By Hill                                                H.B. No. 313
       74R1572 DLF-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, a person may not perform an abortion on a pregnant
    2-9  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;
   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; 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) cannot be notified after a reasonable effort, a person may
   3-10  perform an abortion if the person gives 48 hours constructive
   3-11  notice, by certified mail sent to the last known address, to the
   3-12  person to whom notice may be given under Subsection (a)(1).  The
   3-13  period under this subsection begins when the certified mail notice
   3-14  is mailed.  If the person required to be notified is not notified
   3-15  within the period, the abortion may proceed even if the certified
   3-16  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        (d)  A person who violates this section commits an offense.
   3-20  An offense under this section is a Class A misdemeanor.
   3-21        Sec. 37.03.  EXCEPTION TO PARENTAL NOTICE.  (a)  A person may
   3-22  perform an abortion on a pregnant minor without satisfying the
   3-23  requirement of Section 37.02(a) if the minor has executed an
   3-24  affidavit stating that she is in fear of physical, sexual, or
   3-25  severe emotional abuse from both parents, a managing conservator,
   3-26  or guardian who would be notified under Section 37.02(a)(1) and
   3-27  that the fear arises from a pattern of physical, sexual, or severe
    4-1  emotional abuse of her exhibited by those parents, the managing
    4-2  conservator, or guardian.
    4-3        (b)  The person performing the abortion shall certify in
    4-4  writing to the Texas Department of Health that the minor has
    4-5  executed an affidavit as required by Subsection (a) and that the
    4-6  abortion is permitted without notification as provided by this
    4-7  section.  The Texas Department of Health shall prepare a form to be
    4-8  used for making this certification.
    4-9        Sec. 37.04.  JUDICIAL APPROVAL.  (a)  A pregnant minor who
   4-10  wishes to have an abortion without notification to one of her
   4-11  parents, her managing conservator, or her guardian may file in the
   4-12  probate court of the county in which the minor resides, in the
   4-13  probate court of a county that borders the county in which the
   4-14  minor resides, or in the probate court of the county in which the
   4-15  hospital, clinic, or other facility in which the abortion would be
   4-16  performed is located, an application for a court order authorizing
   4-17  the minor to consent to the performance of an abortion without
   4-18  notification to either of her parents or a managing conservator or
   4-19  guardian.
   4-20        (b)  The application must be made under oath and include:
   4-21              (1)  a statement that the minor is pregnant;
   4-22              (2)  a statement that the minor is unmarried, is under
   4-23  18 years of age, and has not had her disabilities removed for
   4-24  general purposes under Chapter 31;
   4-25              (3)  a statement that the minor wishes to have an
   4-26  abortion without the notification of either of her parents or a
   4-27  managing conservator or guardian; and
    5-1              (4)  a statement as to whether the minor has retained
    5-2  an attorney and, if she has retained an attorney, the name,
    5-3  address, and telephone number of her attorney.
    5-4        (c)  The court shall appoint a guardian ad litem for the
    5-5  minor.  If the minor has not retained an attorney, the court shall
    5-6  appoint an attorney to represent the minor.  If the guardian ad
    5-7  litem is an attorney admitted to the practice of law in this state,
    5-8  the court may appoint the guardian ad litem to serve as the minor's
    5-9  attorney.
   5-10        (d)  The court shall fix a time for a hearing on an
   5-11  application filed under Subsection (a) and shall keep a record of
   5-12  all testimony and other oral proceedings in the action.  The
   5-13  hearing shall be held at the earliest possible time, but not later
   5-14  than the fifth business day after the date that the application is
   5-15  filed.  The court shall enter judgment on the application
   5-16  immediately after the hearing is concluded.
   5-17        (e)  If the hearing required in Subsection (d) is not held by
   5-18  the fifth business day after the date the application is filed, the
   5-19  failure to hold the hearing is considered to be a constructive
   5-20  order of the court authorizing the minor to consent to the
   5-21  performance of an abortion without further notification and the
   5-22  minor and any other person may rely on the constructive order to
   5-23  the same extent as if the court actually had issued an order under
   5-24  this section authorizing the minor to consent to the performance of
   5-25  an abortion without notification.
   5-26        (f)  The court shall determine by clear and convincing
   5-27  evidence whether the minor is mature and sufficiently well-informed
    6-1  to make the decision to have an abortion performed  without
    6-2  notification to either of her parents or a managing conservator or
    6-3  guardian or whether notification would not be in the best interest
    6-4  of the minor.  If the court finds that the minor is mature and
    6-5  sufficiently well-informed or that notification would not be in the
    6-6  minor's best interest, the court shall enter an order authorizing
    6-7  the minor to consent to the performance of the abortion without
    6-8  notification to either of her parents or a managing conservator or
    6-9  guardian and execute the required forms.
   6-10        (g)  In ruling on a petition for a minor to consent to an
   6-11  abortion under this section, the court shall hear evidence
   6-12  regarding:
   6-13              (1)  the emotional development, maturity, intellect,
   6-14  and understanding of the pregnant minor;
   6-15              (2)  the fact and duration of the pregnancy;
   6-16              (3)  the nature and possible consequences of, and
   6-17  alternatives to, an abortion; and
   6-18              (4)  any additional evidence that the court may find
   6-19  useful in determining whether the pregnant minor may obtain an
   6-20  abortion without notification to either of the minor's parents or a
   6-21  managing conservator or guardian.
   6-22        (h)  If the court finds by clear and convincing evidence that
   6-23  the minor does not meet the requirements of Subsection (f), the
   6-24  court may not authorize the minor to consent to an abortion without
   6-25  the notification authorized under Section 37.02(a)(1).
   6-26        (i)  The court may not notify a parent, managing conservator,
   6-27  or guardian that the minor is pregnant or that the minor wants to
    7-1  have an abortion.  The court proceedings shall be conducted in a
    7-2  manner that protects the anonymity of the minor, and all court
    7-3  documents pertaining to the proceedings are confidential.
    7-4        (j)  The clerk of the supreme court shall prescribe the
    7-5  application form to be used by the minor filing an application
    7-6  under this section.
    7-7        (k)  A filing fee is not required of, and court costs may not
    7-8  be assessed against, a minor filing an application under this
    7-9  section.
   7-10        Sec. 37.05.  APPEAL.  (a)  A minor whose application under
   7-11  Section 37.04 is denied by a probate court may appeal to the
   7-12  district court having jurisdiction over civil matters in the county
   7-13  in which the application was filed.  Not later than the fourth day
   7-14  after the date notice of appeal is filed in a probate court, the
   7-15  clerk of the probate court shall deliver a copy of the notice of
   7-16  appeal and the record on appeal to the clerk of the district court.
   7-17  On receipt of the notice and record, the clerk of the district
   7-18  court shall place the appeal on the docket of the court.
   7-19        (b)  The minor may file a brief with the district court not
   7-20  later than the fourth day after the date the appeal is docketed.
   7-21  Unless the minor waives the right to oral argument, the district
   7-22  court shall hear oral argument not later than the fifth day after
   7-23  the date the appeal is docketed.  The district court shall enter a
   7-24  judgment on the appeal immediately after the oral argument or, if
   7-25  oral argument has been waived, within five days after the appeal is
   7-26  docketed.
   7-27        (c)  Failure of the district court to enter a judgment not
    8-1  later than the fifth day after the date the appeal is docketed is
    8-2  considered to be a constructive order of the court authorizing the
    8-3  minor to consent to the performance of an abortion without
    8-4  notification of either of her parents or a managing conservator or
    8-5  guardian, and the minor and any other person may rely on the
    8-6  constructive order to the same extent as if the court actually
    8-7  entered a judgment under this section consenting to the performance
    8-8  of an abortion without notification.
    8-9        (d)  The clerk of the supreme court shall prescribe the
   8-10  notice of appeal form to be used by the minor appealing a judgment
   8-11  under this section.
   8-12        (e)  A filing fee is not required of, and court costs may not
   8-13  be assessed against, a minor filing an appeal under this section.
   8-14        SECTION 2.  Except as provided by Section 4 of this Act, this
   8-15  Act takes effect September 1, 1995.
   8-16        SECTION 3.  Chapter 37, Family Code, as added by this Act,
   8-17  applies only to an abortion performed on or after January 1, 1996.
   8-18  An abortion performed before January 1, 1996, is governed by the
   8-19  law as it existed immediately before the effective date of this
   8-20  Act, and that law is continued in effect for that purpose.
   8-21        SECTION 4.  Section 37.02(d), Family Code, as added by this
   8-22  Act, takes effect January 1, 1996.
   8-23        SECTION 5.  The Texas Board of Health shall adopt the forms
   8-24  to be used under Section 37.02(a)(5) and 37.03(b), Family Code, as
   8-25  added by this Act, not later than December 15, 1995.
   8-26        SECTION 6.  The clerk of the Texas Supreme Court shall adopt
   8-27  the application form and notice of appeal form to be used under
    9-1  Sections 37.04 and 37.05, Family Code, as added by this Act, not
    9-2  later than December 15, 1995.
    9-3        SECTION 7.  The importance of this legislation and the
    9-4  crowded condition of the calendars in both houses create an
    9-5  emergency and an imperative public necessity that the
    9-6  constitutional rule requiring bills to be read on three several
    9-7  days in each house be suspended, and this rule is hereby suspended.