1-1 By: Shapiro, et al. S.B. No. 83
1-2 (In the Senate - Filed November 21, 1994; January 11, 1995,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; April 28, 1995, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 6, Nays 2;
1-6 April 28, 1995, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 83 By: Patterson
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to parental notification before an abortion may be
1-11 performed on a minor; providing a criminal penalty.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subtitle C, Title 2, Family Code, is amended by
1-14 adding Chapter 37 to read as follows:
1-15 CHAPTER 37. NOTICE OF ABORTION
1-16 Sec. 37.01. DEFINITIONS. In this chapter:
1-17 (1) "Abortion" means the use of any means to terminate
1-18 the pregnancy of a female known by the attending physician to be
1-19 pregnant, with the intention that the termination of the pregnancy
1-20 by those means will, with reasonable likelihood, cause the death of
1-21 the fetus.
1-22 (2) "Fetus" means an individual human organism from
1-23 fertilization until birth.
1-24 (3) "Guardian" means a court-appointed guardian of the
1-25 person of the minor.
1-26 (4) "Medical emergency" means a condition that, on the
1-27 basis of a physician's good faith clinical judgment, complicates
1-28 the medical condition of a pregnant woman and necessitates the
1-29 immediate abortion of her pregnancy to avert her death or to avoid
1-30 a serious risk of substantial and irreversible impairment of a
1-31 major bodily function.
1-32 (5) "Physician" means an individual licensed to
1-33 practice medicine in this state.
1-34 Sec. 37.02. PARENTAL NOTICE. (a) A physician may not
1-35 perform an abortion on a pregnant minor unless:
1-36 (1) the physician performing the abortion gives at
1-37 least 48 hours actual notice, in person or by telephone, of the
1-38 physician's intent to perform the abortion to:
1-39 (A) a parent of the minor if the minor has no
1-40 managing conservator or guardian; or
1-41 (B) a court-appointed managing conservator or
1-42 guardian;
1-43 (2) the judge of a court having probate jurisdiction,
1-44 the judge of a county court at law, or the judge of a district
1-45 court issues an order authorizing the minor to consent to the
1-46 abortion as provided by Section 37.03 or 37.04;
1-47 (3) a probate court, county court at law, or district
1-48 court, by its inaction, constructively authorizes the minor to
1-49 consent to the abortion as provided by Section 37.03 or 37.04; or
1-50 (4) the physician performing the abortion:
1-51 (A) concludes that a medical emergency exists
1-52 and there is insufficient time to provide the required notice; and
1-53 (B) certifies in writing to the Texas
1-54 Department of Health and in the patient's medical record the
1-55 medical indications supporting the physician's judgment that a
1-56 medical emergency exists and that there is insufficient time to
1-57 provide the required notice.
1-58 (b) If a person to whom notice may be given under Subsection
1-59 (a)(1) cannot be notified after a reasonable effort, a physician
1-60 may perform an abortion if the physician gives 48 hours
1-61 constructive notice, by certified mail sent to the last known
1-62 address, to the person to whom notice may be given under Subsection
1-63 (a)(1). The period under this subsection begins when the certified
1-64 mail notice is mailed. If the person required to be notified is
1-65 not notified within the 48-hour period, the abortion may proceed
1-66 even if the certified mail notice is not received.
1-67 (c) The Texas Department of Health shall prepare a form to
1-68 be used for making the certification required by Subsection (a)(4).
2-1 (d) A physician who violates this section commits an
2-2 offense. An offense under this section is a Class A misdemeanor.
2-3 Sec. 37.03. JUDICIAL APPROVAL. (a) A pregnant minor who
2-4 wishes to have an abortion without notification to one of her
2-5 parents, her managing conservator, or her guardian may file an
2-6 application for a court order authorizing the minor to consent to
2-7 the performance of an abortion without notification to either of
2-8 her parents or a managing conservator or guardian.
2-9 (b) The application may be filed in the county court at law
2-10 or a court having probate jurisdiction for:
2-11 (1) the county in which the minor resides;
2-12 (2) a county that borders a county in which the minor
2-13 resides; or
2-14 (3) the county in which the hospital, clinic, or
2-15 facility in which the abortion would be performed is located.
2-16 (c) The application must be made under oath and include:
2-17 (1) a statement that the minor is pregnant;
2-18 (2) a statement that the minor is unmarried, is under
2-19 18 years of age, and has not had her disabilities removed for
2-20 general purposes under Chapter 31;
2-21 (3) a statement that the minor wishes to have an
2-22 abortion without the notification of either of her parents or a
2-23 managing conservator or guardian; and
2-24 (4) a statement as to whether the minor has retained
2-25 an attorney and, if she has retained an attorney, the name,
2-26 address, and telephone number of her attorney.
2-27 (d) The court shall appoint a guardian ad litem for the
2-28 minor. If the minor has not retained an attorney, the court shall
2-29 appoint an attorney to represent the minor. If the guardian ad
2-30 litem is an attorney admitted to the practice of law in this state,
2-31 the court may appoint the guardian ad litem to serve as the minor's
2-32 attorney.
2-33 (e) The court shall fix a time for a hearing on an
2-34 application filed under Subsection (a) and shall keep a record of
2-35 all testimony and other oral proceedings in the action. The court
2-36 shall enter judgment on the application immediately after the
2-37 hearing is concluded.
2-38 (f) The court shall rule on an application submitted under
2-39 this section and shall issue written findings of fact and
2-40 conclusions of law, not later than 5 p.m. on the second business
2-41 day after the date the application is filed with the court. The
2-42 minor may request an extension of the period specified by this
2-43 section. If the court fails to rule on the application and issue
2-44 written findings of fact and conclusions of law within the period
2-45 specified by this subsection and an extension was not requested,
2-46 the application is deemed to be granted and the physician may
2-47 perform the abortion as if the court had issued an order
2-48 authorizing the minor to consent to the performance of the abortion
2-49 without notification under Section 37.02. Proceedings under this
2-50 section shall be given precedence over other pending matters to the
2-51 extent necessary to assure that the court reaches a decision
2-52 promptly.
2-53 (g) The court shall determine by a preponderance of the
2-54 evidence whether the minor is mature and sufficiently well informed
2-55 to make the decision to have an abortion performed without
2-56 notification to either of her parents or a managing conservator or
2-57 guardian, or whether notification would not be in the best interest
2-58 of the minor. If the court finds that the minor is mature and
2-59 sufficiently well informed or that notification would not be in the
2-60 minor's best interest, the court shall enter an order authorizing
2-61 the minor to consent to the performance of the abortion without
2-62 notification to either of her parents or a managing conservator or
2-63 guardian and execute the required forms.
2-64 (h) If the court finds that the minor does not meet the
2-65 requirements of Subsection (g), the court may not authorize the
2-66 minor to consent to an abortion without the notification authorized
2-67 under Section 37.02(a)(1).
2-68 (i) The court may not notify a parent, managing conservator,
2-69 or guardian that the minor is pregnant or that the minor wants to
2-70 have an abortion. The court proceedings shall be conducted in a
3-1 manner that protects the anonymity of the minor, and the
3-2 application and all other court documents pertaining to the
3-3 proceedings are confidential and may not be made available to the
3-4 public. The minor may file the application using a pseudonym or
3-5 using only her initials.
3-6 (j) The clerk of the supreme court shall prescribe the
3-7 application form to be used by the minor filing an application
3-8 under this section.
3-9 (k) A filing fee is not required of, and court costs may not
3-10 be assessed against, a minor filing an application under this
3-11 section.
3-12 Sec. 37.04. APPEAL. (a) A minor whose application under
3-13 Section 37.03 is denied may appeal to the district court having
3-14 jurisdiction over civil matters in the county in which the
3-15 application was filed. On receipt of a notice of appeal, the clerk
3-16 of the court that denied the application shall deliver a copy of
3-17 the notice of appeal and record on appeal to the clerk of the
3-18 district court. On receipt of the notice and record, the clerk of
3-19 the district court shall place the appeal on the docket of the
3-20 court.
3-21 (b) The court shall rule on an appeal under this section not
3-22 later than 5 p.m. on the second business day after the date the
3-23 notice of appeal is filed. The minor may request an extension of
3-24 the period specified by this subsection. If the court fails to
3-25 rule on the appeal within the period specified by this subsection
3-26 and an extension was not requested, the appeal is deemed to be
3-27 granted and the physician may perform the abortion as if the court
3-28 had issued an order authorizing the minor to consent to the
3-29 performance of the abortion without notification under Section
3-30 37.02. Proceedings under this section shall be given precedence
3-31 over other pending matters to the extent necessary to assure that
3-32 the court reaches a decision promptly.
3-33 (c) The clerk of the supreme court shall prescribe the
3-34 notice of appeal form to be used by the minor appealing a judgment
3-35 under this section.
3-36 (d) A filing fee is not required of, and court costs may not
3-37 be assessed against, a minor filing an appeal under this section.
3-38 (e) An expedited confidential appeal shall be available to
3-39 any pregnant woman to whom a district court denies an order
3-40 authorizing the minor to consent to the performance of an abortion
3-41 without notification to either of her parents or a managing
3-42 conservator or guardian.
3-43 SECTION 2. The Texas Supreme Court shall issue promptly such
3-44 rules as may be necessary that the process established by Sections
3-45 37.03 and 37.04, Family Code, as added by this Act, be conducted in
3-46 such a manner as will ensure confidentiality and sufficient
3-47 precedence over all other pending matters to ensure promptness of
3-48 disposition.
3-49 SECTION 3. Except as provided by Section 5 of this Act, this
3-50 Act takes effect September 1, 1995.
3-51 SECTION 4. Chapter 37, Family Code, as added by this Act,
3-52 applies only to an abortion performed on or after January 1, 1996.
3-53 An abortion performed before January 1, 1996, is governed by the
3-54 law as it existed immediately before the effective date of this
3-55 Act, and that law is continued in effect for that purpose.
3-56 SECTION 5. Subsection (d), Section 37.02, Family Code, as
3-57 added by this Act, takes effect January 1, 1996.
3-58 SECTION 6. The Texas Board of Health shall adopt the form to
3-59 be used under Section 37.02(a)(4), Family Code, as added by this
3-60 Act, not later than December 15, 1995.
3-61 SECTION 7. The clerk of the Texas Supreme Court shall adopt
3-62 the application form and notice of appeal form to be used under
3-63 Sections 37.03 and 37.04, Family Code, as added by this Act, not
3-64 later than December 15, 1995.
3-65 SECTION 8. The importance of this legislation and the
3-66 crowded condition of the calendars in both houses create an
3-67 emergency and an imperative public necessity that the
3-68 constitutional rule requiring bills to be read on three several
3-69 days in each house be suspended, and this rule is hereby suspended.
3-70 * * * * *