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


Senate Research Center   S.B. 319
78R1842 SGA-FBy: Armbrister
State Affairs
2/18/2003
As Filed


DIGEST AND PURPOSE 

Under current Texas law, a person cannot be prosecuted for criminal
homicide, assault, or intoxication manslaughter of a fetus, nor can a
person be sued in a civil action for the wrongful death of a fetus.  As
proposed, S.B. 319 amends the Penal Code to allow the prosecution of a
person who harms or kills a fetus, unless the death is the intended result
of a legal medical procedure carried out by a health care provider or drug
provider.  S.B. 319 also amends the Civil Practice and Remedies Code to
allow parents of a fetus to bring suit against a person who harms or kills
the fetus, unless the death is the intended result of a legal medical
procedure carried out by a health care provider or drug provider. 

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; or 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. 

SECTION 1.03.  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.  CERTAIN CONDUCT EXCEPTED.  Provides that it is an exception
to the application of this chapter that the death was the death of an
unborn child and that the conduct charged is conduct 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;
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.  CERTAIN CONDUCT EXCEPTED.  Provides that it is an exception
to the application of this chapter that the conduct charged is committed
against an unborn child and 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 content, if the death of the
unborn child was the intended result of the procedure; 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.  CERTAIN CONDUCT EXCEPTED.  Provides that it is an exception
to the application of Section 49.07 or 49.08 that the injury or death was
the injury or death of an unborn child and that the conduct charged is
committed by the mother of the unborn child. 

SECTION 2.06.  Makes application of this article prospective.

ARTICLE 3.  EFFECTIVE DATE

SECTION 3.01.  Effective date:  September 1, 2003.