By Gray, et al. H.B. No. 5
76R9358 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to parental notification before an abortion may be
1-3 performed on certain minors.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle A, Title 2, Family Code, is amended by
1-6 adding Chapter 33 to read as follows:
1-7 CHAPTER 33. NOTICE OF ABORTION
1-8 SUBCHAPTER A. GENERAL PROVISIONS; NOTICE REQUIRED
1-9 Sec. 33.001. DEFINITIONS. In this chapter:
1-10 (1) "Abortion" has the meaning assigned by Section
1-11 4.011(a), Medical Practice Act (Article 4495b, Vernon's Texas Civil
1-12 Statutes).
1-13 (2) "Guardian" means a court-appointed guardian of the
1-14 person of the minor.
1-15 (3) "Medical emergency" means a condition that renders
1-16 the performance of an abortion necessary as described by Section
1-17 4.011(d)(2), Medical Practice Act (Article 4495b, Vernon's Texas
1-18 Civil Statutes).
1-19 (4) "Physician" means an individual licensed to
1-20 practice medicine in this state.
1-21 Sec. 33.002. PARENTAL NOTICE. (a) If a pregnant minor who
1-22 has not had the disabilities of minority removed under Section
1-23 31.001 consults a physician to obtain an abortion and the minor's
1-24 parent, court-appointed managing conservator, or guardian is not
2-1 present at the consultation, the physician may not perform the
2-2 abortion unless the physician, or an agent of the physician, gives:
2-3 (1) actual notice, in person or by telephone, of the
2-4 physician's intent to perform the abortion to a parent of the minor
2-5 or a court-appointed managing conservator or guardian of the minor;
2-6 or
2-7 (2) at least 24 hours actual notice, in person or by
2-8 telephone, of the physician's intent to perform the abortion to any
2-9 person listed in Sections 32.001(a)(1)-(3).
2-10 (b) If the person to whom notice may be given under
2-11 Subsection (a) cannot be notified after a reasonable effort, a
2-12 physician may perform an abortion if the physician gives 72 hours
2-13 constructive notice by certified mail sent to the last known
2-14 address of a person to whom notice may be given under Subsection
2-15 (a). The period under this subsection begins at the time notice is
2-16 mailed, and the abortion may proceed 72 hours after the notice is
2-17 mailed without regard to whether the notice is received.
2-18 (c) A physician shall document in the minor's medical record
2-19 that, according to the best information and belief of the
2-20 physician, notice or constructive notice has been provided as
2-21 required by this section. That documentation creates a conclusive
2-22 presumption that the requirements of this section have been
2-23 satisfied.
2-24 (d) If a physician has reason to believe that providing
2-25 notice under Subsection (a) may subject the pregnant minor to
2-26 physical or sexual abuse, the physician shall refer the minor to
2-27 the Department of Protective and Regulatory Services for an
3-1 evaluation under Subchapter D and for any other services or
3-2 intervention that may be in the best interests of the minor.
3-3 Notwithstanding any other law, the department, on receiving a
3-4 referral under this subsection, may not conduct any investigation
3-5 or take any other action that could result in the disclosure to the
3-6 minor's parent, managing conservator, or guardian of the fact that
3-7 the minor is or was pregnant or that the minor is seeking or sought
3-8 an abortion.
3-9 Sec. 33.003. MEDICAL EMERGENCY. (a) A physician may
3-10 perform an abortion without providing notice under Section 33.002
3-11 if the physician performing the abortion:
3-12 (1) concludes that a medical emergency exists and
3-13 there is insufficient time to provide notice under Section 33.002;
3-14 and
3-15 (2) certifies in writing to the Texas State Board of
3-16 Medical Examiners, in the form required by that board and in the
3-17 patient's medical record, the medical indications supporting the
3-18 physician's conclusion that a medical emergency exists and that
3-19 there is insufficient time to provide the required notice.
3-20 (b) A certification required by Subsection (a) is
3-21 confidential and privileged and is not subject to disclosure under
3-22 Chapter 552, Government Code, or to discovery, subpoena, or other
3-23 legal process. Personal or identifying information about the
3-24 minor, including her name, address, or social security number, may
3-25 not be included in a certification under Subsection (a)(2).
3-26 Sec. 33.004. INFORMATION FORM. (a) A physician who
3-27 receives a request from a minor for an abortion to which this
4-1 chapter applies shall provide to the minor an information form that
4-2 describes:
4-3 (1) the minor's rights under this chapter; and
4-4 (2) the procedures that the minor may follow to obtain
4-5 an abortion without satisfaction of the requirements of Section
4-6 33.002.
4-7 (b) The Texas State Board of Medical Examiners shall
4-8 prescribe the information form to be used by a physician to comply
4-9 with this section.
4-10 Sec. 33.005. DETERMINATION FINAL; COLLATERAL ATTACK
4-11 PROHIBITED. A person may not bring a judicial action challenging
4-12 the performance of an abortion after the compliance with any
4-13 procedure established under this chapter that authorizes an
4-14 abortion.
4-15 Sec. 33.006. PUNITIVE ACTION. (a) A physician who violates
4-16 this chapter is subject to disciplinary action under Subchapter D,
4-17 Medical Practice Act (Article 4495b, Vernon's Texas Civil
4-18 Statutes).
4-19 (b) The Texas State Board of Medical Examiners shall review
4-20 the information submitted under this section relating to a
4-21 physician and may initiate an action under this section for a
4-22 violation of this chapter.
4-23 (Sections 33.007-33.050 reserved for expansion
4-24 SUBCHAPTER B. JUDICIAL APPROVAL
4-25 Sec. 33.051. APPLICATION; JUDICIAL APPROVAL. (a) A
4-26 pregnant minor who wants to have an abortion without satisfaction
4-27 of the requirements of Section 33.002 may file an application for a
5-1 court order authorizing the minor to consent to the performance of
5-2 an abortion without the required notice.
5-3 (b) The application may be filed in a county court at law, a
5-4 court having probate jurisdiction, or a district court having
5-5 family jurisdiction for:
5-6 (1) the county in which the minor resides; or
5-7 (2) the county in which the hospital, clinic, or
5-8 facility in which the abortion would be performed is located.
5-9 (c) The application must be made under oath and include:
5-10 (1) a statement that the minor is pregnant;
5-11 (2) a statement that the minor is unmarried, is under
5-12 18 years of age, and has not had the disabilities of minority
5-13 removed under Section 31.001;
5-14 (3) a statement that the minor wants to have an
5-15 abortion without satisfaction of the requirements of Section
5-16 33.002; and
5-17 (4) a statement as to whether the minor has retained
5-18 an attorney and, if she has retained an attorney, the name,
5-19 address, and telephone number of her attorney.
5-20 (d) If the minor has not retained an attorney, the court
5-21 shall appoint an attorney to represent the minor and to serve as
5-22 the minor's attorney ad litem. In a county in which a public or
5-23 private nonprofit entity operates a volunteer advocate program
5-24 under which court-appointed advocates assist abused or neglected
5-25 children, the court may appoint a program volunteer as an advocate
5-26 for the pregnant minor.
5-27 (e) Subject to Subsection (f), the court shall set a time
6-1 for a hearing on an application filed under Subsection (a) and
6-2 shall keep a record of all testimony and other oral proceedings in
6-3 the action. The court shall enter judgment on the application
6-4 immediately after the hearing is concluded.
6-5 (f) The court shall rule on an application submitted under
6-6 this section and shall issue written findings of fact and
6-7 conclusions of law not later than 5 p.m. of the second business day
6-8 after the date the application is filed with the court. On request
6-9 by the minor, the court shall grant an extension of the period
6-10 specified by this subsection. If a request for an extension is
6-11 made, the court shall rule on an application and shall issue
6-12 written findings of fact and conclusions of law not later than 5
6-13 p.m. of the second business day after the date the minor states
6-14 that she is ready to proceed to a hearing. If the court fails to
6-15 rule on the application and issue written findings of fact and
6-16 conclusions of law within the period specified by this subsection,
6-17 the application is considered granted on the expiration of the
6-18 period and the physician may perform the abortion as if the court
6-19 had issued an order authorizing the minor to consent to the
6-20 performance of the abortion without satisfaction of the
6-21 requirements of Section 33.002. Proceedings under this section
6-22 shall be given precedence over other pending matters to ensure that
6-23 the court reaches a decision promptly.
6-24 (g) The court shall determine by a preponderance of the
6-25 evidence whether:
6-26 (1) notice under Section 33.002 would not be in the
6-27 best interests of the minor; or
7-1 (2) the minor is mature and capable of giving informed
7-2 consent to an abortion.
7-3 (h) If the court finds in the affirmative on either issue
7-4 presented by Subsection (g)(1) or (2), the court shall enter an
7-5 order authorizing the minor to consent to the performance of the
7-6 abortion without satisfaction of the requirements of Section 33.002
7-7 and shall execute the required forms.
7-8 (i) If the court finds in the negative on both issues
7-9 presented by Subsections (g)(1) and (2), the court may not
7-10 authorize the minor to consent to an abortion without satisfaction
7-11 of the requirements of Section 33.002.
7-12 (j) If the court finds that the minor has been the subject
7-13 of physical or sexual abuse, the court shall refer the minor to the
7-14 Department of Protective and Regulatory Services for services or
7-15 intervention that may be in the best interests of the minor.
7-16 Notwithstanding any other law, the department, on receiving a
7-17 referral under this subsection, may not conduct any investigation
7-18 or take any other action that could result in the disclosure to the
7-19 minor's parent, managing conservator, or guardian of the fact that
7-20 the minor is or was pregnant or that the minor is seeking or sought
7-21 an abortion.
7-22 (k) The court may not notify any person that the minor is
7-23 pregnant or that the minor wants to have an abortion. The court
7-24 proceedings shall be conducted in a manner that protects the
7-25 anonymity of the minor, and the application and all other court
7-26 documents pertaining to the proceedings are confidential and
7-27 privileged and are not subject to discovery, subpoena, or other
8-1 legal process. The minor may file the application using a
8-2 pseudonym or using only her initials.
8-3 (l) The clerk of the supreme court shall prescribe the
8-4 application form to be used by the minor filing an application
8-5 under this section.
8-6 (m) A filing fee is not required of and court costs may not
8-7 be assessed against a minor filing an application under this
8-8 section.
8-9 Sec. 33.052. APPEAL. (a) An appeal to a court of appeals
8-10 shall be available to any pregnant minor to whom a county court at
8-11 law, court having probate jurisdiction, or district court having
8-12 family jurisdiction denies an order authorizing the minor to
8-13 consent to the performance of an abortion without satisfaction of
8-14 the requirements of Section 33.002.
8-15 (b) The court of appeals shall rule on an appeal under this
8-16 section not later than 5 p.m. of the second business day after the
8-17 date the notice of appeal is filed. On request by the minor, the
8-18 court shall grant an extension of the period specified by this
8-19 subsection. If a request for an extension is made, the court shall
8-20 rule on the appeal not later than 5 p.m. of the second business day
8-21 after the date the minor states that she is ready to proceed with
8-22 the appeal. If the court fails to rule on the appeal within the
8-23 period specified by this subsection, the appeal is considered
8-24 granted on the expiration of the period and the physician may
8-25 perform the abortion as if the court had issued an order
8-26 authorizing the minor to consent to the performance of the abortion
8-27 without satisfaction of the requirements of Section 33.002.
9-1 Proceedings under this section shall be given precedence over other
9-2 pending matters to ensure that the court reaches a decision
9-3 promptly.
9-4 (c) The court of appeals may not notify any person that the
9-5 minor is pregnant or that the minor wants to have an abortion. The
9-6 court proceedings shall be conducted in a manner that protects the
9-7 anonymity of the minor, and the application, notice of appeal, and
9-8 all other court documents pertaining to the proceedings are
9-9 confidential and privileged and are not subject to discovery,
9-10 subpoena, or other legal process. The minor may file the notice of
9-11 appeal using a pseudonym or using only her initials.
9-12 Sec. 33.053. AFFIDAVIT OF PHYSICIAN. (a) A physician who
9-13 performs an abortion after a court has failed to timely issue an
9-14 order, as provided by Section 33.051(f), or after a court has
9-15 failed to timely rule on an appeal as provided by Section
9-16 33.052(b), shall execute for inclusion in the minor's medical
9-17 record an affidavit stating, according to the best information and
9-18 belief of the physician:
9-19 (1) the minor has made an application or filed a
9-20 notice of an appeal with a court under this subchapter;
9-21 (2) the deadline for court action imposed by this
9-22 subchapter has passed and the physician has not been notified that
9-23 the minor has requested an extension of the time for the court to
9-24 act; and
9-25 (3) the physician has not been notified that the court
9-26 has denied the application or appeal.
9-27 (b) A physician who has executed an affidavit under
10-1 Subsection (a) may conclusively rely on the affidavit and may
10-2 perform the abortion as if the court had issued an order granting
10-3 the application or appeal.
10-4 (c) The Texas State Board of Medical Examiners shall
10-5 prescribe the form of the affidavit to be used by a physician to
10-6 comply with this section.
10-7 Sec. 33.054. EFFECT OF ORDER. An action of any court under
10-8 this subchapter that denies an order authorizing a minor to consent
10-9 to the performance of an abortion without satisfaction of the
10-10 requirements of Section 33.002 does not bar the subsequent
10-11 performance of the abortion on the minor in accordance with Section
10-12 33.002 or 33.003 and does not bar the minor from proceeding under
10-13 Subchapter C or D.
10-14 Sec. 33.055. COSTS PAID BY STATE. (a) A court acting under
10-15 Section 33.051 or 33.052 may issue an order requiring the state to
10-16 pay:
10-17 (1) the cost of any attorney ad litem appointed for
10-18 the minor;
10-19 (2) the costs of court associated with the application
10-20 or appeal; and
10-21 (3) any court reporter's fees incurred.
10-22 (b) An order issued under Subsection (a) must be directed to
10-23 the comptroller, who shall pay the amount ordered from funds
10-24 appropriated to the Texas Department of Health for family planning.
10-25 (Sections 33.056-33.100 reserved for expansion)
10-26 SUBCHAPTER C. INDEPENDENT EVALUATION
10-27 Sec. 33.101. DEFINITION. In this subchapter, "licensed
11-1 mental health professional" means:
11-2 (1) a psychiatrist; or
11-3 (2) an individual licensed or certified as a
11-4 psychologist under the Psychologists' Licensing Act (Article 4512c,
11-5 Vernon's Texas Civil Statutes).
11-6 Sec. 33.102. INDEPENDENT EVALUATION OF MINOR. (a) A
11-7 physician may perform an abortion without providing notice under
11-8 Section 33.002 if a licensed mental health professional:
11-9 (1) in the person's professional judgment, determines
11-10 that:
11-11 (A) notice under Section 33.002 would not be in
11-12 the best interests of the minor; or
11-13 (B) the minor is mature and capable of giving
11-14 informed consent to an abortion; and
11-15 (2) certifies in writing to the physician who is to
11-16 perform the abortion that the person has made the determination
11-17 described by Subdivision (1).
11-18 (b) A physician who performs an abortion under this section
11-19 shall include a copy of the certification described by Subsection
11-20 (a) in the minor's medical record.
11-21 (c) A certification described by Subsection (a) may be made
11-22 only by a licensed mental health professional who is not located at
11-23 or affiliated with the facility at which the abortion is to be
11-24 performed.
11-25 (d) If a licensed mental health professional finds that the
11-26 minor has been the subject of physical or sexual abuse, the
11-27 professional shall refer the minor to the Department of Protective
12-1 and Regulatory Services for services or intervention that may be in
12-2 the best interests of the minor. Notwithstanding any other law, the
12-3 department, on receiving a referral under this subsection, may not
12-4 conduct any investigation or take any other action that could
12-5 result in the disclosure to the minor's parent, managing
12-6 conservator, or guardian of the fact that the minor is or was
12-7 pregnant or that the minor is seeking or sought an abortion.
12-8 Sec. 33.103. CONFIDENTIALITY. A certification made under
12-9 this subchapter is confidential and privileged and is not subject
12-10 to disclosure under Chapter 552, Government Code, or to discovery,
12-11 subpoena, or other legal process.
12-12 Sec. 33.104. FAILURE TO OBTAIN CERTIFICATION. If the minor
12-13 does not obtain a certification described by this subchapter, the
12-14 minor's right to proceed under Subchapter B or D is not affected.
12-15 (Sections 33.105-33.150 reserved for expansion
12-16 SUBCHAPTER D. EVALUATION BY DEPARTMENT OF PROTECTIVE
12-17 AND REGULATORY SERVICES
12-18 Sec. 33.151. DEFINITIONS. In this subchapter:
12-19 (1) "Board" means the Board of Protective and
12-20 Regulatory Services.
12-21 (2) "Department" means the Department of Protective
12-22 and Regulatory Services.
12-23 Sec. 33.152. CERTIFICATION BY DEPARTMENT. (a) A physician
12-24 may perform an abortion without providing notice under Section
12-25 33.002 if the department certifies that:
12-26 (1) notice under Section 33.002 would not be in the
12-27 best interests of the minor; or
13-1 (2) the minor is mature and capable of giving informed
13-2 consent to an abortion.
13-3 (b) The department may communicate a certification made
13-4 under Subsection (a) by telephone or electronically. The department
13-5 shall provide a written copy of the certification to the physician.
13-6 Sec. 33.153. ADMINISTRATIVE EVALUATION. (a) The board by
13-7 rule shall develop a procedure for:
13-8 (1) accepting an application for certification under
13-9 this subchapter;
13-10 (2) timely evaluation of the application and
13-11 investigation by appropriately trained department personnel; and
13-12 (3) issuance or denial of the certification.
13-13 (b) The board rules must require completion of the
13-14 evaluation of the application and investigation and issuance or
13-15 denial of the certification not later than 5 p.m. of the second
13-16 business day after the date the application is filed with the
13-17 department, unless an extension is requested by the minor.
13-18 (c) The department may not impose a fee for a certification
13-19 under this subchapter.
13-20 Sec. 33.154. ADMINISTRATIVE REVIEW. (a) If the department
13-21 denies issuance of the certification under this subchapter, the
13-22 minor may request review of the determination by an administrative
13-23 law judge in accordance with board rules.
13-24 (b) The board rules must require completion of the review
13-25 and issuance or denial of the certification by order of the
13-26 administrative law judge not later than 5 p.m. of the second
13-27 business day after the date the request for the review is filed,
14-1 unless an extension is requested by the minor.
14-2 (c) The final determination of an administrative law judge
14-3 under this section is not subject to appeal but does not affect the
14-4 minor's right to proceed under Subchapter B or C.
14-5 Sec. 33.155. CONFIDENTIALITY. (a) An application or a
14-6 certification made under this subchapter, and any information in
14-7 the possession of the department with respect to the application or
14-8 certification, is confidential and privileged and is not subject to
14-9 disclosure under Chapter 552, Government Code, or to discovery,
14-10 subpoena, or other legal process.
14-11 (b) Except as provided by Section 33.152, the department may
14-12 not notify any person that the minor is pregnant or that the minor
14-13 wants to have an abortion.
14-14 SECTION 2. The Supreme Court of Texas shall promptly issue
14-15 rules as necessary to ensure that the process established by
14-16 Subchapter B, Chapter 33, Family Code, as added by this Act, may be
14-17 conducted in a manner that will ensure confidentiality and
14-18 sufficient precedence over all other pending matters to ensure
14-19 promptness of disposition.
14-20 SECTION 3. The Texas State Board of Medical Examiners shall
14-21 adopt the forms to be used under Sections 33.003(a)(2), 33.004, and
14-22 33.053, Family Code, as added by this Act, not later than December
14-23 15, 1999.
14-24 SECTION 4. The Board of Protective and Regulatory Services
14-25 shall develop the certification procedure required by Subchapter D,
14-26 Chapter 33, Family Code, as added by this Act, not later than
14-27 December 15, 1999.
15-1 SECTION 5. Chapter 33, Family Code, as added by this Act,
15-2 applies only to an abortion performed on or after January 1, 2000.
15-3 An abortion performed before January 1, 2000, is governed by the
15-4 law as it existed immediately before the effective date of this
15-5 Act, and that law is continued in effect for that purpose.
15-6 SECTION 6. This Act takes effect September 1, 1999.
15-7 SECTION 7. The importance of this legislation and the
15-8 crowded condition of the calendars in both houses create an
15-9 emergency and an imperative public necessity that the
15-10 constitutional rule requiring bills to be read on three several
15-11 days in each house be suspended, and this rule is hereby suspended.
15-12 COMMITTEE AMENDMENT NO. 1
15-13 Amend HB 5 (filed version) as follows:
15-14 On page 5, line 5, strike "for:" and substitute "in any
15-15 county."
15-16 On page 5, strike lines 6, 7, and 8.
15-17 Wolens