By Solis of Bexar H.B. No. 2333
76R5694 CMR-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to notification and consent 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 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 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) "Minor" means a person who is younger than 16
2-1 years of age.
2-2 (6) "Physician" means an individual licensed to
2-3 practice medicine in this state.
2-4 Sec. 33.002. PARENTAL NOTICE AND CONSENT. (a) A physician
2-5 may not perform an abortion on an unemancipated pregnant minor
2-6 unless:
2-7 (1) the physician performing the abortion:
2-8 (A) gives notice that complies with Subsection
2-9 (b) of the minor's pregnancy and desire to have an abortion to:
2-10 (i) each parent of the person who is
2-11 identified by the pregnant minor to be the father of the fetus, if
2-12 a managing conservator or guardian has not been appointed for the
2-13 alleged father; or
2-14 (ii) the court-appointed managing
2-15 conservator or guardian of the alleged father; and
2-16 (B) obtains oral or written consent to perform
2-17 the abortion from:
2-18 (i) a parent of the pregnant minor, if a
2-19 managing conservator or guardian has not been appointed for the
2-20 pregnant minor; or
2-21 (ii) the managing conservator or guardian
2-22 of the pregnant minor;
2-23 (2) the judge of a court having probate jurisdiction,
2-24 the judge of a county court at law, or the judge of a district
2-25 court or the court of appeals issues an order authorizing the
2-26 pregnant minor to consent to the abortion as provided by Section
2-27 33.003, 33.004, or 33.005;
3-1 (3) a probate court, county court at law, district
3-2 court, or court of appeals, by its inaction, constructively
3-3 authorizes the pregnant minor to consent to the abortion as
3-4 provided by Section 33.003, 33.004, or 33.005; or
3-5 (4) the physician performing the abortion:
3-6 (A) concludes that a medical emergency exists
3-7 and there is insufficient time to provide the notice or to obtain
3-8 the consent required by Subsection (a)(1); and
3-9 (B) certifies in writing to the Texas Department
3-10 of Health and in the patient's medical record the medical
3-11 indications supporting the physician's judgment that a medical
3-12 emergency exists and that there is insufficient time to provide the
3-13 required notice or to obtain the required consent.
3-14 (b) The notice required by Subsection (a) may be made by
3-15 mail, in person, or by telephone and, unless the pregnant minor
3-16 requests that the notice be provided at a later time or not be
3-17 provided, must be provided by the physician not later than the
3-18 later of:
3-19 (1) the 24th hour after the time of the initial office
3-20 visit of the pregnant minor at which the abortion is requested; or
3-21 (2) noon of the next business day after the day of the
3-22 initial office visit of the pregnant minor at which the abortion is
3-23 requested, if the day after the day of the initial office visit is
3-24 Saturday, Sunday, or a holiday.
3-25 (c) If notice under Subsection (a) is made by mail, the
3-26 notice is considered made at the time the notice is deposited in
3-27 the United States mail, postage prepaid, addressed to the last
4-1 known address of the parent, managing conservator, or guardian of
4-2 the alleged father.
4-3 (d) The Texas Department of Health shall prepare a form to
4-4 be used for making the certification required by Subsection (a)(4).
4-5 (e) A physician who violates this section commits an
4-6 offense. An offense under this subsection is a Class A
4-7 misdemeanor.
4-8 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who
4-9 wishes to have an abortion without the consent of either of her
4-10 parents, her managing conservator, or her guardian or notice to
4-11 the parents, managing conservator, or guardian of the alleged
4-12 father may file an application for a court order authorizing the
4-13 minor to consent to the performance of an abortion without the
4-14 consent of either of her parents or a managing conservator or
4-15 guardian or notice to the parents, managing conservator, or
4-16 guardian of the alleged father.
4-17 (b) The application may be filed in the county court at law
4-18 or a court having probate jurisdiction for:
4-19 (1) the county in which the pregnant minor resides;
4-20 (2) a county that borders a county in which the
4-21 pregnant minor resides; or
4-22 (3) the county in which the hospital, clinic, or
4-23 facility in which the abortion would be performed is located.
4-24 (c) The application must be made under oath and include:
4-25 (1) a statement that the minor is pregnant;
4-26 (2) a statement that the minor is unmarried, is under
4-27 16 years of age, and has not had her disabilities removed for
5-1 general purposes under Chapter 31;
5-2 (3) a statement that the minor wishes to have an
5-3 abortion without:
5-4 (A) the consent of either of her parents or a
5-5 managing conservator or guardian;
5-6 (B) notice to the parents, managing conservator,
5-7 or guardian of the alleged father; or
5-8 (C) either the consent described by Paragraph
5-9 (A) or the notice required by Paragraph (B); and
5-10 (4) a statement as to whether the pregnant minor has
5-11 retained an attorney and, if she has retained an attorney, the
5-12 name, address, and telephone number of her attorney.
5-13 (d) The court shall appoint a guardian ad litem for the
5-14 pregnant minor. If the minor has not retained an attorney, the
5-15 court shall appoint an attorney to represent the minor. If the
5-16 guardian ad litem is an attorney admitted to the practice of law in
5-17 this state, the court may appoint the guardian ad litem to serve as
5-18 the minor's attorney.
5-19 (e) The court shall fix a time for a hearing on an
5-20 application filed under Subsection (a) and shall keep a record of
5-21 all testimony and other oral proceedings in the action. The court
5-22 shall enter judgment on the application immediately after the
5-23 hearing is concluded.
5-24 (f) The court shall rule on an application submitted under
5-25 this section and shall issue written findings of fact and
5-26 conclusions of law not later than 5 p.m. on the second business day
5-27 after the date the application is filed with the court. The
6-1 pregnant minor may request an extension of that period. If the
6-2 court does not rule on the application and issue written findings
6-3 of fact and conclusions of law within the specified period and an
6-4 extension was not requested, the application is granted and the
6-5 physician may perform the abortion as if the court had issued an
6-6 order authorizing the pregnant minor to consent to the performance
6-7 of the abortion or authorizing the performance of the abortion
6-8 without notice, as appropriate. The court shall give proceedings
6-9 under this section precedence over other pending matters to the
6-10 extent necessary to ensure that the court reaches a decision
6-11 promptly.
6-12 (g) If the pregnant minor wishes to have an abortion without
6-13 the consent of either of her parents or a managing conservator or
6-14 guardian, the court shall determine by a preponderance of the
6-15 evidence whether the minor is mature and sufficiently well-informed
6-16 to make the decision to have an abortion performed without the
6-17 consent of either of her parents or a managing conservator or
6-18 guardian or whether requiring that consent would not be in the best
6-19 interest of the minor. If the court finds that the minor is mature
6-20 and sufficiently well-informed to make the decision to have an
6-21 abortion performed without the required consent or that requiring
6-22 the consent would not be in the pregnant minor's best interest, the
6-23 court shall enter an order authorizing the pregnant minor to
6-24 consent to performance of the abortion without the consent of
6-25 either of her parents or a managing conservator or guardian and
6-26 execute the required forms.
6-27 (h) If the court finds that the pregnant minor does not meet
7-1 the requirements of Subsection (g), the court may not authorize the
7-2 minor to consent to an abortion without the consent required by
7-3 Section 33.002(a)(1)(B).
7-4 (i) If the pregnant minor wishes to have an abortion without
7-5 the notice to the parents, managing conservator, or guardian of the
7-6 alleged father, the court shall determine by a preponderance of the
7-7 evidence whether requiring the notice would not be in the best
7-8 interest of the pregnant minor. If the court finds that requiring
7-9 the notice would not be in the pregnant minor's best interest, the
7-10 court shall enter an order authorizing the performance of the
7-11 abortion without notice to the parents, managing conservator, or
7-12 guardian of the alleged father and execute the required forms.
7-13 (j) If the court finds that the pregnant minor does not meet
7-14 the requirements of Subsection (i), the court may not authorize the
7-15 performance of the abortion without the notice required by Section
7-16 33.002(a)(1)(A).
7-17 (k) The court may not notify a parent, managing conservator,
7-18 or guardian of the pregnant minor or the parents, managing
7-19 conservator, or guardian of the alleged father that the minor is
7-20 pregnant or that the minor wants to have an abortion. The court
7-21 proceedings shall be conducted in a manner that protects the
7-22 anonymity of the pregnant minor, and the application and all other
7-23 court documents pertaining to the proceedings are confidential and
7-24 may not be made available to the public. The pregnant minor may
7-25 file the application using a pseudonym or using only her initials.
7-26 (l) The clerk of the supreme court shall prescribe the
7-27 application form to be used by the pregnant minor filing an
8-1 application under this section.
8-2 (m) A filing fee is not required of, and court costs may not
8-3 be assessed against, a pregnant minor filing an application under
8-4 this section.
8-5 Sec. 33.004. APPEAL TO DISTRICT COURT. (a) A pregnant
8-6 minor whose application under Section 33.003 is denied may appeal
8-7 to the district court that has jurisdiction over civil matters in
8-8 the county in which the application was filed. On receipt of a
8-9 notice of appeal, the clerk of the court that denied the
8-10 application shall deliver a copy of the notice of appeal and record
8-11 on appeal to the clerk of the district court. On receipt of the
8-12 notice and record, the clerk of the district court shall place the
8-13 appeal on the docket of the court.
8-14 (b) The district court shall rule on an appeal under this
8-15 section not later than 5 p.m. on the second business day after the
8-16 date the notice of appeal is filed. The pregnant minor may request
8-17 an extension of that period. If the court does not rule on the
8-18 appeal within the specified period and an extension was not
8-19 requested, the appeal is granted and the physician may perform the
8-20 abortion as if the court had issued an order authorizing the minor
8-21 to consent to the performance of the abortion. The court shall
8-22 give proceedings under this section precedence over other pending
8-23 matters to the extent necessary to ensure that the court reaches a
8-24 decision promptly.
8-25 (c) The clerk of the supreme court shall prescribe the
8-26 notice of appeal form to be used by the pregnant minor appealing a
8-27 judgment under this section.
9-1 (d) A filing fee is not required of, and court costs may not
9-2 be assessed against, a pregnant minor filing an appeal under this
9-3 section.
9-4 Sec. 33.005. APPEAL TO APPELLATE COURT. (a) A pregnant
9-5 minor whose application under Section 33.004 is denied may appeal
9-6 to the court of appeals having jurisdiction over the cause. On
9-7 receipt of a notice of appeal, the clerk of the district court that
9-8 denied the application shall deliver a copy of the notice of appeal
9-9 and record on appeal to the clerk of the court of appeals. On
9-10 receipt of the notice and record, the clerk of the appellate court
9-11 shall place the appeal on the docket of the court.
9-12 (b) The court of appeals shall rule on an appeal under this
9-13 section not later than 5 p.m. on the second business day after the
9-14 date the notice of appeal is filed. The pregnant minor may request
9-15 an extension of that period. If the court of appeals does not rule
9-16 on the appeal within the specified period and an extension was not
9-17 requested, the appeal is granted and the physician may perform the
9-18 abortion as if the court had issued an order authorizing the minor
9-19 to consent to the performance of the abortion. The court of
9-20 appeals shall give proceedings under this section precedence over
9-21 other pending matters to the extent necessary to ensure that the
9-22 court reaches a decision promptly.
9-23 (c) The clerk of the supreme court shall prescribe the
9-24 notice of appeal form to be used by the pregnant minor appealing a
9-25 judgment under this section.
9-26 (d) A pregnant minor filing an appeal under this section may
9-27 not be required to post an appeal bond.
10-1 SECTION 2. Except as provided by Section 4 of this Act, this
10-2 Act takes effect September 1, 1999.
10-3 SECTION 3. Chapter 33, Family Code, as added by this Act,
10-4 applies only to an abortion performed on or after January 1, 2000.
10-5 An abortion performed before January 1, 2000, is governed by the
10-6 law as it existed immediately before the effective date of this
10-7 Act, and that law is continued in effect for that purpose.
10-8 SECTION 4. Section 33.002(e), Family Code, as added by this
10-9 Act, takes effect January 1, 2000.
10-10 SECTION 5. The Texas Board of Health shall adopt the form to
10-11 be used under Section 33.002(a)(4), Family Code, as added by this
10-12 Act, not later than December 15, 1999.
10-13 SECTION 6. The Texas Supreme Court shall promptly issue
10-14 rules necessary to ensure that the process established by Sections
10-15 33.003, 33.004, and 33.005, Family Code, as added by this Act, will
10-16 be conducted in a manner that will ensure confidentiality and
10-17 sufficient precedence over all other pending matters to ensure
10-18 promptness of disposition.
10-19 SECTION 7. The clerk of the Texas Supreme Court shall adopt
10-20 the application form and notice of appeal form to be used under
10-21 Sections 33.003, 33.004, and 33.005, Family Code, as added by this
10-22 Act, not later than December 15, 1999.
10-23 SECTION 8. The importance of this legislation and the
10-24 crowded condition of the calendars in both houses create an
10-25 emergency and an imperative public necessity that the
10-26 constitutional rule requiring bills to be read on three several
10-27 days in each house be suspended, and this rule is hereby suspended.