HBA-DMD H.B. 3413 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3413 By: Van de Putte State Affairs 4/6/1999 Introduced BACKGROUND AND PURPOSE Current Texas law does not require that parents receive notification that their minor daughter is seeking an abortion. H.B. 3413 authorizes a minor seeking an abortion to obtain judicial approval for the abortion if the minor does not wish to obtain the parental consent otherwise required by the bill, and authorizes the physician to perform the abortion in the absence of parental consent provided that the physician concludes that a medical emergency exists and there is insufficient time to obtain parental consent. The bill also establishes criminal penalties for physicians who do not follow consent guidelines. H.B. 3413 establishes an appeal process for minors who are denied judicial approval for an abortion. 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 SUBCHAPTER A. GENERAL PROVISIONS; NOTICE REQUIRED Sec. 33.001. DEFINITIONS. Defines "abortion," "clergy member," "counselor," "guardian," "medical emergency,"and "physician" in this chapter. Sec. 33.002. PARENTAL NOTICE. (a) Prohibits a physician from performing an abortion on a pregnant unemancipated minor who is younger than 16 years of age unless certain criteria are met. (b) Authorizes a physician, if a person to whom notice may be given cannot be notified after a reasonable effort, to perform an abortion if the physician gives 48 hours constructive notice, by certified mail sent to the last known address, to the person to whom notice may be given. Provides that the 48 hours begins at the time notice is mailed, and the abortion is authorized to proceed 48 hours after the notice is mailed without regard to whether the notice is received. (c) Authorizes a physician to execute an affidavit for inclusion in the minor's medical record which states that, according to the best information and belief of the physician, notice or constructive notice has been provided as required by this section. Provides that execution of an affidavit creates a conclusive presumption that the requirements of this section have been satisfied. (d) Requires the Texas Department of Health to prepare a form to be used for making the certification required by Subsection (a), which prohibits a physician from performing an abortion unless, among other exceptions, the physician certifies in writing that a medical emergency exists. (e) Sets forth that a physician who violates this section commits a Class A misdemeanor offense. SUBCHAPTER B. JUDICIAL APPROVAL Sec. 33.051. APPLICATION; JUDICIAL APPROVAL. (a) Authorizes a pregnant minor who wants to have an abortion without notification to any person described by Section 33.002(a), to file an application for a court order authorizing the minor to consent to the performance of an abortion without the notification. (b) Authorizes the application for a court order 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) Specifies the provisions included in the application which must be made under oath. (d) Requires the court to appoint a guardian ad litem and an attorney for the minor, if the minor has not retained an attorney. Authorizes the court, if the guardian ad litem is an attorney admitted to the practice of law in this state, to appoint the guardian ad litem to serve as the minor's attorney. (e) Requires the court to set a time for a hearing on an application filed under Subsection (a) and to keep a record of all testimony and other oral proceedings in the action. Requires the court to enter judgment on the application immediately after the hearing is concluded. (f) Requires the court to rule on an application submitted under this section and to issue written findings of fact and conclusions of law no later than 5 p.m. of the second business day after the application is filed with the court. Authorizes the minor to request an extension of the period specified by this section. Provides that if the court fails to rule on the application and issue written findings of fact and conclusions of law within the period specified and an extension was not requested, the application is considered granted at the expiration of the period 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(a). Requires proceedings under this section to be given precedence over other pending matters to the extent necessary to assure 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 notification to a person described by Section 33.002(a), whether the abortion would be in the best interest of the minor, or whether notification would not be in the best interest of the minor. Requires the court, if the court finds that the minor is mature and sufficiently well-informed, that the abortion would be in the minor's best interest, or that notification would not be in the minor's best interest, to enter an order authorizing the minor to consent to the performance of the abortion without the notification and to execute the required forms. (h) Prohibits the court, if the court finds in the negative on any of the issues prescribed by Subsection (g), from authorizing the minor to consent to an abortion without the notification required under Section 33.002(a). (i) Prohibits the court from notifying a parent, managing conservator, guardian, or other person concerning the pregnancy of the minor or that the minor wants to have an abortion. Requires the court proceedings to be conducted in a manner that protects the anonymity of the minor, and the application and all other court documents pertaining to the proceedings are confidential and prohibits the proceedings from being made available to the public. Authorizes the minor to file the application using a pseudonym or initials. (j) Requires the clerk of the supreme court to prescribe the application form to be used by the minor filing an application under this section. (k) Provides that a filing fee is not required of and court costs are prohibited from being assessed against a minor filing an application under this section. Sec. 33.052. APPEAL. (a) Authorizes a minor whose application under Section 33.051 is denied to appeal to the court of appeals having 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 a 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 docket of the court, upon receiving the notice and record. (b) Requires the court of appeals to rule on an appeal under this section no later than 5 p.m. of 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 period specified by this subsection. 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 considered granted on the expiration of the period 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(a). Requires proceedings under this section to be given precedence over other pending matters to the extent necessary to assure 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 court costs are prohibited from being assessed against a minor filing an appeal under this section. (e) Requires an expedited confidential appeal to be available to any 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. 33.053. AD LITEM IMMUNITY. Sets forth 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. 33.054. COSTS PAID BY STATE. (a) Authorizes a court acting under Section 33.051 or 33.052 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, notwithstanding Sections 33.051(k) and 33.052(d), the costs of court associated with the application or appeal, 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 appropriated to the Texas Department of Health for family planning. SUBCHAPTER C. INDEPENDENT EVALUATION Sec. 33.101. INDEPENDENT EVALUATION OF MINOR. (a) Specifies the conditions for the determination to be reached and certification provided by a clergy member or counselor under which a physician is authorized to perform an abortion without providing notice under Section 33.002(a). (b) Requires a physician who performs an abortion to include a copy of the certification described by Subsection (a) in the minor's medical record. Sec. 33.102. CONFIDENTIALITY. Sets forth that a certification made under this subchapter is confidential and privileged and is not subject to disclosure under Chapter 552 (Public Information), Government Code, or to discovery, subpoena, or other legal process. Sec. 33.103. FAILURE TO OBTAIN CERTIFICATION. Provides that if the minor does not obtain a certification described by this subchapter, the ability of a physician to perform an abortion under Section 33.002(a) is not affected. SECTION 2. Requires the Supreme Court of Texas to promptly issue such rules as may be necessary in order that the process established by Sections 33.051 and 33.052, 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, Family Code, as added by this Act, prospective to January 1, 2000. SECTION 5.Effective date: September 1, 2000, for Section 33.002(e), Family Code, as added by this Act. SECTION 6. Requires the Texas Board of Health to adopt the form to be used under Section 33.002(a), Family Code, as added by this Act, no 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 33.051 and 33.052, Family Code, as added by this Act, no later than December 15, 1999. SECTION 8.Emergency clause.