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.
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