By Van de Putte H.B. No. 3413
76R4726 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; 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 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) "Clergy member" means a person who is an officer
1-14 of a religious organization and who is authorized by the
1-15 organization to conduct marriage ceremonies.
1-16 (3) "Counselor" means:
1-17 (A) a psychiatrist;
1-18 (B) an individual licensed or certified as a
1-19 psychologist under the Psychologists' Licensing Act (Article 4512c,
1-20 Vernon's Texas Civil Statutes);
1-21 (C) an individual licensed as a professional
1-22 counselor under the Licensed Professional Counselor Act (Article
1-23 4512g, Vernon's Texas Civil Statutes); or
1-24 (D) an individual licensed as a social worker
2-1 under Chapter 50, Human Resources Code.
2-2 (4) "Guardian" means a court-appointed guardian of the
2-3 person of the minor.
2-4 (5) "Medical emergency" means a condition that, on the
2-5 basis of a physician's good faith clinical judgment, complicates
2-6 the medical condition of a pregnant woman and necessitates the
2-7 immediate abortion of her pregnancy to avert her death or to avoid
2-8 a serious risk of substantial and irreversible impairment of a
2-9 major bodily function.
2-10 (6) "Physician" means an individual licensed to
2-11 practice medicine in this state.
2-12 Sec. 33.002. PARENTAL NOTICE. (a) A physician may not
2-13 perform an abortion on a pregnant unemancipated minor who is
2-14 younger than 16 years of age unless:
2-15 (1) the physician performing the abortion gives at
2-16 least 48 hours actual notice, in person or by telephone, of the
2-17 physician's intent to perform the abortion to:
2-18 (A) a parent of the minor if the minor has no
2-19 managing conservator or guardian;
2-20 (B) a court-appointed managing conservator or
2-21 guardian; or
2-22 (C) an adult family member listed in Sections
2-23 32.001(a)(1)-(3) who can consent to treatment of a child;
2-24 (2) the judge of a court having probate jurisdiction,
2-25 the judge of a county court at law, or the judge of the court of
2-26 appeals issues an order authorizing the minor to consent to the
2-27 abortion as provided by Section 33.051 or 33.052;
3-1 (3) a probate court, county court at law, or court of
3-2 appeals, by its inaction, constructively authorizes the minor to
3-3 consent to the abortion as provided by Section 33.051 or 33.052;
3-4 (4) a clergy member or counselor makes the
3-5 certification described by Section 33.101; or
3-6 (5) the physician performing the abortion:
3-7 (A) concludes that a medical emergency exists
3-8 and there is insufficient time to provide the required notice; and
3-9 (B) certifies in writing to the Texas
3-10 Department of Health and in the patient's medical record the
3-11 medical indications supporting the physician's judgment that a
3-12 medical emergency exists and that there is insufficient time to
3-13 provide the required notice.
3-14 (b) If a person to whom notice may be given under Subsection
3-15 (a)(1) cannot be notified after a reasonable effort, a physician
3-16 may perform an abortion if the physician gives 48 hours
3-17 constructive notice, by certified mail sent to the last known
3-18 address, to the person to whom notice may be given under Subsection
3-19 (a)(1). The period under this subsection begins at the time notice
3-20 is mailed, and the abortion may proceed 48 hours after the notice
3-21 is mailed without regard to whether the notice is received.
3-22 (c) A physician may execute for inclusion in the minor's
3-23 medical record an affidavit stating that, according to the best
3-24 information and belief of the physician, notice or constructive
3-25 notice has been provided as required by this section. Execution of
3-26 an affidavit under this subsection creates a conclusive presumption
3-27 that the requirements of this section have been satisfied.
4-1 (d) The Texas Department of Health shall prepare a form to
4-2 be used for making the certification required by Subsection (a)(5).
4-3 (e) A physician who violates this section commits an
4-4 offense. An offense under this section is a Class A misdemeanor.
4-5 (Sections 33.003-33.050 reserved for expansion
4-6 SUBCHAPTER B. JUDICIAL APPROVAL
4-7 Sec. 33.051. APPLICATION; JUDICIAL APPROVAL. (a) A
4-8 pregnant minor who wants to have an abortion without notification
4-9 to any person described by Section 33.002(a)(1) may file an
4-10 application for a court order authorizing the minor to consent to
4-11 the performance of an abortion without the notification.
4-12 (b) The application may be filed in the county court at law
4-13 or a court having probate jurisdiction for:
4-14 (1) the county in which the minor resides;
4-15 (2) a county that borders a county in which the minor
4-16 resides; or
4-17 (3) the county in which the hospital, clinic, or
4-18 facility in which the abortion would be performed is located.
4-19 (c) The application must be made under oath and include:
4-20 (1) a statement that the minor is pregnant;
4-21 (2) a statement that the minor is unmarried, is under
4-22 16 years of age, and has not had her disabilities removed for
4-23 general purposes under Chapter 31;
4-24 (3) a statement that the minor wishes to have an
4-25 abortion without the notification to any person described by
4-26 Section 33.002(a)(1); and
4-27 (4) a statement as to whether the minor has retained
5-1 an attorney and, if she has retained an attorney, the name,
5-2 address, and telephone number of her attorney.
5-3 (d) The court shall appoint a guardian ad litem for the
5-4 minor. If the minor has not retained an attorney, the court shall
5-5 appoint an attorney to represent the minor. If the guardian ad
5-6 litem is an attorney admitted to the practice of law in this state,
5-7 the court may appoint the guardian ad litem to serve as the minor's
5-8 attorney.
5-9 (e) The court shall set a time for a hearing on an
5-10 application filed under Subsection (a) and shall keep a record of
5-11 all testimony and other oral proceedings in the action. The court
5-12 shall enter judgment on the application immediately after the
5-13 hearing is concluded.
5-14 (f) The court shall rule on an application submitted under
5-15 this section and shall issue written findings of fact and
5-16 conclusions of law not later than 5 p.m. of the second business day
5-17 after the date the application is filed with the court. The minor
5-18 may request an extension of the period specified by this section.
5-19 If the court fails to rule on the application and issue written
5-20 findings of fact and conclusions of law within the period specified
5-21 by this subsection and an extension was not requested, the
5-22 application is considered granted at the expiration of the period
5-23 and the physician may perform the abortion as if the court had
5-24 issued an order authorizing the minor to consent to the performance
5-25 of the abortion without notification under Section 33.002(a)(1).
5-26 Proceedings under this section shall be given precedence over other
5-27 pending matters to the extent necessary to assure that the court
6-1 reaches a decision promptly.
6-2 (g) The court shall determine by a preponderance of the
6-3 evidence whether the minor is mature and sufficiently well-informed
6-4 to make the decision to have an abortion performed without
6-5 notification to a person described by Section 33.002(a)(1), whether
6-6 the abortion would be in the best interest of the minor, or whether
6-7 notification would not be in the best interest of the minor. If
6-8 the court finds that the minor is mature and sufficiently
6-9 well-informed, that the abortion would be in the minor's best
6-10 interest, or that notification would not be in the minor's best
6-11 interest, the court shall enter an order authorizing the minor to
6-12 consent to the performance of the abortion without the notification
6-13 and shall execute the required forms.
6-14 (h) If the court finds in the negative on any of the issues
6-15 prescribed by Subsection (g), the court may not authorize the minor
6-16 to consent to an abortion without the notification required under
6-17 Section 33.002(a)(1).
6-18 (i) The court may not notify a parent, managing conservator,
6-19 guardian, or other person that the minor is pregnant or that the
6-20 minor wants to have an abortion. The court proceedings shall be
6-21 conducted in a manner that protects the anonymity of the minor, and
6-22 the application and all other court documents pertaining to the
6-23 proceedings are confidential and may not be made available to the
6-24 public. The minor may file the application using a pseudonym or
6-25 using only her initials.
6-26 (j) The clerk of the supreme court shall prescribe the
6-27 application form to be used by the minor filing an application
7-1 under this section.
7-2 (k) A filing fee is not required of and court costs may not
7-3 be assessed against a minor filing an application under this
7-4 section.
7-5 Sec. 33.052. APPEAL. (a) A minor whose application under
7-6 Section 33.051 is denied may appeal to the court of appeals having
7-7 jurisdiction over civil matters in the county in which the
7-8 application was filed. On receipt of a notice of appeal, the clerk
7-9 of the court that denied the application shall deliver a copy of
7-10 the notice of appeal and record on appeal to the clerk of the court
7-11 of appeals. On receipt of the notice and record, the clerk of the
7-12 court of appeals shall place the appeal on the docket of the court.
7-13 (b) The court of appeals shall rule on an appeal under this
7-14 section not later than 5 p.m. of the second business day after the
7-15 date the notice of appeal is filed with the court that denied the
7-16 application. The minor may request an extension of the period
7-17 specified by this subsection. If the court of appeals fails to
7-18 rule on the appeal within the period specified by this subsection
7-19 and an extension was not requested, the appeal is considered
7-20 granted on the expiration of the period and the physician may
7-21 perform the abortion as if the court had issued an order
7-22 authorizing the minor to consent to the performance of the abortion
7-23 without notification under Section 33.002(a)(1). Proceedings under
7-24 this section shall be given precedence over other pending matters
7-25 to the extent necessary to assure that the court reaches a decision
7-26 promptly.
7-27 (c) The clerk of the supreme court shall prescribe the
8-1 notice of appeal form to be used by the minor appealing a judgment
8-2 under this section.
8-3 (d) A filing fee is not required of and court costs may not
8-4 be assessed against a minor filing an appeal under this section.
8-5 (e) An expedited confidential appeal shall be available to
8-6 any minor to whom a court of appeals denies an order authorizing
8-7 the minor to consent to the performance of an abortion without
8-8 notification to either of her parents or a managing conservator or
8-9 guardian.
8-10 Sec. 33.053. AD LITEM IMMUNITY. A guardian ad litem or
8-11 attorney ad litem appointed under this chapter has the same
8-12 judicial immunity as the appointing judge with respect to an act or
8-13 omission in the course and scope of the appointment.
8-14 Sec. 33.054. COSTS PAID BY STATE. (a) A court acting under
8-15 Section 33.051 or 33.052 may issue an order requiring the state to
8-16 pay:
8-17 (1) the cost of any attorney ad litem and any guardian
8-18 ad litem appointed for the minor;
8-19 (2) notwithstanding Sections 33.051(k) and 33.052(d),
8-20 the costs of court associated with the application or appeal; and
8-21 (3) any court reporter's fees incurred.
8-22 (b) An order issued under Subsection (a) must be directed to
8-23 the comptroller, who shall pay the amount ordered from funds
8-24 appropriated to the Texas Department of Health for family planning.
8-25 (Sections 33.055-33.100 reserved for expansion
8-26 SUBCHAPTER C. INDEPENDENT EVALUATION
8-27 Sec. 33.101. INDEPENDENT EVALUATION OF MINOR. (a) A
9-1 physician may perform an abortion without providing notice under
9-2 Section 33.002(a)(1) if a clergy member or counselor:
9-3 (1) in the person's professional judgment, determines
9-4 that:
9-5 (A) the minor is mature and sufficiently
9-6 well-informed to make the decision to have an abortion performed
9-7 without notification to any person described by Section
9-8 33.002(a)(1);
9-9 (B) the abortion would be in the best interest
9-10 of the minor; or
9-11 (C) notification could lead to physical or
9-12 emotional abuse of the minor or otherwise would not be in the best
9-13 interest of the minor; and
9-14 (2) certifies in writing to the physician who is to
9-15 perform the abortion that the person has made the determination
9-16 described by Subdivision (1).
9-17 (b) A physician who performs an abortion under this section
9-18 shall include a copy of the certification described by Subsection
9-19 (a) in the minor's medical record.
9-20 Sec. 33.102. CONFIDENTIALITY. A certification made under
9-21 this subchapter is confidential and privileged and is not subject
9-22 to disclosure under Chapter 552, Government Code, or to discovery,
9-23 subpoena, or other legal process.
9-24 Sec. 33.103. FAILURE TO OBTAIN CERTIFICATION. If the minor
9-25 does not obtain a certification described by this subchapter, the
9-26 ability of a physician to perform an abortion under Section
9-27 33.002(a)(1), (2), (3), or (5) is not affected.
10-1 SECTION 2. The Supreme Court of Texas shall promptly issue
10-2 such rules as may be necessary in order that the process
10-3 established by Sections 33.051 and 33.052, Family Code, as added by
10-4 this Act, be conducted in a manner that will ensure confidentiality
10-5 and sufficient precedence over all other pending matters to ensure
10-6 promptness of disposition.
10-7 SECTION 3. Except as provided by Section 5 of this Act, this
10-8 Act takes effect September 1, 1999.
10-9 SECTION 4. Chapter 33, Family Code, as added by this Act,
10-10 applies only to an abortion performed on or after January 1, 2000.
10-11 An abortion performed before January 1, 2000, is governed by the
10-12 law as it existed immediately before the effective date of this
10-13 Act, and that law is continued in effect for that purpose.
10-14 SECTION 5. Section 33.002(e), Family Code, as added by this
10-15 Act, takes effect January 1, 2000.
10-16 SECTION 6. The Texas Board of Health shall adopt the form to
10-17 be used under Section 33.002(a)(5), Family Code, as added by this
10-18 Act, not later than December 15, 1999.
10-19 SECTION 7. The clerk of the Supreme Court of Texas shall
10-20 adopt the application form and notice of appeal form to be used
10-21 under Sections 33.051 and 33.052, 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.