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.