HBA-TYH S.B. 30 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 30 By: Shapiro State Affairs 4/13/1999 Engrossed BACKGROUND AND PURPOSE Currently, a physician is not required to notify the parent or guardian of a minor of an intent to perform an abortion on that minor. S.B. 30 requires a physician intending to perform an abortion on a minor to notify the parent or guardian of the minor and provides for a judicial bypass of the notification in certain circumstances. This bill provides that a physician who violates this notification requirement commits a Class A misdemeanor. 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 1 (Sections 33.003 and 33.004, Family Code) 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 an unemancipated pregnant minor unless: (1) the physician gives at least 48 hours actual notice, in person or by telephone, of the physician's intent to perform the abortion to a 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 an appellate court issues an order authorizing the minor to consent to the abortion as provided by Sections 33.003 or 33.004; (3) a probate court, county court at law, or appellate court, by its inaction, constructively authorizes the minor to consent to the abortion as provided by Sections 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 such an emergency exists and that there is insufficient time to provide notice. (b) Authorizes a physician to perform an abortion when a parent, guardian, or conservator cannot be notified after reasonable effort, if the physician gives at least 48 hours constructive notice by certified mail sent to the last known address of the parent, guardian, or conservator. Establishes that the time period under this subsection begins when the certified mail notice is mailed. Authorizes the abortion, if the person required to be notified is not notified within the 48-hour period, to proceed even if the certified mail notice is not received by the person to whom it is sent. (c) Requires the Texas Department of Health to prepare a certification form required by Subsection (a)(4). (d) Provides that a physician who violates this section commits a Class A misdemeanor. (e) Establishes an affirmative defense to prosecution under this section if the minor falsely represented her age or identity to the physician to be at least 18 years of age by displaying an apparently valid governmental record of identification such that a reasonable person under similar circumstances would have relied on the representation. Provides that the affirmative defense does not apply if the physician is shown to have had independent knowledge of the minor's actual age or identity or failed to use due diligence in determining the minor's age or identity. Sec. 33.003. JUDICIAL APPROVAL. (a) Authorizes a pregnant minor who wishes to have an abortion without notification of one of her parents, managing conservator, or her guardian, to file an application for a court order authorizing the performance of an abortion without such notification. (b) Authorizes the application to be filed in the county court at law, a court having probate jurisdiction, or a district court for the minor's county of residence, a county that borders the minor's county of residence, or the county in which the hospital, clinic, or facility in which the abortion is to be performed is located. (c) Provides that the application must be made under oath and include certain enumerated statements. (d) Requires the minor to deliver a courtesy copy of the application to the judge who is to hear the application. Requires the clerk of the court, at the time the application is filed with the court, to advise the minor of the place where the courtesy copy is to be delivered. (e) Requires the court to appoint a guardian ad litem for the minor and to appoint an attorney for the minor if one has not been retained. Authorizes the court to appoint the guardian ad litem to serve as the attorney if the guardian ad litem is licensed to practice law in the state. (f) Requires the court to fix a time for a hearing on an application under Subsection (a) and 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. (g) Requires the court to rule on an application and issue written findings of fact and conclusions of law no later than 5 p.m. on the second business day after the date the application was filed with the court. Authorizes the minor to request an extension of the period specified by this subsection. Provides that an application is considered to be granted and the physician may 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, if the court fails to rule on the application within the allotted time and an extension is not requested. Requires proceedings under this section to be given precedence over other pending matters to the extent necessary to ensure that the court reaches a prompt decision. (h) 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 without notification to either of her parents or a managing conservator or guardian, or whether the notification would not be in the best interest of the minor. If the court finds that the minor is mature and sufficiently well informed or that notification would not be in the minor's best interest, the court is required to enter an order authorizing the minor to consent to the abortion without notification to either parents or a managing conservator or guardian, and is required to execute the requisite forms. (i) Prohibits the court from authorizing the minor to consent to an abortion without the notification under Section 33.002(a)(1), if the court finds that the minor does not meet the requirements outlined in Subsection (h). (j) Prohibits the court from notifying a parent, managing conservator, or guardian that the minor is pregnant 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. Establishes the confidentiality of the application and all other documents pertaining to the proceedings and prohibits their distribution to the public. Authorizes the minor to file the application using a pseudonym or only her initials. (k) Provides that an order of the court issued under this section is confidential, and prohibits the order from being released to any person but the pregnant minor, the pregnant minor's guardian ad litem, the pregnant minor's attorney, or another person designated to receive the order by the minor. Authorizes the supreme court to adopt rules to permit confidential docketing of an application. (l) Requires the clerk of the supreme court to prescribe the application form to be used by the minor filing an application. (m) Provides that a filing fee is not required, and prohibits court costs from being assessed against a minor filing an application. Sec. 33.004. APPEAL. (a) Authorizes a minor whose application under Section 33.003 is denied to appeal to the appellate court 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 receipt of 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, who is required to place the appeal on the court docket. (b) Requires the appellate court to rule on the appeal under this section no later than 5 p.m. on the second business day after the date the notice of appeal is filed with the court that denied the application. Authorizes the minor to request an extension of the period specified in this subsection. Provides that the application is considered to be granted and the physician may 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, if the court fails to rule on the appeal within the period specified by this subsection and an extension is not requested. 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) Provides that a ruling of the appellate court is confidential, and prohibits the ruling from being released to any person but the pregnant minor, the pregnant minor's guardian ad litem, the pregnant minor's attorney, or another person designated to receive the ruling by the minor. Authorizes the supreme court to adopt rules to permit confidential docketing of an application (d) Requires the clerk of the supreme court to prescribe the notice of appeal form used by the minor appealing a judgment under this section. (e) Provides that a filing fee is not required, and prohibits charging court costs against a minor filing an appeal under this section. (f) Requires an expedited confidential appeal to be made 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. Provides that a guardian ad litem or attorney ad litem appointed under this chapter and acting in the course and scope of the appointment is not liable for damages arising from an act or omission of the guardian ad litem or attorney ad litem committed in good faith. Sec. 33.006. COSTS PAID BY STATE. 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 costs of court associated with the application or appeal (notwithstanding Sections 33.003(m) and 33.004(e)), and any court reporter's fees incurred. Provides that an order issued under this section must be directed to the comptroller, who is required to pay the amount ordered from funds appropriated to the Texas Department of Health. Sec. 33.007. REPORTING OF SEXUAL ABUSE OF A MINOR. Requires a court or the guardian ad litem or attorney ad litem for the minor to report sexual abuse of the minor based on information obtained during a confidential court proceeding held under this chapter to: _any local or state law enforcement agency; _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; _ the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse occurred, if the alleged abuse occurred in such a facility; or _an appropriate agency designated by the court. SECTION 2. Requires the Supreme Court of Texas to promptly issue rules necessary in order that proceedings under Sections 33.003 and 33.004, Family Code, as added by this Act, may be conducted in a manner that ensures confidentiality and has sufficient precedence to ensure prompt disposition. SECTION 3. Effective date: September 1, 1999, except as provided in Section 5. SECTION 4. Makes application of Chapter 33, Family Code, as added by this Act, prospective, as of 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, as added by this Act, before December 15, 1999. SECTION 7.Requires the clerk of the Supreme Court of Texas to adopt the application and notice of appeal forms to be used under Sections 33.003 and 33.004, Family Code, as added by this Act, before December 15, 1999. SECTION 8.Emergency clause.