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.