By Shapiro                                              S.B. No. 86

      75R1982 DLF-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to parental notification before an abortion may be

 1-3     performed on a minor; providing a criminal penalty.

 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           Sec. 33.001.  DEFINITIONS.  In this chapter:

 1-9                 (1)  "Abortion" means the use of any means to terminate

1-10     the pregnancy of a female known by the attending physician to be

1-11     pregnant, with the intention that the termination of the pregnancy

1-12     by those means will, with reasonable likelihood, cause the death of

1-13     the fetus.

1-14                 (2)  "Fetus" means an individual human organism from

1-15     fertilization until birth.

1-16                 (3)  "Guardian" means a court-appointed guardian of the

1-17     person of the minor.

1-18                 (4)  "Medical emergency" means a condition that, on the

1-19     basis of a physician's good faith clinical judgment, complicates

1-20     the medical condition of a pregnant woman and necessitates the

1-21     immediate abortion of her pregnancy to avert her death or to avoid

1-22     a serious risk of substantial and irreversible impairment of a

1-23     major bodily function.

1-24                 (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 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.

2-26           (b)  If a person to whom notice may be given under Subsection

2-27     (a)(1) cannot be notified after a reasonable effort, a physician

 3-1     may perform an abortion if the physician gives 48 hours

 3-2     constructive notice, by certified mail sent to the last known

 3-3     address, to the person to whom notice may be given under Subsection

 3-4     (a)(1).  The period under this subsection begins when the certified

 3-5     mail notice is mailed.  If the person required to be notified is

 3-6     not notified within the 48-hour period, the abortion may proceed

 3-7     even if the certified mail notice is not received.

 3-8           (c)  The Texas  Department of Health shall prepare a form to

 3-9     be used for making the certification required by Subsection (a)(4).

3-10           (d)  A physician who violates this section commits an

3-11     offense.  An offense under this section is a Class A misdemeanor.

3-12           Sec. 33.003.  JUDICIAL APPROVAL.  (a)  A pregnant minor who

3-13     wishes to have an abortion without notification to one of her

3-14     parents, her managing conservator, or her guardian may file an

3-15     application for a court order authorizing the minor to consent to

3-16     the performance of an abortion without notification to either of

3-17     her parents or a managing conservator or guardian.

3-18           (b)  The application may be filed in the county court at law

3-19     or a court having probate jurisdiction for:

3-20                 (1)  the county in which the minor resides;

3-21                 (2)  a county that borders a county in which the minor

3-22     resides; or

3-23                 (3)  the county in which the hospital, clinic, or

3-24     facility in which the abortion would be performed is located.

3-25           (c)  The application must be made under oath and include:

3-26                 (1)  a statement that the minor is pregnant;

3-27                 (2)  a statement that the minor is unmarried, is under

 4-1     18 years of age, and has not had her disabilities removed for

 4-2     general purposes under Chapter 31;

 4-3                 (3)  a statement that the minor wishes to have an

 4-4     abortion without the notification of either of her parents or a

 4-5     managing conservator or guardian; and

 4-6                 (4)  a statement as to whether the minor has retained

 4-7     an attorney and, if she has retained an attorney, the name,

 4-8     address, and telephone number of her attorney.

 4-9           (d)  The court shall appoint a guardian ad litem for the

4-10     minor.  If the minor has not retained an attorney, the court shall

4-11     appoint an attorney to represent the minor.  If the guardian ad

4-12     litem is an attorney admitted to the practice of law in this state,

4-13     the court may appoint the guardian ad litem to serve as the minor's

4-14     attorney.

4-15           (e)  The court shall fix a time for a hearing on an

4-16     application filed under Subsection (a) and shall keep a record of

4-17     all testimony and other oral proceedings in the action.  The court

4-18     shall enter judgment on the application immediately after the

4-19     hearing is concluded.

4-20           (f)  The court shall rule on an application submitted under

4-21     this section and shall issue written findings of fact and

4-22     conclusions of law, not later than 5 p.m. on the second business

4-23     day after the date the application is filed with the court.  The

4-24     minor may request an extension of the period specified by this

4-25     section.  If the court fails to rule on the application and issue

4-26     written findings of fact and conclusions of law within the period

4-27     specified by this subsection and an extension was not requested,

 5-1     the application is deemed to be granted and the physician may

 5-2     perform the abortion as if the court had issued an order

 5-3     authorizing the minor to consent to the performance of the abortion

 5-4     without notification under Section 33.002.  Proceedings under this

 5-5     section shall be given precedence over other pending matters to the

 5-6     extent necessary to assure that the court reaches a decision

 5-7     promptly.

 5-8           (g)  The court shall determine by a preponderance of the

 5-9     evidence whether the minor is mature and sufficiently well-informed

5-10     to make the decision to have an abortion performed without

5-11     notification to either of her parents or a managing conservator or

5-12     guardian, or whether notification would not be in the best interest

5-13     of the minor.  If the court finds that the minor is mature and

5-14     sufficiently well-informed or that notification would not be in the

5-15     minor's best interest, the court shall enter an order authorizing

5-16     the minor to consent to the performance of the abortion without

5-17     notification to either of her parents or a managing conservator or

5-18     guardian and execute the required forms.

5-19           (h)  If the court finds that the minor does not meet the

5-20     requirements of Subsection (g), the court may not authorize the

5-21     minor to consent to an abortion without the notification authorized

5-22     under Section 33.002(a)(1).

5-23           (i)  The court may not notify a parent, managing conservator,

5-24     or guardian that the minor is pregnant or that the minor wants to

5-25     have an abortion.  The court proceedings shall be conducted in a

5-26     manner that protects the anonymity of the minor, and the

5-27     application and all other court documents pertaining to the

 6-1     proceedings are confidential and may not be made available to the

 6-2     public.  The minor may file the application using a pseudonym or

 6-3     using only her initials.

 6-4           (j)  The clerk of the supreme court shall prescribe the

 6-5     application form to be used by the minor filing an application

 6-6     under this section.

 6-7           (k)  A filing fee is not required of, and court costs may not

 6-8     be assessed against, a minor filing an application under this

 6-9     section.

6-10           Sec. 33.004.  APPEAL.  (a)  A minor whose application under

6-11     Section 33.003 is denied may appeal to the district court having

6-12     jurisdiction over civil matters in the county in which the

6-13     application was filed.  On receipt of a notice of appeal, the clerk

6-14     of the court that denied the application shall deliver a copy of

6-15     the notice of appeal and record on appeal to the clerk of the

6-16     district court.  On receipt of the notice and record, the clerk of

6-17     the district court shall place the appeal on the docket of the

6-18     court.

6-19           (b)  The court shall rule on an appeal under this section not

6-20     later than 5 p.m. on the second business day after the date the

6-21     notice of appeal is filed.  The minor may request an extension of

6-22     the period specified by this subsection.  If the court fails to

6-23     rule on the appeal within the period specified by this subsection

6-24     and an extension was not requested, the appeal is deemed to be

6-25     granted and the physician may perform the abortion as if the court

6-26     had issued an order authorizing the minor to consent to the

6-27     performance of the abortion without notification under Section

 7-1     33.002.  Proceedings under this section shall be given precedence

 7-2     over other pending matters to the extent necessary to assure that

 7-3     the court reaches a decision promptly.

 7-4           (c)  The clerk of the supreme court shall prescribe the

 7-5     notice of appeal form to be used by the minor appealing a judgment

 7-6     under this section.

 7-7           (d)  A filing fee is not required of, and court costs may not

 7-8     be assessed against, a minor filing an appeal under this section.

 7-9           (e)  An expedited confidential appeal shall be available to

7-10     any pregnant woman to whom a district court denies an order

7-11     authorizing the minor to consent to the performance of an abortion

7-12     without notification to either of her parents or a managing

7-13     conservator or guardian.

7-14           SECTION 2.  The Texas Supreme Court shall issue promptly such

7-15     rules as may be necessary that the process established by Sections

7-16     33.003 and 33.004, Family Code, as added by this Act, be conducted

7-17     in such a manner as will ensure confidentiality and sufficient

7-18     precedence over all other pending matters to ensure promptness of

7-19     disposition.

7-20           SECTION 3.  Except as provided by Section 5 of this Act, this

7-21     Act takes effect September 1, 1997.

7-22           SECTION 4.  Chapter 33, Family Code, as added by this Act,

7-23     applies only to an abortion performed on or after January 1, 1998.

7-24     An abortion performed before January 1, 1998, is governed by the

7-25     law as it existed immediately before the effective date of this

7-26     Act, and that law is continued in effect for that purpose.

7-27           SECTION 5.  Section 33.002(d), Family Code, as added by this

 8-1     Act, takes effect January 1, 1998.

 8-2           SECTION 6.  The Texas Board of Health shall adopt the form to

 8-3     be used under Section 33.002(a)(4), Family Code, as added by this

 8-4     Act, not later than December 15, 1997.

 8-5           SECTION 7.  The clerk of the Texas Supreme Court shall adopt

 8-6     the application form and notice of appeal form to be used under

 8-7     Sections 33.003 and 33.004, Family Code, as added by this Act, not

 8-8     later than December 15, 1997.

 8-9           SECTION 8.  The importance of this legislation and the

8-10     crowded condition of the calendars in both houses create an

8-11     emergency and an imperative public necessity that the

8-12     constitutional rule requiring bills to be read on three several

8-13     days in each house be suspended, and this rule is hereby suspended.