SRC- MSY S.B. 319 78(R)BILL ANALYSIS


Senate Research CenterS.B. 319
By: Armbrister
State Affairs
6/17/2003
Enrolled


DIGEST AND PURPOSE 

Under current Texas law, a person cannot be prosecuted for criminal
homicide, assault, or intoxication manslaughter of an unborn child, nor
can a person be sued in a civil action for the wrongful death of an unborn
child.  S.B. 319 amends the Penal Code to allow the prosecution of a
person who harms or kills an unborn child, unless the death is the result
of a legal medical procedure carried out by a health care provider, the
result of a legal drug dispensation or administration, the result of a
procedure as part of an assisted reproduction, or the result of an action
by the mother.  S.B. 319 also amends the Civil Practice and Remedies Code
to allow parents to bring suit against a person who harms or kills an
unborn child, with the same exceptions. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

ARTICLE 1.  CIVIL REMEDIES

SECTION 1.01.  Amends Section 71.001, Civil Practice and Remedies Code, by
adding Subdivisions (3) and (4), as follows: 

(3)  Defines "death" to include, for an individual who is an unborn child,
the failure to be born alive. 

(4)  Defines "individual" to include an unborn child at every stage of
gestation from fertilization until birth. 

SECTION 1.02.  Amends Section 71.003, Civil Practice and Remedies Code, as
follows: 

Sec.  71.003.  New heading:  APPLICATION; CERTAIN CONDUCT EXCEPTED.  (a)
Provides that this subchapter applies only if the injured individual would
have been entitled to bring an action for the injury if the individual had
lived or had been born alive. 

(c)  Provides that this subchapter does not apply to a claim for the death
of an individual who is an unborn child that is brought against the mother
of the unborn child; a physician or other licensed health care provider if
the death is the intended result of a lawful medical procedure performed
by the physician or provider with requisite consent; a person who
dispenses or administers a drug in accordance with law, if the death is
the result of the dispensation or administration of the drug; or a
physician or other health care provider licensed in this state, if the
death directly or indirectly is caused by, associated with, arises out of,
or relates to a lawful medical or health care practice or procedure of the
physician or the health care provider. 

 SECTION 1.03.  Amends Subchapter A, Chapter 71, Civil Practice and
Remedies Code, by adding Section 71.0055, as follows: 
Sec. 71.0055.  EVIDENCE OF PREGNANCY.  Requires the plaintiff, in an
action under this subchapter for the death of an individual who is an
unborn child, to provide medical or other evidence that the mother of the
individual was pregnant at the time of the individual's death. 

SECTION 1.04.  Makes application of this article prospective.

ARTICLE 2.  CRIMINAL PENALTIES

SECTION 2.01.  Amends Section 1.07(a), Penal Code, by amending Subdivision
(26) and adding Subdivision (49), as follows: 

(26)  Redefines "individual" to mean a human being who is alive, including
an unborn child at every stage of gestation from fertilization until
birth, rather than a human being who has been born and is alive. 

(49)  Defines "death" to include, for an individual who is an unborn
child, the failure to be born alive.  

SECTION 2.02.  Amends Chapter 19, Penal Code, by adding Section 19.06, as
follows: 

Sec.  19.06.  APPLICABILITY TO CERTAIN CONDUCT.  Provides that this
chapter does not apply to the death of an unborn child if the conduct
charged is:  committed by the mother of the unborn child; a lawful medical
procedure performed by a physician or other licensed health care provider
with requisite consent, if the death of the unborn child was the intended
result of the procedure; a lawful medical procedure performed by a
physician or other licensed health care provider with the requisite
consent as part of an assisted reproduction as defined by Section 160.102,
Family Code; or the dispensation of a drug in accordance with law or
administration of a drug prescribed in accordance with law. 

SECTION 2.03.  Amends Section 20.01, Penal Code, by adding Subdivisions
(4) and (5), as follows: 

(4)  Defines "person" as an individual, corporation, or association.

(5)  Defines "individual" as a human being who has been born alive,
notwithstanding Section 1.07. 

SECTION 2.04.  Amends Chapter 22, Penal Code, by adding Section 22.12, as
follows: 

Sec.  22.12.  APPLICABILITY TO CERTAIN CONDUCT.  Provides that this
chapter does not apply to conduct charged as having been committed against
an individual who is an unborn child if the conduct is:  committed by the
mother of the unborn child;  a lawful medical procedure performed by a
physician or other licensed health care provider with requisite consent; a
lawful medical procedure performed by a physician or other licensed health
care provider with the requisite consent as part of an assisted
reproduction as defined b Section 160.102, Family Code; or the
dispensation of a drug in accordance with law or administration of a drug
prescribed in accordance with law. 

SECTION 2.05.  Amends Chapter 49, Penal Code, by adding Section 49.12, as
follows: 

Sec.  49.12.  APPLICABILITY TO CERTAIN CONDUCT.  Provides that Sections
49.07and 49.08 do not apply to the injury or death of an unborn child if
the conduct charged is committed by the mother of the unborn child. 

 SECTION 2.06.  Amends Chapter 38, Code of Criminal Procedure, by adding
Section 38.40, as follows: 

Sec. 38.40.  EVIDENCE OF PREGNANCY.  (a)  Requires the prosecution, in a
prosecution for the death of or injury to an individual who is an unborn
child, to provide medical or other evidence that the mother of the
individual was pregnant at the time of the individual's death. 

(b)  Defines "individual."

SECTION 2.07.  Makes application of this article prospective.

ARTICLE 3.  EFFECTIVE DATE

SECTION 3.01.  Effective date:  September 1, 2003.