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.