By Hill H.B. No. 268
75R2446 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 A, Title 2, Family Code, is amended by
1-6 adding Chapter 33 to read as follows:
1-7 CHAPTER 33. NOTICE OF ABORTION
1-8 Sec. 33.001. 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. 33.002. PARENTAL NOTICE. (a) Except as provided by
2-8 Section 33.003, 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 33.004 or
2-23 33.005;
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 33.004 or 33.005; 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. 33.003. EXCEPTION TO PARENTAL NOTICE. (a) A person
3-22 may perform an abortion on a pregnant minor without satisfying the
3-23 requirement of Section 33.002(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 33.002(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. 33.004. 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 33.002(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. 33.005. APPEAL. (a) A minor whose application under
7-11 Section 33.004 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, 1997.
8-16 SECTION 3. Chapter 33, Family Code, as added by this Act,
8-17 applies only to an abortion performed on or after January 1, 1998.
8-18 An abortion performed before January 1, 1998, is governed by the
8-19 law as it existed immediately before September 1, 1997, and that
8-20 law is continued in effect for that purpose.
8-21 SECTION 4. Section 33.002(d), Family Code, as added by this
8-22 Act, takes effect January 1, 1998.
8-23 SECTION 5. The Texas Board of Health shall adopt the forms
8-24 to be used under Sections 33.002(a)(5) and 33.003(b), Family Code,
8-25 as added by this Act, not later than December 15, 1997.
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 33.004 and 33.005, Family Code, as added by this Act, not
9-2 later than December 15, 1997.
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.