By Nelson S.B. No. 27
76R1205 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to parental consent before an abortion may be performed on
1-3 a minor; 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 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) "Physician" means an individual licensed to
2-1 practice medicine in this state.
2-2 Sec. 33.002. PARENTAL CONSENT. (a) A physician may not
2-3 perform an abortion on a pregnant minor unless:
2-4 (1) a parent, managing conservator, or guardian of the
2-5 minor consents to the abortion;
2-6 (2) the judge of a court having probate jurisdiction,
2-7 the judge of a county court at law, or the judge of a district
2-8 court or the court of appeals issues an order authorizing the minor
2-9 to consent to the abortion as provided by Section 33.003, 33.004,
2-10 or 33.005;
2-11 (3) a probate court, county court at law, district
2-12 court, or court of appeals, by its inaction, constructively
2-13 authorizes the minor to consent to the abortion as provided by
2-14 Section 33.003, 33.004, or 33.005; or
2-15 (4) the physician performing the abortion:
2-16 (A) concludes that a medical emergency exists
2-17 and there is insufficient time to obtain the consent required by
2-18 Subsection (a)(1); and
2-19 (B) certifies in writing to the Texas
2-20 Department of Health and in the patient's medical record the
2-21 medical indications supporting the physician's judgment that a
2-22 medical emergency exists and that there is insufficient time to
2-23 obtain the required consent.
2-24 (b) The Texas Department of Health shall prepare a form to
2-25 be used for making the certification required by Subsection (a)(4).
2-26 (c) A physician who violates this section commits an
2-27 offense. An offense under this subsection is a Class A
3-1 misdemeanor.
3-2 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who
3-3 wishes to have an abortion without the consent of either of her
3-4 parents, her managing conservator, or her guardian may file an
3-5 application for a court order authorizing the minor to consent to
3-6 the performance of an abortion without the consent of either of her
3-7 parents or a managing conservator or guardian.
3-8 (b) The application may be filed in the county court at law
3-9 or a court having probate jurisdiction for:
3-10 (1) the county in which the minor resides;
3-11 (2) a county that borders a county in which the minor
3-12 resides; or
3-13 (3) the county in which the hospital, clinic, or
3-14 facility in which the abortion would be performed is located.
3-15 (c) The application must be made under oath and include:
3-16 (1) a statement that the minor is pregnant;
3-17 (2) a statement that the minor is unmarried, is under
3-18 18 years of age, and has not had her disabilities removed for
3-19 general purposes under Chapter 31;
3-20 (3) a statement that the minor wishes to have an
3-21 abortion without the consent of either of her parents or a managing
3-22 conservator or guardian; and
3-23 (4) a statement as to whether the minor has retained
3-24 an attorney and, if she has retained an attorney, the name,
3-25 address, and telephone number of her attorney.
3-26 (d) The court shall appoint a guardian ad litem for the
3-27 minor. If the minor has not retained an attorney, the court shall
4-1 appoint an attorney to represent the minor. If the guardian ad
4-2 litem is an attorney admitted to the practice of law in this state,
4-3 the court may appoint the guardian ad litem to serve as the minor's
4-4 attorney.
4-5 (e) The court shall fix a time for a hearing on an
4-6 application filed under Subsection (a) and shall keep a record of
4-7 all testimony and other oral proceedings in the action. The court
4-8 shall enter judgment on the application immediately after the
4-9 hearing is concluded.
4-10 (f) The court shall rule on an application submitted under
4-11 this section and shall issue written findings of fact and
4-12 conclusions of law not later than 5 p.m. on the second business day
4-13 after the date the application is filed with the court. The minor
4-14 may request an extension of that period. If the court does not
4-15 rule on the application and issue written findings of fact and
4-16 conclusions of law within the specified period and an extension was
4-17 not requested, the application is granted and the physician may
4-18 perform the abortion as if the court had issued an order
4-19 authorizing the minor to consent to the performance of the
4-20 abortion. The court shall give proceedings under this section
4-21 precedence over other pending matters to the extent necessary to
4-22 ensure that the court reaches a decision promptly.
4-23 (g) The court shall determine by a preponderance of the
4-24 evidence whether the minor is mature and sufficiently well-informed
4-25 to make the decision to have an abortion performed without the
4-26 consent of either of her parents or a managing conservator or
4-27 guardian or whether requiring that consent would not be in the best
5-1 interest of the minor. If the court finds that the minor is mature
5-2 and sufficiently well-informed or that requiring consent would not
5-3 be in the minor's best interest, the court shall enter an order
5-4 authorizing the minor to consent to the performance of the abortion
5-5 without the consent of either of her parents or a managing
5-6 conservator or guardian and execute the required forms.
5-7 (h) If the court finds that the minor does not meet the
5-8 requirements of Subsection (g), the court may not authorize the
5-9 minor to consent to an abortion without the consent required by
5-10 Section 33.002(a)(1).
5-11 (i) The court may not notify a parent, managing conservator,
5-12 or guardian that the minor is pregnant or that the minor wants to
5-13 have an abortion. The court proceedings shall be conducted in a
5-14 manner that protects the anonymity of the minor, and the
5-15 application and all other court documents pertaining to the
5-16 proceedings are confidential and may not be made available to the
5-17 public. The minor may file the application using a pseudonym or
5-18 using only her initials.
5-19 (j) The clerk of the supreme court shall prescribe the
5-20 application form to be used by the minor filing an application
5-21 under this section.
5-22 (k) A filing fee is not required of, and court costs may not
5-23 be assessed against, a minor filing an application under this
5-24 section.
5-25 Sec. 33.004. APPEAL TO DISTRICT COURT. (a) A minor whose
5-26 application under Section 33.003 is denied may appeal to the
5-27 district court that has jurisdiction over civil matters in the
6-1 county in which the application was filed. On receipt of a notice
6-2 of appeal, the clerk of the court that denied the application shall
6-3 deliver a copy of the notice of appeal and record on appeal to the
6-4 clerk of the district court. On receipt of the notice and record,
6-5 the clerk of the district court shall place the appeal on the
6-6 docket of the court.
6-7 (b) The district court shall rule on an appeal under this
6-8 section not later than 5 p.m. on the second business day after the
6-9 date the notice of appeal is filed. The minor may request an
6-10 extension of that period. If the court does not rule on the appeal
6-11 within the specified period and an extension was not requested, the
6-12 appeal is granted and the physician may perform the abortion as if
6-13 the court had issued an order authorizing the minor to consent to
6-14 the performance of the abortion. The court shall give proceedings
6-15 under this section precedence over other pending matters to the
6-16 extent necessary to ensure that the court reaches a decision
6-17 promptly.
6-18 (c) The clerk of the supreme court shall prescribe the
6-19 notice of appeal form to be used by the minor appealing a judgment
6-20 under this section.
6-21 (d) A filing fee is not required of, and court costs may not
6-22 be assessed against, a minor filing an appeal under this section.
6-23 Sec. 33.005. APPEAL TO APPELLATE COURT. (a) A minor whose
6-24 application under Section 33.004 is denied may appeal to the court
6-25 of appeals having jurisdiction over the cause. On receipt of a
6-26 notice of appeal, the clerk of the district court that denied the
6-27 application shall deliver a copy of the notice of appeal and record
7-1 on appeal to the clerk of the court of appeals. On receipt of the
7-2 notice and record, the clerk of the appellate court shall place the
7-3 appeal on the docket of the court.
7-4 (b) The court of appeals shall rule on an appeal under this
7-5 section not later than 5 p.m. on the second business day after the
7-6 date the notice of appeal is filed. The minor may request an
7-7 extension of that period. If the court of appeals does not rule on
7-8 the appeal within the specified period and an extension was not
7-9 requested, the appeal is granted and the physician may perform the
7-10 abortion as if the court had issued an order authorizing the minor
7-11 to consent to the performance of the abortion. The court of
7-12 appeals shall give proceedings under this section precedence over
7-13 other pending matters to the extent necessary to ensure that the
7-14 court reaches a decision promptly.
7-15 (c) The clerk of the supreme court shall prescribe the
7-16 notice of appeal form to be used by the minor appealing a judgment
7-17 under this section.
7-18 (d) A minor filing an appeal under this section may not be
7-19 required to post an appeal bond.
7-20 SECTION 2. Except as provided by Section 4 of this Act, this
7-21 Act takes effect September 1, 1999.
7-22 SECTION 3. Chapter 33, Family Code, as added by this Act,
7-23 applies only to an abortion performed on or after January 1, 2000.
7-24 An abortion performed before January 1, 2000, is governed by the
7-25 law as it existed immediately before the effective date of this
7-26 Act, and that law is continued in effect for that purpose.
7-27 SECTION 4. Section 33.002(c), Family Code, as added by this
8-1 Act, takes effect January 1, 2000.
8-2 SECTION 5. The Texas Board of Health shall adopt the form to
8-3 be used under Section 33.002(a)(4), Family Code, as added by this
8-4 Act, not later than December 15, 1999.
8-5 SECTION 6. The Texas Supreme Court shall promptly issue
8-6 rules necessary to ensure that the process established by Sections
8-7 33.003, 33.004, and 33.005, Family Code, as added by this Act, will
8-8 be conducted in a manner that will ensure confidentiality and
8-9 sufficient precedence over all other pending matters to ensure
8-10 promptness of disposition.
8-11 SECTION 7. The clerk of the Texas Supreme Court shall adopt
8-12 the application form and notice of appeal form to be used under
8-13 Sections 33.003, 33.004, and 33.005, Family Code, as added by this
8-14 Act, not later than December 15, 1999.
8-15 SECTION 8. The importance of this legislation and the
8-16 crowded condition of the calendars in both houses create an
8-17 emergency and an imperative public necessity that the
8-18 constitutional rule requiring bills to be read on three several
8-19 days in each house be suspended, and this rule is hereby suspended.