HBA-DMD H.B. 623 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 623 By: Delisi State Affairs 2/18/1999 Introduced BACKGROUND AND PURPOSE Under current Texas law, parents of minor children are not required to be notified that their child is seeking an abortion. H.B. 623 requires parental notification before an abortion may be obtained by a minor. The bill authorizes the minor to obtain judicial approval for the procedure if the minor does not wish to notify her parents or guardian. A physician is authorized to perform an abortion without parental notification or judicial approval provided that a medical emergency exists and there is insufficient time to provide the required notice. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Supreme Court of Texas in SECTION 2 of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subtitle A, Title 2, Family Code, by adding Chapter 33, as follows: CHAPTER 33. NOTICE OF ABORTION Sec. 33.001. DEFINITIONS. Defines "abortion," "fetus," "guardian," "medical emergency," and "physician." Sec. 33.002. PARENTAL NOTICE. (a) Prohibits a physician from performing an abortion on a pregnant unemancipated minor (minor) unless: (1) the physician gives at least 48 hours notice, in person or by telephone, of the impending abortion to the parent of the minor if the minor has no managing conservator or guardian; or a court appointed managing conservator or guardian; (2) the judge of a court having probate jurisdiction, the judge of a county court at law, or the judge of the court of appeals issues an order authorizing the minor to consent to the abortion as provided by Section 33.003 or 33.004; (3) a probate court, county court at law, or a court of appeals, by its inaction, constructively authorizes the minor to consent to the abortion as provided by Section 33.003 or 33.004; or (4) the physician performing the abortion concludes that a medical emergency exists and there is insufficient time to provide the required notice and certifies in writing to the Texas Department of Health and in the patient's medical record the indications supporting the physician's judgment that a medical emergency exists and that there is insufficient time to provide the required notice. (b) Authorizes the physician to perform the abortion, if a reasonable effort to give 48 hours constructive notice by certified mail sent to the last known address of a parent or managing conservator or guardian has not been successful. Provides that the 48-hour period begins when the certified mail is mailed. Authorizes the abortion to proceed if the person required to be notified is not notified within the 48-hour period even if the certified mail notice is not received. (c) Requires the Texas Department of Health to prepare a form to be used for a physician to make the certification that a medical emergency exists and there is insufficient time to provide the required notice. (d) Establishes that a person who violates this section commits a Class A misdemeanor. Sec. 33.003. JUDICIAL APPROVAL. (a) Authorizes a minor who wishes to have an abortion without notifying one of her parents, her managing conservator, or her guardian, to file an application for a court order authorizing the minor to consent to the performance of an abortion. (b) Authorizes an application to be filed in the county court at law or a court having probate jurisdiction for the county in which the minor resides, a county that borders a county in which the minor resides, or the county in which the hospital, clinic, or facility in which the abortion would be performed is located. (c) Provides that an application must be made under oath and include a statement that specifies that the minor is pregnant; unmarried, under 18 years of age, and has not had her disabilities removed for general purposes under Chapter 31 (Removal of Disabilities of Minority); that the minor wishes to have an abortion without notifying her parents, managing conservator, or guardian; and whether the minor has retained an attorney, and, if so, the name, address, and telephone number of her attorney. (d) Requires the court to appoint a guardian ad litem for the minor and if the minor has not yet retained an attorney, the court is required to appoint an attorney to represent the minor. Authorizes the court to appoint a guardian ad litem to serve as the minor's attorney if the guardian ad litem is an attorney licensed to practice law in this state. (e) Requires the court to set a hearing and to maintain records of all testimony and oral proceedings in the action. Requires the court to enter a judgment on the application immediately after concluding the hearing. (f) Requires the court to rule on the application submitted under this section and to issue written findings of fact and conclusions of law, not later than 5 p.m. on the second business day after the application is filed with the court and authorizes the minor to request an extension of the period specified by this section. Authorizes the physician to perform the abortion as if the court had granted the order, provided that the court fails to rule on the application and issue findings within the specified period and an extension was not requested. Requires that proceedings under this section be given preference over other pending matters in order to ensure that the court reaches a decision promptly. (g) Requires the court to determine by a preponderance of the evidence whether the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notifying her parents or managing conservator or guardian or whether the notification would not be in the best interest of the minor. Requires the court to enter an order authorizing the minor to consent to the abortion without notification, if the court determines that the minor is sufficiently mature and well informed and that notifying her parents, managing conservator, or guardian would not be in her best interest. Requires the court to execute the required forms. (h) Prohibits the court from granting authorization for the abortion if the court finds that the minor does not meet the requirements of Subsection (g). (i) Prohibits the court from notifying a parent, managing conservator, or guardian that the minor is pregnant and wants an abortion. Requires the court proceedings to be conducted in a manner that protects the minor's anonymity and ensures that all court materials be kept confidential and are prohibited from being made available to the public. Authorizes the minor to use a pseudonym or only her initials when filing the application. (j) Requires the clerk of the supreme court to prescribe the application form to be used by the minor when filing an application under this section. (k) Provides that a filing fee is not required and prohibits court costs from being assessed against a minor filing an application under this section. Sec. 33.004. APPEAL. (a) Authorizes a minor whose application under Section 33.003 was denied to appeal to the court of appeals that has jurisdiction over civil matters in the county in which the application was filed. Requires the clerk of the court that denied the application, upon receiving the notice of appeal, to deliver a copy of the notice of appeal and record on appeal to the clerk of the court of appeals. Requires the clerk of the court of appeals to place the appeal on the court docket upon receiving the notice and record. (b) Requires the court of appeals to rule on an appeal under this section not later than 5 p.m. on the second business day after the notice of appeal is filed with the court that denied the application. Authorizes the minor to request an extension of the specified period. Provides that if the court of appeals fails to rule on the appeal within the period specified by this subsection and an extension was not requested, the appeal is deemed to be granted and the physician is authorized to perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion without notification under Section 33.002. Requires that proceedings under this section be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly. (c) Requires the clerk of the supreme court to prescribe the notice of appeal form to be used by the minor appealing a judgment under this section. (d) Sets forth that a filing fee is not required of and prohibits court costs from being assessed against a minor who is filing an appeal under this section. (e) Requires an expedited confidential appeal to be available to any pregnant minor to whom a court of appeals denies an order authorizing the minor to consent to the performance of an abortion without notification to either of her parents or a managing conservator or guardian. Sec. 33.005. AD LITEM IMMUNITY. Establishes that a guardian ad litem or attorney ad litem appointed under this chapter has the same judicial immunity as the appointing judge with respect to an act or omission in the course and scope of the appointment. Sec. 33.006. COSTS PAID BY STATE. (a) Authorizes a court acting under Section 33.003 or 33.004 to issue an order requiring the state to pay the cost of any attorney ad litem and any guardian ad litem appointed for the minor; the court costs associated with the application or appeal, notwithstanding Sections 33.003(k) and 33.004(d); and any court reporter's fees incurred. (b) Provides that an order issued under Subsection (a) must be directed to the comptroller who is required to pay the amount ordered, from funds that are appropriated to the Texas Department of Health, D.1.2. Strategy: Family Planning. Sec. 33.007. REPORTING OF SEXUAL ABUSE OF A MINOR. Authorizes a court or the guardian ad litem or attorney ad litem for the minor to report sexual abuse of the minor based on the information obtained during a confidential court proceeding held under this chapter to: (1) any local or state law enforcement agency; (2) the Department of Protective and Regulatory Services if the alleged or suspected abuse involves a person responsible for the care, custody, or welfare of the child; (3) the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse occurred, if the alleged abuse occurred in a facility operated, licensed, certified, or registered by a state agency; or (4) an appropriate agency designated by the court. SECTION 2. Requires the Supreme Court of Texas to promptly issue such rules necessary that the process established by Sections 33.003 and 33.004, Family Code, as added by this Act, be conducted in a manner that will ensure confidentiality and sufficient precedence over all other pending matters to ensure promptness of disposition. SECTION 3. Effective date: September 1, 1999, except as provided by Section 5 of this Act. SECTION 4. Makes application of Chapter 33 of this Act prospective, before January 1, 2000. SECTION 5. Effective date: January 1, 2000, for Section 33.002(d), Family Code. SECTION 6. Requires the Texas Board of Health to adopt the form to be used under Section 33.002(a)(4), Family Code, not later than December 15, 1999. SECTION 7. Requires the clerk of the Supreme Court of Texas to adopt the application form and notice of appeal form to be used under Sections 33.003 and 33.004, Family Code, not later than December 15, 1999. SECTION 8. Emergency clause.