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