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.