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.