76R16255 E
By Shapiro, et al. S.B. No. 30
Substitute the following for S.B. No. 30:
By Brimer C.S.S.B. No. 30
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to parental notification before an abortion may be
1-3 performed on certain minors; providing a criminal penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle A, Title 2, Family Code, is amended by
1-6 adding Chapter 33 to read as follows:
1-7 CHAPTER 33. NOTICE OF ABORTION
1-8 Sec. 33.001. DEFINITIONS. In this chapter:
1-9 (1) "Abortion" has the meaning assigned by Section
1-10 4.011(a), Medical Practice Act (Article 4495b, Vernon's Texas Civil
1-11 Statutes). This definition, as applied in this chapter, applies
1-12 only to an unemancipated minor known by the attending physician to
1-13 be pregnant and may not be construed to limit a minor's access to
1-14 contraceptives.
1-15 (2) "Guardian" means a court-appointed guardian of the
1-16 person of the minor.
1-17 (3) "Physician" means an individual licensed to
1-18 practice medicine in this state.
1-19 (4) "Unemancipated minor" includes a minor who:
1-20 (A) is unmarried; and
1-21 (B) has not had the disabilities of minority
1-22 removed under Chapter 31.
1-23 Sec. 33.002. PARENTAL NOTICE. (a) A physician may not
2-1 perform an abortion on a pregnant unemancipated minor unless:
2-2 (1) the physician performing the abortion gives at
2-3 least 48 hours actual notice, in person or by telephone, of the
2-4 physician's intent to perform the abortion to:
2-5 (A) a parent of the minor, if the minor has no
2-6 managing conservator or guardian; or
2-7 (B) a court-appointed managing conservator or
2-8 guardian;
2-9 (2) the judge of a court having probate jurisdiction,
2-10 the judge of a county court at law, the judge of a district court,
2-11 including a family district court, or a court of appellate
2-12 jurisdiction issues an order authorizing the minor to consent to
2-13 the abortion as provided by Section 33.003 or 33.004;
2-14 (3) a probate court, county court at law, district
2-15 court, including a family district court, or court of appeals, by
2-16 its inaction, constructively authorizes the minor to consent to the
2-17 abortion as provided by Section 33.003 or 33.004; or
2-18 (4) the physician performing the abortion:
2-19 (A) concludes that on the basis of the
2-20 physician's good faith clinical judgment, a condition exists that
2-21 complicates the medical condition of the pregnant minor and
2-22 necessitates the immediate abortion of her pregnancy to avert her
2-23 death or to avoid a serious risk of substantial and irreversible
2-24 impairment of a major bodily function; and
2-25 (B) certifies in writing to the Texas Department
2-26 of Health and in the patient's medical record the medical
2-27 indications supporting the physician's judgment that the
3-1 circumstances described by Paragraph (A) exist.
3-2 (b) If a person to whom notice may be given under Subsection
3-3 (a)(1) cannot be notified after a reasonable effort, a physician
3-4 may perform an abortion if the physician gives 48 hours
3-5 constructive notice, by certified mail, restricted delivery, sent
3-6 to the last known address, to the person to whom notice may be
3-7 given under Subsection (a)(1). The period under this subsection
3-8 begins when the notice is mailed. If the person required to be
3-9 notified is not notified within the 48-hour period, the abortion
3-10 may proceed even if the notice by mail is not received.
3-11 (c) The requirement that 48 hours actual notice be provided
3-12 under this section may be waived by an affidavit of:
3-13 (1) a parent of the minor, if the minor has no
3-14 managing conservator or guardian; or
3-15 (2) a court-appointed managing conservator or
3-16 guardian.
3-17 (d) A physician may execute for inclusion in the minor's
3-18 medical record an affidavit stating that, according to the best
3-19 information and belief of the physician, notice or constructive
3-20 notice has been provided as required by this section. Execution of
3-21 an affidavit under this subsection creates a conclusive presumption
3-22 that the requirements of this section have been satisfied.
3-23 (e) The Texas Department of Health shall prepare a form to
3-24 be used for making the certification required by Subsection (a)(4).
3-25 (f) A certification required by Subsection (a)(4) is
3-26 confidential and privileged and is not subject to disclosure under
3-27 Chapter 552, Government Code, or to discovery, subpoena, or other
4-1 legal process. Personal or identifying information about the
4-2 minor, including her name, address, or social security number, may
4-3 not be included in a certification under Subsection (a)(4). The
4-4 physician must keep the medical records on the minor in compliance
4-5 with the rules adopted by the Texas State Board of Medical
4-6 Examiners under Section 5.085, Medical Practice Act (Article 4495b,
4-7 Vernon's Texas Civil Statutes).
4-8 (g) A physician who intentionally performs an abortion on a
4-9 pregnant unemancipated minor in violation of this section commits
4-10 an offense. An offense under this subsection is a Class A
4-11 misdemeanor. In this subsection, "intentionally" has the meaning
4-12 assigned by Section 6.03(a), Penal Code.
4-13 (h) It is a defense to prosecution under this section that
4-14 the minor falsely represented her age or identity to the physician
4-15 to be at least 18 years of age by displaying an apparently valid
4-16 governmental record of identification such that a reasonable person
4-17 under similar circumstances would have relied on the
4-18 representation. The defense does not apply if the physician is
4-19 shown to have had independent knowledge of the minor's actual age
4-20 or identity or failed to use due diligence in determining the
4-21 minor's age or identity. In this subsection, "defense" has the
4-22 meaning and application assigned by Section 2.03, Penal Code.
4-23 (i) In relation to the trial of an offense under this
4-24 section in which the conduct charged involves a conclusion made by
4-25 the physician under Subsection (a)(4), the defendant may seek a
4-26 hearing before the Texas State Board of Medical Examiners on
4-27 whether the physician's conduct was necessary to avert the death of
5-1 the minor or to avoid a serious risk of substantial and
5-2 irreversible impairment of a major bodily function. The findings
5-3 of the Texas State Board of Medical Examiners under this subsection
5-4 are admissible on that issue in the trial of the defendant. On
5-5 motion of the defendant, the court shall delay the beginning of the
5-6 trial for not more than 30 days to permit a hearing under this
5-7 subsection to take place.
5-8 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who
5-9 wishes to have an abortion without notification to one of her
5-10 parents, her managing conservator, or her guardian may file an
5-11 application for a court order authorizing the minor to consent to
5-12 the performance of an abortion without notification to either of
5-13 her parents or a managing conservator or guardian.
5-14 (b) The application may be filed in any county court at law,
5-15 court having probate jurisdiction, or district court, including a
5-16 family district court, in this state.
5-17 (c) The application must be made under oath and include:
5-18 (1) a statement that the minor is pregnant;
5-19 (2) a statement that the minor is unmarried, is under
5-20 18 years of age, and has not had her disabilities removed under
5-21 Chapter 31;
5-22 (3) a statement that the minor wishes to have an
5-23 abortion without the notification of either of her parents or a
5-24 managing conservator or guardian; and
5-25 (4) a statement as to whether the minor has retained
5-26 an attorney and, if she has retained an attorney, the name,
5-27 address, and telephone number of her attorney.
6-1 (d) The clerk of the court shall deliver a courtesy copy of
6-2 the application made under this section to the judge who is to hear
6-3 the application.
6-4 (e) The court shall appoint a guardian ad litem for the
6-5 minor. If the minor has not retained an attorney, the court shall
6-6 appoint an attorney to represent the minor. If the guardian ad
6-7 litem is an attorney admitted to the practice of law in this state,
6-8 the court may appoint the guardian ad litem to serve as the minor's
6-9 attorney.
6-10 (f) The court may appoint to serve as guardian ad litem:
6-11 (1) a person who may consent to treatment for the
6-12 minor under Sections 32.001(a)(1)-(3);
6-13 (2) a psychiatrist or an individual licensed or
6-14 certified as a psychologist under the Psychologists' Licensing Act
6-15 (Article 4512c, Vernon's Texas Civil Statutes);
6-16 (3) an appropriate employee of the Department of
6-17 Protective and Regulatory Services;
6-18 (4) a member of the clergy; or
6-19 (5) another appropriate person selected by the court.
6-20 (g) The court shall fix a time for a hearing on an
6-21 application filed under Subsection (a) and shall keep a record of
6-22 all testimony and other oral proceedings in the action. The court
6-23 shall enter judgment on the application immediately after the
6-24 hearing is concluded.
6-25 (h) The court shall rule on an application submitted under
6-26 this section and shall issue written findings of fact and
6-27 conclusions of law not later than 5 p.m. on the second business day
7-1 after the date the application is filed with the court. On request
7-2 by the minor, the court shall grant an extension of the period
7-3 specified by this subsection. If a request for an extension is
7-4 made, the court shall rule on an application and shall issue
7-5 written findings of fact and conclusions of law not later than 5
7-6 p.m. on the second business day after the date the minor states she
7-7 is ready to proceed to hearing. If the court fails to rule on the
7-8 application and issue written findings of fact and conclusions of
7-9 law within the period specified by this subsection, the application
7-10 is deemed to be granted and the physician may perform the abortion
7-11 as if the court had issued an order authorizing the minor to
7-12 consent to the performance of the abortion without notification
7-13 under Section 33.002. Proceedings under this section shall be
7-14 given precedence over other pending matters to the extent necessary
7-15 to assure that the court reaches a decision promptly.
7-16 (i) The court shall determine by a preponderance of the
7-17 evidence whether the minor is mature and sufficiently well informed
7-18 to make the decision to have an abortion performed without
7-19 notification to either of her parents or a managing conservator or
7-20 guardian, whether notification would not be in the best interest of
7-21 the minor, or whether notification may lead to physical, sexual, or
7-22 emotional abuse of the minor. If the court finds that the minor is
7-23 mature and sufficiently well informed, that notification would not
7-24 be in the minor's best interest, or that notification may lead to
7-25 physical, sexual, or emotional abuse of the minor, the court shall
7-26 enter an order authorizing the minor to consent to the performance
7-27 of the abortion without notification to either of her parents or a
8-1 managing conservator or guardian and shall execute the required
8-2 forms.
8-3 (j) If the court finds that the minor does not meet the
8-4 requirements of Subsection (i), the court may not authorize the
8-5 minor to consent to an abortion without the notification authorized
8-6 under Section 33.002(a)(1).
8-7 (k) The court may not notify a parent, managing conservator,
8-8 or guardian that the minor is pregnant or that the minor wants to
8-9 have an abortion. The court proceedings shall be conducted in a
8-10 manner that protects the anonymity of the minor. The application
8-11 and all other court documents pertaining to the proceedings are
8-12 confidential and privileged and are not subject to disclosure under
8-13 Chapter 552, Government Code, or to discovery, subpoena, or other
8-14 legal process. The minor may file the application using a
8-15 pseudonym or using only her initials.
8-16 (l) An order of the court issued under this section is
8-17 confidential and privileged and is not subject to disclosure under
8-18 Chapter 552, Government Code, or discovery, subpoena, or other
8-19 legal process. The order may not be released to any person but the
8-20 pregnant minor, the pregnant minor's guardian ad litem, the
8-21 pregnant minor's attorney, another person designated to receive the
8-22 order by the minor, or a governmental agency or attorney in a
8-23 criminal or administrative action seeking to assert or protect the
8-24 interest of the minor. The supreme court may adopt rules to permit
8-25 confidential docketing of an application under this section.
8-26 (m) The clerk of the supreme court shall prescribe the
8-27 application form to be used by the minor filing an application
9-1 under this section.
9-2 (n) A filing fee is not required of and court costs may not
9-3 be assessed against a minor filing an application under this
9-4 section.
9-5 Sec. 33.004. APPEAL. (a) A minor whose application under
9-6 Section 33.003 is denied may appeal to the court of appeals having
9-7 jurisdiction over civil matters in the county in which the
9-8 application was filed. On receipt of a notice of appeal, the clerk
9-9 of the court that denied the application shall deliver a copy of
9-10 the notice of appeal and record on appeal to the clerk of the court
9-11 of appeals. On receipt of the notice and record, the clerk of the
9-12 court of appeals shall place the appeal on the docket of the court.
9-13 (b) The court of appeals shall rule on an appeal under this
9-14 section not later than 5 p.m. on the second business day after the
9-15 date the notice of appeal is filed with the court that denied the
9-16 application. On request by the minor, the court shall grant an
9-17 extension of the period specified by this subsection. If a request
9-18 for an extension is made, the court shall rule on the appeal not
9-19 later than 5 p.m. on the second business day after the date the
9-20 minor states she is ready to proceed. If the court of appeals
9-21 fails to rule on the appeal within the period specified by this
9-22 subsection, the appeal is deemed to be granted and the physician
9-23 may perform the abortion as if the court had issued an order
9-24 authorizing the minor to consent to the performance of the abortion
9-25 without notification under Section 33.002. Proceedings under this
9-26 section shall be given precedence over other pending matters to the
9-27 extent necessary to assure that the court reaches a decision
10-1 promptly.
10-2 (c) A ruling of the court of appeals issued under this
10-3 section is confidential and privileged and is not subject to
10-4 disclosure under Chapter 552, Government Code, or discovery,
10-5 subpoena, or other legal process. The ruling may not be released
10-6 to any person but the pregnant minor, the pregnant minor's guardian
10-7 ad litem, the pregnant minor's attorney, another person designated
10-8 to receive the ruling by the minor, or a governmental agency or
10-9 attorney in a criminal or administrative action seeking to assert
10-10 or protect the interest of the minor. The supreme court may adopt
10-11 rules to permit confidential docketing of an appeal under this
10-12 section.
10-13 (d) The clerk of the supreme court shall prescribe the
10-14 notice of appeal form to be used by the minor appealing a judgment
10-15 under this section.
10-16 (e) A filing fee is not required of and court costs may not
10-17 be assessed against a minor filing an appeal under this section.
10-18 (f) An expedited confidential appeal shall be available to
10-19 any pregnant minor to whom a court of appeals denies an order
10-20 authorizing the minor to consent to the performance of an abortion
10-21 without notification to either of her parents or a managing
10-22 conservator or guardian.
10-23 Sec. 33.005. AFFIDAVIT OF PHYSICIAN. (a) A physician may
10-24 execute for inclusion in the minor's medical record an affidavit
10-25 stating that, after reasonable inquiry, it is the belief of the
10-26 physician that:
10-27 (1) the minor has made an application or filed a
11-1 notice of an appeal with a court under this chapter;
11-2 (2) the deadline for court action imposed by this
11-3 chapter has passed; and
11-4 (3) the physician has been notified that the court has
11-5 not denied the application or appeal.
11-6 (b) A physician who in good faith has executed an affidavit
11-7 under Subsection (a) may conclusively rely on the affidavit and may
11-8 perform the abortion as if the court had issued an order granting
11-9 the application or appeal.
11-10 Sec. 33.006. GUARDIAN AD LITEM IMMUNITY. A guardian ad
11-11 litem appointed under this chapter and acting in the course and
11-12 scope of the appointment is not liable for damages arising from an
11-13 act or omission of the guardian ad litem committed in good faith.
11-14 The immunity granted by this section does not apply if the conduct
11-15 of the guardian ad litem is committed in a manner described by
11-16 Sections 107.003(b)(1)-(4).
11-17 Sec. 33.007. COSTS PAID BY STATE. (a) A court acting under
11-18 Section 33.003 or 33.004 may issue an order requiring the state to
11-19 pay:
11-20 (1) the cost of any attorney ad litem and any guardian
11-21 ad litem appointed for the minor;
11-22 (2) notwithstanding Sections 33.003(n) and 33.004(e),
11-23 the costs of court associated with the application or appeal; and
11-24 (3) any court reporter's fees incurred.
11-25 (b) An order issued under Subsection (a) must be directed to
11-26 the comptroller, who shall pay the amount ordered from funds
11-27 appropriated to the Texas Department of Health.
12-1 Sec. 33.008. PHYSICIAN'S DUTY TO REPORT ABUSE OF A MINOR;
12-2 INVESTIGATION AND ASSISTANCE. (a) A physician who has reason to
12-3 believe that a minor has been or may be physically or sexually
12-4 abused by a person responsible for the minor's care, custody, or
12-5 welfare, as that term is defined by Section 261.001, shall
12-6 immediately report the suspected abuse to the Department of
12-7 Protective and Regulatory Services and shall refer the minor to the
12-8 department for services or intervention that may be in the best
12-9 interest of the minor.
12-10 (b) The Department of Protective and Regulatory Services
12-11 shall investigate suspected abuse reported under this section and,
12-12 if appropriate, shall assist the minor in making an application
12-13 with a court under Section 33.003.
12-14 Sec. 33.009. OTHER REPORTS OF SEXUAL ABUSE OF A MINOR. A
12-15 court or the guardian ad litem or attorney ad litem for the minor
12-16 shall report conduct reasonably believed to violate Section 22.011,
12-17 22.021, or 25.02, Penal Code, based on information obtained during
12-18 a confidential court proceeding held under this chapter to:
12-19 (1) any local or state law enforcement agency;
12-20 (2) the Department of Protective and Regulatory
12-21 Services, if the alleged conduct involves a person responsible for
12-22 the care, custody, or welfare of the child;
12-23 (3) the state agency that operates, licenses,
12-24 certifies, or registers the facility in which the alleged conduct
12-25 occurred, if the alleged conduct occurred in a facility operated,
12-26 licensed, certified, or registered by a state agency; or
12-27 (4) an appropriate agency designated by the court.
13-1 Sec. 33.010. CONFIDENTIALITY. Notwithstanding any other
13-2 law, information obtained by the Department of Protective and
13-3 Regulatory Services or another entity under Section 33.008 or
13-4 33.009 is confidential except to the extent necessary to prove a
13-5 violation of Section 22.011, 22.021, or 25.02, Penal Code.
13-6 SECTION 2. The supreme court shall issue promptly such rules
13-7 as may be necessary in order that the process established by
13-8 Sections 33.003 and 33.004, Family Code, as added by this Act, may
13-9 be conducted in a manner that will ensure confidentiality and
13-10 sufficient precedence over all other pending matters to ensure
13-11 promptness of disposition.
13-12 SECTION 3. This Act takes effect September 1, 1999.
13-13 SECTION 4. Chapter 33, Family Code, as added by this Act,
13-14 applies only to an abortion performed on or after January 1, 2000.
13-15 An abortion performed before January 1, 2000, is governed by the
13-16 law as it existed immediately before the effective date of this
13-17 Act, and that law is continued in effect for that purpose.
13-18 SECTION 5. The Texas Board of Health shall adopt the form to
13-19 be used under Subdivision (4), Subsection (a), Section 33.002,
13-20 Family Code, as added by this Act, not later than December 15,
13-21 1999.
13-22 SECTION 6. The clerk of the supreme court shall adopt the
13-23 application form and notice of appeal form to be used under
13-24 Sections 33.003 and 33.004, Family Code, as added by this Act, not
13-25 later than December 15, 1999.
13-26 SECTION 7. The importance of this legislation and the
13-27 crowded condition of the calendars in both houses create an
14-1 emergency and an imperative public necessity that the
14-2 constitutional rule requiring bills to be read on three several
14-3 days in each house be suspended, and this rule is hereby suspended.