.02(a) of this code if the minor has
3-25 executed an affidavit stating that she is in fear of physical,
3-26 sexual, or severe emotional abuse from both parents, a managing
3-27 conservator, or guardian who would be notified under Section
4-1 37.02(a)(1) of this code and that the fear arises from a pattern of
4-2 physical, sexual, or severe emotional abuse of her exhibited by
4-3 those parents, the managing conservator, or guardian.
4-4 (b) The person performing the abortion shall certify in
4-5 writing to the Texas Department of Health that the minor has
4-6 executed an affidavit as required by Subsection (a) of this section
4-7 and that the abortion is permitted without notification as provided
4-8 by this section. The Texas Department of Health shall prepare a
4-9 form to be used for making this certification.
4-10 Sec. 37.04. JUDICIAL APPROVAL. (a) A pregnant minor who
4-11 wishes to have an abortion without notification to one of her
4-12 parents, her managing conservator, or her guardian may file in the
4-13 probate court of the county in which the minor resides, in the
4-14 probate court of a county that borders the county in which the
4-15 minor resides, or in the probate court of the county in which the
4-16 hospital, clinic, or other facility in which the abortion would be
4-17 performed is located, an application for a court order authorizing
4-18 the minor to consent to the performance of an abortion without
4-19 notification to either of her parents or a managing conservator or
4-20 guardian.
4-21 (b) The application must be made under oath and include:
4-22 (1) a statement that the minor is pregnant;
4-23 (2) a statement that the minor is unmarried, is under
4-24 18 years of age, and has not had her disabilities removed for
4-25 general purposes under Chapter 31 of this code;
4-26 (3) a statement that the minor wishes to have an
4-27 abortion without the notification of either of her parents or a
5-1 managing conservator or guardian; and
5-2 (4) a statement as to whether the minor has retained
5-3 an attorney and, if she has retained an attorney, the name,
5-4 address, and telephone number of her attorney.
5-5 (c) The court shall appoint a guardian ad litem for the
5-6 minor. If the minor has not retained an attorney, the court shall
5-7 appoint an attorney to represent the minor. If the guardian ad
5-8 litem is an attorney admitted to the practice of law in this state,
5-9 the court may appoint the guardian ad litem to serve as the minor's
5-10 attorney.
5-11 (d) The court shall fix a time for a hearing on an
5-12 application filed under Subsection (a) of this section and shall
5-13 keep a record of all testimony and other oral proceedings in the
5-14 action. The hearing shall be held at the earliest possible time,
5-15 but not later than the fifth business day after the date that the
5-16 application is filed. The court shall enter judgment on the
5-17 application immediately after the hearing is concluded.
5-18 (e) If the hearing required in Subsection (d) of this
5-19 section is not held by the fifth business day after the date the
5-20 application is filed, the failure to hold the hearing is considered
5-21 to be a constructive order of the court authorizing the minor to
5-22 consent to the performance of an abortion without further
5-23 notification and the minor and any other person may rely on the
5-24 constructive order to the same extent as if the court actually had
5-25 issued an order under this section authorizing the minor to consent
5-26 to the performance of an abortion without notification.
5-27 (f) The court shall determine by clear and convincing
6-1 evidence whether the minor is mature and sufficiently well-informed
6-2 to make the decision to have an abortion performed without
6-3 notification to either of her parents or a managing conservator or
6-4 guardian or whether notification would not be in the best interest
6-5 of the minor. If the court finds that the minor is mature and
6-6 sufficiently well-informed or that notification would not be in the
6-7 minor's best interest, the court shall enter an order authorizing
6-8 the minor to consent to the performance of the abortion without
6-9 notification to either of her parents or a managing conservator or
6-10 guardian and execute the required forms.
6-11 (g) In ruling on a petition for a minor to consent to an
6-12 abortion under this section, the court shall hear evidence
6-13 regarding:
6-14 (1) the emotional development, maturity, intellect,
6-15 and understanding of the pregnant minor;
6-16 (2) the fact and duration of the pregnancy;
6-17 (3) the nature and possible consequences of, and
6-18 alternatives to, an abortion; and
6-19 (4) any additional evidence that the court may find
6-20 useful in determining whether the pregnant minor may obtain an
6-21 abortion without notification to either of the minor's parents or a
6-22 managing conservator or guardian.
6-23 (h) If the court finds by clear and convincing evidence that
6-24 the minor does not meet the requirements of Subsection (f) of this
6-25 section, the court may not authorize the minor to consent to an
6-26 abortion without the notification authorized under Section
6-27 37.02(a)(1) of this code.
7-1 (i) The court may not notify a parent, managing conservator,
7-2 or guardian that the minor is pregnant or that the minor wants to
7-3 have an abortion. The court proceedings shall be conducted in a
7-4 manner that protects the anonymity of the minor, and all court
7-5 documents pertaining to the proceedings are confidential.
7-6 (j) The clerk of the supreme court shall prescribe the
7-7 application form to be used by the minor filing an application
7-8 under this section.
7-9 (k) A filing fee is not required of, and court costs may not
7-10 be assessed against, a minor filing an application under this
7-11 section.
7-12 Sec. 37.05. APPEAL. (a) A minor whose application under
7-13 Section 37.04 of this code is denied by a probate court may appeal
7-14 to the district court having jurisdiction over civil matters in the
7-15 county in which the application was filed. Not later than the
7-16 fourth day after the date notice of appeal is filed in a probate
7-17 court, the clerk of the probate court shall deliver a copy of the
7-18 notice of appeal and the record on appeal to the clerk of the
7-19 district court. On receipt of the notice and record, the clerk of
7-20 the district court shall place the appeal on the docket of the
7-21 court.
7-22 (b) The minor may file a brief with the district court not
7-23 later than the fourth day after the date the appeal is docketed.
7-24 Unless the minor waives the right to oral argument, the district
7-25 court shall hear oral argument not later than the fifth day after
7-26 the date the appeal is docketed. The district court shall enter a
7-27 judgment on the appeal immediately after the oral argument or, if
8-1 oral argument has been waived, within five days after the appeal is
8-2 docketed.
8-3 (c) Failure of the district court to enter a judgment not
8-4 later than the fifth day after the date the appeal is docketed is
8-5 considered to be a constructive order of the court authorizing the
8-6 minor to consent to the performance of an abortion without
8-7 notification of either of her parents or a managing conservator or
8-8 guardian, and the minor and any other person may rely on the
8-9 constructive order to the same extent as if the court actually
8-10 entered a judgment under this section consenting to the performance
8-11 of an abortion without notification.
8-12 (d) The clerk of the supreme court shall prescribe the
8-13 notice of appeal form to be used by the minor appealing a judgment
8-14 under this section.
8-15 (e) A filing fee is not required of, and court costs may not
8-16 be assessed against, a minor filing an appeal under this section.
8-17 SECTION 2. This Act takes effect September 1, 1993.
8-18 SECTION 3. The importance of this legislation and the
8-19 crowded condition of the calendars in both houses create an
8-20 emergency and an imperative public necessity that the
8-21 constitutional rule requiring bills to be read on three several
8-22 days in each house be suspended, and this rule is hereby suspended.