75R16165 DLF-F By Shapiro, et al. S.B. No. 86 Substitute the following for S.B. No. 86: By Wolens C.S.S.B. No. 86 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to parental notification before an abortion may be 1-3 performed on certain minors. 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 SUBCHAPTER A. GENERAL PROVISIONS; NOTICE REQUIRED 1-9 Sec. 33.001. DEFINITIONS. In this chapter: 1-10 (1) "Abortion" has the meaning assigned by Section 1-11 4.011(a), Medical Practice Act (Article 4495b, Vernon's Texas Civil 1-12 Statutes). 1-13 (2) "Guardian" means a court-appointed guardian of the 1-14 person of the minor. 1-15 (3) "Medical emergency" means a condition that renders 1-16 the performance of an abortion necessary as described by Section 1-17 4.011(d)(2), Medical Practice Act (Article 4495b, Vernon's Texas 1-18 Civil Statutes). 1-19 (4) "Physician" means an individual licensed to 1-20 practice medicine in this state. 1-21 Sec. 33.002. PARENTAL NOTICE. (a) A physician may not 1-22 perform an abortion on a pregnant minor who has not had the 1-23 disabilities of minority removed under Section 31.001 unless the 1-24 physician performing the abortion, or an agent of the physician, 2-1 gives at least 48 hours actual notice, in person or by telephone, 2-2 of the physician's intent to perform the abortion to a parent of 2-3 the minor or a court-appointed managing conservator or guardian of 2-4 the minor. 2-5 (b) If the person to whom notice may be given under 2-6 Subsection (a) cannot be notified after a reasonable effort, a 2-7 physician may perform an abortion if the physician gives 48 hours 2-8 constructive notice, by certified mail sent to the last known 2-9 address of a person to whom notice may be given under Subsection 2-10 (a). The period under this subsection begins at the time notice is 2-11 mailed, and the abortion may proceed 48 hours after the notice is 2-12 mailed without regard to whether the notice is received. 2-13 (c) A physician may execute for inclusion in the minor's 2-14 medical record an affidavit stating that, according to the best 2-15 information and belief of the physician, notice or constructive 2-16 notice has been provided as required by this section. Execution of 2-17 an affidavit under this subsection creates a conclusive presumption 2-18 that the requirements of this section have been satisfied. 2-19 Sec. 33.003. PROFESSIONAL EVALUATION OF MINOR; MEDICAL 2-20 EMERGENCY. (a) A physician may perform an abortion without 2-21 providing notice under Section 33.002 if: 2-22 (1) another physician who is not located on the 2-23 premises of the facility at which the abortion is to be performed: 2-24 (A) in the physician's professional judgment 2-25 determines that: 2-26 (i) notice under Section 33.002 may lead 2-27 to physical, sexual, or emotional abuse of the minor; 3-1 (ii) the minor is mature and capable of 3-2 giving informed consent to an abortion; or 3-3 (iii) the abortion would be in the best 3-4 interest of the minor; and 3-5 (B) certifies in writing to the physician who is 3-6 to perform the abortion that the physician has made the 3-7 determination described by Paragraph (A) and that certification is 3-8 included in the patient's medical record; or 3-9 (2) the physician performing the abortion: 3-10 (A) concludes that a medical emergency exists 3-11 and there is insufficient time to provide notice under Section 3-12 33.002; and 3-13 (B) certifies in writing to the Texas State 3-14 Board of Medical Examiners, in the form required by that board, and 3-15 in the patient's medical record, the medical indications supporting 3-16 the physician's conclusion that a medical emergency exists and that 3-17 there is insufficient time to provide the required notice. 3-18 (b) A certification required by Subsection (a) is 3-19 confidential and privileged and is not subject to disclosure under 3-20 Chapter 552, Government Code, or to discovery, subpoena, or other 3-21 legal process. Personal or identifying information about the 3-22 minor, including her name, address, or social security number, may 3-23 not be included in a certification under Subsection (a)(2)(B). 3-24 (c) If the minor does not obtain the certification described 3-25 by Subsection (a), the minor's right to proceed under Subchapter B 3-26 is not affected. 3-27 Sec. 33.004. PENALTY. (a) A physician who violates this 4-1 chapter is subject to disciplinary action under Subchapter D, 4-2 Medical Practice Act (Article 4495b, Vernon's Texas Civil 4-3 Statutes). 4-4 (b) The Texas State Board of Medical Examiners shall review 4-5 the information submitted under this section relating to a 4-6 physician and may initiate an action under this section for a 4-7 violation of Section 33.002 or 33.003. 4-8 Sec. 33.005. REPORTING SEXUAL ABUSE OF A MINOR. 4-9 Notwithstanding any other provision of this chapter, a physician or 4-10 a court may report sexual abuse of the minor based on information 4-11 obtained during a confidential consultation with the minor or 4-12 other proceeding held under this chapter to: 4-13 (1) a local or state law enforcement agency; 4-14 (2) the Department of Protective and Regulatory 4-15 Services, if the alleged or suspected abuse involves a person 4-16 responsible for the care, custody, or welfare of the minor; or 4-17 (3) the state agency that operates, licenses, 4-18 certifies, or registers the facility in which the alleged abuse 4-19 occurred, if the alleged abuse occurred in a facility operated, 4-20 licensed, certified, or registered by a state agency. 4-21 (Sections 33.006-33.050 reserved for expansion) 4-22 SUBCHAPTER B. JUDICIAL APPROVAL 4-23 Sec. 33.051. JUDICIAL APPROVAL. (a) A pregnant minor who 4-24 wishes to have an abortion without satisfaction of the requirements 4-25 of Section 33.002 or 33.003 may file an application for a court 4-26 order authorizing the minor to consent to the performance of an 4-27 abortion without the required notice. 5-1 (b) The application may be filed in the county court at law 5-2 or a district court having jurisdiction for: 5-3 (1) the county in which the minor resides; 5-4 (2) a county that borders a county in which the minor 5-5 resides; or 5-6 (3) the county in which the hospital, clinic, or 5-7 facility in which the abortion would be performed is located. 5-8 (c) The application must be made under oath and include: 5-9 (1) a statement that the minor is pregnant; 5-10 (2) a statement that the minor is unmarried, is under 5-11 18 years of age, and has not had the disabilities of minority 5-12 removed under Section 31.001; 5-13 (3) a statement that the minor wishes to have an 5-14 abortion without satisfaction of the requirements of Section 33.002 5-15 or 33.003; and 5-16 (4) a statement as to whether the minor has retained 5-17 an attorney and, if she has retained an attorney, the name, 5-18 address, and telephone number of her attorney. 5-19 (d) If the minor has not retained an attorney, the court 5-20 shall appoint an attorney to represent the minor and to serve as 5-21 the minor's guardian ad litem. 5-22 (e) The court shall fix a time pursuant to Subsection (f) 5-23 for a hearing on an application filed under Subsection (a) and 5-24 shall keep a record of all testimony and other oral proceedings in 5-25 the action. The court shall enter judgment on the application 5-26 immediately after the hearing is concluded. 5-27 (f) The court shall rule on an application submitted under 6-1 this section and shall issue written findings of fact and 6-2 conclusions of law not later than 5 p.m. on the second business day 6-3 after the date the application is filed with the court. On request 6-4 by the minor, the court shall grant an extension of the period 6-5 specified by this section. If a request for an extension is made, 6-6 the court shall rule on an application and shall issue written 6-7 findings of fact and conclusions of law not later than 5 p.m. on 6-8 the second business day after the date the minor states that she is 6-9 ready to proceed to a hearing. If the court fails to rule on the 6-10 application and issue written findings of fact and conclusions of 6-11 law within the period specified by this subsection, the application 6-12 is deemed to be granted and the physician may perform the abortion 6-13 as if the court had issued an order authorizing the minor to 6-14 consent to the performance of the abortion without satisfaction of 6-15 the requirements of Section 33.002 or 33.003. Proceedings under 6-16 this section shall be given precedence over other pending matters 6-17 to the extent necessary to ensure that the court reaches a decision 6-18 promptly. 6-19 (g) The court shall determine by a preponderance of the 6-20 evidence whether: 6-21 (1) notice under Section 33.002 may lead to physical, 6-22 sexual, or emotional abuse of the minor; 6-23 (2) the minor is mature and capable of giving informed 6-24 consent to an abortion; or 6-25 (3) the abortion would be in the best interest of the 6-26 minor. 6-27 (h) If the court finds that the minor meets the requirements 7-1 of Subsection (g)(1), (2), or (3), the court shall enter an order 7-2 authorizing the minor to consent to the performance of the abortion 7-3 without satisfaction of the requirements of Section 33.002 or 7-4 33.003 and shall execute the required forms. 7-5 (i) If the court finds that the minor does not meet the 7-6 requirements of Subsection (g)(1), (2), or (3), the court may not 7-7 authorize the minor to consent to an abortion without satisfaction 7-8 of the requirements of Section 33.002 or 33.003. 7-9 (j) The court may not notify any person that the minor is 7-10 pregnant or that the minor wants to have an abortion. The court 7-11 proceedings shall be conducted in a manner that protects the 7-12 anonymity of the minor, and the application and all other court 7-13 documents pertaining to the proceedings are confidential and 7-14 privileged and are not subject to discovery, subpoena, or other 7-15 legal process. The minor may file the application using a 7-16 pseudonym or using only her initials. 7-17 (k) The clerk of the supreme court shall prescribe the 7-18 application form to be used by the minor filing an application 7-19 under this section. 7-20 (l) A filing fee is not required of and court costs may not 7-21 be assessed against a minor filing an application under this 7-22 section. 7-23 Sec. 33.052. ORIGINAL APPLICATION TO DISTRICT COURT 7-24 FOLLOWING ISSUANCE OF ORDER OF COUNTY COURT AT LAW. (a) A minor 7-25 who files an application under Section 33.051 with a county court 7-26 at law and whose application is denied may file an original 7-27 application with the district court having jurisdiction over civil 8-1 matters in a county described by Subsection 33.051(b). 8-2 (b) An original application filed with a district court 8-3 under this section is governed by Section 33.051. 8-4 Sec. 33.053. APPEAL OF ORDER OF DISTRICT COURT. (a) An 8-5 appeal to a court of appeals shall be available to any pregnant 8-6 minor to whom a district court denies an order authorizing the 8-7 minor to consent to the performance of an abortion without 8-8 satisfaction of the requirements of Section 33.002 or 33.003. 8-9 (b) The court of appeals shall rule on an appeal under this 8-10 section not later than 5 p.m. on the second business day after the 8-11 date the notice of appeal is filed. On request by the minor, the 8-12 court shall grant an extension of the period specified by this 8-13 section. If a request for an extension is made, the court shall 8-14 rule on the appeal not later than 5 p.m. on the second business day 8-15 after the date the minor states that she is ready to proceed with 8-16 the appeal. If the court fails to rule on the appeal within the 8-17 period specified by this subsection, the appeal is deemed to be 8-18 granted and the physician may perform the abortion as if the court 8-19 had issued an order authorizing the minor to consent to the 8-20 performance of the abortion without satisfaction of the 8-21 requirements of Section 33.002 or 33.003. Proceedings under this 8-22 section shall be given precedence over other pending matters to the 8-23 extent necessary to ensure that the court reaches a decision 8-24 promptly. 8-25 (c) The court of appeals may not notify any person that the 8-26 minor is pregnant or that the minor wants to have an abortion. The 8-27 court proceedings shall be conducted in a manner that protects the 9-1 anonymity of the minor, and the application, notice of appeal, and 9-2 all other court documents pertaining to the proceedings are 9-3 confidential and privileged and are not subject to discovery, 9-4 subpoena, or other legal process. The minor may file the notice of 9-5 appeal using a pseudonym or using only her initials. 9-6 Sec. 33.054. AFFIDAVIT OF PHYSICIAN. (a) A physician may 9-7 execute for inclusion in the minor's medical record an affidavit 9-8 stating, according to the best information and belief of the 9-9 physician: 9-10 (1) the minor has made an application or filed a 9-11 notice of an appeal with a court under this subchapter; 9-12 (2) the deadline for court action imposed by this 9-13 subchapter has passed; and 9-14 (3) the physician has not been notified that the court 9-15 has denied the application or appeal. 9-16 (b) A physician who has executed an affidavit under 9-17 Subsection (a) may conclusively rely on the affidavit and may 9-18 perform the abortion as if the court had issued an order granting 9-19 the application or appeal. 9-20 Sec. 33.055. EFFECT OF ORDER. An action of any court under 9-21 this subchapter that denies an order authorizing a minor to consent 9-22 to the performance of an abortion without satisfaction of the 9-23 requirements of Section 33.002 or 33.003 does not bar the 9-24 subsequent performance of the abortion on the minor in accordance 9-25 with Section 33.002 or 33.003. 9-26 Sec. 33.056. COSTS OF JUDICIAL PROCEEDINGS. The costs of a 9-27 proceeding under this subchapter, including the cost of any 10-1 attorney ad litem appointed for the minor, are the responsibility 10-2 of the county in which the proceeding is conducted. 10-3 SECTION 2. The Supreme Court of Texas shall issue promptly 10-4 such rules as may be necessary in order that the process 10-5 established by Section 33.051, Family Code, as added by this Act, 10-6 may be conducted in a manner that will ensure confidentiality and 10-7 sufficient precedence over all other pending matters to ensure 10-8 promptness of disposition. 10-9 SECTION 3. The Texas State Board of Medical Examiners shall 10-10 adopt the forms to be used under Section 33.003(a)(2), Family Code, 10-11 as added by this Act, not later than December 15, 1997. 10-12 SECTION 4. Chapter 33, Family Code, as added by this Act, 10-13 applies only to an abortion performed on or after January 1, 1998. 10-14 An abortion performed before January 1, 1998, is governed by the 10-15 law as it existed immediately before the effective date of this 10-16 Act, and that law is continued in effect for that purpose. 10-17 SECTION 5. This Act takes effect September 1, 1997. 10-18 SECTION 6. The importance of this legislation and the 10-19 crowded condition of the calendars in both houses create an 10-20 emergency and an imperative public necessity that the 10-21 constitutional rule requiring bills to be read on three several 10-22 days in each house be suspended, and this rule is hereby suspended.