By Nelson S.B. No. 411
75R4422 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to parental notification and consent before an abortion
1-3 may be 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 AND CONSENT. (a) A physician
2-3 may not 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 or the court of appeals issues an order authorizing the minor
2-14 to consent to the abortion as provided by Section 33.003, 33.004,
2-15 or 33.005;
2-16 (3) a probate court, county court at law, district
2-17 court, or court of appeals, by its inaction, constructively
2-18 authorizes the minor to consent to the abortion as provided by
2-19 Section 33.003, 33.004, or 33.005; or
2-20 (4) the physician performing the abortion:
2-21 (A) concludes that a medical emergency exists
2-22 and there is insufficient time to provide the required notice; and
2-23 (B) certifies in writing to the Texas
2-24 Department of Health and in the patient's medical record the
2-25 medical indications supporting the physician's judgment that a
2-26 medical emergency exists and that there is insufficient time to
2-27 provide the required notice.
3-1 (b) Except as provided by Subsection (c), a physician who
3-2 has given notice to a parent, managing conservator, or guardian
3-3 under Subsection (a)(1) may not perform an abortion on a pregnant
3-4 minor unless the parent, managing conservator, or guardian has
3-5 consented to the abortion.
3-6 (c) If a person to whom notice may be given under Subsection
3-7 (a)(1) cannot be notified after a reasonable effort, a physician
3-8 may perform an abortion if the physician gives 48 hours'
3-9 constructive notice, by certified mail sent to the last known
3-10 address, to the person to whom notice may be given under Subsection
3-11 (a)(1). The period under this subsection begins when the certified
3-12 mail notice is mailed. If the person required to be notified is
3-13 not notified within the 48-hour period, the abortion may proceed
3-14 even if the certified mail notice is not received.
3-15 (d) The Texas Department of Health shall prepare a form to
3-16 be used for making the certification required by Subsection (a)(4).
3-17 (e) A physician who violates this section commits an
3-18 offense. An offense under this subsection is a Class A
3-19 misdemeanor.
3-20 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who
3-21 wishes to have an abortion without notification to or consent of
3-22 either of her parents, her managing conservator, or her guardian
3-23 may file an application for a court order authorizing the minor to
3-24 consent to the performance of an abortion without notification to
3-25 or consent of either of her parents or a managing conservator or
3-26 guardian.
3-27 (b) The application may be filed in the county court at law
4-1 or a court having probate jurisdiction for:
4-2 (1) the county in which the minor resides;
4-3 (2) a county that borders a county in which the minor
4-4 resides; or
4-5 (3) the county in which the hospital, clinic, or
4-6 facility in which the abortion would be performed is located.
4-7 (c) The application must be made under oath and include:
4-8 (1) a statement that the minor is pregnant;
4-9 (2) a statement that the minor is unmarried, is under
4-10 18 years of age, and has not had her disabilities removed for
4-11 general purposes under Chapter 31;
4-12 (3) a statement that the minor wishes to have an
4-13 abortion without the notification or consent of either of her
4-14 parents or a managing conservator or guardian; and
4-15 (4) a statement as to whether the minor has retained
4-16 an attorney and, if she has retained an attorney, the name,
4-17 address, and telephone number of her attorney.
4-18 (d) The court shall appoint a guardian ad litem for the
4-19 minor. If the minor has not retained an attorney, the court shall
4-20 appoint an attorney to represent the minor. If the guardian ad
4-21 litem is an attorney admitted to the practice of law in this state,
4-22 the court may appoint the guardian ad litem to serve as the minor's
4-23 attorney.
4-24 (e) The court shall fix a time for a hearing on an
4-25 application filed under Subsection (a) and shall keep a record of
4-26 all testimony and other oral proceedings in the action. The court
4-27 shall enter judgment on the application immediately after the
5-1 hearing is concluded.
5-2 (f) The court shall rule on an application submitted under
5-3 this section and shall issue written findings of fact and
5-4 conclusions of law not later than 5 p.m. on the second business day
5-5 after the date the application is filed with the court. The minor
5-6 may request an extension of the period specified by this
5-7 subsection. If the court fails to rule on the application and
5-8 issue written findings of fact and conclusions of law within the
5-9 period specified by this subsection and an extension was not
5-10 requested, the application is granted and the physician may perform
5-11 the abortion as if the court had issued an order authorizing the
5-12 minor to consent to the performance of the abortion without
5-13 notification under Section 33.002. Proceedings under this section
5-14 shall be given precedence over other pending matters to the extent
5-15 necessary to assure that the court reaches a decision promptly.
5-16 (g) The court shall determine by a preponderance of the
5-17 evidence whether the minor is mature and sufficiently well-informed
5-18 to make the decision to have an abortion performed without
5-19 notification to or consent of either of her parents or a managing
5-20 conservator or guardian or whether notification or consent would
5-21 not be in the best interest of the minor. If the court finds that
5-22 the minor is mature and sufficiently well-informed or that
5-23 notification or consent would not be in the minor's best interest,
5-24 the court shall enter an order authorizing the minor to consent to
5-25 the performance of the abortion without notification to or consent
5-26 of either of her parents or a managing conservator or guardian and
5-27 execute the required forms.
6-1 (h) If the court finds that the minor does not meet the
6-2 requirements of Subsection (g), the court may not authorize the
6-3 minor to consent to an abortion without the notification or consent
6-4 required by Sections 33.002(a)(1) and (b).
6-5 (i) The court may not notify a parent, managing conservator,
6-6 or guardian that the minor is pregnant or that the minor wants to
6-7 have an abortion. The court proceedings shall be conducted in a
6-8 manner that protects the anonymity of the minor, and the
6-9 application and all other court documents pertaining to the
6-10 proceedings are confidential and may not be made available to the
6-11 public. The minor may file the application using a pseudonym or
6-12 using only her initials.
6-13 (j) The clerk of the supreme court shall prescribe the
6-14 application form to be used by the minor filing an application
6-15 under this section.
6-16 (k) A filing fee is not required of, and court costs may not
6-17 be assessed against, a minor filing an application under this
6-18 section.
6-19 Sec. 33.004. APPEAL TO DISTRICT COURT. (a) A minor whose
6-20 application under Section 33.003 is denied may appeal to the
6-21 district court having jurisdiction over civil matters in the county
6-22 in which the application was filed. On receipt of a notice of
6-23 appeal, the clerk of the court that denied the application shall
6-24 deliver a copy of the notice of appeal and record on appeal to the
6-25 clerk of the district court. On receipt of the notice and record,
6-26 the clerk of the district court shall place the appeal on the
6-27 docket of the court.
7-1 (b) The court shall rule on an appeal under this section not
7-2 later than 5 p.m. on the second business day after the date the
7-3 notice of appeal is filed. The minor may request an extension of
7-4 the period specified by this subsection. If the court fails to
7-5 rule on the appeal within the period specified by this subsection
7-6 and an extension was not requested, the appeal is granted and the
7-7 physician may perform the abortion as if the court had issued an
7-8 order authorizing the minor to consent to the performance of the
7-9 abortion without notification or consent under Section 33.002.
7-10 Proceedings under this section shall be given precedence over other
7-11 pending matters to the extent necessary to assure that the court
7-12 reaches a decision promptly.
7-13 (c) The clerk of the supreme court shall prescribe the
7-14 notice of appeal form to be used by the minor appealing a judgment
7-15 under this section.
7-16 (d) A filing fee is not required of, and court costs may not
7-17 be assessed against, a minor filing an appeal under this section.
7-18 Sec. 33.005. APPEAL TO APPELLATE COURT. (a) A minor whose
7-19 application under Section 33.004 is denied may appeal to the court
7-20 of appeals having jurisdiction over the cause. On receipt of a
7-21 notice of appeal, the clerk of the district court that denied the
7-22 application shall deliver a copy of the notice of appeal and record
7-23 on appeal to the clerk of the court of appeals. On receipt of the
7-24 notice and record, the clerk of the appellate court shall place the
7-25 appeal on the docket of the court.
7-26 (b) The court of appeals shall rule on an appeal under this
7-27 section not later than 5 p.m. on the second business day after the
8-1 date the notice of appeal is filed. The minor may request an
8-2 extension of the period specified by this subsection. If the court
8-3 of appeals fails to rule on the appeal within the period specified
8-4 by this subsection and an extension was not requested, the appeal
8-5 is granted and the physician may perform the abortion as if the
8-6 court had issued an order authorizing the minor to consent to the
8-7 performance of the abortion without notification or consent under
8-8 Section 33.002. Proceedings under this section shall be given
8-9 precedence over other pending matters to the extent necessary to
8-10 assure that the court reaches a decision promptly.
8-11 (c) The clerk of the supreme court shall prescribe the
8-12 notice of appeal form to be used by the minor appealing a judgment
8-13 under this section.
8-14 (d) A minor filing an appeal under this section may not be
8-15 required to post an appeal bond.
8-16 SECTION 2. Except as provided by Section 4 of this Act, this
8-17 Act takes effect September 1, 1997.
8-18 SECTION 3. Chapter 33, Family Code, as added by this Act,
8-19 applies only to an abortion performed on or after January 1, 1998.
8-20 An abortion performed before January 1, 1998, is governed by the
8-21 law as it existed immediately before the effective date of this
8-22 Act, and that law is continued in effect for that purpose.
8-23 SECTION 4. Section 33.002(e), Family Code, as added by this
8-24 Act, takes effect January 1, 1998.
8-25 SECTION 5. The Texas Board of Health shall adopt the form to
8-26 be used under Section 33.002(a)(4), Family Code, as added by this
8-27 Act, not later than December 15, 1997.
9-1 SECTION 6. The Texas Supreme Court shall promptly issue
9-2 rules necessary to ensure that the process established by Sections
9-3 33.003, 33.004, and 33.005, Family Code, as added by this Act, will
9-4 be conducted in a manner that will ensure confidentiality and
9-5 sufficient precedence over all other pending matters to ensure
9-6 promptness of disposition.
9-7 SECTION 7. The clerk of the Texas Supreme Court shall adopt
9-8 the application form and notice of appeal form to be used under
9-9 Sections 33.003, 33.004, and 33.005, Family Code, as added by this
9-10 Act, not later than December 15, 1997.
9-11 SECTION 8. The importance of this legislation and the
9-12 crowded condition of the calendars in both houses create an
9-13 emergency and an imperative public necessity that the
9-14 constitutional rule requiring bills to be read on three several
9-15 days in each house be suspended, and this rule is hereby suspended.