S.B. 319 78(R) BILL ANALYSIS S.B. 319 By: Armbrister State Affairs Committee Report (Unamended) 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 Senate Bill 319 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 Senate Bill 319 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 intended result of a lawful medical procedure performed by the physician or health care provider with the requisite consent; 3) 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 4) 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. _Provides that the changes made by ARTICLE 1, CIVIL REMEDIES, of the Act apply only to a cause of action that accrues on or after the effective date of the Act. A cause of action that accrues before the effective date of the Act is governed by the law as it existed immediately before the effective date of the Act and that law is continued in effect for that purpose. Criminal Penalties Senate Bill 319 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) by adding the following definitions: "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 charged 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 health care provider with the requisite consent; 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 ARTICLE 2, CRIMINAL PENALTIES, of the Act apply only to an offense committed on or after the effective date of the Act. An offense is committed before the effective date of the Act if any element of the offense occurs before the effective date. An offense committed before the effective date of the Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. EFFECTIVE DATE September 1, 2003.