C.S.H.B. 246 78(R)    BILL ANALYSIS


C.S.H.B. 246
By: Allen
State Affairs
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

In Texas, current law does not provide a wrongful death cause of action
for the death of an unborn child, and does not provide criminal sanctions
for the death or injury of an unborn child.  As a result, Texas law does
not include necessary remedies or sanctions to address wrongful conduct.
Many other states have established such causes of action and criminal
sanctions.  The purpose of C.S.H.B. 246 is to ensure that Texas law
includes an appropriate civil remedy and appropriate criminal sanctions to
address wrongful conduct. 

RULEMAKING AUTHORITY

It is the opinion of the committee that this bill does not expressly grant
any additional rulemaking authority to a state officer, department,
agency, or institution. 

ANALYSIS

Civil Remedy

C.S.H.B. 246 amends Chapter 71 of the Civil Practices and Remedies Code as
follows: 

_Defines "death" to include, for an individual who is an unborn child, the
failure to be born alive. 
_Defines "individual" to include an unborn child at every stage of
gestation from fertilization to birth. 
_Provides that Subchapter A of Chapter 71 (Wrongful Death) applies only if
the individual injured would have been entitled to bring an action for the
injury if the individual had lived or had been born alive. 
_Provides that Subchapter A of Chapter 71 (Wrongful Death) does not apply
to a claim for the death of an individual who is an unborn child that is
brought against: 
 1)  the mother of the unborn child;
2)  a physician or other licensed health care provider, if the death is
the result of a lawful medical procedure performed by the physician or
health care provider with the requisite consent and the physician or
health care provider exercises the degree of care a physician or health
care provider of ordinary prudence and skill would have exercised under
the same or similar circumstances in the same or a similar community; or 
3)  a person who dispenses or administers a drug in accordance with the
law, if the death is the result of the dispensation or administration of
the drug. 
_Provides that the changes made by C.S.H.B. 246 apply only to a cause of
action that accrues on or after the effective date of the Act. 

Criminal Penalties

C.S.H.B. 246 amends the Penal Code as follows:

_Defines "individual" as a human being who is alive, including an unborn
child at every stage of gestation from fertilization until birth. 
_Defines "death" to include, for an individual who is an unborn child, the
failure to be born alive. 
_Provides an exception to the application of Chapter 19 (Criminal
Homicide) if the death was the death of an unborn child and the conduct
charged is: 
 1)  conduct committed by the mother of the unborn child;
 2)  a lawful medical procedure performed by a physician or other licensed
health care provider with the requisite consent, if the death of the
unborn child was the intended result of the procedure; or 
3)  the dispensation of a drug in accordance with law or administration of
a drug prescribed in accordance with law. 
_Amends the definitions applicable to Chapter 20 (Kidnapping and Unlawful
Restraint) as follows: 
 "Person" means an individual, corporation, or association.
 "Individual" means a human being who has been born and is alive.
_Provides an exception to the application of Chapter 22 (Assaultive
Offenses) if the conduct is committed against an individual who is an
unborn child and is:  
 1)  conduct committed by the mother of the unborn child;
2)  a lawful medical procedure performed by a physician or other licensed
health care provider with the requisite consent, if the death of the
unborn child was the intended result of the procedure; or 
3)  the dispensation of a drug in accordance with law or administration of
a drug prescribed in accordance with law. 
_Provides an exception to the application of Section 49.07 (Intoxication
Assault) and 49.08 (Intoxication Manslaughter) if the injury or death was
the injury or death of an unborn child and the conduct charged is conduct
committed by the mother of the unborn child. 
_Provides that the changes in law made by C.S.H.B. 246 apply only to an
offense committed on or after the effective date of the Act. 

EFFECTIVE DATE

September 1, 2003.


COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 246 modifies the original by adding language to provide that
Subchapter A of Chapter 71 (Wrongful Death) of the Civil Practice and
Remedies Code does not apply to a physician or health care provider if the
death is the result of a lawful medical procedure performed by the
physician or health care provider with the requisite consent and the
physician or health care provider exercises the degree of care a physician
or health care provider of ordinary prudence or skill would have exercised
under the same or similar circumstances in the same or a similar
community.