1-1 By: Shapiro S.B. No. 86 1-2 (In the Senate - Filed November 12, 1996; January 14, 1997, 1-3 read first time and referred to Committee on Health and Human 1-4 Services; February 10, 1997, reported favorably, as amended, by the 1-5 following vote: Yeas 8, Nays 3; February 10, 1997, sent to 1-6 printer.) 1-7 COMMITTEE AMENDMENT NO. 1 By: Nixon 1-8 Amend S.B. No. 86 in Section 33.002(a) by inserting the word 1-9 unemancipated between the words pregnant and minor. 1-10 A BILL TO BE ENTITLED 1-11 AN ACT 1-12 relating to parental notification before an abortion may be 1-13 performed on a minor; providing a criminal penalty. 1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-15 SECTION 1. Subtitle A, Title 2, Family Code, is amended by 1-16 adding Chapter 33 to read as follows: 1-17 CHAPTER 33. NOTICE OF ABORTION 1-18 Sec. 33.001. DEFINITIONS. In this chapter: 1-19 (1) "Abortion" means the use of any means to terminate 1-20 the pregnancy of a female known by the attending physician to be 1-21 pregnant, with the intention that the termination of the pregnancy 1-22 by those means will with reasonable likelihood cause the death of 1-23 the fetus. 1-24 (2) "Fetus" means an individual human organism from 1-25 fertilization until birth. 1-26 (3) "Guardian" means a court-appointed guardian of the 1-27 person of the minor. 1-28 (4) "Medical emergency" means a condition that, on the 1-29 basis of a physician's good faith clinical judgment, complicates 1-30 the medical condition of a pregnant woman and necessitates the 1-31 immediate abortion of her pregnancy to avert her death or to avoid 1-32 a serious risk of substantial and irreversible impairment of a 1-33 major bodily function. 1-34 (5) "Physician" means an individual licensed to 1-35 practice medicine in this state. 1-36 Sec. 33.002. PARENTAL NOTICE. (a) A physician may not 1-37 perform an abortion on a pregnant minor unless: 1-38 (1) the physician performing the abortion gives at 1-39 least 48 hours actual notice, in person or by telephone, of the 1-40 physician's intent to perform the abortion to: 1-41 (A) a parent of the minor if the minor has no 1-42 managing conservator or guardian; or 1-43 (B) a court-appointed managing conservator or 1-44 guardian; 1-45 (2) the judge of a court having probate jurisdiction, 1-46 the judge of a county court at law, or the judge of a district 1-47 court issues an order authorizing the minor to consent to the 1-48 abortion as provided by Section 33.003 or 33.004; 1-49 (3) a probate court, county court at law, or district 1-50 court, by its inaction, constructively authorizes the minor to 1-51 consent to the abortion as provided by Section 33.003 or 33.004; or 1-52 (4) the physician performing the abortion: 1-53 (A) concludes that a medical emergency exists 1-54 and there is insufficient time to provide the required notice; and 1-55 (B) certifies in writing to the Texas 1-56 Department of Health and in the patient's medical record the 1-57 medical indications supporting the physician's judgment that a 1-58 medical emergency exists and that there is insufficient time to 1-59 provide the required notice. 1-60 (b) If a person to whom notice may be given under Subsection 1-61 (a)(1) cannot be notified after a reasonable effort, a physician 1-62 may perform an abortion if the physician gives 48 hours 1-63 constructive notice, by certified mail sent to the last known 2-1 address, to the person to whom notice may be given under Subsection 2-2 (a)(1). The period under this subsection begins when the certified 2-3 mail notice is mailed. If the person required to be notified is 2-4 not notified within the 48-hour period, the abortion may proceed 2-5 even if the certified mail notice is not received. 2-6 (c) The Texas Department of Health shall prepare a form to 2-7 be used for making the certification required by Subsection (a)(4). 2-8 (d) A physician who violates this section commits an 2-9 offense. An offense under this section is a Class A misdemeanor. 2-10 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who 2-11 wishes to have an abortion without notification to one of her 2-12 parents, her managing conservator, or her guardian may file an 2-13 application for a court order authorizing the minor to consent to 2-14 the performance of an abortion without notification to either of 2-15 her parents or a managing conservator or guardian. 2-16 (b) The application may be filed in the county court at law 2-17 or a court having probate jurisdiction for: 2-18 (1) the county in which the minor resides; 2-19 (2) a county that borders a county in which the minor 2-20 resides; or 2-21 (3) the county in which the hospital, clinic, or 2-22 facility in which the abortion would be performed is located. 2-23 (c) The application must be made under oath and include: 2-24 (1) a statement that the minor is pregnant; 2-25 (2) a statement that the minor is unmarried, is under 2-26 18 years of age, and has not had her disabilities removed for 2-27 general purposes under Chapter 31; 2-28 (3) a statement that the minor wishes to have an 2-29 abortion without the notification of either of her parents or a 2-30 managing conservator or guardian; and 2-31 (4) a statement as to whether the minor has retained 2-32 an attorney and, if she has retained an attorney, the name, 2-33 address, and telephone number of her attorney. 2-34 (d) The court shall appoint a guardian ad litem for the 2-35 minor. If the minor has not retained an attorney, the court shall 2-36 appoint an attorney to represent the minor. If the guardian ad 2-37 litem is an attorney admitted to the practice of law in this state, 2-38 the court may appoint the guardian ad litem to serve as the minor's 2-39 attorney. 2-40 (e) The court shall fix a time for a hearing on an 2-41 application filed under Subsection (a) and shall keep a record of 2-42 all testimony and other oral proceedings in the action. The court 2-43 shall enter judgment on the application immediately after the 2-44 hearing is concluded. 2-45 (f) The court shall rule on an application submitted under 2-46 this section and shall issue written findings of fact and 2-47 conclusions of law, not later than 5 p.m. on the second business 2-48 day after the date the application is filed with the court. The 2-49 minor may request an extension of the period specified by this 2-50 section. If the court fails to rule on the application and issue 2-51 written findings of fact and conclusions of law within the period 2-52 specified by this subsection and an extension was not requested, 2-53 the application is deemed to be granted and the physician may 2-54 perform the abortion as if the court had issued an order 2-55 authorizing the minor to consent to the performance of the abortion 2-56 without notification under Section 33.002. Proceedings under this 2-57 section shall be given precedence over other pending matters to the 2-58 extent necessary to assure that the court reaches a decision 2-59 promptly. 2-60 (g) The court shall determine by a preponderance of the 2-61 evidence whether the minor is mature and sufficiently well informed 2-62 to make the decision to have an abortion performed without 2-63 notification to either of her parents or a managing conservator or 2-64 guardian or whether notification would not be in the best interest 2-65 of the minor. If the court finds that the minor is mature and 2-66 sufficiently well informed or that notification would not be in the 2-67 minor's best interest, the court shall enter an order authorizing 2-68 the minor to consent to the performance of the abortion without 2-69 notification to either of her parents or a managing conservator or 3-1 guardian and shall execute the required forms. 3-2 (h) If the court finds that the minor does not meet the 3-3 requirements of Subsection (g), the court may not authorize the 3-4 minor to consent to an abortion without the notification authorized 3-5 under Section 33.002(a)(1). 3-6 (i) The court may not notify a parent, managing conservator, 3-7 or guardian that the minor is pregnant or that the minor wants to 3-8 have an abortion. The court proceedings shall be conducted in a 3-9 manner that protects the anonymity of the minor, and the 3-10 application and all other court documents pertaining to the 3-11 proceedings are confidential and may not be made available to the 3-12 public. The minor may file the application using a pseudonym or 3-13 using only her initials. 3-14 (j) The clerk of the supreme court shall prescribe the 3-15 application form to be used by the minor filing an application 3-16 under this section. 3-17 (k) A filing fee is not required of and court costs may not 3-18 be assessed against a minor filing an application under this 3-19 section. 3-20 Sec. 33.004. APPEAL. (a) A minor whose application under 3-21 Section 33.003 is denied may appeal to the district court having 3-22 jurisdiction over civil matters in the county in which the 3-23 application was filed. On receipt of a notice of appeal, the clerk 3-24 of the court that denied the application shall deliver a copy of 3-25 the notice of appeal and record on appeal to the clerk of the 3-26 district court. On receipt of the notice and record, the clerk of 3-27 the district court shall place the appeal on the docket of the 3-28 court. 3-29 (b) The court shall rule on an appeal under this section not 3-30 later than 5 p.m. on the second business day after the date the 3-31 notice of appeal is filed. The minor may request an extension of 3-32 the period specified by this subsection. If the court fails to 3-33 rule on the appeal within the period specified by this subsection 3-34 and an extension was not requested, the appeal is deemed to be 3-35 granted and the physician may perform the abortion as if the court 3-36 had issued an order authorizing the minor to consent to the 3-37 performance of the abortion without notification under Section 3-38 33.002. Proceedings under this section shall be given precedence 3-39 over other pending matters to the extent necessary to assure that 3-40 the court reaches a decision promptly. 3-41 (c) The clerk of the supreme court shall prescribe the 3-42 notice of appeal form to be used by the minor appealing a judgment 3-43 under this section. 3-44 (d) A filing fee is not required of and court costs may not 3-45 be assessed against a minor filing an appeal under this section. 3-46 (e) An expedited confidential appeal shall be available to 3-47 any pregnant minor to whom a district court denies an order 3-48 authorizing the minor to consent to the performance of an abortion 3-49 without notification to either of her parents or a managing 3-50 conservator or guardian. 3-51 SECTION 2. The Supreme Court of Texas shall issue promptly 3-52 such rules as may be necessary in order that the process 3-53 established by Sections 33.003 and 33.004, Family Code, as added by 3-54 this Act, be conducted in a manner that will ensure confidentiality 3-55 and sufficient precedence over all other pending matters to ensure 3-56 promptness of disposition. 3-57 SECTION 3. Except as provided by Section 5 of this Act, this 3-58 Act takes effect September 1, 1997. 3-59 SECTION 4. Chapter 33, Family Code, as added by this Act, 3-60 applies only to an abortion performed on or after January 1, 1998. 3-61 An abortion performed before January 1, 1998, is governed by the 3-62 law as it existed immediately before the effective date of this 3-63 Act, and that law is continued in effect for that purpose. 3-64 SECTION 5. Subsection (d), Section 33.002, Family Code, as 3-65 added by this Act, takes effect January 1, 1998. 3-66 SECTION 6. The Texas Board of Health shall adopt the form to 3-67 be used under Subdivision (4), Subsection (a), Section 33.002, 3-68 Family Code, as added by this Act, not later than December 15, 3-69 1997. 4-1 SECTION 7. The clerk of the Supreme Court of Texas shall 4-2 adopt the application form and notice of appeal form to be used 4-3 under Sections 33.003 and 33.004, Family Code, as added by this 4-4 Act, not later than December 15, 1997. 4-5 SECTION 8. The importance of this legislation and the 4-6 crowded condition of the calendars in both houses create an 4-7 emergency and an imperative public necessity that the 4-8 constitutional rule requiring bills to be read on three several 4-9 days in each house be suspended, and this rule is hereby suspended. 4-10 * * * * *