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.