1-1           By:  Nelson, Ogden                               S.B. No. 411

 1-2           (In the Senate - Filed January 31, 1997; February 4, 1997,

 1-3     read first time and referred to Committee on Health and Human

 1-4     Services; February 17, 1997, reported adversely, with favorable

 1-5     Committee Substitute by the following vote:  Yeas 7, Nays 4;

 1-6     February 17, 1997, sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 411                   By:  Nelson

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to parental consent before an abortion may be performed on

1-11     a minor; providing a criminal penalty.

1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-13           SECTION 1.  Subtitle A, Title 2, Family Code, is amended by

1-14     adding Chapter 33 to read as follows:

1-15                  CHAPTER 33.  PARENTAL CONSENT TO ABORTION

1-16           Sec. 33.001.  DEFINITIONS.  In this chapter:

1-17                 (1)  "Abortion" means the use of any means to terminate

1-18     the pregnancy of a female known by the attending physician to be

1-19     pregnant, with the intention that the termination of the pregnancy

1-20     by those means will, with reasonable likelihood, cause the death of

1-21     the fetus.

1-22                 (2)  "Fetus" means an individual human organism from

1-23     fertilization until birth.

1-24                 (3)  "Guardian" means a court-appointed guardian of the

1-25     person of the minor.

1-26                 (4)  "Medical emergency" means a condition that, on the

1-27     basis of a physician's good faith clinical judgment, complicates

1-28     the medical condition of a pregnant woman and necessitates the

1-29     immediate abortion of her pregnancy to avert her death or to avoid

1-30     a serious risk of substantial and irreversible impairment of a

1-31     major bodily function.

1-32                 (5)  "Minor" means a person under 18 years of age who:

1-33                       (A)  is not and has not been married; and

1-34                       (B)  has not had the disabilities of minority

1-35     removed for general purposes under Chapter 31.

1-36                 (6)  "Physician" means an individual licensed to

1-37     practice medicine in this state.

1-38           Sec. 33.002.  PARENTAL CONSENT.  (a)  A physician may not

1-39     perform an abortion on a pregnant minor unless:

1-40                 (1)  a parent, managing conservator, or guardian of the

1-41     minor consents to the abortion;

1-42                 (2)  the judge of a court having probate jurisdiction,

1-43     the judge of a county court at law, or the judge of a district

1-44     court or the court of appeals issues an order authorizing the minor

1-45     to consent to the abortion as provided by Section 33.003, 33.004,

1-46     or 33.005;

1-47                 (3)  a probate court, county court at law, district

1-48     court, or court of appeals, by its inaction, constructively

1-49     authorizes the minor to consent to the abortion as provided by

1-50     Section 33.003, 33.004, or 33.005; or

1-51                 (4)  the physician performing the abortion:

1-52                       (A)  concludes that a medical emergency exists

1-53     and there is insufficient time to obtain the consent required by

1-54     Subsection (a)(1); 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     obtain the required consent.

1-60           (b)  The Texas  Department of Health shall prepare a form to

1-61     be used for making the certification required by Subsection (a)(4).

1-62           (c)  A physician who violates this section commits an

1-63     offense.  An offense under this subsection is a Class A

1-64     misdemeanor.

 2-1           Sec. 33.003.  JUDICIAL APPROVAL.  (a)  A pregnant minor who

 2-2     wishes to have an abortion without the consent of either of her

 2-3     parents, her managing conservator, or her guardian may file an

 2-4     application for a court order authorizing the minor to consent to

 2-5     the performance of an abortion without the consent of either of her

 2-6     parents or a managing conservator or guardian.

 2-7           (b)  The application may be filed in the county court at law

 2-8     or a court having probate jurisdiction for:

 2-9                 (1)  the county in which the minor resides;

2-10                 (2)  a county that borders a county in which the minor

2-11     resides; or

2-12                 (3)  the county in which the hospital, clinic, or

2-13     facility in which the abortion would be performed is located.

2-14           (c)  The application must be made under oath and include:

2-15                 (1)  a statement that the minor is pregnant;

2-16                 (2)  a statement that the minor is unmarried, is under

2-17     18 years of age, and has not had the disabilities removed for

2-18     general purposes under Chapter 31;

2-19                 (3)  a statement that the minor wishes to have an

2-20     abortion without the consent of either of her parents or a managing

2-21     conservator or guardian; and

2-22                 (4)  a statement as to whether the minor has retained

2-23     an attorney and, if she has retained an attorney, the name,

2-24     address, and telephone number of her attorney.

2-25           (d)  The court shall appoint a guardian ad litem for the

2-26     minor.  If the minor has not retained an attorney, the court shall

2-27     appoint an attorney to represent the minor.  If the guardian ad

2-28     litem is an attorney admitted to the practice of law in this state,

2-29     the court may appoint the guardian ad litem to serve as the minor's

2-30     attorney.

2-31           (e)  The court shall fix a time for a hearing on an

2-32     application filed under Subsection (a) and shall keep a record of

2-33     all testimony and other oral proceedings in the action.  The court

2-34     shall enter judgment on the application immediately after the

2-35     hearing is concluded.

2-36           (f)  The court shall rule on an application submitted under

2-37     this section and shall issue written findings of fact and

2-38     conclusions of law not later than 5 p.m. on the second business day

2-39     after the date the application is filed with the court.  The minor

2-40     may request an extension of the period specified by this

2-41     subsection.  If the court fails to rule on the application and

2-42     issue written findings of fact and conclusions of law within the

2-43     period specified by this subsection and an extension was not

2-44     requested, the application is granted and the physician may perform

2-45     the abortion as if the court had issued an order authorizing the

2-46     minor to consent to the performance of the abortion.  Proceedings

2-47     under this section shall be given precedence over other pending

2-48     matters to the extent necessary to assure that the court reaches a

2-49     decision promptly.

2-50           (g)  The court shall determine by a preponderance of the

2-51     evidence whether the minor is mature and sufficiently well-informed

2-52     to make the decision to have an abortion performed without the

2-53     consent of either of her parents or a managing conservator or

2-54     guardian or whether requiring that consent would not be in the best

2-55     interest of the minor.  If the court finds that the minor is mature

2-56     and sufficiently well-informed or that requiring consent would not

2-57     be in the minor's best interest, the court shall enter an order

2-58     authorizing the minor to consent to the performance of the abortion

2-59     without the consent of either of her parents or a managing

2-60     conservator or guardian and execute the required forms.

2-61           (h)  If the court finds that the minor does not meet the

2-62     requirements of Subsection (g), the court may not authorize the

2-63     minor to consent to an abortion without the consent required by

2-64     Section 33.002(a)(1).

2-65           (i)  The court may not notify a parent, managing conservator,

2-66     or guardian that the minor is pregnant or that the minor wants to

2-67     have an abortion.  The court proceedings shall be conducted in a

2-68     manner that protects the anonymity of the minor, and the

2-69     application and all other court documents pertaining to the

 3-1     proceedings are confidential and may not be made available to the

 3-2     public.  The minor may file the application using a pseudonym or

 3-3     using only her initials.

 3-4           (j)  The clerk of the supreme court shall prescribe the

 3-5     application form to be used by the minor filing an application

 3-6     under this section.

 3-7           (k)  A filing fee is not required of, and court costs may not

 3-8     be assessed against, a minor filing an application under this

 3-9     section.

3-10           Sec. 33.004.  APPEAL TO DISTRICT COURT.  (a)  A minor whose

3-11     application under Section 33.003 is denied may appeal to the

3-12     district court having jurisdiction over civil matters in the county

3-13     in which the application was filed. On receipt of a notice of

3-14     appeal, the clerk of the court that denied the application shall

3-15     deliver a copy of the notice of appeal and record on appeal to the

3-16     clerk of the district court.  On receipt of the notice and record,

3-17     the clerk of the district court shall place the appeal on the

3-18     docket of the court.

3-19           (b)  The court shall rule on an appeal under this section not

3-20     later than 5 p.m. on the second business day after the date the

3-21     notice of appeal is filed.  The minor may request an extension of

3-22     the period specified by this subsection.  If the court fails to

3-23     rule on the appeal within the period specified by this subsection

3-24     and an extension was not requested, the appeal is granted and the

3-25     physician may perform the abortion as if the court had issued an

3-26     order authorizing the minor to consent to the performance of the

3-27     abortion.  Proceedings under this section shall be given precedence

3-28     over other pending matters to the extent necessary to assure that

3-29     the court reaches a decision promptly.

3-30           (c)  The clerk of the supreme court shall prescribe the

3-31     notice of appeal form to be used by the minor appealing a judgment

3-32     under this section.

3-33           (d)  A filing fee is not required of, and court costs may not

3-34     be assessed against, a minor filing an appeal under this section.

3-35           Sec. 33.005.  APPEAL TO APPELLATE COURT.  (a)  A minor whose

3-36     application under Section 33.004 is denied may appeal to the court

3-37     of appeals having jurisdiction over the cause.  On receipt of a

3-38     notice of appeal, the clerk of the district court that denied the

3-39     application shall deliver a copy of the notice of appeal and record

3-40     on appeal to the clerk of the court of appeals.  On receipt of the

3-41     notice and record, the clerk of the appellate court shall place the

3-42     appeal on the docket of the court.

3-43           (b)  The court of appeals shall rule on an appeal under this

3-44     section not later than 5 p.m. on the second business day after the

3-45     date the notice of appeal is filed.  The minor may request an

3-46     extension of the period specified by this subsection.  If the court

3-47     of appeals fails to rule on the appeal within the period specified

3-48     by this subsection and an extension was not requested, the appeal

3-49     is granted and the physician may perform the abortion as if the

3-50     court had issued an order authorizing the minor to consent to the

3-51     performance of the abortion.  Proceedings under this section shall

3-52     be given precedence over other pending matters to the extent

3-53     necessary to assure that the court reaches a decision promptly.

3-54           (c)  The clerk of the supreme court shall prescribe the

3-55     notice of appeal form to be used by the minor appealing a judgment

3-56     under this section.

3-57           (d)  A minor filing an appeal under this section may not be

3-58     required to post an appeal bond.

3-59           SECTION 2.  Except as provided by Section 4 of this Act, this

3-60     Act takes effect September 1, 1997.

3-61           SECTION 3.  Chapter 33, Family Code, as added by this Act,

3-62     applies only to an abortion performed on or after January 1, 1998.

3-63     An abortion performed before January 1, 1998, is governed by the

3-64     law as it existed immediately before the effective date of this

3-65     Act, and that law is continued in effect for that purpose.

3-66           SECTION 4.  Subsection (c), Section 33.002, Family Code, as

3-67     added by this Act, takes effect January 1, 1998.

3-68           SECTION 5.  The Texas Board of Health shall adopt the form to

3-69     be used under Subdivision (4), Subsection (a), Section 33.002,

 4-1     Family Code, as added by this Act, not later than December 15,

 4-2     1997.

 4-3           SECTION 6.  The Texas Supreme Court shall promptly issue

 4-4     rules necessary to ensure that the process established by Sections

 4-5     33.003, 33.004, and 33.005, Family Code, as added by this Act, will

 4-6     be conducted in a manner that will ensure confidentiality and

 4-7     sufficient precedence over all other pending matters to ensure

 4-8     promptness of disposition.

 4-9           SECTION 7.  The clerk of the Texas Supreme Court shall adopt

4-10     the application form and notice of appeal form to be used under

4-11     Sections 33.003, 33.004, and 33.005, Family Code, as added by this

4-12     Act, not later than December 15, 1997.

4-13           SECTION 8.  The importance of this legislation and the

4-14     crowded condition of the calendars in both houses create an

4-15     emergency and an imperative public necessity that the

4-16     constitutional rule requiring bills to be read on three several

4-17     days in each house be suspended, and this rule is hereby suspended.

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