By Uher H.B. No. 1073
76R4510 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to parental notification and consent before an abortion
1-3 may be 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 AND CONSENT FOR 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 woman 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) "Guardian" means a court-appointed guardian of the
1-15 person of the minor.
1-16 (3) "Medical emergency" means a condition that, on the
1-17 basis of a physician's good faith clinical judgment, complicates
1-18 the medical condition of a pregnant woman and necessitates the
1-19 immediate abortion of her pregnancy to avert her death or to avoid
1-20 a serious risk of substantial and irreversible impairment of a
1-21 major bodily function.
1-22 (4) "Physician" means an individual licensed to
1-23 practice medicine in this state.
1-24 Sec. 33.002. PARENTAL NOTICE AND CONSENT. (a) A physician
2-1 may not perform an abortion on a pregnant unemancipated minor
2-2 unless:
2-3 (1) the physician performing the abortion gives notice
2-4 that complies with Subsection (b) of the minor's pregnancy and
2-5 desire to have an abortion to:
2-6 (A) each parent of the minor, if a managing
2-7 conservator or guardian has not been appointed for the minor; or
2-8 (B) the court-appointed managing conservator or
2-9 guardian of the minor; and
2-10 (2) the physician obtains oral or written consent to
2-11 perform the abortion from:
2-12 (A) a parent of the minor, if a managing
2-13 conservator or guardian has not been appointed for the minor; or
2-14 (B) the managing conservator or guardian of the
2-15 minor.
2-16 (b) The notice required by Subsection (a) may be made by
2-17 mail, in person, or by telephone and, unless the minor requests
2-18 that the notice be provided at a later time or not be provided,
2-19 must be provided by the physician not later than the later of:
2-20 (1) the 24th hour after the time of the initial office
2-21 visit of the minor at which the abortion is requested; or
2-22 (2) noon of the next business day after the day of the
2-23 initial office visit of the minor at which the abortion is
2-24 requested, if the day after the day of the initial office visit is
2-25 Saturday, Sunday, or a holiday.
2-26 (c) If notice under Subsection (a) is made by mail, the
2-27 notice is considered made at the time the notice is deposited in
3-1 the United States mail, postage prepaid, addressed to the last
3-2 known address of the parent, managing conservator, or guardian.
3-3 Sec. 33.003. EXCEPTION: MEDICAL EMERGENCY. (a) A physician
3-4 may perform an abortion without notice to or consent of a parent,
3-5 guardian, or managing conservator of the minor if the physician:
3-6 (1) concludes that a medical emergency exists and
3-7 there is insufficient time to obtain the required consent; and
3-8 (2) certifies in writing to the Texas Department of
3-9 Health and in the patient's medical record the medical indications
3-10 supporting the physician's judgment under Subdivision (1).
3-11 (b) The Texas Department of Health shall prepare a form to
3-12 be used for making the certification required by this section.
3-13 Sec. 33.004. EXCEPTION: ORDER OF COURT. A physician may
3-14 perform an abortion without notice to or consent of a parent,
3-15 guardian, or managing conservator of the minor if the judge of a
3-16 county court at law, district court, or appellate court issues an
3-17 order authorizing the performance of the abortion without notice to
3-18 and consent of a parent, guardian, or managing conservator under
3-19 Section 33.005 or 33.006.
3-20 Sec. 33.005. JUDICIAL APPROVAL. (a) A pregnant minor who
3-21 wishes to have an abortion without notice to or consent of her
3-22 parents, her managing conservator, or her guardian may file an
3-23 application for a court order authorizing the minor to consent to
3-24 the performance of an abortion without notice to or consent of a
3-25 parent or a managing conservator or guardian.
3-26 (b) The application may be filed in the county court at law
3-27 or a district court having jurisdiction for:
4-1 (1) the county in which the minor resides;
4-2 (2) a county that borders the county in which the
4-3 minor resides; or
4-4 (3) the county in which the hospital, clinic, or
4-5 facility in which the abortion would be performed is located.
4-6 (c) The application must be made under oath and include:
4-7 (1) statements that the minor:
4-8 (A) is pregnant;
4-9 (B) is unmarried, is under 18 years of age, and
4-10 has not had her disabilities removed for general purposes under
4-11 Chapter 31; and
4-12 (C) wishes to have an abortion without notice to
4-13 or consent of either of her parents or a managing conservator or
4-14 guardian; and
4-15 (2) a statement as to whether the minor has retained
4-16 an attorney and, if she has retained an attorney, the name,
4-17 address, and telephone number of her attorney.
4-18 (d) The court shall appoint a guardian ad litem for the
4-19 minor. If the minor has not retained an attorney, the court shall
4-20 appoint an attorney to represent the minor. If the guardian ad
4-21 litem is an attorney admitted to the practice of law in this state,
4-22 the court may appoint the guardian ad litem to serve as the minor's
4-23 attorney.
4-24 (e) The court shall set a time for a hearing on an
4-25 application filed under this section and shall keep a record of all
4-26 testimony and other oral proceedings in the action. The court
4-27 shall enter judgment on the application immediately after the
5-1 hearing is concluded.
5-2 (f) The court shall rule on an application filed under this
5-3 section and shall issue written findings of fact and conclusions of
5-4 law not later than 5 p.m. of the 10th business day after the date
5-5 the application is filed with the court. The minor may request an
5-6 extension of the period specified by this subsection. If the court
5-7 fails to rule on the application and issue written findings of fact
5-8 and conclusions of law within the period specified by this
5-9 subsection and an extension is not requested, the application is
5-10 considered to be denied and the physician may not perform the
5-11 abortion without the notice and consent required under Section
5-12 33.002. Proceedings under this section shall be given precedence
5-13 over other pending matters to the extent necessary to ensure that
5-14 the court reaches a decision promptly.
5-15 (g) The court shall enter an order authorizing the
5-16 performance of an abortion without notice to and consent of a
5-17 parent or a managing conservator or guardian and shall execute the
5-18 required forms if the court finds that the minor has established by
5-19 a preponderance of the evidence that:
5-20 (1) the minor is mature and sufficiently well informed
5-21 to make the decision to have an abortion performed without notice
5-22 to either of her parents or a managing conservator or guardian;
5-23 (2) performance of the abortion is in the best
5-24 interest of the minor; or
5-25 (3) denial of the application would otherwise
5-26 substantially adversely affect the physical or mental health of the
5-27 minor.
6-1 (h) If the court does not find in the affirmative on at
6-2 least one of the issues provided by Subsection (g), the court may
6-3 not authorize the performance of an abortion without the notice and
6-4 consent required under Section 33.002.
6-5 (i) The court proceedings shall be conducted in a manner
6-6 that protects the anonymity of the minor, and the application and
6-7 all other court documents pertaining to the proceedings, including
6-8 an order issued in accordance with Subsection (j), are confidential
6-9 and may not be made available to the public. The minor may file the
6-10 application using a pseudonym or using only her initials.
6-11 (j) An order of a court granting or denying an application
6-12 under this section may be in substantially the following form:
6-13 Misc. Docket No.___
6-14 In Re: Application of ________, In the (name of court)
6-15 a pregnant minor, under In and For _____, County, Texas
6-16 Chapter 33, Family Code.
6-17 Judicial Finding of Fact and Conclusion of Law
6-18 On the (number) day of (month), (year), in the
6-19 above entitled and numbered cause, this court reviewed
6-20 an application filed by (name, pseudonym, or initials
6-21 of minor) under Section 33.005, Family Code, for an
6-22 order authorizing the performance of an abortion
6-23 without notice to and consent of a parent or a managing
6-24 conservator or guardian of (name, pseudonym, or
6-25 initials of minor) and the documentation attached to
6-26 the application. In accordance with Section 33.005,
6-27 Family Code, a guardian ad litem was appointed for the
7-1 minor. The minor was represented by an attorney that
7-2 (was or was not) appointed by the court. The court
7-3 (did or did not) hear testimony with respect to the
7-4 application.
7-5 The court finds as follows (only an item checked and
7-6 initialed is a valid court ruling):
7-7 ____The minor is mature and sufficiently well
7-8 informed to make the decision to have an abortion
7-9 performed without notice to either of her parents or a
7-10 managing conservator or guardian or the consent of a
7-11 parent, managing conservator, or guardian and the
7-12 application is granted.
7-13 ____Performance of the abortion is in the best
7-14 interest of the minor and the application is granted.
7-15 ____Denial of the application would substantially
7-16 adversely affect the physical or mental health of the
7-17 minor and the application is granted.
7-18 ____The minor is not mature and sufficiently well
7-19 informed to make the decision to have an abortion
7-20 performed without notice to or consent of either of her
7-21 parents or a managing conservator or guardian, the
7-22 performance of the abortion is not in the best interest
7-23 of the minor, and denial of the application would not
7-24 substantially adversely affect the physical or mental
7-25 health of the minor, and the application is denied.
7-26 SIGNED ON THIS THE ______DAY OF _________
7-27 (name of judge)
8-1 (name of court)
8-2 __________, COUNTY, TEXAS
8-3 (k) The clerk of the supreme court shall prescribe the
8-4 application form to be used by a minor filing an application under
8-5 this section.
8-6 (l) 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. 33.006. EXPEDITED CONFIDENTIAL APPEAL. The supreme
8-10 court shall adopt rules providing for an expedited confidential
8-11 appeal from a denial of an application filed under Section 33.005,
8-12 including a constructive denial of an application under Section
8-13 33.005(f). The rules must provide for a determination with respect
8-14 to the appeal not later than the 10th day after the date the notice
8-15 of appeal is filed by the minor.
8-16 Sec. 33.007. CIVIL LIABILITY. A physician who knowingly
8-17 violates this chapter is liable for damages incurred by a minor or
8-18 a parent, managing conservator, or guardian of the minor as a
8-19 result of violation.
8-20 SECTION 2. The Texas State Board of Medical Examiners shall
8-21 adopt the forms to be used under Section 33.003, Family Code, as
8-22 added by this Act, not later than December 15, 1999.
8-23 SECTION 3. The clerk of the Texas Supreme Court shall
8-24 prescribe the application form to be used under Section 33.005,
8-25 Family Code, as added by this Act, not later than December 15,
8-26 1999.
8-27 SECTION 4. The Texas Supreme Court shall promptly adopt
9-1 rules governing the expedited confidential appeal required by
9-2 Section 33.006, Family Code, as added by this Act.
9-3 SECTION 5. Chapter 33, Family Code, as added by this Act,
9-4 applies only to an abortion performed on or after January 1, 2000.
9-5 An abortion performed before January 1, 2000, is governed by the
9-6 law as it existed immediately before the effective date of this
9-7 Act, and that law is continued in effect for that purpose.
9-8 SECTION 6. This Act takes effect September 1, 1999.
9-9 SECTION 7. The importance of this legislation and the
9-10 crowded condition of the calendars in both houses create an
9-11 emergency and an imperative public necessity that the
9-12 constitutional rule requiring bills to be read on three several
9-13 days in each house be suspended, and this rule is hereby suspended.