84R9914 AJZ-F

By: Burton S.B. No. 1564

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of abortion procedures; providing civil penalties; affecting the prosecution of a criminal offense.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 33.001, Family Code, is amended by amending Subdivision (1) and adding Subdivisions (3-a) and (4-a) to read as follows:

(1) "Abortion" has the meaning assigned by Section 171.002, Health and Safety Code [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. This definition, as applied in this chapter, 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].

(3-a) "Perform" with respect to an abortion includes to induce the abortion.

(4-a) "Positive proof of age" means a government-issued document, including a birth certificate or driver's license or similar state-issued or federal government-issued identification card, that indicates a person's age.

SECTION 2. Chapter 33, Family Code, is amended by adding Section 33.0011 to read as follows:

Sec. 33.0011. POSITIVE PROOF OF AGE. (a) Except in the case of a medical emergency, as defined by Section 171.002, Health and Safety Code, or as provided by this chapter, a physician may not perform or attempt to perform an abortion on any pregnant woman unless the physician has obtained:

(1) positive proof of age demonstrating that the pregnant woman is not a minor; or

(2) a certified copy of the court order proving that the pregnant woman is an emancipated minor.

(b) A copy of the positive proof of age submitted under Subsection (a) must be kept in the woman's medical record until the later of:

(1) the woman's 25th birthday; or

(2) the seventh anniversary of the date of the certification.

SECTION 3. Section 33.002, Family Code, is amended by amending Subsections (a), (d), (e), and (g) and adding Subsection (g-1) to read as follows:

(a) Subject to Sections 33.003 and 33.004, a [A] physician may not perform an abortion or attempt to perform an abortion on a pregnant unemancipated minor unless written consent of the minor's parent, managing conservator, or legal guardian is obtained under Section 164.052(a)(19), Occupations Code, and:

(1) the physician performing the abortion gives at least 48 hours actual notice, in person or by telephone, of the physician's intent to perform the abortion to:

(A) a parent of the minor, if the minor has no managing conservator or guardian; or

(B) a court-appointed managing conservator or guardian; or

(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 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, 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 who is to perform [performing] the abortion:

(A) concludes that a medical emergency exists as defined by Section 171.002, Health and Safety Code [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 a medical emergency exists as defined by Section 171.002, Health and Safety Code; and

(C) provides the notice required by Section 33.0021 [the circumstances described by Paragraph (A) exist].

(d) A physician shall [may] execute for inclusion in the minor's medical record an affidavit stating 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.]

(e) The [Texas] Department of State Health Services shall prepare a form to be used for making the certification required by Subsection (a)(2)(B) [(a)(4)].

(g) A physician who with criminal negligence [intentionally] performs 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 punishable by a fine not to exceed $10,000. In this subsection, "criminal negligence" ["intentionally"] has the meaning assigned by Section 6.03(d) [6.03(a)], Penal Code.

(g-1) A physician performing an abortion and a pregnant unemancipated minor seeking an abortion under this section are subject to the requirements established under Chapter 171, Health and Safety Code. The physician is also subject to the requirements established under Section 164.052(a)(19), Occupations Code.

SECTION 4. Chapter 33, Family Code, is amended by adding Section 33.0021 to read as follows:

Sec. 33.0021. MEDICAL EMERGENCY NOTIFICATION; AFFIDAVIT FOR MEDICAL RECORD. (a) If the physician who is to perform the abortion concludes under Section 33.002(a)(2) that a medical emergency exists and that there is insufficient time to provide the notice required by Section 33.002, the physician shall verbally inform the parent, managing conservator, or guardian of the unemancipated minor within two hours after the time a medical emergency abortion is performed on the minor of:

(1) the performance of the abortion; and

(2) the basis for the physician's determination that a medical emergency existed, as defined by Section 171.002, Health and Safety Code, that required the performance of a medical emergency abortion without fulfilling the requirements of Section 33.002.

(b) A physician who performs an abortion as described by Subsection (a) shall send a written notice of the medical emergency abortion to the last known address of the parent, managing conservator, or guardian by certified mail, restricted delivery, return receipt requested. The physician may rely on last known address information if a reasonable and prudent person, under similar circumstances, would rely on the information as sufficient evidence that the parent, managing conservator, or guardian resides at that address. The physician shall keep in the minor's medical record:

(1) the return receipt from the written notice; or

(2) if the notice was returned as undeliverable, the notice.

(c) The physician who performs the abortion on the minor shall execute for inclusion in the medical record of the minor an affidavit that explains the specific life-threatening physical condition of the minor that necessitated the immediate abortion.

SECTION 5. Section 33.003, Family Code, is amended by amending Subsections (a), (b), (c), (e), (f), (h), (i), and (j) and adding Subsections (o), (p), and (q) to read as follows:

(a) A pregnant minor [who wishes to have an abortion without notification to one of her parents, her managing conservator, or her guardian] may file an application for a court order authorizing the minor to consent to the performance of an abortion without the consent of or notification to either of her parents or a managing conservator or guardian.

(b) The application must [may] be filed in:

(1) a [any] county court at law in the minor's county of residence;

(2) a [,] court having probate jurisdiction in the minor's county of residence; [,] or

(3) a district court, including a family district court, with jurisdiction over the minor's county of residence [in this state].

(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 or notification 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 her attorney; and

(5) a statement about the minor's current residence, including the minor's physical address, mailing address, and telephone number.

(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. The [If the] guardian ad litem may not also [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 ad litem.

(f) 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; or

(3) an attorney who is licensed to practice law in this state and is in good standing with the State Bar of Texas

[(4) a member of the clergy; or

[(5) another appropriate person selected by the court].

(h) The court shall rule on an application submitted under this section and shall issue written findings of fact and conclusions of law not later than 5 p.m. on the second business day after the date the application is filed with the court. 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 an application and shall issue written findings of fact and conclusions of law not later than 5 p.m. on the second business day after the date the minor states she is ready to proceed to hearing. [If the court fails to rule on the application and issue written findings of fact and conclusions of law within the period specified by this subsection, the application is deemed to be granted and the physician may perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion without notification under Section 33.002.] 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.

(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 the consent of or notification to either of her parents or a managing conservator or guardian or [,] whether consent or notification would not be in the best interest of the minor. The court shall determine by a preponderance of the evidence [, or] whether consent or notification may lead to physical or [,] sexual [, or emotional] abuse of the minor. The court shall enter an order authorizing the minor to consent to the performance of an abortion without the consent of or notification to either of her parents or a managing conservator or guardian and shall execute the required forms if [If] the court finds that the minor is mature and sufficiently well informed, and:

(1) that consent or notification would not be in the minor's best interest; [,] or

(2) that consent or notification may lead to physical or [,] 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].

(j) If the court finds that the minor does not meet the requirements of Subsection (i), the court may not authorize the minor to consent to an abortion without the consent required by Section 164.052(a)(19), Occupations Code, or notification authorized under Section 33.002(a)(1).

(o) A minor who has filed an application under this section may not withdraw or otherwise non-suit her application without the permission of the court.

(p) A minor who has filed an application and has obtained a determination by the court as described by Subsection (i) may not initiate a new application proceeding and the prior proceeding is res judicata of the issue relating to the determination of whether the minor may or may not be authorized to consent to the performance of an abortion without the consent of or notification to either of her parents or a managing conservator or guardian.

(q) An attorney retained by the minor to assist her in filing an application under this section shall fully inform himself or herself of the minor's prior application history, including the representations made by the minor in the application regarding her address, proper venue in the county in which the application is filed, and whether a prior application has been filed and initiated. If an attorney assists the minor in the application process in any way, with or without payment, the attorney representing the minor must attest to the truth of the minor's claims regarding the venue and prior applications in a sworn statement. An attorney that negligently makes a misrepresentation in a sworn statement made under this subsection violates this chapter and is subject to civil penalties under Section 33.012.

SECTION 6. Sections 33.004(b) and (f), Family Code, are amended to read as follows:

(b) The court of appeals shall rule on an appeal under this section not later than 5 p.m. on the second business day 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 business day after the date the minor states she is ready to proceed. [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 and the physician may perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion without notification under Section 33.002.] 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.

(f) 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 the consent of or notification to either of her parents or a managing conservator or guardian.

SECTION 7. Section 33.008, Family Code, is amended to read as follows:

Sec. 33.008. PHYSICIAN'S DUTY TO REPORT ABUSE OF A MINOR; INVESTIGATION AND ASSISTANCE. (a) If a minor claims to have been [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, the physician or physician's agent shall immediately report the suspected abuse and the name of the abuser to the Department of Family and Protective Services and to a local law enforcement agency and shall refer the minor to the department for services or intervention that may be in the best interest of the minor. The local law enforcement agency shall respond and shall write a report within 12 hours of being notified of the alleged abuse. A report shall be made regardless of whether the local law enforcement agency knows or suspects that a report about the abuse may have previously been made.

(b) The appropriate local law enforcement agency and the Department of Family and Protective Services shall investigate suspected abuse reported under this section and, if warranted [appropriate], shall refer the case to the appropriate prosecuting authority [assist the minor in making an application with a court under Section 33.003].

(c) When the local law enforcement agency responds to the report of physical or sexual abuse as required by Subsection (b), a law enforcement officer or appropriate agent from the Department of Family and Protective Services may take emergency possession of the minor without a court order to protect the health and safety of the minor as described by Chapter 262.

SECTION 8. Chapter 33, Family Code, is amended by adding Section 33.0085 to read as follows:

Sec. 33.0085. DUTY OF JUDGE OR JUSTICE TO REPORT ABUSE OF MINOR. (a) Notwithstanding any other law, a judge or justice who, as a result of court proceedings conducted under Section 33.003 or 33.004, 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:

(1) immediately report the suspected abuse and the name of the abuser to the Department of Family and Protective Services and to a local law enforcement agency; and

(2) refer the minor to the department for services or intervention that may be in the best interest of the minor.

(b) The appropriate local law enforcement agency and the Department of Family and Protective Services shall investigate suspected abuse reported under this section and, if warranted, shall refer the case to the appropriate prosecuting authority.

SECTION 9. Section 33.010, Family Code, is amended to read as follows:

Sec. 33.010. 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 10. Chapter 33, Family Code, is amended by adding Sections 33.012 and 33.013 to read as follows:

Sec. 33.012. CIVIL PENALTY. (a) A person who intentionally, knowingly, recklessly, or negligently violates this chapter is liable to this state for a civil penalty of:

(1) $10,000 for the first violation;

(2) $50,000 for the second violation;

(3) $100,000 for the third violation; or

(4) an amount greater than $100,000 that is sufficient to deter future violations for each succeeding violation.

(b) Each performance or attempted performance of an abortion in violation of this chapter is a separate violation.

(c) A civil penalty may not be assessed against a minor on whom an abortion is performed or attempted.

(d) It is not a defense to an action brought under this section that the minor gave informed and voluntary consent.

Sec. 33.013. CAPACITY TO CONSENT. An unemancipated minor does not have the capacity to consent to any action that violates this chapter.

SECTION 11. Subchapter A, Chapter 22, Government Code, is amended by adding Section 22.019 to read as follows:

Sec. 22.019. PUBLIC INFORMATION REGARDING CERTAIN PETITIONS AND MOTIONS. (a) The supreme court shall adopt rules governing the collection of statistical information relating to applications and appeals granted under Sections 33.003(h) and 33.004(b), Family Code. The information collected by the supreme court must include:

(1) the number of judicial bypass cases;

(2) the number of judicial bypass cases in which the court appointed a guardian ad litem;

(3) the number of judicial bypass cases in which the court appointed an attorney;

(4) the number of judicial bypass cases in which the judge issued an order authorizing an abortion without consent or notification; and

(5) the number of judicial bypass cases in which the judge denied an order, the number of appeals filed as a result of a denial, the number of denials that were affirmed, and the number of denials that were reversed.

(b) The information collected under this section must be available to the public in aggregate form by county.

(c) Identifying information about a minor collected under this section is confidential and is not subject to disclosure under Chapter 552.

SECTION 12. Section 164.052(a), Occupations Code, is amended to read as follows:

(a) A physician or an applicant for a license to practice medicine commits a prohibited practice if that person:

(1) submits to the board a false or misleading statement, document, or certificate in an application for a license;

(2) presents to the board a license, certificate, or diploma that was illegally or fraudulently obtained;

(3) commits fraud or deception in taking or passing an examination;

(4) uses alcohol or drugs in an intemperate manner that, in the board's opinion, could endanger a patient's life;

(5) commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public;

(6) uses an advertising statement that is false, misleading, or deceptive;

(7) advertises professional superiority or the performance of professional service in a superior manner if that advertising is not readily subject to verification;

(8) purchases, sells, barters, or uses, or offers to purchase, sell, barter, or use, a medical degree, license, certificate, or diploma, or a transcript of a license, certificate, or diploma in or incident to an application to the board for a license to practice medicine;

(9) alters, with fraudulent intent, a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma;

(10) uses a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma that has been:

(A) fraudulently purchased or issued;

(B) counterfeited; or

(C) materially altered;

(11) impersonates or acts as proxy for another person in an examination required by this subtitle for a medical license;

(12) engages in conduct that subverts or attempts to subvert an examination process required by this subtitle for a medical license;

(13) impersonates a physician or permits another to use the person's license or certificate to practice medicine in this state;

(14) directly or indirectly employs a person whose license to practice medicine has been suspended, canceled, or revoked;

(15) associates in the practice of medicine with a person:

(A) whose license to practice medicine has been suspended, canceled, or revoked; or

(B) who has been convicted of the unlawful practice of medicine in this state or elsewhere;

(16) performs or procures a criminal abortion, aids or abets in the procuring of a criminal abortion, attempts to perform or procure a criminal abortion, or attempts to aid or abet the performance or procurement of a criminal abortion;

(17) directly or indirectly aids or abets the practice of medicine by a person, partnership, association, or corporation that is not licensed to practice medicine by the board;

(18) performs an abortion on a woman who is pregnant with a viable unborn child during the third trimester of the pregnancy unless:

(A) the abortion is necessary to prevent the death of the woman;

(B) the viable unborn child has a severe, irreversible brain impairment; or

(C) the woman is diagnosed with a significant likelihood of suffering imminent severe, irreversible brain damage or imminent severe, irreversible paralysis;

(19) performs an abortion on an unemancipated minor without the written consent of the child's parent, managing conservator, or legal guardian or without a court order, as provided by Section 33.003 or 33.004, Family Code;

(20) otherwise performs an abortion on an unemancipated minor in violation of Chapter 33, Family Code [, authorizing the minor to consent to the abortion, unless the physician 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 impairment of a major bodily function and that there is insufficient time to obtain the consent of the child's parent, managing conservator, or legal guardian]; or

(21) [(20)] performs or induces or attempts to perform or induce an abortion in violation of Subchapter C, Chapter 171, Health and Safety Code.

SECTION 13. Section 164.055(b), Occupations Code, is amended to read as follows:

(b) The sanctions provided by Subsection (a) are in addition to any other grounds for refusal to admit persons to examination under this subtitle or to issue a license or renew a license to practice medicine under this subtitle. [The criminal penalties provided by Section 165.152 do not apply to a violation of Section 170.002 or Subchapter C, Chapter 171, Health and Safety Code.]

SECTION 14. The following provisions of the Family Code are repealed:

(1) Section 33.001(2);

(2) Sections 33.002(b), (c), (f), (h), and (i);

(3) Section 33.003(k);

(4) Section 33.005; and

(5) Section 33.009.

SECTION 15. If any court enjoins, suspends, or delays the implementation of the changes in law made by this Act to Chapter 33, Family Code, and Section 164.052, Occupations Code, the former law, as the law existed immediately before the effective date of this Act, becomes or remains in effect and continues in effect. At the time a temporary or permanent restraining order or injunction described by this section is stayed or dissolved, or otherwise ceases to have effect, the changes in law made by this Act become immediately effective.

SECTION 16. The legislature intends that every application of this Act to every individual woman shall be severable from each other. In the unexpected event that the application of this Act is found to impose an impermissible undue burden on any pregnant woman or group of pregnant women, the application of the Act to those women shall be severed from the remaining applications of the Act that do not impose an undue burden, and those remaining applications shall remain in force and unaffected, consistent with Section 15 of this Act.

SECTION 17. The changes in law made by this Act apply only to an offense committed or conduct that occurs on or after the effective date of this Act. An offense committed or conduct that occurs before the effective date of this Act is governed by the law in effect on the date the offense was committed or the conduct occurred, and the former law is continued in effect for that purpose. For purposes of this section, an offense is committed or conduct occurs before the effective date of this Act if any element of the offense or conduct occurs before the effective date.

SECTION 18. Information obtained before the effective date of this Act by the Department of Family and Protective Services or another entity under Section 33.009, Family Code, as it existed before the effective date of this Act, remains confidential to the extent provided by Section 33.010, Family Code, as it existed before the effective date of this Act.

SECTION 19. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2015.