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.