HBA-ATS H.B. 682 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 682 By: Allen State Affairs 2/17/1999 Introduced BACKGROUND AND PURPOSE Under current civil and criminal statutory law, unborn children enjoy no legal status. The Civil Practice and Remedies Code provides no wrongful death cause of action for the death of a fetus, and the Penal Code provides no criminal sanctions for the death of a fetus. H.B. 682 grants unborn children status as legal entities by expanding the meaning of "individual" and "death," for both civil and criminal law purposes, to include unborn children. In the context of the civil law, this bill permits an action for wrongful death of a child who would have been born alive to be brought under the Civil Practice and Remedies Code. The right to bring the claim is limited, however. A claim cannot be brought against the mother, a physician or licensed health care professional if the death results from a lawful medical procedure, or a person who lawfully dispenses or administers a drug if the death results from the dispensation of the drug. In the context of the criminal law, this bill provides that the death of or an injury to an unborn child is a criminal offense under the Penal Code. Those offenses which are expanded under this bill include criminal homicide, assault, assault while intoxicated, and manslaughter while intoxicated. Application of the criminal law to the death of or injury to a fetus is excepted when specific parties are involved, however. For example, the mother cannot be prosecuted for criminal homicide, assault, assault while intoxicated, and manslaughter while intoxicated. A physician or licensed health care professional cannot be prosecuted for criminal homicide and assault if the death of the fetus results from a lawful medical procedure. Similarly, a person who lawfully dispenses or administers a drug cannot be prosecuted for criminal homicide and assault if the death results from the dispensation of the drug. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS ARTICLE 1. CIVIL REMEDIES SECTION 1.01. Amends Sections 71.001 and 71.003, Civil Practice and Remedies Code, as follows: Sec. 71.001. DEFINITIONS. Defines "death" to include the failure to be born alive for an individual who is an unborn child. Defines "individual" to include an unborn child at every stage of gestation in the mother's uterus from fertilization until birth. Sec. 71.003. New title: APPLICATION; CERTAIN CONDUCT EXCEPTED. Permits an action for wrongful death under Civil Practice and Remedies Code, Chapter 71, Subchapter A (Wrongful Death) for an individual who would have been born alive. Previously, the subchapter allowed an action for wrongful death only if the individual had lived. Exempts the application of Subchapter A to a claim for an unborn child's death brought against the mother of the unborn child, a physician or other licensed health care provider, if the death results from a medical procedure performed lawfully by the physician or health care provider, or a person who lawfully dispenses or administers a drug, if the death results from the dispensation of the drug. Makes a nonsubstantive change. SECTION 1.02. Makes application of this article prospective. ARTICLE 2. CRIMINAL PENALTIES SECTION 2.01. Amends Section 1.07(a), Penal Code, by amending Subdivision (26) and adding Subdivision (49), as follows: (26) Redefines "individual" to include an unborn child at every stage of gestation in the mother's uterus from fertilization until birth within the meaning of a human being who is alive. (49) Defines "death" to include the failure to be born alive for an individual who is an unborn child. SECTION 2.02. Amends Chapter 19, Penal Code, by adding Section 19.06, as follows: Sec. 19.06. CERTAIN CONDUCT EXCEPTED. Provides as an exception to the application of Chapter 19 (Criminal Homicide), Penal Code, that the death was the death of an unborn child and that the conduct charged is conduct committed by the mother of the unborn child, a medical procedure performed lawfully by a physician or health care provider, or the lawful dispensation of a drug or administration of a drug lawfully prescribed. SECTION 2.03. Amends Chapter 22, Penal Code, by adding Section 22.11, as follows: Sec. 22.11. CERTAIN CONDUCT EXCEPTED. Provides as an exception to the application of Chapter 22 (Assaultive Offenses), Penal Code, that the conduct charged is committed against an individual who is an unborn child and is conduct committed by the mother of the unborn child, a medical procedure performed lawfully by a physician or health care provider, or the lawful dispensation of a drug or administration of a drug lawfully prescribed. SECTION 2.04. Amends, Chapter 49, Penal Code, by adding Section 49.012, as follows: Sec. 49.012. CERTAIN CONDUCT EXCEPTED. Provides as an exception to the application of Section 49.07 (Intoxication Assault) or 49.08 (Intoxication Manslaughter) that the injury or death was the injury or death of an unborn child and that the conduct charged is conduct committed by the mother of the unborn child. SECTION 2.05. Makes application of this Act prospective. ARTICLE 3. EFFECTIVE DATE; EMERGENCY SECTION 3.01. Effective date: September 1, 1999. SECTION 3.02. Emergency clause.