By Smithee                                      H.B. No. 1274

      75R981 MLR-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to parental notification and consent before an abortion

 1-3     may be 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. 33.01.  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 the intention that the termination of the pregnancy

1-12     by 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. 33.02.  PARENTAL NOTICE AND CONSENT.  (a)  A physician

 2-3     may not 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 or the court of appeals issues an order authorizing the minor

2-14     to consent to the abortion as provided by Section 33.03, 33.04, or

2-15     33.05;

2-16                 (3)  a probate court, county court at law, district

2-17     court, or court of appeals, by its inaction, constructively

2-18     authorizes the minor to consent to the abortion as provided by

2-19     Section 33.03, 33.04, or 33.05; or

2-20                 (4)  the physician performing the abortion:

2-21                       (A)  concludes that a medical emergency exists

2-22     and there is insufficient time to provide the required notice; and

2-23                       (B)  certifies in writing to the Texas

2-24     Department of Health and in the patient's medical record the

2-25     medical indications supporting the physician's judgment that a

2-26     medical emergency exists and that there is insufficient time to

2-27     provide the required notice.

 3-1           (b)  Except as provided by Subsection (c), a physician who

 3-2     has given notice to a parent, managing conservator, or guardian

 3-3     under Subsection (a)(1) may not perform an abortion on a pregnant

 3-4     minor unless the parent, managing conservator, or guardian has

 3-5     consented to the abortion.

 3-6           (c)  If a person to whom notice may be given under Subsection

 3-7     (a)(1) cannot be notified after a reasonable effort, a physician

 3-8     may perform an abortion if the physician gives 48 hours'

 3-9     constructive notice, by certified mail sent to the last known

3-10     address, to the person to whom notice may be given under Subsection

3-11     (a)(1).  The period under this subsection begins when the certified

3-12     mail notice is mailed.  If the person required to be notified is

3-13     not notified within the 48-hour period, the abortion may proceed

3-14     even if the certified mail notice is not received.

3-15           (d)  The Texas  Department of Health shall prepare a form to

3-16     be used for making the certification required by Subsection (a)(4).

3-17           (e)  A physician who violates this section commits an

3-18     offense.  An offense under this section is a Class A misdemeanor.

3-19           Sec. 33.03.  JUDICIAL APPROVAL.  (a)  A pregnant minor who

3-20     wishes to have an abortion without notification to or consent of

3-21     one of her parents, her managing conservator, or her guardian may

3-22     file an application for a court order authorizing the minor to

3-23     consent to the performance of an abortion without notification to

3-24     or consent of either of her parents or a managing conservator or

3-25     guardian.

3-26           (b)  The application may be filed in the county court at law

3-27     or a court having probate jurisdiction for:

 4-1                 (1)  the county in which the minor resides;

 4-2                 (2)  a county that borders a county in which the minor

 4-3     resides; or

 4-4                 (3)  the county in which the hospital, clinic, or

 4-5     facility in which the abortion would be performed is located.

 4-6           (c)  The application must be made under oath and include:

 4-7                 (1)  a statement that the minor is pregnant;

 4-8                 (2)  a statement that the minor is unmarried, is under

 4-9     18 years of age, and has not had her disabilities removed for

4-10     general purposes under Chapter 31;

4-11                 (3)  a statement that the minor wishes to have an

4-12     abortion without the notification or consent of either of her

4-13     parents or a managing conservator or guardian; and

4-14                 (4)  a statement as to whether the minor has retained

4-15     an attorney and, if she has retained an attorney, the name,

4-16     address, and telephone number of her attorney.

4-17           (d)  The court shall appoint a guardian ad litem for the

4-18     minor.  If the minor has not retained an attorney, the court shall

4-19     appoint an attorney to represent the minor.  If the guardian ad

4-20     litem is an attorney admitted to the practice of law in this state,

4-21     the court may appoint the guardian ad litem to serve as the minor's

4-22     attorney.

4-23           (e)  The court shall fix a time for a hearing on an

4-24     application filed under Subsection (a) and shall keep a record of

4-25     all testimony and other oral proceedings in the action.  The court

4-26     shall enter judgment on the application immediately after the

4-27     hearing is concluded.

 5-1           (f)  The court shall rule on an application submitted under

 5-2     this section and shall issue written findings of fact and

 5-3     conclusions of law not later than 5 p.m. on the second business day

 5-4     after the date the application is filed with the court.  The minor

 5-5     may request an extension of the period specified by this section.

 5-6     If the court fails to rule on the application and issue written

 5-7     findings of fact and conclusions of law within the period specified

 5-8     by this subsection and an extension was not requested, the

 5-9     application is granted and the physician may perform the abortion

5-10     as if the court had issued an order authorizing the minor to

5-11     consent to the performance of the abortion without notification

5-12     under Section 33.02.  Proceedings under this section shall be given

5-13     precedence over other pending matters to the extent necessary to

5-14     assure that the court reaches a decision promptly.

5-15           (g)  The court shall determine by a preponderance of the

5-16     evidence whether the minor is mature and sufficiently well-informed

5-17     to make the decision to have an abortion performed without

5-18     notification to or consent of either of her parents or a managing

5-19     conservator or guardian or whether notification or consent would

5-20     not be in the best interest of the minor.  If the court finds that

5-21     the minor is mature and sufficiently well-informed or that

5-22     notification or consent would not be in the minor's best interest,

5-23     the court shall enter an order authorizing the minor to consent to

5-24     the performance of the abortion without notification to or consent

5-25     of either of her parents or a managing conservator or guardian and

5-26     execute the required forms.

5-27           (h)  If the court finds that the minor does not meet the

 6-1     requirements of Subsection (g), the court may not authorize the

 6-2     minor to consent to an abortion without the notification or consent

 6-3     required by Section 33.02(a)(1).

 6-4           (i)  The court may not notify a parent, managing conservator,

 6-5     or guardian that the minor is pregnant or that the minor wants to

 6-6     have an abortion.  The court proceedings shall be conducted in a

 6-7     manner that protects the anonymity of the minor, and the

 6-8     application and all other court documents pertaining to the

 6-9     proceedings are confidential and may not be made available to the

6-10     public.  The minor may file the application using a pseudonym or

6-11     using only her initials.

6-12           (j)  The clerk of the supreme court shall prescribe the

6-13     application form to be used by the minor filing an application

6-14     under this section.

6-15           (k)  A filing fee is not required of, and court costs may not

6-16     be assessed against, a minor filing an application under this

6-17     section.

6-18           Sec. 33.04.  APPEAL TO DISTRICT COURT.  (a)  A minor whose

6-19     application under Section 33.03 is denied may appeal to the

6-20     district court having jurisdiction over civil matters in the county

6-21     in which the application was filed.  On receipt of a notice of

6-22     appeal, the clerk of the court that denied the application shall

6-23     deliver a copy of the notice of appeal and record on appeal to the

6-24     clerk of the district court.  On receipt of the notice and record,

6-25     the clerk of the district court shall place the appeal on the

6-26     docket of the court.

6-27           (b)  The court shall rule on an appeal under this section not

 7-1     later than 5 p.m. on the second business day after the date the

 7-2     notice of appeal is filed.  The minor may request an extension of

 7-3     the period specified by this subsection.  If the court fails to

 7-4     rule on the appeal within the period specified by this subsection

 7-5     and an extension was not requested, the appeal is granted and the

 7-6     physician may perform the abortion as if the court had issued an

 7-7     order authorizing the minor to consent to the performance of the

 7-8     abortion without notification or consent under Section 33.02.

 7-9     Proceedings under this section shall be given precedence over other

7-10     pending matters to the extent necessary to assure that the court

7-11     reaches a decision promptly.

7-12           (c)  The clerk of the supreme court shall prescribe the

7-13     notice of appeal form to be used by the minor appealing a judgment

7-14     under this section.

7-15           (d)  A filing fee is not required of, and court costs may not

7-16     be assessed against, a minor filing an appeal under this section.

7-17           Sec. 33.05.  APPEAL TO APPELLATE COURT.  (a)  A minor whose

7-18     application under Section 33.04 is denied may appeal to the court

7-19     of appeals having jurisdiction over the cause.  On receipt of a

7-20     notice of appeal, the clerk of the district court that denied the

7-21     application shall deliver a copy of the notice of appeal and record

7-22     on appeal to the clerk of the court of appeals.  On receipt of the

7-23     notice and record, the clerk of the appellate court shall place the

7-24     appeal on the docket of the court.

7-25           (b)  The court of appeals shall rule on an appeal under this

7-26     section not later than 5 p.m. on the second business day after the

7-27     date the notice of appeal is filed.  The minor may request an

 8-1     extension of the period specified by this subsection.  If the court

 8-2     of appeals fails to rule on the appeal within the period specified

 8-3     by this subsection and an extension was not requested, the appeal

 8-4     is granted and the physician may perform the abortion as if the

 8-5     court had issued an order authorizing the minor to consent to the

 8-6     performance of the abortion without notification or consent under

 8-7     Section 33.02.  Proceedings under this section shall be given

 8-8     precedence over other pending matters to the extent necessary to

 8-9     assure that the court reaches a decision promptly.

8-10           (c)  The clerk of the supreme court shall prescribe the

8-11     notice of appeal form to be used by the minor appealing a judgment

8-12     under this section.

8-13           (d)  A minor filing an appeal under this section may not be

8-14     required to post an appeal bond.

8-15           SECTION 2.  Except as provided by Section 4 of this Act, this

8-16     Act takes effect September 1, 1997.

8-17           SECTION 3.  Chapter 33, Family Code, as added by this Act,

8-18     applies only to an abortion performed on or after January 1, 1998.

8-19     An abortion performed before January 1, 1998, is governed by the

8-20     law as it existed immediately before the effective date of this

8-21     Act, and that law is continued in effect for that purpose.

8-22           SECTION 4.  Section 33.02(e), Family Code, as added by this

8-23     Act, takes effect January 1, 1998.

8-24           SECTION 5.  The Texas Board of Health shall adopt the form to

8-25     be used under Section 33.02(a)(4), Family Code, as added by this

8-26     Act, not later than December 15, 1997.

8-27           SECTION 6.  The Texas Supreme Court shall promptly issue

 9-1     rules necessary to ensure that the process established by Sections

 9-2     33.03, 33.04, and 33.05, Family Code, as added by this Act, will be

 9-3     conducted in a manner that will ensure confidentiality and

 9-4     sufficient precedence over all other pending matters to ensure

 9-5     promptness of disposition.

 9-6           SECTION 7.  The clerk of the Texas Supreme Court shall adopt

 9-7     the application form and notice of appeal form to be used under

 9-8     Sections 33.03, 33.04, and 33.05, Family Code, as added by this

 9-9     Act, not later than December 15, 1997.

9-10           SECTION 8.  The importance of this legislation and the

9-11     crowded condition of the calendars in both houses create an

9-12     emergency and an imperative public necessity that the

9-13     constitutional rule requiring bills to be read on three several

9-14     days in each house be suspended, and this rule is hereby suspended.