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. This definition, as applied in this chapter, applies
1-13 only to an unemancipated minor known by the attending physician to
1-14 be pregnant and may not be construed to limit a minor's access to
1-15 contraceptives.
1-16 (2) "Fetus" means an individual human organism from
1-17 fertilization until birth.
1-18 (3) "Guardian" means a court-appointed guardian of the
1-19 person of the minor.
1-20 (4) "Physician" means an individual licensed to
1-21 practice medicine in this state.
1-22 (5) "Unemancipated minor" includes a minor who:
1-23 (A) is unmarried; and
1-24 (B) has not had the disabilities of minority
2-1 removed under Chapter 31.
2-2 Sec. 33.002. PARENTAL NOTICE. (a) A physician may not
2-3 perform an abortion on a pregnant unemancipated minor unless:
2-4 (1) the physician performing the abortion gives at
2-5 least 48 hours actual notice, in person or by telephone, of the
2-6 physician's intent to perform the abortion to:
2-7 (A) a parent of the minor, if the minor has no
2-8 managing conservator or guardian; or
2-9 (B) a court-appointed managing conservator or
2-10 guardian;
2-11 (2) the judge of a court having probate jurisdiction,
2-12 the judge of a county court at law, the judge of a district court,
2-13 including a family district court, or a court of appellate
2-14 jurisdiction issues an order authorizing the minor to consent to
2-15 the abortion as provided by Section 33.003 or 33.004;
2-16 (3) a probate court, county court at law, district
2-17 court, including a family district court, or court of appeals, by
2-18 its inaction, constructively authorizes the minor to consent to the
2-19 abortion as provided by Section 33.003 or 33.004; or
2-20 (4) the physician performing the abortion:
2-21 (A) concludes that on the basis of the
2-22 physician's good faith clinical judgment, a condition exists that
2-23 complicates the medical condition of the pregnant minor and
2-24 necessitates the immediate abortion of her pregnancy to avert her
2-25 death or to avoid a serious risk of substantial and irreversible
2-26 impairment of a major bodily function; and
3-1 (B) certifies in writing to the Texas Department
3-2 of Health and in the patient's medical record the medical
3-3 indications supporting the physician's judgment that the
3-4 circumstances described by Paragraph (A) exist.
3-5 (b) If a person to whom notice may be given under Subsection
3-6 (a)(1) cannot be notified after a reasonable effort, a physician
3-7 may perform an abortion if the physician gives 48 hours
3-8 constructive notice, by certified mail, restricted delivery, sent
3-9 to the last known address, to the person to whom notice may be
3-10 given under Subsection (a)(1). The period under this subsection
3-11 begins when the notice is mailed. If the person required to be
3-12 notified is not notified within the 48-hour period, the abortion
3-13 may proceed even if the notice by mail is not received.
3-14 (c) The requirement that 48 hours actual notice be provided
3-15 under this section may be waived by an affidavit of:
3-16 (1) a parent of the minor, if the minor has no
3-17 managing conservator or guardian; or
3-18 (2) a court-appointed managing conservator or
3-19 guardian.
3-20 (d) A physician may execute for inclusion in the minor's
3-21 medical record an affidavit stating that, according to the best
3-22 information and belief of the physician, notice or constructive
3-23 notice has been provided as required by this section. Execution of
3-24 an affidavit under this subsection creates a presumption that the
3-25 requirements of this section have been satisfied.
3-26 (e) The Texas Department of Health shall prepare a form to
4-1 be used for making the certification required by Subsection (a)(4).
4-2 (f) A certification required by Subsection (a)(4) is
4-3 confidential and privileged and is not subject to disclosure under
4-4 Chapter 552, Government Code, or to discovery, subpoena, or other
4-5 legal process. Personal or identifying information about the
4-6 minor, including her name, address, or social security number, may
4-7 not be included in a certification under Subsection (a)(4). The
4-8 physician must keep the medical records on the minor in compliance
4-9 with the rules adopted by the Texas State Board of Medical
4-10 Examiners under Section 5.085, Medical Practice Act (Article 4495b,
4-11 Vernon's Texas Civil Statutes).
4-12 (g) A physician who intentionally performs an abortion on a
4-13 pregnant unemancipated minor in violation of this section commits
4-14 an offense. An offense under this subsection is punishable by a
4-15 fine not to exceed $10,000. In this subsection, "intentionally"
4-16 has the meaning assigned by Section 6.03(a), Penal Code.
4-17 (h) It is a defense to prosecution under this section that
4-18 the minor falsely represented her age or identity to the physician
4-19 to be at least 18 years of age by displaying an apparently valid
4-20 governmental record of identification such that a reasonable person
4-21 under similar circumstances would have relied on the
4-22 representation. The defense does not apply if the physician is
4-23 shown to have had independent knowledge of the minor's actual age
4-24 or identity or failed to use due diligence in determining the
4-25 minor's age or identity. In this subsection, "defense" has the
4-26 meaning and application assigned by Section 2.03, Penal Code.
5-1 (i) In relation to the trial of an offense under this
5-2 section in which the conduct charged involves a conclusion made by
5-3 the physician under Subsection (a)(4), the defendant may seek a
5-4 hearing before the Texas State Board of Medical Examiners on
5-5 whether the physician's conduct was necessary to avert the death of
5-6 the minor or to avoid a serious risk of substantial and
5-7 irreversible impairment of a major bodily function. The findings
5-8 of the Texas State Board of Medical Examiners under this subsection
5-9 are admissible on that issue in the trial of the defendant.
5-10 Notwithstanding any other reason for a continuance provided under
5-11 the Code of Criminal Procedure or other law, on motion of the
5-12 defendant, the court shall delay the beginning of the trial for not
5-13 more than 30 days to permit a hearing under this subsection to take
5-14 place.
5-15 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who
5-16 wishes to have an abortion without notification to one of her
5-17 parents, her managing conservator, or her guardian may file an
5-18 application for a court order authorizing the minor to consent to
5-19 the performance of an abortion without notification to either of
5-20 her parents or a managing conservator or guardian.
5-21 (b) The application may be filed in any county court at law,
5-22 court having probate jurisdiction, or district court, including a
5-23 family district court, in this state.
5-24 (c) The application must be made under oath and include:
5-25 (1) a statement that the minor is pregnant;
5-26 (2) a statement that the minor is unmarried, is under
6-1 18 years of age, and has not had her disabilities removed under
6-2 Chapter 31;
6-3 (3) a statement that the minor wishes to have an
6-4 abortion without the notification of either of her parents or a
6-5 managing conservator or guardian; and
6-6 (4) a statement as to whether the minor has retained
6-7 an attorney and, if she has retained an attorney, the name,
6-8 address, and telephone number of her attorney.
6-9 (d) The clerk of the court shall deliver a courtesy copy of
6-10 the application made under this section to the judge who is to hear
6-11 the application.
6-12 (e) The court shall appoint a guardian ad litem for the
6-13 minor. If the minor has not retained an attorney, the court shall
6-14 appoint an attorney to represent the minor. If the guardian ad
6-15 litem is an attorney admitted to the practice of law in this state,
6-16 the court may appoint the guardian ad litem to serve as the minor's
6-17 attorney.
6-18 (f) The court may appoint to serve as guardian ad litem:
6-19 (1) a person who may consent to treatment for the
6-20 minor under Sections 32.001(a)(1)-(3);
6-21 (2) a psychiatrist or an individual licensed or
6-22 certified as a psychologist under the Psychologists' Licensing Act
6-23 (Article 4512c, Vernon's Texas Civil Statutes);
6-24 (3) an appropriate employee of the Department of
6-25 Protective and Regulatory Services;
6-26 (4) a member of the clergy; or
7-1 (5) another appropriate person selected by the court.
7-2 (g) The court shall fix a time for a hearing on an
7-3 application filed under Subsection (a) and shall keep a record of
7-4 all testimony and other oral proceedings in the action. The court
7-5 shall enter judgment on the application immediately after the
7-6 hearing is concluded.
7-7 (h) The court shall rule on an application submitted under
7-8 this section and shall issue written findings of fact and
7-9 conclusions of law not later than 5 p.m. on the second business day
7-10 after the date the application is filed with the court. On request
7-11 by the minor, the court shall grant an extension of the period
7-12 specified by this subsection. If a request for an extension is
7-13 made, the court shall rule on an application and shall issue
7-14 written findings of fact and conclusions of law not later than 5
7-15 p.m. on the second business day after the date the minor states she
7-16 is ready to proceed to hearing. If the court fails to rule on the
7-17 application and issue written findings of fact and conclusions of
7-18 law within the period specified by this subsection, the application
7-19 is deemed to be granted and the physician may perform the abortion
7-20 as if the court had issued an order authorizing the minor to
7-21 consent to the performance of the abortion without notification
7-22 under Section 33.002. Proceedings under this section shall be
7-23 given precedence over other pending matters to the extent necessary
7-24 to assure that the court reaches a decision promptly.
7-25 (i) The court shall determine by a preponderance of the
7-26 evidence whether the minor is mature and sufficiently well informed
8-1 to make the decision to have an abortion performed without
8-2 notification to either of her parents or a managing conservator or
8-3 guardian, whether notification would not be in the best interest of
8-4 the minor, or whether notification may lead to physical, sexual, or
8-5 emotional abuse of the minor. If the court finds that the minor is
8-6 mature and sufficiently well informed, that notification would not
8-7 be in the minor's best interest, or that notification may lead to
8-8 physical, sexual, or emotional abuse of the minor, the court shall
8-9 enter an order authorizing the minor to consent to the performance
8-10 of the abortion without notification to either of her parents or a
8-11 managing conservator or guardian and shall execute the required
8-12 forms.
8-13 (j) If the court finds that the minor does not meet the
8-14 requirements of Subsection (i), the court may not authorize the
8-15 minor to consent to an abortion without the notification authorized
8-16 under Section 33.002(a)(1).
8-17 (k) The court may not notify a parent, managing conservator,
8-18 or guardian that the minor is pregnant or that the minor wants to
8-19 have an abortion. The court proceedings shall be conducted in a
8-20 manner that protects the anonymity of the minor. The application
8-21 and all other court documents pertaining to the proceedings are
8-22 confidential and privileged and are not subject to disclosure under
8-23 Chapter 552, Government Code, or to discovery, subpoena, or other
8-24 legal process. The minor may file the application using a
8-25 pseudonym or using only her initials.
8-26 (l) An order of the court issued under this section is
9-1 confidential and privileged and is not subject to disclosure under
9-2 Chapter 552, Government Code, or discovery, subpoena, or other
9-3 legal process. The order may not be released to any person but the
9-4 pregnant minor, the pregnant minor's guardian ad litem, the
9-5 pregnant minor's attorney, another person designated to receive the
9-6 order by the minor, or a governmental agency or attorney in a
9-7 criminal or administrative action seeking to assert or protect the
9-8 interest of the minor. The supreme court may adopt rules to permit
9-9 confidential docketing of an application under this section.
9-10 (m) The clerk of the supreme court shall prescribe the
9-11 application form to be used by the minor filing an application
9-12 under this section.
9-13 (n) A filing fee is not required of and court costs may not
9-14 be assessed against a minor filing an application under this
9-15 section.
9-16 Sec. 33.004. APPEAL. (a) A minor whose application under
9-17 Section 33.003 is denied may appeal to the court of appeals having
9-18 jurisdiction over civil matters in the county in which the
9-19 application was filed. On receipt of a notice of appeal, the clerk
9-20 of the court that denied the application shall deliver a copy of
9-21 the notice of appeal and record on appeal to the clerk of the court
9-22 of appeals. On receipt of the notice and record, the clerk of the
9-23 court of appeals shall place the appeal on the docket of the court.
9-24 (b) The court of appeals shall rule on an appeal under this
9-25 section not later than 5 p.m. on the second business day after the
9-26 date the notice of appeal is filed with the court that denied the
10-1 application. On request by the minor, the court shall grant an
10-2 extension of the period specified by this subsection. If a request
10-3 for an extension is made, the court shall rule on the appeal not
10-4 later than 5 p.m. on the second business day after the date the
10-5 minor states she is ready to proceed. If the court of appeals
10-6 fails to rule on the appeal within the period specified by this
10-7 subsection, the appeal is deemed to be granted and the physician
10-8 may perform the abortion as if the court had issued an order
10-9 authorizing the minor to consent to the performance of the abortion
10-10 without notification under Section 33.002. Proceedings under this
10-11 section shall be given precedence over other pending matters to the
10-12 extent necessary to assure that the court reaches a decision
10-13 promptly.
10-14 (c) A ruling of the court of appeals issued under this
10-15 section is confidential and privileged and is not subject to
10-16 disclosure under Chapter 552, Government Code, or discovery,
10-17 subpoena, or other legal process. The ruling may not be released
10-18 to any person but the pregnant minor, the pregnant minor's guardian
10-19 ad litem, the pregnant minor's attorney, another person designated
10-20 to receive the ruling by the minor, or a governmental agency or
10-21 attorney in a criminal or administrative action seeking to assert
10-22 or protect the interest of the minor. The supreme court may adopt
10-23 rules to permit confidential docketing of an appeal under this
10-24 section.
10-25 (d) The clerk of the supreme court shall prescribe the
10-26 notice of appeal form to be used by the minor appealing a judgment
11-1 under this section.
11-2 (e) A filing fee is not required of and court costs may not
11-3 be assessed against a minor filing an appeal under this section.
11-4 (f) An expedited confidential appeal shall be available to
11-5 any pregnant minor to whom a court of appeals denies an order
11-6 authorizing the minor to consent to the performance of an abortion
11-7 without notification to either of her parents or a managing
11-8 conservator or guardian.
11-9 Sec. 33.005. AFFIDAVIT OF PHYSICIAN. (a) A physician may
11-10 execute for inclusion in the minor's medical record an affidavit
11-11 stating that, after reasonable inquiry, it is the belief of the
11-12 physician that:
11-13 (1) the minor has made an application or filed a
11-14 notice of an appeal with a court under this chapter;
11-15 (2) the deadline for court action imposed by this
11-16 chapter has passed; and
11-17 (3) the physician has been notified that the court has
11-18 not denied the application or appeal.
11-19 (b) A physician who in good faith has executed an affidavit
11-20 under Subsection (a) may rely on the affidavit and may perform the
11-21 abortion as if the court had issued an order granting the
11-22 application or appeal.
11-23 Sec. 33.006. GUARDIAN AD LITEM IMMUNITY. A guardian ad
11-24 litem appointed under this chapter and acting in the course and
11-25 scope of the appointment is not liable for damages arising from an
11-26 act or omission of the guardian ad litem committed in good faith.
12-1 The immunity granted by this section does not apply if the conduct
12-2 of the guardian ad litem is committed in a manner described by
12-3 Sections 107.003(b)(1)-(4).
12-4 Sec. 33.007. COSTS PAID BY STATE. (a) A court acting under
12-5 Section 33.003 or 33.004 may issue an order requiring the state to
12-6 pay:
12-7 (1) the cost of any attorney ad litem and any guardian
12-8 ad litem appointed for the minor;
12-9 (2) notwithstanding Sections 33.003(n) and 33.004(e),
12-10 the costs of court associated with the application or appeal; and
12-11 (3) any court reporter's fees incurred.
12-12 (b) An order issued under Subsection (a) must be directed to
12-13 the comptroller, who shall pay the amount ordered from funds
12-14 appropriated to the Texas Department of Health.
12-15 Sec. 33.008. PHYSICIAN'S DUTY TO REPORT ABUSE OF A MINOR;
12-16 INVESTIGATION AND ASSISTANCE. (a) A physician who has reason to
12-17 believe that a minor has been or may be physically or sexually
12-18 abused by a person responsible for the minor's care, custody, or
12-19 welfare, as that term is defined by Section 261.001, shall
12-20 immediately report the suspected abuse to the Department of
12-21 Protective and Regulatory Services and shall refer the minor to the
12-22 department for services or intervention that may be in the best
12-23 interest of the minor.
12-24 (b) The Department of Protective and Regulatory Services
12-25 shall investigate suspected abuse reported under this section and,
12-26 if appropriate, shall assist the minor in making an application
13-1 with a court under Section 33.003.
13-2 Sec. 33.009. OTHER REPORTS OF SEXUAL ABUSE OF A MINOR. A
13-3 court or the guardian ad litem or attorney ad litem for the minor
13-4 shall report conduct reasonably believed to violate Section 22.011,
13-5 22.021, or 25.02, Penal Code, based on information obtained during
13-6 a confidential court proceeding held under this chapter to:
13-7 (1) any local or state law enforcement agency;
13-8 (2) the Department of Protective and Regulatory
13-9 Services, if the alleged conduct involves a person responsible for
13-10 the care, custody, or welfare of the child;
13-11 (3) the state agency that operates, licenses,
13-12 certifies, or registers the facility in which the alleged conduct
13-13 occurred, if the alleged conduct occurred in a facility operated,
13-14 licensed, certified, or registered by a state agency; or
13-15 (4) an appropriate agency designated by the court.
13-16 Sec. 33.010. CONFIDENTIALITY. Notwithstanding any other
13-17 law, information obtained by the Department of Protective and
13-18 Regulatory Services or another entity under Section 33.008 or
13-19 33.009 is confidential except to the extent necessary to prove a
13-20 violation of Section 22.011, 22.021, or 25.02, Penal Code.
13-21 Sec. 33.011. INFORMATION RELATING TO JUDICIAL BYPASS. The
13-22 Texas Department of Health shall produce and distribute
13-23 informational materials that explain the rights of a minor under
13-24 this chapter. The materials must explain the procedures
13-25 established by Sections 33.003 and 33.004 and must be made
13-26 available in English and in Spanish. The material provided by the
14-1 department shall also provide information relating to alternatives
14-2 to abortion and health risks associated with abortion.
14-3 SECTION 2. The Supreme Court of Texas shall issue promptly
14-4 such rules as may be necessary in order that the process
14-5 established by Sections 33.003 and 33.004, Family Code, as added by
14-6 this Act, may be conducted in a manner that will ensure
14-7 confidentiality and sufficient precedence over all other pending
14-8 matters to ensure promptness of disposition.
14-9 SECTION 3. This Act takes effect September 1, 1999.
14-10 SECTION 4. Chapter 33, Family Code, as added by this Act,
14-11 applies only to an abortion performed on or after January 1, 2000.
14-12 An abortion performed before January 1, 2000, is governed by the
14-13 law as it existed immediately before the effective date of this
14-14 Act, and that law is continued in effect for that purpose.
14-15 SECTION 5. The Texas Board of Health shall adopt the form to
14-16 be used under Subdivision (4), Subsection (a), Section 33.002,
14-17 Family Code, as added by this Act, not later than December 15,
14-18 1999.
14-19 SECTION 6. The clerk of the Supreme Court of Texas shall
14-20 adopt the application form and notice of appeal form to be used
14-21 under Sections 33.003 and 33.004, Family Code, as added by this
14-22 Act, not later than December 15, 1999.
14-23 SECTION 7. The importance of this legislation and the
14-24 crowded condition of the calendars in both houses create an
14-25 emergency and an imperative public necessity that the
14-26 constitutional rule requiring bills to be read on three several
15-1 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 30 passed the Senate on
March 18, 1999, by the following vote: Yeas 23, Nays 8; and that
the Senate concurred in House amendments on May 25, 1999, by the
following vote: Yeas 22, Nays 8.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 30 passed the House, with
amendments, on May 22, 1999, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor