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.