By Delisi H.B. No. 623
76R3679 DLF-F
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; 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 NOTICE. (a) A physician may not
2-3 perform an abortion on a pregnant unemancipated minor unless:
2-4 (1) the physician performing the abortion gives at
2-5 least 48 hours actual notice, in person or by telephone, of the
2-6 physician's intent to perform the abortion to:
2-7 (A) a parent of the minor if the minor has no
2-8 managing conservator or guardian; or
2-9 (B) a court-appointed managing conservator or
2-10 guardian;
2-11 (2) the judge of a court having probate jurisdiction,
2-12 the judge of a county court at law, or the judge of the court of
2-13 appeals issues an order authorizing the minor to consent to the
2-14 abortion as provided by Section 33.003 or 33.004;
2-15 (3) a probate court, county court at law, or court of
2-16 appeals, by its inaction, constructively authorizes the minor to
2-17 consent to the abortion as provided by Section 33.003 or 33.004; or
2-18 (4) the physician performing the abortion:
2-19 (A) concludes that a medical emergency exists
2-20 and there is insufficient time to provide the required notice; and
2-21 (B) certifies in writing to the Texas
2-22 Department of Health and in the patient's medical record the
2-23 medical indications supporting the physician's judgment that a
2-24 medical emergency exists and that there is insufficient time to
2-25 provide the required notice.
2-26 (b) If a person to whom notice may be given under Subsection
2-27 (a)(1) cannot be notified after a reasonable effort, a physician
3-1 may perform an abortion if the physician gives 48 hours
3-2 constructive notice, by certified mail sent to the last known
3-3 address, to the person to whom notice may be given under Subsection
3-4 (a)(1). The period under this subsection begins when the certified
3-5 mail notice is mailed. If the person required to be notified is
3-6 not notified within the 48-hour period, the abortion may proceed
3-7 even if the certified mail notice is not received.
3-8 (c) The Texas Department of Health shall prepare a form to
3-9 be used for making the certification required by Subsection (a)(4).
3-10 (d) A physician who violates this section commits an
3-11 offense. An offense under this section is a Class A misdemeanor.
3-12 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who
3-13 wishes to have an abortion without notification to one of her
3-14 parents, her managing conservator, or her guardian may file an
3-15 application for a court order authorizing the minor to consent to
3-16 the performance of an abortion without notification to either of
3-17 her parents or a managing conservator or guardian.
3-18 (b) The application may be filed in the county court at law
3-19 or a court having probate jurisdiction for:
3-20 (1) the county in which the minor resides;
3-21 (2) a county that borders a county in which the minor
3-22 resides; or
3-23 (3) the county in which the hospital, clinic, or
3-24 facility in which the abortion would be performed is located.
3-25 (c) The application must be made under oath and include:
3-26 (1) a statement that the minor is pregnant;
3-27 (2) a statement that the minor is unmarried, is under
4-1 18 years of age, and has not had her disabilities removed for
4-2 general purposes under Chapter 31;
4-3 (3) a statement that the minor wishes to have an
4-4 abortion without the notification of either of her parents or a
4-5 managing conservator or guardian; and
4-6 (4) a statement as to whether the minor has retained
4-7 an attorney and, if she has retained an attorney, the name,
4-8 address, and telephone number of her attorney.
4-9 (d) The court shall appoint a guardian ad litem for the
4-10 minor. If the minor has not retained an attorney, the court shall
4-11 appoint an attorney to represent the minor. If the guardian ad
4-12 litem is an attorney admitted to the practice of law in this state,
4-13 the court may appoint the guardian ad litem to serve as the minor's
4-14 attorney.
4-15 (e) The court shall fix a time for a hearing on an
4-16 application filed under Subsection (a) and shall keep a record of
4-17 all testimony and other oral proceedings in the action. The court
4-18 shall enter judgment on the application immediately after the
4-19 hearing is concluded.
4-20 (f) The court shall rule on an application submitted under
4-21 this section and shall issue written findings of fact and
4-22 conclusions of law, not later than 5 p.m. on the second business
4-23 day after the date the application is filed with the court. The
4-24 minor may request an extension of the period specified by this
4-25 section. If the court fails to rule on the application and issue
4-26 written findings of fact and conclusions of law within the period
4-27 specified by this subsection and an extension was not requested,
5-1 the application is deemed to be granted and the physician may
5-2 perform the abortion as if the court had issued an order
5-3 authorizing the minor to consent to the performance of the abortion
5-4 without notification under Section 33.002. Proceedings under this
5-5 section shall be given precedence over other pending matters to the
5-6 extent necessary to assure that the court reaches a decision
5-7 promptly.
5-8 (g) The court shall determine by a preponderance of the
5-9 evidence whether the minor is mature and sufficiently well informed
5-10 to make the decision to have an abortion performed without
5-11 notification to either of her parents or a managing conservator or
5-12 guardian or whether notification would not be in the best interest
5-13 of the minor. If the court finds that the minor is mature and
5-14 sufficiently well informed or that notification would not be in the
5-15 minor's best interest, the court shall enter an order authorizing
5-16 the minor to consent to the performance of the abortion without
5-17 notification to either of her parents or a managing conservator or
5-18 guardian and shall execute the required forms.
5-19 (h) If the court finds that the minor does not meet the
5-20 requirements of Subsection (g), the court may not authorize the
5-21 minor to consent to an abortion without the notification authorized
5-22 under Section 33.002(a)(1).
5-23 (i) The court may not notify a parent, managing conservator,
5-24 or guardian that the minor is pregnant or that the minor wants to
5-25 have an abortion. The court proceedings shall be conducted in a
5-26 manner that protects the anonymity of the minor, and the
5-27 application and all other court documents pertaining to the
6-1 proceedings are confidential and may not be made available to the
6-2 public. The minor may file the application using a pseudonym or
6-3 using only her initials.
6-4 (j) The clerk of the supreme court shall prescribe the
6-5 application form to be used by the minor filing an application
6-6 under this section.
6-7 (k) A filing fee is not required of and court costs may not
6-8 be assessed against a minor filing an application under this
6-9 section.
6-10 Sec. 33.004. APPEAL. (a) A minor whose application under
6-11 Section 33.003 is denied may appeal to the court of appeals having
6-12 jurisdiction over civil matters in the county in which the
6-13 application was filed. On receipt of a notice of appeal, the clerk
6-14 of the court that denied the application shall deliver a copy of
6-15 the notice of appeal and record on appeal to the clerk of the court
6-16 of appeals. On receipt of the notice and record, the clerk of the
6-17 court of appeals shall place the appeal on the docket of the court.
6-18 (b) The court of appeals shall rule on an appeal under this
6-19 section not later than 5 p.m. on the second business day after the
6-20 date the notice of appeal is filed with the court that denied the
6-21 application. The minor may request an extension of the period
6-22 specified by this subsection. If the court of appeals fails to
6-23 rule on the appeal within the period specified by this subsection
6-24 and an extension was not requested, the appeal is deemed to be
6-25 granted and the physician may perform the abortion as if the court
6-26 had issued an order authorizing the minor to consent to the
6-27 performance of the abortion without notification under Section
7-1 33.002. Proceedings under this section shall be given precedence
7-2 over other pending matters to the extent necessary to assure that
7-3 the court reaches a decision promptly.
7-4 (c) The clerk of the supreme court shall prescribe the
7-5 notice of appeal form to be used by the minor appealing a judgment
7-6 under this section.
7-7 (d) A filing fee is not required of and court costs may not
7-8 be assessed against a minor filing an appeal under this section.
7-9 (e) An expedited confidential appeal shall be available to
7-10 any pregnant minor to whom a court of appeals denies an order
7-11 authorizing the minor to consent to the performance of an abortion
7-12 without notification to either of her parents or a managing
7-13 conservator or guardian.
7-14 Sec. 33.005. AD LITEM IMMUNITY. A guardian ad litem or
7-15 attorney ad litem appointed under this chapter has the same
7-16 judicial immunity as the appointing judge with respect to an act or
7-17 omission in the course and scope of the appointment.
7-18 Sec. 33.006. COSTS PAID BY STATE. (a) A court acting under
7-19 Section 33.003 or 33.004 may issue an order requiring the state to
7-20 pay:
7-21 (1) the cost of any attorney ad litem and any guardian
7-22 ad litem appointed for the minor;
7-23 (2) notwithstanding Sections 33.003(k) and 33.004(d),
7-24 the costs of court associated with the application or appeal; and
7-25 (3) any court reporter's fees incurred.
7-26 (b) An order issued under Subsection (a) must be directed to
7-27 the comptroller, who shall pay the amount ordered from funds
8-1 appropriated to the Texas Department of Health, D.1.2. Strategy:
8-2 Family Planning.
8-3 Sec. 33.007. REPORTING OF SEXUAL ABUSE OF A MINOR. A court
8-4 or the guardian ad litem or attorney ad litem for the minor may
8-5 report sexual abuse of the minor based on information obtained
8-6 during a confidential court proceeding held under this chapter to:
8-7 (1) any local or state law enforcement agency;
8-8 (2) the Department of Protective and Regulatory
8-9 Services if the alleged or suspected abuse involves a person
8-10 responsible for the care, custody, or welfare of the child;
8-11 (3) the state agency that operates, licenses,
8-12 certifies, or registers the facility in which the alleged abuse
8-13 occurred, if the alleged abuse occurred in a facility operated,
8-14 licensed, certified, or registered by a state agency; or
8-15 (4) an appropriate agency designated by the court.
8-16 SECTION 2. The Supreme Court of Texas shall issue promptly
8-17 such rules as may be necessary in order that the process
8-18 established by Sections 33.003 and 33.004, Family Code, as added by
8-19 this Act, be conducted in a manner that will ensure confidentiality
8-20 and sufficient precedence over all other pending matters to ensure
8-21 promptness of disposition.
8-22 SECTION 3. Except as provided by Section 5 of this Act, this
8-23 Act takes effect September 1, 1999.
8-24 SECTION 4. Chapter 33, Family Code, as added by this Act,
8-25 applies only to an abortion performed on or after January 1, 2000.
8-26 An abortion performed before January 1, 2000, is governed by the
8-27 law as it existed immediately before the effective date of this
9-1 Act, and that law is continued in effect for that purpose.
9-2 SECTION 5. Section 33.002(d), Family Code, as added by this
9-3 Act, takes effect January 1, 2000.
9-4 SECTION 6. The Texas Board of Health shall adopt the form to
9-5 be used under Section 33.002(a)(4), Family Code, as added by this
9-6 Act, not later than December 15, 1999.
9-7 SECTION 7. The clerk of the Supreme Court of Texas shall
9-8 adopt the application form and notice of appeal form to be used
9-9 under Sections 33.003 and 33.004, Family Code, as added by this
9-10 Act, not later than December 15, 1999.
9-11 SECTION 8. The importance of this legislation and the
9-12 crowded condition of the calendars in both houses create an
9-13 emergency and an imperative public necessity that the
9-14 constitutional rule requiring bills to be read on three several
9-15 days in each house be suspended, and this rule is hereby suspended.