1-1     By:  Nelson, et al.                                     S.B. No. 27
 1-2           (In the Senate - Filed November 9, 1998; January 26, 1999,
 1-3     read first time and referred to Committee on Human Services;
 1-4     March 15, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 3, Nays 2; March 15, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 27                    By:  Carona
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to parental consent before an abortion may be performed on
1-11     a minor; providing a criminal penalty.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Subtitle A, Title 2, Family Code, is amended by
1-14     adding Chapter 33 to read as follows:
1-15                       CHAPTER 33.  NOTICE OF ABORTION
1-16           Sec. 33.001.  DEFINITIONS.  In this chapter:
1-17                 (1)  "Abortion" means the use of any means to terminate
1-18     the pregnancy of a female known by the attending physician to be
1-19     pregnant, with the intention that the termination of the pregnancy
1-20     by those means will, with reasonable likelihood, cause the death of
1-21     the fetus.
1-22                 (2)  "Fetus" means an individual human organism from
1-23     fertilization until birth.
1-24                 (3)  "Guardian" means a court-appointed guardian of the
1-25     person of the minor.
1-26                 (4)  "Medical emergency" means a condition that, on the
1-27     basis of a physician's good faith clinical judgment, complicates
1-28     the medical condition of a pregnant woman and necessitates the
1-29     immediate abortion of her pregnancy to avert her death or to avoid
1-30     a serious risk of substantial and irreversible impairment of a
1-31     major bodily function.
1-32                 (5)  "Physician" means an individual licensed to
1-33     practice medicine in this state.
1-34           Sec. 33.002.  PARENTAL CONSENT.  (a)  A physician may not
1-35     perform an abortion on a pregnant minor unless:
1-36                 (1)  a parent, managing conservator, or guardian of the
1-37     minor consents in writing to the abortion;
1-38                 (2)  a justice of the peace, judge of a county court at
1-39     law, or judge of a district court or the court of appeals issues an
1-40     order authorizing the minor to consent to the abortion as provided
1-41     by Section 33.003, 33.004, or 33.005; or
1-42                 (3)  the physician performing the abortion:
1-43                       (A)  concludes that a medical emergency exists
1-44     and there is insufficient time to obtain the consent required by
1-45     Subdivision (1); and
1-46                       (B)  certifies in writing to the Texas
1-47     Department of Health and in the patient's medical record the
1-48     medical indications supporting the physician's judgment that a
1-49     medical emergency exists and that there is insufficient time to
1-50     obtain the required consent.
1-51           (b)  The Texas Department of Health shall prepare a form to
1-52     be used for making the certification required by Subsection (a)(3).
1-53           (c)  A physician who violates this section commits an
1-54     offense.  An offense under this subsection is a Class A
1-55     misdemeanor.
1-56           Sec. 33.003.  JUDICIAL BYPASS.  (a)  A pregnant minor who
1-57     wishes to have an abortion without the consent of either of her
1-58     parents, her managing conservator, or her guardian may file an
1-59     application for a court order authorizing the minor to consent to
1-60     the performance of an abortion without the consent of either of her
1-61     parents or a managing conservator or guardian.
1-62           (b)  The application must be filed in the justice court in:
1-63                 (1)  the precinct in which the minor resides;
1-64                 (2)  a precinct that borders the precinct in which the
 2-1     minor resides; or
 2-2                 (3)  the precinct in which the hospital, clinic, or
 2-3     facility in which the abortion would be performed is located.
 2-4           (c)  The application must be made under oath and include:
 2-5                 (1)  a statement that the minor is pregnant;
 2-6                 (2)  a statement that the minor is under 18 years of
 2-7     age;
 2-8                 (3)  a statement that the minor wishes to have an
 2-9     abortion without the consent of a parent, managing conservator, or
2-10     guardian; and
2-11                 (4)  a statement as to whether the minor has retained
2-12     an attorney and, if she has retained an attorney, the name,
2-13     address, and telephone number of her attorney.
2-14           (d)  The justice of the peace shall ensure that the minor is
2-15     given assistance in preparing and filing the application.  The
2-16     assistance may be provided by court personnel, volunteers, or other
2-17     persons appointed by the justice of the peace.
2-18           (e)  Proceedings in the justice court shall be conducted in a
2-19     manner that protects the anonymity of the minor.  The application
2-20     and all court records pertaining to the proceedings are
2-21     confidential and may not be made available to the public.  The
2-22     minor may file the application using a pseudonym or using only her
2-23     initials.
2-24           (f)  The justice of the peace may appoint a guardian ad litem
2-25     for the minor. If the minor has not retained an attorney, the
2-26     justice of the peace may appoint an attorney to represent the
2-27     minor.  If the guardian ad litem is an attorney admitted to the
2-28     practice of law in this state, the justice of the peace may appoint
2-29     the guardian ad litem to serve as the minor's attorney.
2-30           (g)  The justice of the peace shall set a time for a hearing
2-31     on an application filed under this section.  The hearing shall be
2-32     conducted not later than 5 p.m. of the second business day after
2-33     the date the application is filed with the court.  The minor may
2-34     request an extension of that period.  The justice of the peace
2-35     shall enter judgment on the application immediately after the
2-36     hearing is concluded.
2-37           (h)  The justice of the peace shall determine by a
2-38     preponderance of the evidence:
2-39                 (1)  whether the minor is sufficiently mature and
2-40     well-informed to make the decision to have an abortion performed
2-41     without the consent required under Section 33.002(a)(1); or
2-42                 (2)  whether requiring the consent would not be in the
2-43     best interest of the minor.
2-44           (i)  If the justice of the peace finds in the affirmative
2-45     under Subsection (h)(1) or (2), the justice of the peace shall
2-46     issue an order authorizing the minor to consent to the abortion.
2-47           (j)  If the justice of the peace finds in the negative under
2-48     both Subsections (h)(1) and (2), the justice of the peace may not
2-49     authorize the minor to consent to the abortion.
2-50           (k)  The clerk of the supreme court shall prescribe the
2-51     application form to be used by the minor filing an application
2-52     under this section.
2-53           (l)  A filing fee is not required of, and court costs may not
2-54     be assessed against, a minor filing an application under this
2-55     section.
2-56           Sec. 33.004.  DE NOVO APPEAL TO COURT OF RECORD.  (a)  A
2-57     minor whose application under Section 33.003 is denied may appeal
2-58     to a county court at law or a district court for:
2-59                 (1)  the county in which the minor resides;
2-60                 (2)  a county that borders the county in which the
2-61     minor resides; or
2-62                 (3)  the county in which the hospital, clinic, or
2-63     facility in which the abortion would be performed is located.
2-64           (b)  An appeal under this section shall be de novo.
2-65           (c)  Notice of appeal shall be filed in the justice court
2-66     that denied the minor's application.  On receipt of a notice of
2-67     appeal, the justice of the peace shall cause to be delivered a copy
2-68     of the notice of appeal and a copy of all records pertaining to the
2-69     application to the clerk of the court in which the de novo appeal
 3-1     is to be heard.  On receipt of the notice and record, the clerk
 3-2     shall place the de novo appeal on the docket of the court.
 3-3           (d)  The court hearing the de novo appeal shall appoint a
 3-4     guardian ad litem for the minor.  If the minor has not retained an
 3-5     attorney, the court shall appoint an attorney to represent the
 3-6     minor.  If the guardian ad litem is an attorney admitted to the
 3-7     practice of law in this state, the court may appoint the guardian
 3-8     ad litem to serve as the minor's attorney.
 3-9           (e)  Proceedings in the de novo appeal shall be conducted in
3-10     a manner that protects the anonymity of the minor.  The application
3-11     and all court records pertaining to the proceedings are
3-12     confidential and may not be made available to the public.  The
3-13     minor may file the notice of appeal using a pseudonym or only her
3-14     initials.
3-15           (f)  The court shall set a time for the de novo hearing on
3-16     the application and shall keep a record of all testimony and other
3-17     oral proceedings in the action.  The hearing shall be conducted not
3-18     later than 5 p.m. of the second business day after the date the
3-19     notice of appeal is filed.  The minor may request an extension of
3-20     that period.  The court shall enter judgment on the application
3-21     immediately after the hearing is concluded.
3-22           (g)  The court shall determine by a preponderance of the
3-23     evidence:
3-24                 (1)  whether the minor is sufficiently mature and
3-25     well-informed to make the decision to have an abortion performed
3-26     without the consent of a responsible adult; or
3-27                 (2)  whether requiring the consent would not be in the
3-28     best interest of the minor.
3-29           (h)  If the court finds in the affirmative under either
3-30     Subsection (g)(1) or (2), the court shall issue an order
3-31     authorizing the minor to grant consent for the abortion.
3-32           (i)  If the court finds in the negative under both
3-33     Subsections (g)(1) and (2), the court may not authorize the minor
3-34     to consent to an abortion.
3-35           (j)  The clerk of the supreme court shall prescribe the
3-36     notice of appeal form to be used by the minor seeking the de novo
3-37     appeal.
3-38           (k)  A filing fee is not required of, and court costs may not
3-39     be assessed against, a minor filing an appeal under this section.
3-40     The minor is not required to file an appeal bond.
3-41           Sec. 33.005.  APPEAL TO APPELLATE COURT.  (a)  A minor whose
3-42     appeal under Section 33.004 is denied may appeal to the court of
3-43     appeals having jurisdiction over the cause.  On receipt of a notice
3-44     of appeal, the clerk of the court that denied the appeal shall
3-45     deliver a copy of the notice of appeal and record on appeal to the
3-46     clerk of the court of appeals.  On receipt of the notice and
3-47     record, the clerk of the appellate court shall place the appeal on
3-48     the docket of the court.
3-49           (b)  The court of appeals shall rule on an appeal under this
3-50     section not later than 5 p.m. on the second business day after the
3-51     date the notice of appeal is filed.  The minor may request an
3-52     extension of that period.
3-53           (c)  The clerk of the supreme court shall prescribe the
3-54     notice of appeal form to be used by the minor appealing a judgment
3-55     under this section.
3-56           (d)  A minor filing an appeal under this section may not be
3-57     required to post an appeal bond.
3-58           SECTION 2.  Except as provided by Section 4 of this Act, this
3-59     Act takes effect September 1, 1999.
3-60           SECTION 3.  Chapter 33, Family Code, as added by this Act,
3-61     applies only to an abortion performed on or after January 1, 2000.
3-62     An abortion performed before January 1, 2000, is governed by the
3-63     law as it existed immediately before the effective date of this
3-64     Act, and that law is continued in effect for that purpose.
3-65           SECTION 4.  Subsection (c), Section 33.002, Family Code, as
3-66     added by this Act, takes effect January 1, 2000.
3-67           SECTION 5.  The Texas Board of Health shall adopt the form to
3-68     be used under Subdivision (3), Subsection (a), Section 33.002,
3-69     Family Code, as added by this Act, not later than December 15,
 4-1     1999.
 4-2           SECTION 6.  The Texas Supreme Court shall promptly issue
 4-3     rules necessary to ensure that the process established by Sections
 4-4     33.003, 33.004, and 33.005, Family Code, as added by this Act, will
 4-5     be conducted in a manner that will ensure confidentiality and
 4-6     sufficient precedence over all other pending matters to ensure
 4-7     promptness of disposition.
 4-8           SECTION 7.  The clerk of the Texas Supreme Court shall adopt
 4-9     the application form and notice of appeal form to be used under
4-10     Sections 33.003, 33.004, and 33.005, Family Code, as added by this
4-11     Act, not later than December 15, 1999.
4-12           SECTION 8.  The importance of this legislation and the
4-13     crowded condition of the calendars in both houses create an
4-14     emergency and an imperative public necessity that the
4-15     constitutional rule requiring bills to be read on three several
4-16     days in each house be suspended, and this rule is hereby suspended.
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