PAK C.S.S.B. 86 75(R)    BILL ANALYSIS


STATE AFFAIRS
C.S.S.B. 86
By: Shapiro (Marchant)
5-22-97
Committee Report (Substituted)



BACKGROUND 

Currently, Texas law does not require parents to receive notification that
their minor child is seeking an abortion.  Texas does have a law that
deals with a minor's ability to consent to certain procedures, but it is
not enforced.  SB 86 requires parental notification before an abortion can
be performed on a minor, and provides exceptions in which parental
notification is not in the child's best interest. 

PURPOSE
 
As engrossed, S.B. 86 would prohibit a physician from performing an
abortion on a minor unless: 
 -the physician gives the parent or guardian of the minor 48 hours notice
of the abortion; 
 -a county or district court authorizes the minor to consent to the
abortion; 
-a physician (outside the abortion facility) determines that an abortion
is in the best interest of the minor; notice may lead to physical, sexual,
or emotional abuse of the minor; or the minor is mature and capable of
giving informed consent; 
-a county or district court by inaction, authorizes a minor to consent to
the abortion; or  
-the physician certifies that the abortion is necessary to care for a
medical emergency. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill grants rulemaking authority
to the Supreme Court of Texas in SECTION 2 of the bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Creates Chapter 33, Subtitle A, Title 2, Family Code (Notice
of Abortion). Creates Subchapter A (General Provisions; Notice Required)
as follows: 

Section 33.001 defines "abortion," "guardian," "medical emergency," and
"physician." 

Section 33.002(a) prohibits a physician from performing an abortion on a
minor without giving 48 hours actual notice to a parent of the minor of
the physician's intent to perform the abortion. 

Section 33.002(b) establishes that a physician may perform the abortion
if, after reasonable effort, the physician is unable to notify the parent
and sends notice by certified mail.  The abortion may be performed 48
hours after the certified mail is sent. 

Section 33.002(c) establishes that the physician may execute an affidavit
stating that the physician gave notice or constructive notice and that
such affidavit shall create a conclusive presumption that the physician
complied with the requirements. 

Section 33.003(a) establishes that a physician may perform an abortion
without giving notice under the following circumstances: 

 (1) if another physician off the premises of the abortion clinic
determines and certifies in writing that notice may lead to physical,
sexual, or emotional abuse of the minor; the minor is mature and capable
of giving informed consent; or the abortion would be in the minor's best
interest. 

(2)  if there is a medical emergency.

Section 33.003(b) provides that certification under subsection (a) is
confidential and privileged. 

Section 33.003(c) provides that if a minor does not obtain certification
under subsection (a), the right to proceed in a county or district court
is not affected. 

Sec. 33.004(a) establishes that a physician who violates Chapter 33 is
subject to disciplinary action under Subchapter D of the Medical Practice
Act. 
(b)  Establishes that the State Board of Medical Examiners shall review
submitted information and initiate disciplinary action for violations of
Section 33.002 and 33.003. 

Section 33.005 permits a physician or a court to report sexual abuse of
the minor to local or state law enforcement agencies, the Department of
Protective and Regulatory Services, or the state agency that operates,
licenses, certifies, or registers the facility in which the alleged abuse
occurred, if the facility is operated, licensed, certified, or registered
by a state agency. 

Section 33.051(a) permits a pregnant minor to file an application for
court authorization to consent to the abortion without the required
notice. 

Section 33.051(b) provides that the application may be filed in the county
or district court having jurisdiction for the county of the minor's
residence or a bordering county,  or the county in which the facility in
which the abortion will be performed is located. 

Section 33.051(c) requires that the application state the following: that
the minor is pregnant; that she is unmarried; that she is under the age of
18 and has not had the disabilities of minority removed; that she wishes
to have an abortion without giving notice or obtaining a physician
certification; and whether the minor has retained an attorney. 

Section 33.051(d) requires the court to appoint an attorney if the minor
has not retained one. 

Section 33.051(e) requires the court to set a hearing, keep a record of
all testimony and oral proceedings, and enter judgment immediately after
the hearing. 

Section 33.051(f) requires the court to rule on a minor's application and
issue written findings of fact and conclusions of law not later than 5
p.m. on the second business day after the date the minor filed the
application.  The minor may request an extension and the court shall rule
on the application not later than 5 p.m. on the second business day after
the date the minor indicates she is ready to proceed. Provides that if the
court does not act by the specified time, the application is deemed
granted and the abortion may be performed as if it had been authorized by
the court.  
Section 33.051(g) requires the court to determine by a preponderance of
the evidence whether: (1) notice may lead to physical, sexual, or
emotional abuse of the minor; (2) the minor is mature and capable of
giving informed consent to an abortion; or (3) the abortion would be in
the minor's best interest. 

Section 33.051(h) provides that if the court finds that the minor meets
one of the  requirements set out in subsection (g), the court shall enter
an order authorizing the abortion without notice or certification by a
physician. 

Section 33.051(i) provides that if the court finds that the minor does not
meet the requirements of subsection (g), the court may not authorize the
abortion without notice or certification by a physician. 

Section 33.051(j) provides that a court may not notify any person that the
minor is pregnant or wants to have an abortion and requires that all
proceedings should be protect the anonymity of the minor, and that all
documents are confidential and privileged. 

Section 33.051(k) requires the clerk of the supreme court to issue the
application form to be used by the minor. 

Section 33.051(l) exempts the minor from the filing fee and court costs.

Section 33.052  provides that a minor whose application with a county
court is denied may file an original application in a district court.
Such application is governed by Section 33.051. 

Section 33.053 provides that a minor whose application with a district
court is denied may appeal to a court of appeals.  Requires the court of
appeals to rule on a minor's application not later than 5 p.m. on the
second business day after the date the notice of appeals is filed. The
minor may request an extension and the court shall rule on the application
not later than 5 p.m. on the second business day after the date the minor
indicates she is ready to proceed.  Provides that if the court does not
act by the specified time, the application is deemed granted and the
abortion may be performed as if it had been authorized by the court.
Prohibits the court of appeals from from notifying any person that the
minor is pregnant or that she wants to have an abortion. Provides that the
documents and proceedings are confidential and privileged and that the
anonymity of the minor must be protected. 

Section 33.054 establishes that the physician may execute an affidavit
stating that the physician gave notice or constructive notice and that
such affidavit shall create a conclusive presumption that the physician
complied with the requirements. 

Section 33.055 establishes that a court's denial of an application does
not bar the minor from giving notice or obtaining a physician
certification. 

Section 33.056 provides that the costs of the judicial proceedings,
including the cost of the attorney ad litem, are the responsibility of the
county in which the proceedings were conducted. 

SECTION 2.  Requires the supreme court to issues rules relating to the
judicial proceedings under Section 33.051 in order to ensure
confidentiality and sufficient precedence over all other pending matters. 

SECTION 3.  Requires the State Board of Medical Examiners to adopt the
forms to be used in reporting under Section 33.003(a)(2). 

SECTION 4.  Establishes that Chapter 33, Family Code applies only to an
abortion performed on or after January 1, 1998. 

SECTION 5.  Effective date:  September 1, 1997.

SECTION 6.  Emergency clause.  

COMPARISON OF ORIGINAL TO SUBSTITUTE
 
The substitute makes the following changes to the original:

1)  The substitute changes the caption to remove the criminal penalty.

2)  SECTION 1 adds SUBCHAPTER A.  GENERAL PROVISIONS; NOTICE REQUIRED, and
makes the following changes: 
 
 Sec. 33.001 changes the definitions of "abortion" and "medical emergency"
and    removes the definition of "fetus."  

 Sec. 33.002 makes conforming changes.  Permits an agent of the physician
to provide the  required notice and to execute and conclusively rely on an
affidavit stating that the physician  provided the required notice. 

Sec. 33.003 is replaced and provides for an outside physician to provide a
bypass to parental notification.  The substitute also requires the Texas
State Board of Medical Examiners to create the certification form instead
of the Department of Health.  
 
Sec. 33.004  is replaced and changes the penalty from a Class A
misdemeanor to a disciplinary action from the Texas Board of Medical
Examiners.  

Sec. 33.005 (Sec. 33.007 of the original) permits a physician to report
sexual abuse, in addition to the court, and removes the attorney and
guardian ad litem from the section. 

Sections 33.006 and 33.007 of the original are deleted and the provisions
contained in those sections are moved to other sections. 

Adds SUBCHAPTER B.  JUDICIAL APPROVAL

Sections 33.051-33.056 are added and replace sections 33.003 and 33.004 in
the original bill relating to the judicial bypass and make the following
changes: Section 33.051(b) removes probate courts and adds district
courts.  Section 33.051(d) clarifies that a court must appoint an
attorney, who shall serve as the guardian ad litem, if the minor has not
retained an attorney.  Section 33.051(f) provides a time frame for court
action if a minor requests an extension.  Section 33.051(g) modifies the
finding to be made by the judge in determining whether to authorize the
minor to consent.  A new Section 33.051 (h) is added requiring the court
to enter an order authorizing the minor to consent if the court finds that
the requirements of (g) are met.  Section 33.051(j) clarifies that court
documents are privileged and not subject to legal process, and prohibits
the court from notifying any person that the minor is pregnant or wants to
have an abortion.  Makes conforming changes. 

Sec. 33.052 provides that a minor whose application is denied by a county
court may file an original application in a district court. 

Sec. 33.053 provides for appeal to a court of appeals.  The court of
appeals must follow the same expediency procedures as the county and
district courts and the documents and proceedings have the same
protections from disclosure.  The appeal from probate or county court to
the district court, and the ad litem immunity section are deleted. 

Sec. 33.054 provides that a physician may execute and rely on a affidavit
that the physician did not receive notice that a court denied the minor's
application by the appropriate deadline. 

Sec. 33.055 provides that a minor may choose to have the physician give
notice or to obtain certification by a physician if a court denies the
minor's application. 

Sec. 33.056 (Sec. 33.006 of the original) changes the funding from state
family planning funds to county funds of the county where the proceeding
is conducted.   

3) SECTION 2 makes a conforming change.
 
4) New SECTION 3 changes:  the Texas State Board of Medical Examiners
shall adopt the forms to be used instead of the Texas Board of Health (as
found in original SECTION 6, which is deleted).  Effective date provisions
of original moved to new SECTION 5. 

5)  SECTION 5 changes: the entire act becomes effective September 1, 1997.

6) SECTION 6 is deleted, provisions in the original moved to SECTION 3.
New SECTION 6 contains the emergency clause. 

7) SECTION 7 is deleted, provisions in the original moved to SECTION 1,
Sec. 33.051. 

8) SECTION 8 is deleted, provisions in the original moved to SECTION 6.