79R8745 MSE-F
By: Isett H.B. No. 3305
A BILL TO BE ENTITLED
AN ACT
relating to coercing a woman to have an abortion and parental
notification of abortion; creating offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as the Child Predator
Prevention Act.
SECTION 2. Section 33.001, Family Code, is amended by
adding Subdivision (1-a) to read as follows:
(1-a) "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.
SECTION 3. Section 33.002, Family Code, is amended to read
as follows:
Sec. 33.002. PARENTAL NOTICE. (a) A physician may not
perform an abortion on a pregnant unemancipated minor unless:
(1) the physician performing the abortion or the
physician's agent:
(A) gives at least 48 hours actual notice, in
person at the facility [or by telephone], of the physician's intent
to perform the abortion to:
(i) [(A)] a parent of the minor, who
appears in person at the facility, if the minor has no managing
conservator or guardian; or
(ii) [(B)] a court-appointed managing
conservator or guardian, who appears in person at the facility;
(B) obtains:
(i) from the parent of the minor who
appears, if the minor has no managing conservator or guardian, a
copy of the parent's proof of identification and a completed,
signed form with the following statement:
"I certify that I, (insert parent's name), am
the parent of (insert minor daughter's name) and have been notified
that (insert physician's name) intends to perform an abortion on
(insert minor daughter's name). I understand that any person who
intentionally, knowingly, recklessly, or with criminal negligence
makes a fraudulent statement in this regard commits an offense
punishable by law."
______________________________ Signature
of parent
______________________________ Date of
signature; or
(ii) from the court-appointed managing
conservator or guardian who appears a copy of the conservator's or
guardian's proof of identification and a completed, signed form
with the following statement:
"I certify that I, (insert conservator's or
guardian's name), am the conservator or guardian of (insert minor's
name) and have been notified that (insert physician's name) intends
to perform an abortion on (insert minor's name). I understand that
any person who intentionally, knowingly, recklessly, or with
criminal negligence makes a fraudulent statement in this regard
commits an offense punishable by law."
_____________________________ Signature of
conservator or guardian
_____________________________ Date of
signature; and
(C) personally delivers to the parent, managing
conservator, or guardian at the usual place of abode of the parent,
managing conservator, or guardian at least 48 hours written notice,
addressed to the parent, managing conservator, or guardian of the
physician's intent to perform the abortion;
(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, if the court is located in the
county in which the minor resides or in which the abortion is to be
performed or a court of appellate jurisdiction issues an order
authorizing the [minor to consent to the] abortion as provided by
Section 33.003 or 33.004;
(3) a probate court, county court at law, district
court, including a family district court, if the court is located in
the county in which the minor resides or in which the abortion is to
be performed, or court of appeals, by its inaction, constructively
authorizes the [minor to consent to the] abortion as provided by
Section 33.003 or 33.004; 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
(B) certifies in writing to the [Texas]
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 person unable to produce satisfactory proof of
identity, relationship, usual place of abode, or other fact
required by this section, or a pregnant female whose ability to
obtain an abortion is affected, may file a petition or motion with
any county court at law, court having probate jurisdiction, or
district court, including a family district court, if the court is
located in the county in which the person resides or in which the
abortion is to be performed. The court shall, upon petition or
motion, and after an appropriate hearing subject to the same
procedural requirements specified in Section 33.003 for a judicial
bypass hearing for a pregnant minor, authorize a physician to
perform the abortion if the judge determines, by a preponderance of
the evidence, the truth of the requisite fact or facts. Such an
authorization shall not be subject to an appeal, but an expedited
confidential appeal shall be available if the judge denies the
authorization, under the same procedural requirements specified in
Section 33.004 for an appeal arising out of a judicial bypass
hearing for a pregnant minor.
(c) A physician shall keep a copy of the minor's medical
records until the fifth anniversary of the date of the
unemancipated minor's majority or the seventh anniversary of the
date the physician received the document for the purposes of this
section, whichever is greater. The physician shall keep as part of
those records, if applicable:
(1) a copy of the parent's, conservator's, or
guardian's proof of identification and certified statement as
required by Subsection (a)(1)(B);
(2) a copy of any affidavits or certifications
required by this section;
(3) a copy of any written notices provided or mailed
under this section;
(4) a copy of the notice and return receipt required by
Subsection (e); and
(5) an original copy of a signed, sealed judicial
order obtained pursuant to Section 33.003 or 33.004.
(d) A physician who intentionally, knowingly, recklessly,
or with criminal negligence violates Subsection (c) is subject to
an administrative penalty under Section 245.017, Health and Safety
Code, as if the physician had violated Chapter 245, Health and
Safety Code, or a rule under that chapter.
(e) [(b)] If a person to whom notice may be given under
Subsection (a)(1) cannot be notified after a reasonable effort, a
physician may perform an abortion if the physician or physician's
agent gives 48 hours constructive notice, by certified mail,
restricted delivery, return receipt requested, sent to the last
known address, to the person to whom notice may be given under
Subsection (a)(1). The period under this subsection begins when
the notice is mailed. If the person required to be notified is not
notified within the 48-hour period, the abortion may proceed even
if the notice by mail is not received.
(f) [(c)] The requirement that 48 hours actual notice be
provided under this section may be waived by a parent, managing
conservator, or guardian providing proof of identification and the
certified statement as required by Subsection (a)(1)(B) provided,
however, that this waiver shall not be construed to waive any
waiting period mandated by Section 171.012, Health and Safety Code
[an affidavit of:
[(1) a parent of the minor, if the minor has no
managing conservator or guardian; or
[(2) a court-appointed managing conservator or
guardian].
(g) The [(d) A] physician or physician's agent providing
actual notice under Subsection (a)(1) shall [may] execute for
inclusion in the minor's medical record an affidavit stating "I
(insert name of physician or physician's agent) certify that
according to my best information and belief, a reasonable person
under similar circumstances would rely on the information presented
by both the minor and her parent, managing conservator, or guardian
as sufficient evidence of identity. I understand that any person
who intentionally, knowingly, recklessly, or with criminal
negligence makes a fraudulent statement in this regard commits an
offense punishable by law." [that, according to the best
information and belief of the physician, notice or constructive
notice has been provided as required by this section. Execution of
an affidavit under this subsection creates a presumption that the
requirements of this section have been satisfied.]
(h) A physician or physician's agent providing constructive
notice under Subsection (e) shall execute for inclusion in the
minor's medical record an affidavit stating "I (insert name of
physician or physician's agent) personally mailed written notice of
intent to perform an abortion on (insert name of minor) to (insert
name of parent, managing conservator, or guardian) at (insert
address) on (insert date) and certify that according to my best
information and belief, a reasonable person under similar
circumstances would rely on the information presented as sufficient
evidence of the last known mailing address of the parent, managing
conservator, or guardian, in order to comply with the notice
requirements of Section 33.002, Family Code. I understand that any
person who intentionally, knowingly, recklessly, or with criminal
negligence makes a fraudulent statement in this regard commits an
offense punishable by law."
(i) [(e)] The [Texas] Department of State Health Services
shall prepare a form to be used for making the certification
required by Subsections (a)(1)(B), (a)(4), (g), and (h) [Subsection
(a)(4)].
(j) [(f)] A certification required by Subsection (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. Personal or identifying information about the
minor, including her name, address, or social security number, may
not be included in a certification under Subsection (a)(4). The
physician must keep the medical records on the minor in compliance
with the rules adopted by the Texas State Board of Medical Examiners
under Section 153.003, Occupations Code.
(k) [(g)] A physician who intentionally, knowingly,
recklessly, or with criminal negligence performs an abortion or
attempts to perform an abortion on a pregnant unemancipated minor
in violation of this section commits an offense. An offense under
this subsection is a Class A misdemeanor [punishable by a fine not
to exceed $10,000. In this subsection, "intentionally" has the
meaning assigned by Section 6.03(a), Penal Code].
(l) [(h)] 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. The defense 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 or identity. In this subsection, "defense" has the meaning and
application assigned by Section 2.03, Penal Code.
(m) A person commits an offense if the person:
(1) intentionally, knowingly, recklessly, or with
criminal negligence makes a false representation of fact on any
certification or affidavit required by this section; or
(2) intentionally, knowingly, recklessly, or with
criminal negligence makes, presents, or uses any record, document,
or thing with knowledge of its falsity, and with the intent that it
be taken as a valid governmental record, as defined by Section
37.01, Penal Code, in order to fraudulently represent that the
person is the parent, managing conservator, or guardian of the
pregnant minor for the purpose of obtaining an abortion for the
pregnant minor.
(n) An offense under Subsection (m) is a Class A
misdemeanor.
(o) [(i)] In relation to the trial of an offense under this
section in which the conduct charged involves a conclusion made by
the physician under Subsection (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. The findings of the Texas
State Board of Medical Examiners under this subsection are
admissible on that issue in the trial of the defendant.
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 this subsection to take
place.
(p) A parent, managing conservator, or guardian of an
unemancipated minor who has an abortion performed in violation of
this chapter may maintain a cause of action under Chapter 74, Civil
Practice and Remedies Code, for any subsequent treatment the minor
requires as a result of complications from the abortion.
(q) A minor or the parent, managing conservator, or guardian
of a minor upon whom an abortion has been performed or attempted to
be performed in violation of this chapter may maintain a cause of
action under Chapter 74, Civil Practice and Remedies Code, against
the person who performed or attempted to perform the abortion.
(r) An unemancipated minor does not have capacity to consent
to any action that violates this chapter.
SECTION 4. Sections 33.003(b), (e), and (i), Family Code,
are amended to read as follows:
(b) The application may be filed in any county court at law,
court having probate jurisdiction, or district court, including a
family district court, in the minor's county of residence or the
county in which the abortion is to be performed [this state].
(e) The court shall appoint a guardian ad litem for the
minor. If the minor has not retained an attorney, the court shall
appoint an attorney to represent the minor. A person may not
concurrently serve as both guardian ad litem and attorney ad litem
for the minor [If the guardian ad litem is an attorney admitted to
the practice of law in this state, the court may appoint the
guardian ad litem to serve as the minor's attorney].
(i) The court shall determine by clear and convincing [a
preponderance of the] evidence whether the minor is mature and
sufficiently well informed to make the decision to have an abortion
performed without notification to either of her parents or a
managing conservator or guardian or [,] whether notification would
not be in the best interest of the minor[, or whether notification
may lead to physical, sexual, or emotional abuse of the minor]. If
the court finds that the minor is mature and sufficiently well
informed or [,] that notification would not be in the minor's best
interest, [or that notification may lead to physical, sexual, or
emotional abuse of the minor,] the court shall enter an order
authorizing the [minor to consent to the] performance of the
abortion without notification to either of her parents or a
managing conservator or guardian and shall execute the required
forms.
SECTION 5. Section 171.002, Health and Safety Code, is
amended to read as follows:
Sec. 171.002. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Abortion" [, "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 fetus.
(2) "Medical emergency" means a condition that, on the
basis of a physician's good faith clinical judgment, so complicates
the medical condition of a pregnant woman that the condition
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.
SECTION 6. Subchapter A, Chapter 171, Health and Safety
Code, is amended by adding Section 171.006 to read as follows:
Sec. 171.006. PROOF OF AGE REQUIRED. (a) Except as
provided by Subsection (b), or in the case of a medical emergency as
defined by Section 171.002, a physician may not perform an abortion
on a pregnant female unless:
(1) the physician or the physician's agent has
obtained proof of age demonstrating that the female is not a minor;
(2) the physician or the physician's agent has
obtained proof that the female, although a minor, is emancipated;
or
(3) the physician has complied with Sections 33.002
(a), (e), or (f), Family Code.
(b) If the pregnant female is unable to produce satisfactory
proof that the pregnant female is not a minor or is an emancipated
minor, any judge of a county court at law, court having probate
jurisdiction, or district court, including a family district court,
if the court is located in the county in which the person resides or
in which the abortion is to be performed, shall, upon petition or
motion, and after an appropriate hearing subject to the same
procedural requirements specified in Section 33.003, Family Code,
for a judicial bypass hearing for a pregnant minor, authorize a
physician to perform the abortion if the judge determines, by a
preponderance of the evidence, that the pregnant female is not a
minor or that she is an emancipated minor. Such an authorization
shall not be subject to an appeal, but an expedited confidential
appeal shall be available if the judge denies the authorization
under the same procedural requirements specified in Section 33.004,
Family Code, for an appeal arising out of a judicial bypass hearing
for a pregnant minor.
SECTION 7. Section 171.012, Health and Safety Code, is
amended to read as follows:
Sec. 171.012. VOLUNTARY AND INFORMED CONSENT. (a) Except
in the case of a medical emergency, consent to an abortion is
voluntary and informed only if:
(1) the physician determines that the pregnant woman
has made the decision to obtain an abortion of her own free will;
(2) the physician who is to perform the abortion or the
referring physician informs the woman on whom the abortion is to be
performed of:
(A) the name of the physician who will perform
the abortion;
(B) the particular medical risks associated with
the particular abortion procedure to be employed, including, when
medically accurate:
(i) the risks of infection and hemorrhage;
(ii) the potential danger to a subsequent
pregnancy and of infertility; and
(iii) the possibility of increased risk of
breast cancer following an induced abortion and the natural
protective effect of a completed pregnancy in avoiding breast
cancer;
(C) the probable gestational age of the unborn
child at the time the abortion is to be performed; and
(D) the medical risks associated with carrying
the child to term;
(3) [(2)] the physician who is to perform the abortion
or the physician's agent informs the woman that:
(A) medical assistance benefits may be available
for prenatal care, childbirth, and neonatal care;
(B) the father is liable for assistance in the
support of the child without regard to whether the father has
offered to pay for the abortion; and
(C) [public and private agencies provide
pregnancy prevention counseling and medical referrals for
obtaining pregnancy prevention medications or devices, including
emergency contraception for victims of rape or incest; and
[(D)] the woman has the right to review the
printed materials described by Section 171.014, that those
materials have been provided by the [Texas] Department of State
Health Services and are accessible on an Internet website sponsored
by the department, and that the materials describe the unborn child
and list agencies that offer alternatives to abortion;
(4) [(3)] the woman certifies in writing before the
abortion is performed that the information described by
Subdivisions (2) [(1)] and (3) [(2)] has been provided to her and
that she has been informed of her opportunity to review the
information described by Section 171.014; and
(5) [(4)] before the abortion is performed, the
physician who is to perform the abortion receives a copy of the
written certification required by Subdivision (4) [(3)].
(b) The information required to be provided under
Subsections (a)(2) [(a)(1)] and (3) [(2)] must be provided:
(1) orally by telephone or in person; and
(2) at least 24 hours before the abortion is to be
performed.
(c) When providing the information under Subsection
(a)(3)(C) [(a)(2)(D)], the physician or the physician's agent must
provide the woman with the address of the Internet website on which
the printed materials described by Section 171.014 may be viewed as
required by Section 171.014(e).
(d) The information provided to the woman under Subsection
(a)(3)(B) [(a)(2)(B)] must include, based on information available
from the Office of the Attorney General and the United States
Department of Health and Human Services Office of Child Support
Enforcement for the three-year period preceding the publication of
the information, information regarding the statistical likelihood
of collecting child support.
(e) The department is not required to republish
informational materials described by Subsection (a)(3)(B)
[(a)(2)(B)] because of a change in information described by
Subsection (d) unless the statistical information in the materials
changes by five percent or more.
SECTION 8. Chapter 25, Penal Code, is amended by adding
Sections 25.11 and 25.12 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 woman to
have an abortion.
(b) An offense under this section is a Class C misdemeanor.
Sec. 25.12. ASSAULT ON PREGNANT WOMAN. (a) A person
commits an offense if the person assaults a pregnant woman in order
to force the woman to have an abortion.
(b) An offense under this section is an offense under
Chapters 19 and 22.
SECTION 9. If any one or more provisions, sections,
subsections, sentences, clauses, phrases, or words of the law as
amended by this Act are ever temporarily or permanently restrained
or enjoined by judicial order, the original provisions shall remain
in force as though the law was never amended by this Act; provided,
however, that if such temporary or permanent restraining order or
injunction is ever stayed or dissolved, or otherwise ceases to have
effect, the entire law as amended by this Act shall have full force
and effect.
SECTION 10. If any one or more provisions, sections,
subsections, sentences, clauses, phrases, or words of this Act or
the application thereof to any person or circumstance are found to
be unconstitutional, the same is hereby declared to be severable
and the balance of this Act shall remain effective notwithstanding
such unconstitutionality. The legislature hereby declares that it
would have passed this Act and each provision, section, subsection,
sentence, clause, phrase, or word thereof, irrespective of the fact
that any one or more provision, section, subsection, sentence,
clause, phrase, or word be declared unconstitutional.
SECTION 11. (a) The change in law made by this Act applies
only to an offense committed on or after the effective date of this
Act. For purposes of this section, an offense is committed before
the effective date of this Act if any element of the offense occurs
before that date.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
SECTION 12. This Act takes effect September 1, 2005.