By Wohlgemuth H.B. No. 343 76R1205 DLF-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to parental consent before an abortion may be performed on 1-3 a minor; providing a criminal penalty. 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 Sec. 33.001. DEFINITIONS. In this chapter: 1-9 (1) "Abortion" means the use of any means to terminate 1-10 the pregnancy of a female known by the attending physician to be 1-11 pregnant, with the intention that the termination of the pregnancy 1-12 by those means will, with reasonable likelihood, cause the death of 1-13 the fetus. 1-14 (2) "Fetus" means an individual human organism from 1-15 fertilization until birth. 1-16 (3) "Guardian" means a court-appointed guardian of the 1-17 person of the minor. 1-18 (4) "Medical emergency" means a condition that, on the 1-19 basis of a physician's good faith clinical judgment, complicates 1-20 the medical condition of a pregnant woman and necessitates the 1-21 immediate abortion of her pregnancy to avert her death or to avoid 1-22 a serious risk of substantial and irreversible impairment of a 1-23 major bodily function. 1-24 (5) "Physician" means an individual licensed to 2-1 practice medicine in this state. 2-2 Sec. 33.002. PARENTAL CONSENT. (a) A physician may not 2-3 perform an abortion on a pregnant minor unless: 2-4 (1) a parent, managing conservator, or guardian of the 2-5 minor consents to the abortion; 2-6 (2) the judge of a court having probate jurisdiction, 2-7 the judge of a county court at law, or the judge of a district 2-8 court or the court of appeals issues an order authorizing the minor 2-9 to consent to the abortion as provided by Section 33.003, 33.004, 2-10 or 33.005; 2-11 (3) a probate court, county court at law, district 2-12 court, or court of appeals, by its inaction, constructively 2-13 authorizes the minor to consent to the abortion as provided by 2-14 Section 33.003, 33.004, or 33.005; or 2-15 (4) the physician performing the abortion: 2-16 (A) concludes that a medical emergency exists 2-17 and there is insufficient time to obtain the consent required by 2-18 Subsection (a)(1); and 2-19 (B) certifies in writing to the Texas 2-20 Department of Health and in the patient's medical record the 2-21 medical indications supporting the physician's judgment that a 2-22 medical emergency exists and that there is insufficient time to 2-23 obtain the required consent. 2-24 (b) The Texas Department of Health shall prepare a form to 2-25 be used for making the certification required by Subsection (a)(4). 2-26 (c) A physician who violates this section commits an 2-27 offense. An offense under this subsection is a Class A 3-1 misdemeanor. 3-2 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who 3-3 wishes to have an abortion without the consent of either of her 3-4 parents, her managing conservator, or her guardian may file an 3-5 application for a court order authorizing the minor to consent to 3-6 the performance of an abortion without the consent of either of her 3-7 parents or a managing conservator or guardian. 3-8 (b) The application may be filed in the county court at law 3-9 or a court having probate jurisdiction for: 3-10 (1) the county in which the minor resides; 3-11 (2) a county that borders a county in which the minor 3-12 resides; or 3-13 (3) the county in which the hospital, clinic, or 3-14 facility in which the abortion would be performed is located. 3-15 (c) The application must be made under oath and include: 3-16 (1) a statement that the minor is pregnant; 3-17 (2) a statement that the minor is unmarried, is under 3-18 18 years of age, and has not had her disabilities removed for 3-19 general purposes under Chapter 31; 3-20 (3) a statement that the minor wishes to have an 3-21 abortion without the consent of either of her parents or a managing 3-22 conservator or guardian; and 3-23 (4) a statement as to whether the minor has retained 3-24 an attorney and, if she has retained an attorney, the name, 3-25 address, and telephone number of her attorney. 3-26 (d) The court shall appoint a guardian ad litem for the 3-27 minor. If the minor has not retained an attorney, the court shall 4-1 appoint an attorney to represent the minor. If the guardian ad 4-2 litem is an attorney admitted to the practice of law in this state, 4-3 the court may appoint the guardian ad litem to serve as the minor's 4-4 attorney. 4-5 (e) The court shall fix a time for a hearing on an 4-6 application filed under Subsection (a) and shall keep a record of 4-7 all testimony and other oral proceedings in the action. The court 4-8 shall enter judgment on the application immediately after the 4-9 hearing is concluded. 4-10 (f) The court shall rule on an application submitted under 4-11 this section and shall issue written findings of fact and 4-12 conclusions of law not later than 5 p.m. on the second business day 4-13 after the date the application is filed with the court. The minor 4-14 may request an extension of that period. If the court does not 4-15 rule on the application and issue written findings of fact and 4-16 conclusions of law within the specified period and an extension was 4-17 not requested, the application is granted and the physician may 4-18 perform the abortion as if the court had issued an order 4-19 authorizing the minor to consent to the performance of the 4-20 abortion. The court shall give proceedings under this section 4-21 precedence over other pending matters to the extent necessary to 4-22 ensure that the court reaches a decision promptly. 4-23 (g) The court shall determine by a preponderance of the 4-24 evidence whether the minor is mature and sufficiently well-informed 4-25 to make the decision to have an abortion performed without the 4-26 consent of either of her parents or a managing conservator or 4-27 guardian or whether requiring that consent would not be in the best 5-1 interest of the minor. If the court finds that the minor is mature 5-2 and sufficiently well-informed or that requiring consent would not 5-3 be in the minor's best interest, the court shall enter an order 5-4 authorizing the minor to consent to the performance of the abortion 5-5 without the consent of either of her parents or a managing 5-6 conservator or guardian and execute the required forms. 5-7 (h) If the court finds that the minor does not meet the 5-8 requirements of Subsection (g), the court may not authorize the 5-9 minor to consent to an abortion without the consent required by 5-10 Section 33.002(a)(1). 5-11 (i) The court may not notify a parent, managing conservator, 5-12 or guardian that the minor is pregnant or that the minor wants to 5-13 have an abortion. The court proceedings shall be conducted in a 5-14 manner that protects the anonymity of the minor, and the 5-15 application and all other court documents pertaining to the 5-16 proceedings are confidential and may not be made available to the 5-17 public. The minor may file the application using a pseudonym or 5-18 using only her initials. 5-19 (j) The clerk of the supreme court shall prescribe the 5-20 application form to be used by the minor filing an application 5-21 under this section. 5-22 (k) A filing fee is not required of, and court costs may not 5-23 be assessed against, a minor filing an application under this 5-24 section. 5-25 Sec. 33.004. APPEAL TO DISTRICT COURT. (a) A minor whose 5-26 application under Section 33.003 is denied may appeal to the 5-27 district court that has jurisdiction over civil matters in the 6-1 county in which the application was filed. On receipt of a notice 6-2 of appeal, the clerk of the court that denied the application shall 6-3 deliver a copy of the notice of appeal and record on appeal to the 6-4 clerk of the district court. On receipt of the notice and record, 6-5 the clerk of the district court shall place the appeal on the 6-6 docket of the court. 6-7 (b) The district court shall rule on an appeal under this 6-8 section not later than 5 p.m. on the second business day after the 6-9 date the notice of appeal is filed. The minor may request an 6-10 extension of that period. If the court does not rule on the appeal 6-11 within the specified period and an extension was not requested, the 6-12 appeal is granted and the physician may perform the abortion as if 6-13 the court had issued an order authorizing the minor to consent to 6-14 the performance of the abortion. The court shall give proceedings 6-15 under this section precedence over other pending matters to the 6-16 extent necessary to ensure that the court reaches a decision 6-17 promptly. 6-18 (c) The clerk of the supreme court shall prescribe the 6-19 notice of appeal form to be used by the minor appealing a judgment 6-20 under this section. 6-21 (d) A filing fee is not required of, and court costs may not 6-22 be assessed against, a minor filing an appeal under this section. 6-23 Sec. 33.005. APPEAL TO APPELLATE COURT. (a) A minor whose 6-24 application under Section 33.004 is denied may appeal to the court 6-25 of appeals having jurisdiction over the cause. On receipt of a 6-26 notice of appeal, the clerk of the district court that denied the 6-27 application shall deliver a copy of the notice of appeal and record 7-1 on appeal to the clerk of the court of appeals. On receipt of the 7-2 notice and record, the clerk of the appellate court shall place the 7-3 appeal on the docket of the court. 7-4 (b) The court of appeals shall rule on an appeal under this 7-5 section not later than 5 p.m. on the second business day after the 7-6 date the notice of appeal is filed. The minor may request an 7-7 extension of that period. If the court of appeals does not rule on 7-8 the appeal within the specified period and an extension was not 7-9 requested, the appeal is granted and the physician may perform the 7-10 abortion as if the court had issued an order authorizing the minor 7-11 to consent to the performance of the abortion. The court of 7-12 appeals shall give proceedings under this section precedence over 7-13 other pending matters to the extent necessary to ensure that the 7-14 court reaches a decision promptly. 7-15 (c) The clerk of the supreme court shall prescribe the 7-16 notice of appeal form to be used by the minor appealing a judgment 7-17 under this section. 7-18 (d) A minor filing an appeal under this section may not be 7-19 required to post an appeal bond. 7-20 SECTION 2. Except as provided by Section 4 of this Act, this 7-21 Act takes effect September 1, 1999. 7-22 SECTION 3. Chapter 33, Family Code, as added by this Act, 7-23 applies only to an abortion performed on or after January 1, 2000. 7-24 An abortion performed before January 1, 2000, is governed by the 7-25 law as it existed immediately before the effective date of this 7-26 Act, and that law is continued in effect for that purpose. 7-27 SECTION 4. Section 33.002(c), Family Code, as added by this 8-1 Act, takes effect January 1, 2000. 8-2 SECTION 5. The Texas Board of Health shall adopt the form to 8-3 be used under Section 33.002(a)(4), Family Code, as added by this 8-4 Act, not later than December 15, 1999. 8-5 SECTION 6. The Texas Supreme Court shall promptly issue 8-6 rules necessary to ensure that the process established by Sections 8-7 33.003, 33.004, and 33.005, Family Code, as added by this Act, will 8-8 be conducted in a manner that will ensure confidentiality and 8-9 sufficient precedence over all other pending matters to ensure 8-10 promptness of disposition. 8-11 SECTION 7. The clerk of the Texas Supreme Court shall adopt 8-12 the application form and notice of appeal form to be used under 8-13 Sections 33.003, 33.004, and 33.005, Family Code, as added by this 8-14 Act, not later than December 15, 1999. 8-15 SECTION 8. The importance of this legislation and the 8-16 crowded condition of the calendars in both houses create an 8-17 emergency and an imperative public necessity that the 8-18 constitutional rule requiring bills to be read on three several 8-19 days in each house be suspended, and this rule is hereby suspended.