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A BILL TO BE ENTITLED
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AN ACT
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relating to the judicial procedure required before an abortion may |
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be performed on a minor without notification to and consent of a |
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parent or guardian. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle A, Title 2, Family Code, is amended by |
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amending Chapter 33 to read as follows: |
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CHAPTER 33. NOTICE OF ABORTION |
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Sec. 33.001. DEFINITIONS. In this chapter: |
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(1) "Abortion" means the use of any means to terminate |
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the pregnancy of a female known by the attending physician to be |
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pregnant, with the intention that the termination of the pregnancy |
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by those means will with reasonable likelihood cause the death of |
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the fetus. This definition, as applied in this chapter, applies |
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only to an unemancipated minor known by the attending physician to |
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be pregnant and may not be construed to limit a minor's access to |
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contraceptives. |
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(2) "Fetus" means an individual human organism from |
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fertilization until birth. |
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(3) "Guardian" means a court-appointed guardian of the |
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person of the minor. |
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(4) "Physician" means an individual licensed to |
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practice medicine in this state. |
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(5) "Unemancipated minor" includes a minor who: |
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(A) is unmarried; and |
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(B) has not had the disabilities of minority |
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removed under Chapter 31. |
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Sec. 33.002. PARENTAL NOTICE. (a) A physician may not |
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perform an abortion on a pregnant unemancipated minor unless: |
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(1) the physician performing the abortion gives at |
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least 48 hours actual notice, in person or by telephone, of the |
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physician's intent to perform the abortion to: |
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(A) a parent of the minor, if the minor has no |
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managing conservator or guardian; or |
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(B) a court-appointed managing conservator or |
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guardian; |
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(2) the judge of a court having probate jurisdiction, |
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the judge of a county court at law, the judge of a district court, |
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including a family district court, or a court of appellate |
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jurisdiction issues an order authorizing the minor to consent to |
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the abortion as provided by Section 33.003 or 33.004; |
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(3) a probate court, county court at law, district |
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court, including a family district court, or court of appeals, by |
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its inaction, constructively authorizes the minor to consent to the |
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abortion as provided by Section 33.003 or 33.004; or |
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(4) the physician performing the abortion: |
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(A) concludes that on the basis of the |
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physician's good faith clinical judgment, a condition exists that |
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complicates the medical condition of the pregnant minor and |
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necessitates the immediate abortion of her pregnancy to avert her |
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death or to avoid a serious risk of substantial and irreversible |
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impairment of a major bodily function; and |
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(B) certifies in writing to the Texas Department |
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of Health and in the patient's medical record the medical |
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indications supporting the physician's judgment that the |
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circumstances described by Paragraph (A) exist. |
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(b) If a person to whom notice may be given under Subsection |
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(a)(1) cannot be notified after a reasonable effort, a physician |
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may perform an abortion if the physician gives 48 hours |
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constructive notice, by certified mail, restricted delivery, sent |
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to the last known address, to the person to whom notice may be given |
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under Subsection (a)(1). The period under this subsection begins |
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when the notice is mailed. If the person required to be notified is |
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not notified within the 48-hour period, the abortion may proceed |
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even if the notice by mail is not received. |
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(c) The requirement that 48 hours actual notice be provided |
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under this section may be waived by an affidavit of: |
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(1) a parent of the minor, if the minor has no managing |
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conservator or guardian; or |
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(2) a court-appointed managing conservator or |
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guardian. constructive notice has been provided as required by this |
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section. Execution of an affidavit under this subsection creates a |
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presumption that the requirements of this section have been |
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satisfied. |
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(d) A physician may execute for inclusion in the minor's |
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medical record an affidavit stating that, according to the best |
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information and belief of the physician, notice or constructive |
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notice has been provided as required by this section. Execution of |
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an affidavit under this subsection creates a presumption that the |
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requirements of this section have been satisfied. |
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(e) The Texas Department of Health shall prepare a form to |
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be used for making the certification required by Subsection (a)(4). |
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(f) A certification required by Subsection (a)(4) is |
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confidential and privileged and is not subject to disclosure under |
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Chapter 552, Government Code, or to discovery, subpoena, or other |
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legal process. Personal or identifying information about the minor, |
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including her name, address, or social security number, may not be |
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included in a certification under Subsection (a)(4). The physician |
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must keep the medical records on the minor in compliance with the |
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rules adopted by the Texas State Board of Medical Examiners under |
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Section 153.003, Occupations Code. |
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(g) A physician who intentionally performs an abortion on a |
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pregnant unemancipated minor in violation of this section commits |
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an offense. An offense under this subsection is punishable by a fine |
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not to exceed $10,000. In this subsection, "intentionally" has the |
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meaning assigned by Section 6.03(a), Penal Code. |
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(h) It is a defense to prosecution under this section that |
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the minor falsely represented her age or identity to the physician |
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to be at least 18 years of age by displaying an apparently valid |
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governmental record of identification such that a reasonable person |
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under similar circumstances would have relied on the |
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representation. The defense does not apply if the physician is |
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shown to have had independent knowledge of the minor's actual age or |
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identity or failed to use due diligence in determining the minor's |
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age or identity. In this subsection, "defense" has the meaning and |
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application assigned by Section 2.03, Penal Code. |
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(i) In relation to the trial of an offense under this |
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section in which the conduct charged involves a conclusion made by |
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the physician under Subsection (a)(4), the defendant may seek a |
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hearing before the Texas State Board of Medical Examiners on |
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whether the physician's conduct was necessary to avert the death of |
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the minor or to avoid a serious risk of substantial and irreversible |
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impairment of a major bodily function. The findings of the Texas |
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State Board of Medical Examiners under this subsection are |
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admissible on that issue in the trial of the defendant. |
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Notwithstanding any other reason for a continuance provided under |
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the Code of Criminal Procedure or other law, on motion of the |
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defendant, the court shall delay the beginning of the trial for not |
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more than 30 days to permit a hearing under this subsection to take |
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place. |
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Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who |
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wishes to have an abortion without [to the] notification to and the |
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consent of one of her parents, her managing conservator, or her |
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guardian may file an application for a court order authorizing the |
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minor to consent to the performance of an abortion without |
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notification to and the consent of either of her parents or a |
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managing conservator or guardian. |
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(b) The application may be filed in any county court at law, |
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court having probate jurisdiction, or district court, including a |
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family district court, in [this statc]the minor's county of |
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residence or neighboring county if the minor's county of residence |
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has fewer than 10,000 residents. |
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(c) The application must be made under oath and include: |
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(1) a statement that the minor is pregnant; |
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(2) a statement that the minor is unmarried, is under |
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18 years of age, and has not had her disabilities removed under |
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Chapter 31; |
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(3) a statement that the minor wishes to have an |
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abortion without the notification to and consent of either of her |
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parents or a managing conservator or guardian; and |
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(4) a statement as to whether the minor has retained an |
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attorney and, if she has retained an attorney, the name, address, |
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and telephone number of her attorney. |
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(d) The clerk of the court shall deliver a courtesy copy of |
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the application made under this section to the judge who is to hear |
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the application. |
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(e) The court shall appoint a guardian ad litem for the |
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minor. If the minor has not retained an attorney, the court shall |
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appoint an attorney to represent the minor. [If the guardian ad
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litem is an attorney admitted to the practice of law in this state,
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the court may appoint the guardian ad litem to serve as the minor's
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attorney.] The guardian ad litem, who shall be a different person |
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than the minor's attorney or attorney ad litem, shall represent |
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the best interests of the minor and presume that involving a |
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parent, a managing conservator, or guardian in the minor's |
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abortion decision is in the best interests of the minor. |
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(f) The court may appoint to serve as guardian ad litem |
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(1) a person who may consent to treatment for the minor |
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under Sections 32.001(a)(1)-(3); |
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(2) a psychiatrist or an individual licensed or |
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certified as a psychologist under Chapter 501, Occupations Code; |
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(3) an appropriate employee of the Department of |
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Family and Protective Services; |
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(4) a member of the clergy; or |
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(5) another appropriate person selected by the court. |
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(g) The court shall fix a time for a hearing on an |
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application filed under Subsection (a) and shall keep a record of |
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all testimony and other oral proceedings in the action. [The court
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shall cntcr judgment on the application immediately after the
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hearing is concluded.] |
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(h) The court shall rule on an application submitted under |
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this section and shall issue written findings of fact and |
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conclusions of law not later than 5 p.m. on the [second]fifth |
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business day after the date the application is filed with the court. |
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On request by the minor, the court shall grant an extension of the |
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period specified by this subsection. If a request for an extension |
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is made, the court shall rule on an application and shall issue |
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written findings of fact and conclusions of law not later than 5 |
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p.m. on the [second] fifth business day after the date the minor |
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states she is ready to proceed to hearing. |
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(i) If the court fails to rule on the application and issue |
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written findings of fact and conclusions of law within the period |
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specified by this subsection, the application is deemed to be |
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granted and the physician may perform the abortion as if the court |
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had issued an order authorizing the minor to consent to the |
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performance of the abortion without the notification required under |
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Section 33.002(a)(1) and the consent required under |
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Section.164.052(a)(19), Occupations Code. |
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(j) Proceedings under this section shall be given |
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precedence over other pending matters to the extent necessary to |
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assure that the court reaches a decision promptly regardless of |
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whether the minor is granted an extension under this subsection. |
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(k) The court shall determine by [a preponderance of the
|
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evidence]clear and convincing evidence, as defined by Section |
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101.007, whether the minor [is] has overcome the presumption that |
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notifying and obtaining the consent of her parent or managing |
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conservator or guardian is in her best interest. In making its |
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decision, the court shall determine: |
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(1) whether the minor is mature and sufficiently well |
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informed to make the decision to have an abortion performed without |
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notification to and consent of either of her parents or a managing |
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conservator or guardian; |
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(2) whether [notification would not]the abortion |
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would be in the best interest of the minor; or |
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(3) whether notification to and obtaining the consent |
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of either of her parents or a managing conservator or guardian would |
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lead to abuse, as that term is defined by 261.001, of the minor. |
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(l) In determining whether the minor meets the requirements |
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of Subsection (k), the court shall consider the experience, |
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perspective, and judgement of the particular minor. The court may |
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consider all relevant factors, including: |
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(1) the minor's age; |
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(2) life experiences, such as working, traveling |
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independently, or managing her own financial affairs; |
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(3) steps taken to explore her options and the |
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consequences of those options; and |
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(4) her decision not to tell a parent, managing |
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conservator, or guardian. |
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(m) In determining whether the minor meets the requirements |
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of Subsection (j), the court may: |
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(1) inquire as to the minor's reasons for seeking an |
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abortion, and the court may consider the degree to which the minor |
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is informed about the state-published informational materials |
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described under Chapter 171, Health and Safety Code, and |
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(2) require the minor to be evaluated by a licensed |
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mental health counselor, who shall return the evaluation to the |
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court for review within three business days. |
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(n) If the court finds that [the minor is mature and
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sufficiently well informed, that notification would not be in the
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minor's best interest, or that the notification may lead to
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physical, sexual, or emotional abuse of the minor]any of the |
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requirements of Subsection (k) are met, the court shall enter an |
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order authorizing the minor to consent to the performance of the |
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abortion without the notification [to either of her parents or a
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managing conservator or guardian and shall execute the required
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forms] required under Section 33.002(a)(1) and the consent required |
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under Section 164.052(a)(19), Occupations Code. The order shall be |
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valid for 30 days after it is entered. |
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([j]o) If the court finds that the minor does not meet the |
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requirements of Subsection (k), the court may not authorize the |
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minor to consent to an abortion without the notification |
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[authorized under Section 33.002(a)(1)] required under Section |
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33.002(a)(1) and the consent required under Section |
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164.052(a)(19), Occupations Code. |
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(p) If the court fails to rule within the period specified |
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by this subsection, the appeal is deemed to be granted and the |
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physician may perform the abortion as if the court had issued an |
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order authorizing the minor to consent to the performance of the |
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abortion without the notification required under Section |
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33.002(a)(1) and the consent required under |
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Section.164.052(a)(19), Occupations Code. |
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([k]q) The court may not notify a parent, managing |
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conservator, or guardian that the minor is pregnant or that the |
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minor wants to have an abortion. The court proceedings shall be |
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conducted in a manner that protects the anonymity of the minor. The |
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application and all other court documents pertaining to the |
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proceedings are confidential and privileged and are not subject to |
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disclosure under Chapter 552, Government Code, or to discovery, |
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subpoena, or other legal process. All reports shall protect the |
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anonymity of the minor. The minor may file the application using a |
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pseudonym or using only her initials. The minor shall have access to |
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the records of her case. |
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(r) The clerk of the court shall report to the Office of |
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Court Administration, which shall annually publish the information |
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reported under Subsections (2), (3), and (6): |
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(1) the case number and style; |
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(2) the applicant's county of residence; |
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(3) the identity of the court in which the proceeding |
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occurred; |
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(4) the date of filing; |
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(5) the date of the disposition; and |
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(6) the nature of the disposition, whether the order |
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was granted, denied, dismissed for want of prosecution, voluntarily |
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dismissed/mooted, deemed granted for failure to timely rule under |
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Subsection (l), or other reason. |
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([l]s) An order of the court issued under this section is |
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confidential and privileged and is not subject to disclosure under |
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Chapter 552, Government Code, or discovery, subpoena, or other |
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legal process. The order may not be released to any person but the |
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pregnant minor, the pregnant minor's guardian ad litem, the |
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pregnant minor's attorney, another person designated to receive the |
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order by the minor, or a governmental agency or attorney in a |
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criminal or administrative action seeking to assert or protect the |
|
interest of the minor. The supreme court may adopt rules to permit |
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confidential docketing of an application under this section. |
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([m]t) The clerk of the supreme court shall prescribe the |
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application form to be used by the minor filing an application under |
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this section. |
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([n]u) A filing fee is not required of and court costs may not |
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be assessed against a minor filing an application under this |
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section. |
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Sec. 33.004. APPEAL. (a) A minor whose application under |
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Section 33.003 is denied may appeal to the court of appeals having |
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jurisdiction over civil matters in the county in which the |
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application was filed. On receipt of a notice of appeal, the clerk |
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of the court that denied the application shall deliver a copy of the |
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notice of appeal and record on appeal to the clerk of the court of |
|
appeals. On receipt of the notice and record, the clerk of the court |
|
of appeals shall place the appeal on the docket of the court. |
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(b) The court of appeals shall rule on an appeal under this |
|
section not later than 5 p.m. on the [second] fifth business day |
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after the date the notice of appeal is filed with the court that |
|
denied the application. On request by the minor, the court shall |
|
grant an extension of the period specified by this subsection. If a |
|
request for an extension is made, the court shall rule on the appeal |
|
not later than 5 p.m. on the [second]fifth business day after the |
|
date the minor states she is ready to proceed. |
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(c) If the court of appeals fails to rule on the appeal |
|
within the period specified by this subsection, 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 |
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perform the abortion as if the court had issued an order authorizing |
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the minor to consent to the performance of the abortion without the |
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notification required under Section 33.002(a)(1) and the consent |
|
required under Section 164.052(a)(19), Occupations Code. |
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([e]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. |
|
(e) An [ruling]order of the court of appeals issued under |
|
this section is confidential and privileged and is not subject to |
|
disclosure under Chapter 552, Government Code, or discovery, |
|
subpoena, or other legal process. The [ruling]order may not be |
|
released to any person [but] 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. The supreme court may adopt rules to permit confidential |
|
docketing of an appeal under this section. |
|
([d]f) The clerk of the supreme court shall prescribe the |
|
notice of appeal form to be used by the minor appealing a judgment |
|
under this section. |
|
([e]g) A filing fee is not required of and court costs may not |
|
be assessed against a minor filing an appeal under this section. |
|
([f]h) An expedited confidential appeal shall be available to |
|
any pregnant minor to whom a court of appeals denies an order |
|
authorizing the minor to consent to the performance of an abortion |
|
without notification to either of her parents or a managing |
|
conservator or guardian. |
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Sec. 33.005. 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. |
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Sec. [33.005]33.006. AFFIDAVIT OF PHYSICIAN. (a) A physician |
|
may execute for inclusion in the minor's medical record an |
|
affidavit stating that, after reasonable inquiry, it is the belief |
|
of the physician that: |
|
(1) the minor has made an application or filed a notice |
|
of an appeal with a court under this chapter; |
|
(2) the deadline for court action imposed by this |
|
chapter has passed; and |
|
(3) the physician has been notified that the court has |
|
not denied the application or appeal. |
|
(b) A physician who in good faith has executed an affidavit |
|
under Subsection (a) may rely on the affidavit and may perform the |
|
abortion as if the court had issued an order granting the |
|
application or appeal. |
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Sec. [33.006]33.007. GUARDIAN AD LITEM IMMUNITY. 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. |
|
The immunity granted by this section does not apply if the conduct |
|
of the guardian ad litem is committed in a manner described by |
|
Sections 107.003(b)(1)-(4). |
|
Sec. [33.007]33.008. COSTS PAID BY STATE. (a) A court acting |
|
under Section 33.003 or 33.004 may issue an order requiring the |
|
state to pay: |
|
(1) the cost of any attorney ad litem and any guardian |
|
ad litem appointed for the minor; |
|
(2) notwithstanding Sections 33.003(n) and 33.004(e), |
|
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 Texas Department of Health. |
|
Sec. [33.008]33.009. 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 Section 33.003]. |
|
Sec. [33.009]33.010. 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 |
|
21.02, 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. [33.010]33.011. CONFIDENTIALITY. Notwithstanding any |
|
other law, information obtained by the Department of Family and |
|
Protective Services or another entity under Section 33.008 or |
|
33.009 is confidential except to the extent necessary to prove a |
|
violation of Section 21.02, 22.011, 22.021, or 25.02, Penal Code. |
|
SECTION 2. The Supreme Court of Texas shall promptly issue |
|
rules necessary in order that proceedings under Sections 33.003, |
|
33.004, and 33.005, Family Code, as added by this Act, are |
|
conducted in a manner that will ensure anonymity of the minor and |
|
have sufficient precedence over all other pending matters to |
|
ensure promptness of disposition. The Supreme Court shall adopt |
|
the application form and notice of appeal form to be used under |
|
Sections 33.014 and 33.015, Family Code, as added by this Act, not |
|
later than December 15, 2013. |
|
SECTION 3. Except as provided by SECTION 4 of this Act, this |
|
Act takes effect December 15, 2013. |
|
SECTION 4. Chapter 33, Family Code, as amended by this Act, |
|
applies only to an abortion performed on or after January 1, 2014. |
|
An abortion performed before January 1, 2014, 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. |