79R13812 YDB-F
By: King of Parker, Bonnen, Swinford, H.B. No. 1212
Allen of Dallas, Escobar, et al.
Substitute the following for H.B. No. 1212:
By: Miller C.S.H.B. No. 1212
A BILL TO BE ENTITLED
AN ACT
relating to abortion and parental consent to an abortion; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle A, Title 2, Family Code, is amended by
adding Chapter 34 to read as follows:
CHAPTER 34. CONSENT TO ABORTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 34.001. DEFINITIONS. In this chapter:
(1) "Abortion" means the use of any means to terminate
the pregnancy of a female known by the attending physician to be
pregnant, with the intention that the termination of the pregnancy
by those means will with reasonable likelihood cause the death of
the unborn child. The term applies only to an unemancipated minor
known by the attending physician to be pregnant and may not be
construed to limit a minor's access to contraceptives.
(2) "Attempt to perform an abortion" means an act or an
omission of an act required by law that, under the circumstances as
the actor believes them to be, constitutes a substantial step in a
course of conduct planned to culminate in the performance of an
abortion in violation of this chapter.
(3) "Clear and convincing evidence" has the meaning
assigned by Section 101.007.
(4) "Contraceptive" means a drug or device prescribed
to prevent pregnancy.
(5) "Guardian" means a court-appointed guardian of the
person of the minor.
(6) "Physician" means an individual licensed to
practice medicine in this state.
(7) "Unborn child" means an individual human organism
from fertilization until birth.
(8) "Unemancipated minor" includes a minor who:
(A) is unmarried; and
(B) has not had the disability of minority
removed under Chapter 31.
[Sections 34.002-34.050 reserved for expansion]
SUBCHAPTER B. CONSENT TO ABORTION
Sec. 34.051. CONSENT REQUIRED. (a) A physician may not
perform an abortion on a pregnant unemancipated minor unless the
minor consents to the abortion and:
(1) a parent, managing conservator, or
court-appointed guardian of the minor consents in a written
affidavit to an abortion of the current pregnancy and submits a
valid governmental record of identification to verify the identity
of the parent, managing conservator, or court-appointed guardian;
(2) the judge of a court having probate jurisdiction,
the judge of a county court at law, the judge of a district court,
including a family district court, or a court of appellate
jurisdiction issues an order authorizing the physician to perform
an abortion as provided by Subchapter C or D;
(3) a probate court, county court at law, district
court, including a family district court, or court of appeals, by
its inaction, constructively authorizes the physician to perform an
abortion as provided by Subchapter C or D; or
(4) the physician performing the abortion:
(A) concludes that on the basis of the
physician's good faith clinical judgment, a condition exists that
complicates the medical condition of the pregnant minor and
necessitates the immediate abortion of her pregnancy to avert her
death or to avoid a serious risk of substantial and irreversible
impairment of a major bodily function and that there is
insufficient time to obtain the consent required by Subdivision
(1); and
(B) certifies in writing to the Department of
State Health Services and in the patient's medical record the
medical indications supporting the physician's judgment that the
circumstances described by Paragraph (A) exist.
(b) A physician who performs an abortion must execute for
inclusion in a minor's medical record an affidavit stating that,
according to the best information and belief of the physician,
consent has been provided as required by this section.
(c) A physician who performs an abortion with the consent
required by Subsection (a)(1) shall retain in the minor's medical
records:
(1) the written affidavit of the parent, managing
conservator, or guardian; and
(2) a copy of the identification submitted by the
parent, managing conservator, or guardian under that subsection.
(d) A physician who performs an abortion under Subsection
(a)(2) or (a)(3) shall retain in the minor's medical records the
original or certified copy of the court order or the clerk's
certificate.
(e) The Department of State Health Services shall prepare a
form to be used for making the certification required by Subsection
(a)(4).
Sec. 34.052. CONFIDENTIALITY OF CERTIFICATION. (a) A
certification required by Section 34.051(a)(4) is confidential and
privileged and is not subject to disclosure under Chapter 552,
Government Code, or to discovery, subpoena, or other legal process.
(b) Personal or identifying information about a minor,
including her name, address, or social security number, may not be
included in a certification under Section 34.051(a)(4).
Sec. 34.053. RECORDS. A physician must keep medical
records on a minor to whom this chapter applies in compliance with
the rules adopted by the Texas State Board of Medical Examiners
under Section 153.003, Occupations Code.
Sec. 34.054. CRIMINAL PENALTY FOR VIOLATION OF SUBCHAPTER.
(a) In this section:
(1) "Criminal negligence" has the meaning assigned by
Section 6.03(d), Penal Code.
(2) "Defense" has the meaning and application assigned
by Section 2.03, Penal Code.
(3) "Intentionally" has the meaning assigned by
Section 6.03(a), Penal Code.
(4) "Knowingly" has the meaning assigned by Section
6.03(b), Penal Code.
(5) "Recklessly" has the meaning assigned by Section
6.03(c), Penal Code.
(b) A physician who intentionally, knowingly, or recklessly
or with criminal negligence performs an abortion or attempts to
perform an abortion on a pregnant unemancipated minor in violation
of this subchapter commits an offense under Section 165.151,
Occupations Code, and is subject to the penalty provided by that
section.
(c) A physician shall assume that a pregnant woman is a
minor unless she presents a valid government record of
identification that she has reached the age of majority. In the
absence of a valid government record of identification, the
physician must use due diligence to determine whether the pregnant
woman has reached the age of majority.
(d) It is a defense to prosecution under this section that
the minor falsely represented her age or identity to the physician
to be at least 18 years of age by displaying an apparently valid
governmental record of identification such that a reasonable person
under similar circumstances would have relied on the
representation.
(e) The defense provided by Subsection (d) does not apply if
the physician is shown to have had independent knowledge of the
minor's actual age or identity or failed to use due diligence in
determining the minor's age.
Sec. 34.055. TRIAL OF OFFENSE. (a) In relation to the
trial of an offense under Section 34.054 in which the conduct
charged involves a conclusion made by the physician under Section
34.051(a)(4), the defendant may seek a hearing before the Texas
State Board of Medical Examiners on whether the physician's conduct
was necessary to avert the death of the minor or to avoid a serious
risk of substantial and irreversible impairment of a major bodily
function.
(b) The findings of the Texas State Board of Medical
Examiners under this section are admissible on that issue in the
trial of the defendant.
(c) Notwithstanding any other reason for a continuance
provided under the Code of Criminal Procedure or other law, on
motion of the defendant, the court shall delay the beginning of the
trial for not more than 30 days to permit a hearing under Subsection
(a) to take place.
[Sections 34.056-34.100 reserved for expansion]
SUBCHAPTER C. COURT ORDER AUTHORIZING ABORTION
Sec. 34.101. APPLICATION FOR COURT ORDER. (a) A pregnant
minor who wishes to have an abortion without the consent of one of
her parents, her managing conservator, or her guardian may file an
application for a court order authorizing a physician to perform an
abortion without the consent of either of her parents or a managing
conservator or guardian.
(b) The application may be filed in any county court at law,
court having probate jurisdiction, or district court, including a
family district court, for the minor's county of residence or in the
county in which she intends to have the abortion performed.
(c) The application must be made under oath and include:
(1) a statement that the minor is pregnant;
(2) a statement that the minor is unmarried, is under
18 years of age, and has not had her disabilities removed under
Chapter 31;
(3) a statement that the minor wishes to have an
abortion without the consent of either of her parents or a managing
conservator or guardian; and
(4) a statement as to whether the minor has retained an
attorney and, if she has retained an attorney, the name, address,
and telephone number of the attorney.
(d) The clerk of the court shall deliver a courtesy copy of
the application made under this section to the judge who is to hear
the application.
Sec. 34.102. GUARDIAN AD LITEM AND ATTORNEY APPOINTMENTS.
(a) The court shall appoint a guardian ad litem for the applicant
minor.
(b) A guardian ad litem appointed under this section:
(1) may not be the same person as the minor's attorney
or attorney ad litem; and
(2) shall represent the best interests of the minor.
(c) The court may appoint to serve as guardian ad litem:
(1) a person who may consent to treatment for the minor
under Sections 32.001(a)(1)-(3);
(2) a psychiatrist or an individual licensed or
certified as a psychologist under Chapter 501, Occupations Code;
(3) an appropriate employee of the Department of
Family and Protective Services;
(4) a member of the clergy; or
(5) another appropriate person selected by the court.
(d) If the minor has not retained an attorney, the court
shall appoint an attorney to represent the minor.
Sec. 34.103. COURT PROCEEDING. (a) The court shall fix a
time for a hearing on an application filed under Section 34.101 and
shall keep a record of all testimony and other oral proceedings in
the action. The minor must appear in person before the judge.
(b) The court shall rule on an application submitted under
Section 34.101 and shall issue written findings of fact and
conclusions of law not later than 5 p.m. on the fifth business day
after the date the application is filed with the court.
(c) On request by the minor, the court shall grant an
extension of the period specified by Subsection (b). If a request
for an extension is made, the court shall rule on an application and
shall issue written findings of fact and conclusions of law not
later than 5 p.m. on the fifth business day after the date the minor
states she is ready to proceed to hearing.
(d) Proceedings under this section shall be given
precedence over other pending matters to the extent necessary to
assure that the court reaches a decision promptly regardless of
whether the minor is granted an extension under this section.
(e) The court shall determine by clear and convincing
evidence:
(1) whether the minor is sufficiently mature and well
informed to make an abortion decision without the consent of either
of her parents or a managing conservator or guardian;
(2) whether the abortion would be in the best interest
of the minor; or
(3) whether obtaining the consent of either of her
parents or a managing conservator or guardian would lead to abuse,
as that term is defined by Section 261.001, of the minor.
(f) In determining whether the minor meets the requirements
of Subsection (e)(1), the court may:
(1) inquire into the minor's reasons for seeking an
abortion; and
(2) consider the degree to which the minor is informed
about the state-published information materials described under
Chapter 171, Health and Safety Code.
(g) If the court finds that any of the requirements of
Subsection (e) are met, the court shall enter an order authorizing a
physician to perform the abortion without the consent required
under Section 34.051(a)(1).
(h) If the court finds that the minor does not meet the
requirements of Subsection (e), the court may not authorize a
physician to perform an abortion without the consent required under
Section 34.051(a)(1).
(i) If the court fails to rule on the application and issue
written findings of fact and conclusions of law within the period
specified by Subsection (b) or (c), the application is deemed to be
granted. The clerk of the court shall issue a certificate to that
effect to the minor, and the physician may perform the abortion as
if the court had issued an order authorizing a physician to perform
the abortion without the consent required under Section
34.051(a)(1).
Sec. 34.104. PROHIBITED NOTIFICATION; ANONYMITY. (a) The
court may not notify a parent, managing conservator, or guardian
that the minor is pregnant or that the minor wants to have an
abortion.
(b) The court proceedings under this subchapter shall be
conducted in a manner that protects the anonymity of the minor. The
application and all other court documents and reports shall protect
the anonymity of the minor. The minor may file the application
using a pseudonym or using only her initials. The supreme court may
adopt rules to allow confidential docketing of an application filed
under this subchapter.
(c) The clerk of the court shall retain the record for each
case before the court under this subchapter in accordance with the
rules for civil cases. The minor shall be granted access to the
records of her case.
Sec. 34.105. REPORT. (a) For each case brought before a
court in this state under this subchapter, the court shall report to
the Office of Court Administration:
(1) the number and style of the case;
(2) the applicant's county of residence;
(3) the name of the county where the court is located;
(4) the filing date of the case;
(5) the date of disposition of the case; and
(6) the nature of the disposition, whether the order
was granted, denied, dismissed for want of prosecution, voluntarily
dismissed, mooted, deemed granted for failure to timely rule under
Section 34.103(b) or (c), or other disposition.
(b) The Office of Court Administration shall annually
publish the information required under Subsections (a)(2) and (6)
in aggregate by judicial region.
Sec. 34.106. CONFIDENTIALITY OF COURT ORDER. An order of
the court issued under this subchapter is confidential and
privileged and is not subject to disclosure under Chapter 552,
Government Code, or discovery, subpoena, or other legal process.
The order may not be released to any person except:
(1) the pregnant minor;
(2) the pregnant minor's guardian ad litem;
(3) the pregnant minor's attorney;
(4) another person designated to receive the order by
the minor; or
(5) a governmental agency or attorney in a criminal or
administrative action seeking to assert or protect the interest of
the minor.
Sec. 34.107. FEES AND COSTS. A filing fee is not required
of and court costs may not be assessed against a minor filing an
application under this subchapter.
[Sections 34.108-34.150 reserved for expansion]
SUBCHAPTER D. APPEAL OF COURT ORDER
Sec. 34.151. APPEAL. (a) A minor whose application under
Subchapter C is denied may appeal to the court of appeals having
jurisdiction over civil matters in the county in which the
application was filed.
(b) On receipt of a notice of appeal under this section, the
clerk of the court that denied the application shall deliver a copy
of the notice of appeal and record on appeal to the clerk of the
court of appeals.
(c) On receipt of the notice and record, the clerk of the
court of appeals shall place the appeal on the docket of the court.
Sec. 34.152. TIME FOR APPEAL. (a) The court of appeals
shall rule on an appeal under this subchapter not later than 5 p.m.
on the fifth business day after the date the notice of appeal is
filed with the court that denied the application.
(b) On request by the minor, the court shall grant an
extension of the period specified by this section.
(c) If a request for an extension is made, the court shall
rule on the appeal not later than 5 p.m. on the fifth business day
after the date the minor states she is ready to proceed.
(d) If the court of appeals fails to rule on the appeal
within the period specified by this section, the appeal is deemed to
be granted. The clerk of the court shall issue a certificate to
that effect to the minor, and the physician may perform the abortion
as if the court had issued an order authorizing a physician to
perform the abortion without the consent required under Section
34.051(a)(1).
Sec. 34.153. PRECEDENCE. Proceedings under this subchapter
shall be given precedence over other pending matters to the extent
necessary to assure that the court reaches a decision promptly.
Sec. 34.154. NOTIFICATION PROHIBITED; ANONYMITY. (a) The
court of appeals may not notify a parent, managing conservator, or
guardian that the minor is pregnant or that the minor wants to have
an abortion. The court of appeals proceeding shall be conducted in
a manner that protects the anonymity of the minor.
(b) The application and all other court documents and
reports shall protect the anonymity of the minor.
Sec. 34.155. CONFIDENTIALITY OF APPEAL. An order of the
court of appeals issued under this subchapter is confidential and
privileged and is not subject to disclosure under Chapter 552,
Government Code, or discovery, subpoena, or other legal process.
The court order may not be released to any person except:
(1) the pregnant minor;
(2) the pregnant minor's guardian ad litem;
(3) the pregnant minor's attorney;
(4) another person designated to receive the ruling by
the minor; or
(5) a governmental agency or attorney in a criminal or
administrative action seeking to assert or protect the interest of
the minor.
Sec. 34.156. OPINION. A court of appeals shall hand down an
opinion in accordance with the Texas Rules of Appellate Procedure
for each case before the court under this subchapter while
protecting the anonymity of the minor.
Sec. 34.157. FEES AND COSTS. A filing fee is not required
of and court costs may not be assessed against a minor filing an
appeal under this subchapter.
Sec. 34.158. EXPEDITED APPEAL. An expedited confidential
appeal shall be available to any pregnant minor to whom a court of
appeals denies an order authorizing a physician to perform an
abortion without the consent required under Section 34.051(a)(1).
Sec. 34.159. RECORDS. The clerk of the court shall retain
the records for each case before the court under this subchapter in
accordance with rules for civil cases. The minor shall be granted
access to the records of her case.
[Sections 34.160-34.200 reserved for expansion]
SUBCHAPTER E. IMMUNITY; COSTS; DUTIES
Sec. 34.201. GUARDIAN AD LITEM IMMUNITY. (a) A guardian ad
litem appointed under this chapter and acting in the course and
scope of the appointment is not liable for damages arising from an
act or omission of the guardian ad litem committed in good faith.
(b) The immunity granted by this section does not apply if
the conduct of the guardian ad litem is committed in a manner that
is:
(1) wilfully wrong;
(2) done with conscious indifference or reckless
disregard to the safety of another;
(3) done in bad faith or with malice; or
(4) grossly negligent.
Sec. 34.202. COSTS PAID BY STATE. (a) A court acting under
Subchapter C or D may issue an order requiring the state to pay:
(1) the costs of any attorney ad litem and any guardian
ad litem appointed for the minor;
(2) notwithstanding Sections 34.107 and 34.157, the
costs of court associated with the application or appeal; and
(3) any court reporter's fees incurred.
(b) An order issued under Subsection (a) must be directed to
the comptroller, who shall pay the amount ordered from funds
appropriated to the Department of State Health Services.
Sec. 34.203. PHYSICIAN'S DUTY TO REPORT ABUSE OF A MINOR;
INVESTIGATION AND ASSISTANCE. (a) A physician who has reason to
believe that a minor has been or may be physically or sexually
abused by a person responsible for the minor's care, custody, or
welfare, as that term is defined by Section 261.001, shall
immediately report the suspected abuse to the Department of Family
and Protective Services and shall refer the minor to the department
for services or intervention that may be in the best interest of the
minor.
(b) The Department of Family and Protective Services shall
investigate suspected abuse reported under this section and, if
appropriate, shall assist the minor in making an application with a
court under Subchapter C.
Sec. 34.204. OTHER REPORTS OF SEXUAL ABUSE OF A MINOR. A
court or the guardian ad litem or attorney ad litem for the minor
shall report conduct reasonably believed to violate Section 22.011,
22.021, or 25.02, Penal Code, based on information obtained during
a confidential court proceeding held under this chapter to:
(1) any local or state law enforcement agency;
(2) the Department of Family and Protective Services,
if the alleged conduct involves a person responsible for the care,
custody, or welfare of the child;
(3) the state agency that operates, licenses,
certifies, or registers the facility in which the alleged conduct
occurred, if the alleged conduct occurred in a facility operated,
licensed, certified, or registered by a state agency; or
(4) an appropriate agency designated by the court.
Sec. 34.205. CONFIDENTIALITY. Notwithstanding any other
law, information obtained by the Department of Family and
Protective Services or another entity under Section 34.203 or
34.204 is confidential except to the extent necessary to prove a
violation of Section 22.011, 22.021, or 25.02, Penal Code.
Sec. 34.206. INFORMATION RELATING TO JUDICIAL BYPASS. (a)
The Department of State Health Services shall produce and
distribute informational materials that explain the rights of a
minor under this chapter.
(b) The materials provided by the department must:
(1) explain the procedures established by Subchapters
C and D;
(2) be made available in English and in Spanish; and
(3) provide information relating to alternatives to
abortion and health risks associated with abortion.
Sec. 34.207. APPLICABILITY OF OTHER LAW. A physician who
performs an abortion in accordance with this chapter satisfies the
duties imposed on the physician under Chapter 33.
SECTION 2. Section 245.011(c), Health and Safety Code, is
amended to read as follows:
(c) The report must include:
(1) whether the abortion facility at which the
abortion is performed is licensed under this chapter;
(2) the patient's year of birth, race, marital status,
and state and county of residence;
(3) the type of abortion procedure;
(4) the date the abortion was performed;
(5) whether the patient survived the abortion, and if
the patient did not survive, the cause of death;
(6) the period of gestation based on the best medical
judgment of the attending physician at the time of the procedure;
(7) the date, if known, of the patient's last menstrual
cycle;
(8) the number of previous live births of the patient;
[and]
(9) the number of previous induced abortions of the
patient; and
(10) for an abortion performed on a minor:
(A) whether consent for the abortion was obtained
from the parent, managing conservator, or guardian;
(B) whether the minor was emancipated;
(C) whether the minor had a valid court order
authorizing the abortion without the consent of a parent, managing
conservator, or guardian, and if so, the court that granted the
order, and whether the court granted the order by action or
inaction;
(D) whether the abortion was performed because of
a medical emergency; and
(E) the age of the patient's sexual partner who
impregnated the patient and whether suspected child abuse was
reported under Section 261.101, Family Code.
SECTION 3. Chapter 25, Penal Code, is amended by adding
Sections 25.11, 25.12, and 25.13 to read as follows:
Sec. 25.11. COERCION OF ABORTION. (a) A person commits an
offense if the person uses coercion to induce a pregnant minor
younger than 18 years of age to have an abortion.
(b) An offense under this section is a state jail felony.
Sec. 25.12. ASSAULT ON PREGNANT MINOR. (a) A person
commits an offense if the person assaults a pregnant minor younger
than 18 years of age in order to force the minor to have an abortion.
(b) An offense under this section is a state jail felony.
Sec. 25.13. CHOICE OF PROSECUTIONS. If conduct
constituting an offense under Section 25.11 or 25.12 also
constitutes an offense under another section of this code, the
conduct may be prosecuted under Section 25.11 or 25.12, as
appropriate, under the other law, or under both the other law and
Section 25.11 or 25.12, as appropriate.
SECTION 4. (a) The Supreme Court of Texas as soon as
practical after the effective date of this Act shall adopt the rules
necessary to ensure the proceedings are conducted and the reporting
is performed under Subchapters C and D, Chapter 34, Family Code, as
added by this Act, in a manner that protects the anonymity of the
minor and the proceedings have sufficient precedence over all
other pending matters to ensure promptness of disposition.
(b) The Supreme Court of Texas shall adopt the application
form and notice of appeal form required under Sections 34.101 and
34.151, Family Code, as added by this Act, not later than December
15, 2005.
(c) The executive commissioner of the Health and Human
Services Commission shall adopt the form required for making a
certification under Section 34.051, Family Code, as added by this
Act, not later than December 1, 2005.
SECTION 5. Chapter 34, Family Code, as added by this Act,
applies only to an abortion performed on or after January 1, 2006.
An abortion performed before that date is governed by the law as it
existed immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
SECTION 6. (a) Chapter 34, Family Code, as added by this
Act, and Sections 25.11, 25.12, and 25.13, Penal Code, as added by
this Act, apply only to an offense committed on or after January 1,
2006. For the purposes of this section, an offense is committed
before January 1, 2006, if any element of the offense occurs before
that date.
(b) An offense committed before January 1, 2006, is governed
by the law in effect when the offense was committed, and the former
law is continued in effect for that purpose.
SECTION 7. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2005.
(b) Section 34.054, Family Code, as added by this Act, takes
effect January 1, 2006.