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. 4-18 * * * * *