By: Shapiro, et al. S.B. No. 86
A BILL TO BE ENTITLED
AN ACT
1-1 relating to parental notification before an abortion may be
1-2 performed on certain minors; providing a criminal penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle A, Title 2, Family Code, is amended by
1-5 adding Chapter 33 to read as follows:
1-6 CHAPTER 33. NOTICE OF ABORTION
1-7 Sec. 33.001. DEFINITIONS. In this chapter:
1-8 (1) "Abortion" means the use of any means to terminate
1-9 the pregnancy of a female known by the attending physician to be
1-10 pregnant, with the intention that the termination of the pregnancy
1-11 by those means will with reasonable likelihood cause the death of
1-12 the fetus.
1-13 (2) "Fetus" means an individual human organism from
1-14 fertilization until birth.
1-15 (3) "Guardian" means a court-appointed guardian of the
1-16 person of the minor.
1-17 (4) "Medical emergency" means a condition that, on the
1-18 basis of a physician's good faith clinical judgment, complicates
1-19 the medical condition of a pregnant woman and necessitates the
1-20 immediate abortion of her pregnancy to avert her death or to avoid
1-21 a serious risk of substantial and irreversible impairment of a
1-22 major bodily function.
1-23 (5) "Physician" means an individual licensed to
2-1 practice medicine in this state.
2-2 Sec. 33.002. PARENTAL NOTICE. (a) A physician may not
2-3 perform an abortion on a pregnant unemancipated 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 issues an order authorizing the minor to consent to the
2-14 abortion as provided by Section 33.003 or 33.004;
2-15 (3) a probate court, county court at law, or district
2-16 court, by its inaction, constructively authorizes the minor to
2-17 consent to the abortion as provided by Section 33.003 or 33.004; or
2-18 (4) the physician performing the abortion:
2-19 (A) concludes that a medical emergency exists
2-20 and there is insufficient time to provide the required notice; and
2-21 (B) certifies in writing to the Texas
2-22 Department of Health and in the patient's medical record the
2-23 medical indications supporting the physician's judgment that a
2-24 medical emergency exists and that there is insufficient time to
2-25 provide the required notice.
3-1 (b) If a person to whom notice may be given under Subsection
3-2 (a)(1) cannot be notified after a reasonable effort, a physician
3-3 may perform an abortion if the physician gives 48 hours
3-4 constructive notice, by certified mail sent to the last known
3-5 address, to the person to whom notice may be given under Subsection
3-6 (a)(1). The period under this subsection begins when the certified
3-7 mail notice is mailed. If the person required to be notified is
3-8 not notified within the 48-hour period, the abortion may proceed
3-9 even if the certified mail notice is not received.
3-10 (c) The Texas Department of Health shall prepare a form to
3-11 be used for making the certification required by Subsection (a)(4).
3-12 (d) A physician who violates this section commits an
3-13 offense. An offense under this section is a Class A misdemeanor.
3-14 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who
3-15 wishes to have an abortion without notification to one of her
3-16 parents, her managing conservator, or her guardian may file an
3-17 application for a court order authorizing the minor to consent to
3-18 the performance of an abortion without notification to either of
3-19 her parents or a managing conservator or guardian.
3-20 (b) The application may be filed in the county court at law
3-21 or a court having probate jurisdiction for:
3-22 (1) the county in which the minor resides;
3-23 (2) a county that borders a county in which the minor
3-24 resides; or
3-25 (3) the county in which the hospital, clinic, or
4-1 facility in which the abortion would be performed is located.
4-2 (c) The application must be made under oath and include:
4-3 (1) a statement that the minor is pregnant;
4-4 (2) a statement that the minor is unmarried, is under
4-5 18 years of age, and has not had her disabilities removed for
4-6 general purposes under Chapter 31;
4-7 (3) a statement that the minor wishes to have an
4-8 abortion without the notification of either of her parents or a
4-9 managing conservator or guardian; and
4-10 (4) a statement as to whether the minor has retained
4-11 an attorney and, if she has retained an attorney, the name,
4-12 address, and telephone number of her attorney.
4-13 (d) The court shall appoint a guardian ad litem for the
4-14 minor. If the minor has not retained an attorney, the court shall
4-15 appoint an attorney to represent the minor. If the guardian ad
4-16 litem is an attorney admitted to the practice of law in this state,
4-17 the court may appoint the guardian ad litem to serve as the minor's
4-18 attorney.
4-19 (e) The court shall fix a time for a hearing on an
4-20 application filed under Subsection (a) and shall keep a record of
4-21 all testimony and other oral proceedings in the action. The court
4-22 shall enter judgment on the application immediately after the
4-23 hearing is concluded.
4-24 (f) The court shall rule on an application submitted under
4-25 this section and shall issue written findings of fact and
5-1 conclusions of law, not later than 5 p.m. on the second business
5-2 day after the date the application is filed with the court. The
5-3 minor may request an extension of the period specified by this
5-4 section. If the court fails to rule on the application and issue
5-5 written findings of fact and conclusions of law within the period
5-6 specified by this subsection and an extension was not requested,
5-7 the application is deemed to be granted and the physician may
5-8 perform the abortion as if the court had issued an order
5-9 authorizing the minor to consent to the performance of the abortion
5-10 without notification under Section 33.002. Proceedings under this
5-11 section shall be given precedence over other pending matters to the
5-12 extent necessary to assure that the court reaches a decision
5-13 promptly.
5-14 (g) The court shall determine by a preponderance of the
5-15 evidence whether the minor is mature and sufficiently well informed
5-16 to make the decision to have an abortion performed without
5-17 notification to either of her parents or a managing conservator or
5-18 guardian or whether notification would not be in the best interest
5-19 of the minor. If the court finds that the minor is mature and
5-20 sufficiently well informed or that notification would not be in the
5-21 minor's best interest, the court shall enter an order authorizing
5-22 the minor to consent to the performance of the abortion without
5-23 notification to either of her parents or a managing conservator or
5-24 guardian and shall execute the required forms.
5-25 (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 authorized
6-3 under Section 33.002(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. 33.004. APPEAL. (a) A minor whose application under
6-19 Section 33.003 is denied may appeal to the district court having
6-20 jurisdiction over civil matters in the county in which the
6-21 application was filed. On receipt of a notice of appeal, the clerk
6-22 of the court that denied the application shall deliver a copy of
6-23 the notice of appeal and record on appeal to the clerk of the
6-24 district court. On receipt of the notice and record, the clerk of
6-25 the district court shall place the appeal on the docket of the
7-1 court.
7-2 (b) The court shall rule on an appeal under this section not
7-3 later than 5 p.m. on the second business day after the date the
7-4 notice of appeal is filed. The minor may request an extension of
7-5 the period specified by this subsection. If the court fails to
7-6 rule on the appeal within the period specified by this subsection
7-7 and an extension was not requested, the appeal is deemed to be
7-8 granted and the physician may perform the abortion as if the court
7-9 had issued an order authorizing the minor to consent to the
7-10 performance of the abortion without notification under Section
7-11 33.002. Proceedings under this section shall be given precedence
7-12 over other pending matters to the extent necessary to assure that
7-13 the court reaches a decision promptly.
7-14 (c) The clerk of the supreme court shall prescribe the
7-15 notice of appeal form to be used by the minor appealing a judgment
7-16 under this section.
7-17 (d) A filing fee is not required of and court costs may not
7-18 be assessed against a minor filing an appeal under this section.
7-19 (e) An expedited confidential appeal shall be available to
7-20 any pregnant minor to whom a district court denies an order
7-21 authorizing the minor to consent to the performance of an abortion
7-22 without notification to either of her parents or a managing
7-23 conservator or guardian.
7-24 Sec. 33.005. AD LITEM IMMUNITY. A guardian ad litem or
7-25 attorney ad litem appointed under this chapter has the same
8-1 judicial immunity as the appointing judge with respect to an act or
8-2 omission in the course and scope of the appointment.
8-3 Sec. 33.006. COSTS PAID BY STATE. (a) A court acting under
8-4 Section 33.003 or 33.004 may issue an order requiring the state to
8-5 pay:
8-6 (1) the cost of any attorney ad litem and any guardian
8-7 ad litem appointed for the minor;
8-8 (2) notwithstanding Sections 33.003(k) and 33.004(d),
8-9 the costs of court associated with the application or appeal; and
8-10 (3) any court reporter's fees incurred.
8-11 (b) An order issued under Subsection (a) must be directed to
8-12 the comptroller, who shall pay the amount ordered from funds
8-13 appropriated to the Texas Department of Health, D.1.2. Strategy:
8-14 Family Planning.
8-15 Sec. 33.007. REPORTING OF SEXUAL ABUSE OF A MINOR. A court
8-16 or the guardian ad litem or attorney ad litem for the minor may
8-17 report sexual abuse of the minor based on information obtained
8-18 during a confidential court proceeding held under this chapter to:
8-19 (1) any local or state law enforcement agency;
8-20 (2) the Department of Protective and Regulatory
8-21 Services if the alleged or suspected abuse involves a person
8-22 responsible for the care, custody, or welfare of the child;
8-23 (3) the state agency that operates, licenses,
8-24 certifies, or registers the facility in which the alleged abuse
8-25 occurred, if the alleged abuse occurred in a facility operated,
9-1 licensed, certified, or registered by a state agency; or
9-2 (4) an appropriate agency designated by the court.
9-3 SECTION 2. The Supreme Court of Texas shall issue promptly
9-4 such rules as may be necessary in order that the process
9-5 established by Sections 33.003 and 33.004, Family Code, as added by
9-6 this Act, be conducted in a manner that will ensure confidentiality
9-7 and sufficient precedence over all other pending matters to ensure
9-8 promptness of disposition.
9-9 SECTION 3. Except as provided by Section 5 of this Act, this
9-10 Act takes effect September 1, 1997.
9-11 SECTION 4. Chapter 33, Family Code, as added by this Act,
9-12 applies only to an abortion performed on or after January 1, 1998.
9-13 An abortion performed before January 1, 1998, is governed by the
9-14 law as it existed immediately before the effective date of this
9-15 Act, and that law is continued in effect for that purpose.
9-16 SECTION 5. Subsection (d), Section 33.002, Family Code, as
9-17 added by this Act, takes effect January 1, 1998.
9-18 SECTION 6. The Texas Board of Health shall adopt the form to
9-19 be used under Subdivision (4), Subsection (a), Section 33.002,
9-20 Family Code, as added by this Act, not later than December 15,
9-21 1997.
9-22 SECTION 7. The clerk of the Supreme Court of Texas shall
9-23 adopt the application form and notice of appeal form to be used
9-24 under Sections 33.003 and 33.004, Family Code, as added by this
9-25 Act, not later than December 15, 1997.
10-1 SECTION 8. The importance of this legislation and the
10-2 crowded condition of the calendars in both houses create an
10-3 emergency and an imperative public necessity that the
10-4 constitutional rule requiring bills to be read on three several
10-5 days in each house be suspended, and this rule is hereby suspended.