82R8481 YDB-F
By: Brown H.B. No. 2555
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of abortion procedures; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 33, Family Code, is
amended to read as follows:
CHAPTER 33. NOTICE OF AND CONSENT TO ABORTION
SECTION 2. Section 33.001, Family Code, is amended to read
as follows:
Sec. 33.001. DEFINITIONS. In this chapter:
(1) "Abortion" means the intentional use or
prescription of any instrument, medicine, drug, or other substance,
device, or method [means] to terminate the life of an unborn child
or to terminate the pregnancy of a female known [by the attending
physician] to be pregnant[,] with an [the] intention other than to
produce a live birth and preserve the life and health of the child
after live birth, to remove an ectopic pregnancy, or to remove a
dead unborn child who died as the result of natural causes,
accidental trauma, or a criminal assault on the pregnant female or
her unborn child [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].
(2) "Attempt to perform or induce an abortion" means
an act or an omission of a statutorily required act that, under the
circumstances as the actor believes them to be, constitutes a
substantial step in a course of conduct planned to culminate in the
performance or induction of an abortion in this state. ["Fetus"
means an individual human organism from fertilization until birth.]
(3) "Guardian" means a court-appointed guardian of the
person of the minor.
(4) "Medical emergency" means a condition that, in
reasonable medical judgment, complicates the medical condition of
the pregnant female to the extent that it necessitates the
immediate abortion of her pregnancy to avert her death or
concerning which a delay will create serious risk of substantial
and irreversible physical impairment of a major bodily function,
not including psychological or emotional conditions. The term does
not include a condition based on a claim or diagnosis that the
female will engage in conduct that would result in her death or in
substantial and irreversible physical impairment of a major bodily
function.
(5) [(4)] "Physician" means an individual licensed to
practice medicine in this state.
(6) "Positive proof of age" means a government-issued
document, including a birth certificate or driver's license, that
indicates a person's age.
(7) "Positive proof of identification" means a
government-issued photo identification card, including a driver's
license or similar state-issued or federal government-issued
identification card.
(8) "Reasonable medical judgment" means a medical
judgment that would be made by a reasonably prudent physician who is
knowledgeable about a patient's case and the treatment
possibilities for the patient related to the medical conditions
related to the case.
(9) "Unborn child" means an individual human organism
from fertilization to birth.
(10) [(5)] "Unemancipated minor" includes a minor
who:
(A) is unmarried; and
(B) has not had the disabilities of minority
removed under Chapter 31.
SECTION 3. Chapter 33, Family Code, is amended by adding
Section 33.0011 to read as follows:
Sec. 33.0011. POSITIVE PROOF OF AGE. Except in the case of
a medical emergency or as provided by this chapter, a physician may
not perform or induce an abortion on any pregnant female unless the
physician has obtained:
(1) positive proof of age demonstrating that the
pregnant female is not a minor; or
(2) proof that the pregnant female is an emancipated
minor.
SECTION 4. Sections 33.002(a), (d), (e), (f), and (g),
Family Code, are amended to read as follows:
(a) A physician may not perform or induce an abortion or
attempt to perform or induce an abortion on a pregnant
unemancipated minor unless:
(1) a parent of the minor or the managing conservator
or guardian of the minor provides in person to the physician
positive proof of identification and the certified consent
statement described by Section 33.0021 [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];
(2) 48 hours have elapsed since the time written
notice of the pending abortion was personally delivered by the
physician who is to perform the abortion or attempt to perform or
induce the abortion, or an agent of the physician, to the usual
place of residence of a parent of the minor or the managing
conservator or guardian of the minor and the parent, managing
conservator, or guardian provides to the delivering physician or
agent a copy of the person's positive proof of identification and
the certified consent statement described by Section 33.0021 [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]; or
(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 [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; and
(C) provides the notice required under Section
33.0022 [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 and consent obtained 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)(3)(B) [(a)(4)].
(f) A certification required by Subsection (a)(3)(B)
[(a)(4)] is confidential and privileged and is not subject to
disclosure under Chapter 552, Government Code, or to discovery,
subpoena, or other legal process. Personal or identifying
information about the minor, including her name, address, or social
security number, may not be included in a certification under
Subsection (a)(3)(B) [(a)(4)]. The physician must keep the medical
records on the minor in compliance with the rules adopted by the
Texas Medical [State] Board [of Medical Examiners] under Section
153.003, Occupations Code.
(g) A physician who intentionally, knowingly, recklessly,
or negligently performs an abortion or attempts to perform or
induce 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, "intentionally," "knowingly," "recklessly," and
"negligently" have [has] the meanings [meaning] assigned by Section
6.03 [6.03(a)], Penal Code.
SECTION 5. Chapter 33, Family Code, is amended by adding
Sections 33.0021 and 33.0022 to read as follows:
Sec. 33.0021. CERTIFIED CONSENT STATEMENT; REQUIRED
RECORDS. (a) The certified consent statement required under
Section 33.002(a) must be signed, dated, and notarized and be
substantially similar to the following: "I certify that I, (insert
name), am the parent, managing conservator, or guardian of (insert
name of pregnant minor) and have been notified that (insert name of
physician) intends to perform or induce an abortion on (insert name
of pregnant minor), and I consent to the abortion. I understand
that any person who intentionally, knowingly, recklessly, or
negligently makes a fraudulent statement in this regard commits a
felony."
(b) A physician shall keep in the medical file of the minor a
copy of the positive proof of identification of the parent,
managing conservator, or guardian required under Section 33.002(a)
and the certified consent statement required by Subsection (a)
until the later of:
(1) the minor's 23rd birthday; or
(2) the seventh anniversary of the date of the
statement.
(c) The physician who receives the certified consent
statement of the parent, managing conservator, or guardian required
under Section 33.002(a) shall execute for inclusion in the medical
record of the minor an affidavit stating: "I, (insert name of
physician), certify that according to my best information and
belief, a reasonable person under similar circumstances would rely
on the information presented by both the minor and her parent,
managing conservator, or guardian as sufficient evidence of
identity."
(d) A person commits an offense if the person intentionally,
knowingly, recklessly, or negligently makes a fraudulent statement
in a certified consent statement under Subsection (a). An offense
under this section is a state jail felony. If conduct constituting
an offense under this subsection is also an offense under Section
37.10, Penal Code, the actor may be prosecuted under this section,
Section 37.10, Penal Code, or both.
Sec. 33.0022. MEDICAL EMERGENCY NOTIFICATION. (a) If the
attending physician concludes under Section 33.002(a)(3) that a
medical emergency exists and that there is insufficient time to
obtain consent in the certified consent statement described by
Section 33.0021, the physician shall verbally inform the parent,
managing conservator, or guardian of the unemancipated minor within
24 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 that required performance of a medical
emergency abortion without the notification and consent required
under Section 33.002.
(b) The attending physician or the agent of the attending
physician 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 address
information if a reasonable and prudent person, under similar
circumstances, would have relied on the information as sufficient
evidence that the parent, managing conservator, or guardian resides
at that address. The physician must keep for the period specified
by Section 33.0021(b) in the minor's medical record:
(1) the return receipt from the constructive notice;
and
(2) if the letter was returned as undeliverable, the
letter.
SECTION 6. 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) The notice and the certified
consent statement required under Section 33.002 are not required if
the minor declares that the person required to be notified under
Section 33.002 and to consent under Section 33.0021 has sexually
abused, neglected, or physically abused, as those terms are defined
by Chapter 21, Penal Code, the minor.
(b) 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 parent or the managing conservator or guardian
of the minor, the physician or physician's agent [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 and the name of the abuser to the Department of
Family and Protective [and Regulatory] 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 has a duty to 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
responder knows or suspects that a report about the abuse may have
previously been made.
(c) A law enforcement agency and the [(b) The] Department
of Family and Protective [and Regulatory] 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].
SECTION 7. 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 8. Chapter 33, Family Code, is amended by adding
Sections 33.012 and 33.013 to read as follows:
Sec. 33.012. INJUNCTION; CIVIL LIABILITY. (a) A cause of
action for injunctive relief may be brought against a person who
intentionally, knowingly, recklessly, or negligently violates
Section 33.002 or 33.008 to prevent the violation from continuing
or occurring. The action may be maintained by:
(1) the minor on whom an abortion was performed or on
whom the performance or induction of an abortion was attempted;
(2) a parent or the managing conservator or guardian
of the minor;
(3) a district attorney with appropriate
jurisdiction; or
(4) the attorney general.
(b) A physician or abortion provider who intentionally,
knowingly, recklessly, or negligently violates this chapter is
liable for damages in a civil action brought under this section. A
pregnant minor on whom an abortion has been performed or on whom the
performance or induction of an abortion has been attempted in
violation of this chapter, or a parent or the managing conservator
or guardian of an unemancipated minor, may seek actual and punitive
damages from the physician or abortion provider for any
intentional, knowing, reckless, or negligent violation of this
chapter.
(c) A person who intentionally, knowingly, recklessly, or
negligently violates the terms of an injunction issued in
accordance with this section 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; and
(4) an amount greater than $100,000 that is sufficient
to deter future violations for each succeeding violation.
(d) Each performance or attempted provision of an abortion
in violation of the terms of an injunction is a separate violation.
(e) A civil penalty may not be assessed against a minor on
whom an abortion is performed or attempted.
(f) A physician who is found guilty of a violation of this
chapter by a court or who loses the physician's license to practice
medicine for unprofessional conduct described by Section
164.052(a)(19), Occupations Code, is liable for the legal fees of
the minor or the person suing on her behalf.
(g) It is not a defense to a claim 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 9. 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; or
(19) performs an abortion on an unemancipated minor in
violation of Chapter 33 [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[,
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].
SECTION 10. 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, Health and Safety Code.]
SECTION 11. The following sections of the Family Code are
repealed:
(1) Sections 33.002(b), (c), (h), and (i);
(2) Section 33.003;
(3) Section 33.004;
(4) Section 33.005;
(5) Section 33.006;
(6) Section 33.007;
(7) Section 33.009; and
(8) Section 33.011.
SECTION 12. The changes in law made by this Act remain in
effect during the determination by a court of a suit to enjoin,
suspend, or delay implementation of this Act.
SECTION 13. If any provision of this Act or its application
to any person or circumstance is finally held to be
unconstitutional, the entire Act is invalid, and to this end the
provisions of this Act are declared to be nonseverable.
SECTION 14. 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 when 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 15. 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 16. The repeal by this Act of Section 33.006, Family
Code, does not apply to a cause of action that accrues before the
effective date of this Act. A cause of action that accrues before
the effective date of this Act is governed by the law as it existed
immediately before that date, and that law is continued in effect
for that purpose.
SECTION 17. 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, 2011.