By Harris                                        S.B. No. 142

      75R2374 DLF-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to death of a viable fetus; providing penalties.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4                         ARTICLE 1.  CIVIL REMEDIES

 1-5           SECTION 1.01.  Title 4, Civil Practice and Remedies Code, is

 1-6     amended by adding Chapter 99 to read as follows:

 1-7                     CHAPTER 99.  DEATH OF VIABLE FETUS

 1-8           Sec. 99.001.  DEFINITIONS.  In this chapter:

 1-9                 (1)  "Fetus" means an individual human organism from

1-10     fertilization until birth.

1-11                 (2)  "Viable" means capable of being born alive.

1-12           Sec. 99.002.  CAUSE OF ACTION.  A person is liable for

1-13     damages for the person's wrongful act or negligent act or omission

1-14     that causes a viable fetus not to be born alive.

1-15           Sec. 99.003.  PERSONS WHO MAY BRING ACTION.  The natural

1-16     mother or father of the fetus may bring an action under this

1-17     chapter.

1-18           Sec. 99.004.  DAMAGES.  In an action under this chapter, a

1-19     court may award:

1-20                 (1)  compensatory damages, including damages for:

1-21                       (A)  mental anguish and loss of companionship and

1-22     society; and

1-23                       (B)  medical expenses; and

1-24                 (2)  exemplary damages under Chapter 41.

 2-1           Sec. 99.005.  CERTAIN CONDUCT EXCLUDED.  Section 99.002 does

 2-2     not apply to:

 2-3                 (1)  a wrongful or negligent act or omission of the

 2-4     mother of the fetus;

 2-5                 (2)  a medical procedure performed by a physician or

 2-6     other licensed health care provider at the request of the mother of

 2-7     the fetus or the mother's legal guardian; or

 2-8                 (3)  the dispensation or administration of a drug

 2-9     prescribed in accordance with law.

2-10           SECTION 1.02.  Chapter 99, Civil Practice and Remedies Code,

2-11     as added by this Act, applies only to a cause of action that

2-12     accrues on or after the effective date of this Act.  A cause of

2-13     action that accrues before the effective date of this Act is

2-14     governed by the law applicable to the cause of action immediately

2-15     before the effective date of this Act, and that law is continued in

2-16     effect for that purpose.

2-17                       ARTICLE 2.  CRIMINAL PENALTIES

2-18           SECTION 2.01.  Section 1.07(a)(26), Penal Code, is amended to

2-19     read as follows:

2-20                 (26)  "Individual" means a human being who has been

2-21     born and is alive, except as provided by Section 19.01 or 49.08.

2-22           SECTION 2.02.  Section 19.01, Penal Code, is amended by

2-23     adding Subsection (c) to read as follows:

2-24           (c)  In this chapter:

2-25                 (1)  "Fetus" means an individual human organism from

2-26     fertilization until birth.

2-27                 (2)  "Individual" includes a viable fetus.

 3-1                 (3)  "Viable" means capable of being born alive.

 3-2           SECTION 2.03.  Chapter 19, Penal Code, is amended by adding

 3-3     Section 19.06 to read as follows:

 3-4           Sec. 19.06.  CERTAIN CONDUCT EXCLUDED.  It is an affirmative

 3-5     defense to prosecution under this chapter for the death of a fetus

 3-6     that the conduct charged is:

 3-7                 (1)  an act of the mother of the fetus;

 3-8                 (2)  a medical procedure performed by a physician or

 3-9     other licensed health care provider at the request of the mother of

3-10     the fetus or the mother's legal guardian; or

3-11                 (3)  the dispensation or administration of a drug

3-12     prescribed in accordance with law.

3-13           SECTION 2.04.  Section 49.08, Penal Code, is amended by

3-14     amending Subsection (a)  and adding Subsection (c) to read as

3-15     follows:

3-16           (a)  A person commits an offense if the person:

3-17                 (1)  operates a motor vehicle in a public place, an

3-18     aircraft, or a watercraft; and

3-19                 (2)  is intoxicated and by reason of that intoxication

3-20     causes the death of an individual [another] by accident or mistake.

3-21           (c)  In this section:

3-22                 (1)  "Fetus" means an individual human organism from

3-23     fertilization until birth.

3-24                 (2)  "Individual" includes a viable fetus.

3-25                 (3)  "Viable" means capable of being born alive.

3-26           SECTION 2.05.  (a)  The change in law made by this article

3-27     applies only to the punishment for an offense committed on or after

 4-1     the effective date of this Act.  For purposes of this section, an

 4-2     offense is committed before the effective date of this Act if any

 4-3     element of the offense occurs before the effective date.

 4-4           (b)  An offense committed before the effective date of this

 4-5     Act is covered by the law in effect when the offense was committed,

 4-6     and the former law is continued in effect for that purpose.

 4-7                    ARTICLE 3.  EFFECTIVE DATE; EMERGENCY

 4-8           SECTION 3.01.  This Act takes effect September 1, 1997.

 4-9           SECTION 3.02.  The importance of this legislation and the

4-10     crowded condition of the calendars in both houses create an

4-11     emergency and an imperative public necessity that the

4-12     constitutional rule requiring bills to be read on three several

4-13     days in each house be suspended, and this rule is hereby suspended.