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.