By: Shapiro, et al. S.B. No. 30
A BILL TO BE ENTITLED
AN ACT
1-1 relating to parental notification before an abortion may be
1-2 performed on certain minors; providing a criminal penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle A, Title 2, Family Code, is amended by
1-5 adding Chapter 33 to read as follows:
1-6 CHAPTER 33. NOTICE OF ABORTION
1-7 Sec. 33.001. DEFINITIONS. In this chapter:
1-8 (1) "Abortion" means the use of any means to terminate
1-9 the pregnancy of a female known by the attending physician to be
1-10 pregnant, with the intention that the termination of the pregnancy
1-11 by those means will with reasonable likelihood cause the death of
1-12 the fetus.
1-13 (2) "Fetus" means an individual human organism from
1-14 fertilization until birth.
1-15 (3) "Guardian" means a court-appointed guardian of the
1-16 person of the minor.
1-17 (4) "Medical emergency" means a condition that, on the
1-18 basis of a physician's good faith clinical judgment, complicates
1-19 the medical condition of a pregnant woman and necessitates the
1-20 immediate abortion of her pregnancy to avert her death or to avoid
1-21 a serious risk of substantial and irreversible impairment of a
1-22 major bodily function.
1-23 (5) "Physician" means an individual licensed to
1-24 practice medicine in this state.
2-1 Sec. 33.002. PARENTAL NOTICE. (a) A physician may not
2-2 perform an abortion on a pregnant unemancipated minor unless:
2-3 (1) the physician performing the abortion gives at
2-4 least 48 hours actual notice, in person or by telephone, of the
2-5 physician's intent to perform the abortion to:
2-6 (A) a parent of the minor, if the minor has no
2-7 managing conservator or guardian; or
2-8 (B) a court-appointed managing conservator or
2-9 guardian;
2-10 (2) the judge of a court having probate jurisdiction,
2-11 the judge of a county court at law, the judge of a district court,
2-12 or the judge of the court of appeals issues an order authorizing
2-13 the minor to consent to the abortion as provided by Section 33.003
2-14 or 33.004;
2-15 (3) a probate court, county court at law, district
2-16 court, or court of appeals, by its inaction, constructively
2-17 authorizes the minor to consent to the abortion as provided by
2-18 Section 33.003 or 33.004; or
2-19 (4) the physician performing the abortion:
2-20 (A) concludes that a medical emergency exists
2-21 and there is insufficient time to provide the required notice; and
2-22 (B) certifies in writing to the Texas
2-23 Department of Health and in the patient's medical record the
2-24 medical indications supporting the physician's judgment that a
2-25 medical emergency exists and that there is insufficient time to
2-26 provide the required notice.
3-1 (b) If a person to whom notice may be given under Subsection
3-2 (a)(1) cannot be notified after a reasonable effort, a physician
3-3 may perform an abortion if the physician gives 48 hours
3-4 constructive notice, by certified mail sent to the last known
3-5 address, to the person to whom notice may be given under Subsection
3-6 (a)(1). The period under this subsection begins when the certified
3-7 mail notice is mailed. If the person required to be notified is
3-8 not notified within the 48-hour period, the abortion may proceed
3-9 even if the certified mail notice is not received.
3-10 (c) The Texas Department of Health shall prepare a form to
3-11 be used for making the certification required by Subsection (a)(4).
3-12 (d) A physician who violates this section commits an
3-13 offense. An offense under this section is a Class A misdemeanor.
3-14 (e) It shall be an affirmative defense to prosecution under
3-15 this section if the minor falsely represented her age or identity
3-16 to the physician to be at least 18 years of age by displaying an
3-17 apparently valid governmental record of identification such that a
3-18 reasonable person under similar circumstances would have relied on
3-19 the representation. The affirmative defense does not apply if the
3-20 physician is shown to have had independent knowledge of the minor's
3-21 actual age or identity or failed to use due diligence in
3-22 determining the minor's age or identity.
3-23 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who
3-24 wishes to have an abortion without notification to one of her
3-25 parents, her managing conservator, or her guardian may file an
3-26 application for a court order authorizing the minor to consent to
4-1 the performance of an abortion without notification to either of
4-2 her parents or a managing conservator or guardian.
4-3 (b) The application may be filed in the county court at law,
4-4 a court having probate jurisdiction, or a district court for:
4-5 (1) the county in which the minor resides;
4-6 (2) a county that borders the county in which the
4-7 minor resides; or
4-8 (3) the county in which the hospital, clinic, or
4-9 facility in which the abortion would be performed is located.
4-10 (c) The application must be made under oath and include:
4-11 (1) a statement that the minor is pregnant;
4-12 (2) a statement that the minor is unmarried, is under
4-13 18 years of age, and has not had her disabilities removed for
4-14 general purposes under Chapter 31;
4-15 (3) a statement that the minor wishes to have an
4-16 abortion without the notification of either of her parents or a
4-17 managing conservator or guardian; and
4-18 (4) a statement as to whether the minor has retained
4-19 an attorney and, if she has retained an attorney, the name,
4-20 address, and telephone number of her attorney.
4-21 (d) The pregnant minor shall deliver a courtesy copy of the
4-22 application made under this section to the judge who is to hear the
4-23 application. At the time the application is filed with the court,
4-24 the clerk of the court shall advise the minor of the place where
4-25 the courtesy copy is to be delivered under this subsection.
4-26 (e) The court shall appoint a guardian ad litem for the
5-1 minor. If the minor has not retained an attorney, the court shall
5-2 appoint an attorney to represent the minor. If the guardian ad
5-3 litem is an attorney admitted to the practice of law in this state,
5-4 the court may appoint the guardian ad litem to serve as the minor's
5-5 attorney.
5-6 (f) The court shall fix a time for a hearing on an
5-7 application filed under Subsection (a) and shall keep a record of
5-8 all testimony and other oral proceedings in the action. The court
5-9 shall enter judgment on the application immediately after the
5-10 hearing is concluded.
5-11 (g) The court shall rule on an application submitted under
5-12 this section and shall issue written findings of fact and
5-13 conclusions of law not later than 5 p.m. on the second business day
5-14 after the date the application is filed with the court. The minor
5-15 may request an extension of the period specified by this
5-16 subsection. If the court fails to rule on the application and
5-17 issue written findings of fact and conclusions of law within the
5-18 period specified by this subsection and an extension was not
5-19 requested, the application is deemed to be granted and the
5-20 physician may perform the abortion as if the court had issued an
5-21 order authorizing the minor to consent to the performance of the
5-22 abortion without notification under Section 33.002. Proceedings
5-23 under this section shall be given precedence over other pending
5-24 matters to the extent necessary to assure that the court reaches a
5-25 decision promptly.
5-26 (h) The court shall determine by a preponderance of the
6-1 evidence whether the minor is mature and sufficiently well informed
6-2 to make the decision to have an abortion performed without
6-3 notification to either of her parents or a managing conservator or
6-4 guardian or whether notification would not be in the best interest
6-5 of the minor. If the court finds that the minor is mature and
6-6 sufficiently well informed or that notification would not be in the
6-7 minor's best interest, the court shall enter an order authorizing
6-8 the minor to consent to the performance of the abortion without
6-9 notification to either of her parents or a managing conservator or
6-10 guardian and shall execute the required forms.
6-11 (i) If the court finds that the minor does not meet the
6-12 requirements of Subsection (h), the court may not authorize the
6-13 minor to consent to an abortion without the notification authorized
6-14 under Section 33.002(a)(1).
6-15 (j) The court may not notify a parent, managing conservator,
6-16 or guardian that the minor is pregnant or that the minor wants to
6-17 have an abortion. The court proceedings shall be conducted in a
6-18 manner that protects the anonymity of the minor, and the
6-19 application and all other court documents pertaining to the
6-20 proceedings are confidential and may not be made available to the
6-21 public. The minor may file the application using a pseudonym or
6-22 using only her initials.
6-23 (k) An order of the court issued under this section is
6-24 confidential and may not be released to any person but the pregnant
6-25 minor, the pregnant minor's guardian ad litem, the pregnant minor's
6-26 attorney, or another person designated to receive the order by the
7-1 minor. The supreme court may adopt rules to permit confidential
7-2 docketing of an application under this section.
7-3 (l) The clerk of the supreme court shall prescribe the
7-4 application form to be used by the minor filing an application
7-5 under this section.
7-6 (m) A filing fee is not required of and court costs may not
7-7 be assessed against a minor filing an application under this
7-8 section.
7-9 Sec. 33.004. APPEAL. (a) A minor whose application under
7-10 Section 33.003 is denied may appeal to the court of appeals having
7-11 jurisdiction over civil matters in the county in which the
7-12 application was filed. On receipt of a notice of appeal, the clerk
7-13 of the court that denied the application shall deliver a copy of
7-14 the notice of appeal and record on appeal to the clerk of the court
7-15 of appeals. On receipt of the notice and record, the clerk of the
7-16 court of appeals shall place the appeal on the docket of the court.
7-17 (b) The court of appeals shall rule on an appeal under this
7-18 section not later than 5 p.m. on the second business day after the
7-19 date the notice of appeal is filed with the court that denied the
7-20 application. The minor may request an extension of the period
7-21 specified by this subsection. If the court of appeals fails to
7-22 rule on the appeal within the period specified by this subsection
7-23 and an extension was not requested, the appeal is deemed to be
7-24 granted and the physician may perform the abortion as if the court
7-25 had issued an order authorizing the minor to consent to the
7-26 performance of the abortion without notification under Section
8-1 33.002. Proceedings under this section shall be given precedence
8-2 over other pending matters to the extent necessary to assure that
8-3 the court reaches a decision promptly.
8-4 (c) A ruling of the court of appeals issued under this
8-5 section is confidential and may not be released to any person but
8-6 the pregnant minor, the pregnant minor's guardian ad litem, the
8-7 pregnant minor's attorney, or another person designated to receive
8-8 the ruling by the minor. The supreme court may adopt rules to
8-9 permit confidential docketing of an appeal under this section.
8-10 (d) The clerk of the supreme court shall prescribe the
8-11 notice of appeal form to be used by the minor appealing a judgment
8-12 under this section.
8-13 (e) A filing fee is not required of and court costs may not
8-14 be assessed against a minor filing an appeal under this section.
8-15 (f) An expedited confidential appeal shall be available to
8-16 any pregnant minor to whom a court of appeals denies an order
8-17 authorizing the minor to consent to the performance of an abortion
8-18 without notification to either of her parents or a managing
8-19 conservator or guardian.
8-20 Sec. 33.005. AD LITEM IMMUNITY. A guardian ad litem or
8-21 attorney ad litem appointed under this chapter and acting in the
8-22 course and scope of the appointment is not liable for damages
8-23 arising from an act or omission of the guardian ad litem or
8-24 attorney ad litem committed in good faith.
8-25 Sec. 33.006. COSTS PAID BY STATE. (a) A court acting under
8-26 Section 33.003 or 33.004 may issue an order requiring the state to
9-1 pay:
9-2 (1) the cost of any attorney ad litem and any guardian
9-3 ad litem appointed for the minor;
9-4 (2) notwithstanding Sections 33.003(m) and 33.004(e),
9-5 the costs of court associated with the application or appeal; and
9-6 (3) any court reporter's fees incurred.
9-7 (b) An order issued under Subsection (a) must be directed to
9-8 the comptroller, who shall pay the amount ordered from funds
9-9 appropriated to the Texas Department of Health.
9-10 Sec. 33.007. REPORTING OF SEXUAL ABUSE OF A MINOR. A court
9-11 or the guardian ad litem or attorney ad litem for the minor shall
9-12 report sexual abuse of the minor based on information obtained
9-13 during a confidential court proceeding held under this chapter to:
9-14 (1) any local or state law enforcement agency;
9-15 (2) the Department of Protective and Regulatory
9-16 Services, if the alleged or suspected abuse involves a person
9-17 responsible for the care, custody, or welfare of the child;
9-18 (3) the state agency that operates, licenses,
9-19 certifies, or registers the facility in which the alleged abuse
9-20 occurred, if the alleged abuse occurred in a facility operated,
9-21 licensed, certified, or registered by a state agency; or
9-22 (4) an appropriate agency designated by the court.
9-23 SECTION 2. The Supreme Court of Texas shall issue promptly
9-24 such rules as may be necessary in order that the process
9-25 established by Sections 33.003 and 33.004, Family Code, as added by
9-26 this Act, may be conducted in a manner that will ensure
10-1 confidentiality and sufficient precedence over all other pending
10-2 matters to ensure promptness of disposition.
10-3 SECTION 3. Except as provided by Section 5 of this Act, this
10-4 Act takes effect September 1, 1999.
10-5 SECTION 4. Chapter 33, Family Code, as added by this Act,
10-6 applies only to an abortion performed on or after January 1, 2000.
10-7 An abortion performed before January 1, 2000, is governed by the
10-8 law as it existed immediately before the effective date of this
10-9 Act, and that law is continued in effect for that purpose.
10-10 SECTION 5. Subsection (d), Section 33.002, Family Code, as
10-11 added by this Act, takes effect January 1, 2000.
10-12 SECTION 6. The Texas Board of Health shall adopt the form to
10-13 be used under Subdivision (4), Subsection (a), Section 33.002,
10-14 Family Code, as added by this Act, not later than December 15,
10-15 1999.
10-16 SECTION 7. The clerk of the Supreme Court of Texas shall
10-17 adopt the application form and notice of appeal form to be used
10-18 under Sections 33.003 and 33.004, Family Code, as added by this
10-19 Act, not later than December 15, 1999.
10-20 SECTION 8. The importance of this legislation and the
10-21 crowded condition of the calendars in both houses create an
10-22 emergency and an imperative public necessity that the
10-23 constitutional rule requiring bills to be read on three several
10-24 days in each house be suspended, and this rule is hereby suspended.