By Marchant H.B. No. 1577
74R6522 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 the use of any means to terminate
1-10 the pregnancy of a female known by the attending physician to be
1-11 pregnant, with knowledge that the termination of the pregnancy by
1-12 those means will, with reasonable likelihood, cause the death of
1-13 the fetus.
1-14 (2) "Fetus" means an individual human organism from
1-15 fertilization until birth.
1-16 (3) "Guardian" means a court-appointed guardian of the
1-17 person of the minor.
1-18 (4) "Medical emergency" means a condition that, on the
1-19 basis of a physician's good faith clinical judgment, complicates
1-20 the medical condition of a pregnant woman and necessitates the
1-21 immediate abortion of her pregnancy to avert her death or to avoid
1-22 a serious risk of substantial and irreversible impairment of a
1-23 major bodily function.
1-24 (5) "Physician" means an individual licensed to
2-1 practice medicine in this state.
2-2 Sec. 37.02. PARENTAL NOTICE. (a) A physician may not
2-3 perform an abortion on a pregnant minor unless:
2-4 (1) the physician performing the abortion gives at
2-5 least 48 hours actual notice, in person or by telephone, of the
2-6 physician's intent to perform the abortion to:
2-7 (A) a parent of the minor if the minor has no
2-8 managing conservator or guardian; or
2-9 (B) a court-appointed managing conservator or
2-10 guardian;
2-11 (2) the judge of a court having probate jurisdiction,
2-12 the judge of a county court at law, or the judge of a district
2-13 court issues an order authorizing the minor to consent to the
2-14 abortion as provided by Section 37.03 or 37.04;
2-15 (3) a probate court, county court at law, or district
2-16 court, by its inaction, constructively authorizes the minor to
2-17 consent to the abortion as provided by Section 37.03 or 37.04; or
2-18 (4) the physician performing the abortion:
2-19 (A) concludes that a medical emergency exists
2-20 and there is insufficient time to provide the required notice; and
2-21 (B) certifies in writing to the Texas
2-22 Department of Health and in the patient's medical record the
2-23 medical indications supporting the physician's judgment that a
2-24 medical emergency exists and that there is insufficient time to
2-25 provide the required notice.
2-26 (b) If a person to whom notice may be given under Subsection
2-27 (a)(1) cannot be notified after a reasonable effort, a physician
3-1 may perform an abortion if the physician gives 48 hours
3-2 constructive notice, by certified mail sent to the last known
3-3 address, to the person to whom notice may be given under Subsection
3-4 (a)(1). The period under this subsection begins when the certified
3-5 mail notice is mailed. If the person required to be notified is
3-6 not notified within the 48-hour period, the abortion may proceed
3-7 even if the certified mail notice is not received.
3-8 (c) The Texas Department of Health shall prepare a form to
3-9 be used for making the certification required by Subsection (a)(4).
3-10 (d) A physician who violates this section commits an
3-11 offense. An offense under this section is a Class A misdemeanor.
3-12 Sec. 37.03. JUDICIAL APPROVAL. (a) A pregnant minor who
3-13 wishes to have an abortion without notification to one of her
3-14 parents, her managing conservator, or her guardian may file an
3-15 application for a court order authorizing the minor to consent to
3-16 the performance of an abortion without notification to either of
3-17 her parents or a managing conservator or guardian.
3-18 (b) The application may be filed in the county court at law
3-19 or a court having probate jurisdiction for:
3-20 (1) the county in which the minor resides;
3-21 (2) a county that borders a county in which the minor
3-22 resides; or
3-23 (3) the county in which the hospital, clinic, or
3-24 facility in which the abortion would be performed is located.
3-25 (c) The application must be made under oath and include:
3-26 (1) a statement that the minor is pregnant;
3-27 (2) a statement that the minor is unmarried, is under
4-1 18 years of age, and has not had her disabilities removed for
4-2 general purposes under Chapter 31;
4-3 (3) a statement that the minor wishes to have an
4-4 abortion without the notification of either of her parents or a
4-5 managing conservator or guardian; and
4-6 (4) a statement as to whether the minor has retained
4-7 an attorney and, if she has retained an attorney, the name,
4-8 address, and telephone number of her attorney.
4-9 (d) The court shall appoint a guardian ad litem for the
4-10 minor. If the minor has not retained an attorney, the court shall
4-11 appoint an attorney to represent the minor. If the guardian ad
4-12 litem is an attorney admitted to the practice of law in this state,
4-13 the court may appoint the guardian ad litem to serve as the minor's
4-14 attorney.
4-15 (e) The court shall fix a time for a hearing on an
4-16 application filed under Subsection (a) and shall keep a record of
4-17 all testimony and other oral proceedings in the action. The court
4-18 shall enter judgment on the application immediately after the
4-19 hearing is concluded.
4-20 (f) The court shall rule on an application submitted under
4-21 this section and shall issue written findings of fact and
4-22 conclusions of law, not later than 5 p.m. on the second business
4-23 day after the date the application is filed with the court. The
4-24 minor may request an extension of the period specified by this
4-25 section. If the court fails to rule on the application and issue
4-26 written findings of fact and conclusions of law within the period
4-27 specified by this subsection and an extension was not requested,
5-1 the application is deemed to be granted and the physician may
5-2 perform the abortion as if the court had issued an order
5-3 authorizing the minor to consent to the performance of the abortion
5-4 without notification under Section 37.02. Proceedings under this
5-5 section shall be given precedence over other pending matters to the
5-6 extent necessary to assure that the court reaches a decision
5-7 promptly.
5-8 (g) The court shall determine by clear and convincing
5-9 evidence whether the minor is mature and sufficiently well-informed
5-10 to make the decision to have an abortion performed without
5-11 notification to either of her parents or a managing conservator or
5-12 guardian or whether notification would not be in the best interest
5-13 of the minor. If the court finds that the minor is mature and
5-14 sufficiently well-informed or that notification would not be in the
5-15 minor's best interest, the court shall enter an order authorizing
5-16 the minor to consent to the performance of the abortion without
5-17 notification to either of her parents or a managing conservator or
5-18 guardian and execute the required forms.
5-19 (h) If the court finds by clear and convincing evidence that
5-20 the minor does not meet the requirements of Subsection (g), the
5-21 court may not authorize the minor to consent to an abortion without
5-22 the notification authorized under Section 37.02(a)(1).
5-23 (i) The court may not notify a parent, managing conservator,
5-24 or guardian that the minor is pregnant or that the minor wants to
5-25 have an abortion. The court proceedings shall be conducted in a
5-26 manner that protects the anonymity of the minor, and the
5-27 application and all other court documents pertaining to the
6-1 proceedings are confidential and may not be made available to the
6-2 public. The minor may file the application using a pseudonym or
6-3 using only her initials.
6-4 (j) The clerk of the supreme court shall prescribe the
6-5 application form to be used by the minor filing an application
6-6 under this section.
6-7 (k) A filing fee is not required of, and court costs may not
6-8 be assessed against, a minor filing an application under this
6-9 section.
6-10 Sec. 37.04. APPEAL. (a) A minor whose application under
6-11 Section 37.03 is denied may appeal to the district court having
6-12 jurisdiction over civil matters in the county in which the
6-13 application was filed. On receipt of a notice of appeal, the clerk
6-14 of the court that denied the application shall deliver a copy of
6-15 the notice of appeal and record on appeal to the clerk of the
6-16 district court. On receipt of the notice and record, the clerk of
6-17 the district court shall place the appeal on the docket of the
6-18 court.
6-19 (b) The court shall rule on an appeal under this section not
6-20 later than 5 p.m. on the second business day after the date the
6-21 notice of appeal is filed. The minor may request an extension of
6-22 the period specified by this subsection. If the court fails to
6-23 rule on the appeal within the period specified by this subsection
6-24 and an extension was not requested, the appeal is deemed to be
6-25 granted and the physician may perform the abortion as if the court
6-26 had issued an order authorizing the minor to consent to the
6-27 performance of the abortion without notification under Section
7-1 37.02. Proceedings under this section shall be given precedence
7-2 over other pending matters to the extent necessary to assure that
7-3 the court reaches a decision promptly.
7-4 (c) The clerk of the supreme court shall prescribe the
7-5 notice of appeal form to be used by the minor appealing a judgment
7-6 under this section.
7-7 (d) A filing fee is not required of, and court costs may not
7-8 be assessed against, a minor filing an appeal under this section.
7-9 SECTION 2. Except as provided by Section 4 of this Act, this
7-10 Act takes effect September 1, 1995.
7-11 SECTION 3. Chapter 37, Family Code, as added by this Act,
7-12 applies only to an abortion performed on or after January 1, 1996.
7-13 An abortion performed before January 1, 1996, is governed by the
7-14 law as it existed immediately before the effective date of this
7-15 Act, and that law is continued in effect for that purpose.
7-16 SECTION 4. Section 37.02(d), Family Code, as added by this
7-17 Act, takes effect January 1, 1996.
7-18 SECTION 5. The Texas Board of Health shall adopt the form to
7-19 be used under Section 37.02(a)(4), Family Code, as added by this
7-20 Act, not later than December 15, 1995.
7-21 SECTION 6. The clerk of the Texas Supreme Court shall adopt
7-22 the application form and notice of appeal form to be used under
7-23 Sections 37.03 and 37.04, Family Code, as added by this Act, not
7-24 later than December 15, 1995.
7-25 SECTION 7. The importance of this legislation and the
7-26 crowded condition of the calendars in both houses create an
7-27 emergency and an imperative public necessity that the
8-1 constitutional rule requiring bills to be read on three several
8-2 days in each house be suspended, and this rule is hereby suspended.