83S20033 JSC-D
By: Callegari H.B. No. 27
A BILL TO BE ENTITLED
AN ACT
relating to notice of and consent to an abortion for a minor.
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 33.002(h), Family Code, is amended to
read as follows:
(h) A physician shall presume that a pregnant woman is a
minor unless the woman presents a valid government record of
identification showing that she has reached the age of majority. It
is a defense to prosecution under this section that the minor
falsely represented her age or identity to the physician to be at
least 18 years of age by displaying an apparently valid
governmental record of identification such that a reasonable person
under similar circumstances would have relied on the
representation. The defense does not apply if the physician is
shown to have had independent knowledge of the minor's actual age or
identity or failed to use due diligence in determining the minor's
age or identity. In this subsection, "defense" has the meaning and
application assigned by Section 2.03, Penal Code.
SECTION 3. Chapter 33, Family Code, is amended by adding
Section 33.0021 to read as follows:
Sec. 33.0021. CONSENT REQUIRED. A physician may not
perform an abortion in violation of Section 164.052(a)(19),
Occupations Code.
SECTION 4. Section 33.003, Family Code, is amended by
amending Subsections (a), (b), (c), (e), (g), (h), (i), (j), and (k)
and adding Subsections (g-1), (i-1), (i-2), (i-3), (l-1), and (l-2)
to read as follows:
(a) A pregnant minor who wishes to have an abortion without
notification to and consent [one] of a parent [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 notification to and consent of a parent,
[either of her parents or a] managing conservator, or guardian.
(b) The application may be filed in any county court at law,
court having probate jurisdiction, or district court, including a
family district court, in the minor's county of residence or in a
neighboring county if the minor's county of residence has a
population of less than 10,000 or in the county in which the
facility at which the minor intends to obtain an abortion is located
[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 notification to or consent of a parent,
[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.
(e) The court shall appoint a guardian ad litem for the
minor who shall represent the best interest of 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.
(g) The court shall fix a time for a hearing on an
application filed under Subsection (a) and shall keep a record of
all testimony and other oral proceedings in the action. [The court
shall enter judgment on the application immediately after the
hearing is concluded.]
(g-1) The pregnant minor must appear before the court in
person and may not appear using videoconferencing, telephone
conferencing, or other remote electronic means.
(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 fifth [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 fifth [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 court clerk shall
issue to the physician a certificate showing that the court failed
to rule on the application. On receipt of the certificate, 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 the notification under Section 33.002 and consent
under Section 33.0021. 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, regardless of
whether the minor is granted an extension under this subsection.
(i) The court shall determine by clear and convincing [a
preponderance of the] evidence, as described by Section 101.007,
whether the minor has overcome the presumption that notifying and
requesting consent from a parent, managing conservator, or guardian
is in the minor's best interest. In making a determination under
this subsection, the court shall consider:
(1) whether the minor is mature and sufficiently well
informed to make the decision to have an abortion performed without
notification to or consent of a parent, [either of her parents or a]
managing conservator, or guardian;
(2) [,] whether the abortion [notification] would
[not] be in the best interest of the minor; and
(3) [, or] whether notification or the attempt to
obtain consent may lead to physical, sexual, or emotional abuse of
the minor, as described by Section 261.001.
(i-1) In determining whether the minor meets the
requirements of Subsection (i)(1), the court shall consider the
experience, perspective, and judgment of the minor. The court may
consider all relevant factors, including:
(1) the minor's age;
(2) the minor's life experiences, such as working,
traveling independently, or managing her own financial affairs;
(3) steps taken by the minor to explore her options and
the consequences of those options; and
(4) the minor's decision not to notify and obtain
consent from a parent, managing conservator, or guardian.
(i-2) In determining whether the abortion is in the best
interest of the minor, the court may:
(1) inquire as to the minor's reasons for seeking an
abortion;
(2) consider the degree to which the minor is informed
about the state-published informational materials described by
Chapter 171, Health and Safety Code; and
(3) require the minor to be evaluated by a licensed
mental health counselor, who shall return the evaluation to the
court for review within three business days.
(i-3) If the court finds that the minor is mature and
sufficiently well informed, that the abortion [notification] would
[not] be in the minor's best interest, or that notification or the
attempt to obtain consent may lead to physical, sexual, or
emotional abuse of the minor, the court shall enter an order
authorizing the minor to consent to the performance of the abortion
without notification to and consent of a parent, [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-3) [(i)], the court may not authorize
the minor to consent to an abortion without the notification
[authorized] under Section 33.002(a)(1) and consent under Section
33.0021.
(k) The court may not notify a parent, managing conservator,
or guardian that the minor is pregnant or that the minor wants to
have an abortion. The court proceedings shall be conducted in a
manner that protects the anonymity of the minor. The application
and all other court documents pertaining to the proceedings are
confidential and privileged and are not subject to disclosure under
Chapter 552, Government Code, or to discovery, subpoena, or other
legal process. The minor may file the application using a pseudonym
or using only her initials. Confidential records pertaining to a
minor under this subsection may be disclosed to the minor.
(l-1) The clerk of the court, at intervals prescribed by the
Office of Court Administration of the Texas Judicial System, shall
submit a report to the office that includes, for each case filed
under this section:
(1) the case number and style;
(2) the applicant's county of residence;
(3) the court in which the proceeding occurred;
(4) the date of filing;
(5) the date of disposition; and
(6) the disposition of the case.
(l-2) The Office of Court Administration of the Texas
Judicial System shall annually compile and publish a report
aggregating the data received under Subsections (l-1)(2), (3), and
(6). A report under this subsection must protect the anonymity of
all minors that are the subject of the report.
SECTION 5. Section 33.004, Family Code, is amended by
amending Subsection (b) and adding Subsection (c-1) 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 fifth [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 fifth [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 court
clerk shall issue to the physician a certificate showing that the
court failed to rule on the application. On receipt of the
certificate, 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 the notification under Section
33.002 and consent under Section 33.0021. 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, regardless of whether the minor is granted an extension
under this subsection.
(c-1) Notwithstanding Subsection (c), the court of appeals
may publish an opinion relating to a ruling under this section if
the opinion is written in a way to preserve the confidentiality of
the identity of the pregnant minor.
SECTION 6. Chapter 33, Family Code, is amended by adding
Section 33.0065 to read as follows:
Sec. 33.0065. RECORDS. The clerk of the court shall retain
the records for each case before the court under this chapter in
accordance with rules for civil cases and grant access to the
records to the minor who is the subject of the proceeding.
SECTION 7. Section 33.007, Family Code, is amended to read
as follows:
Sec. 33.007. COSTS NOT PAID BY STATE. [(a)] A court acting
under Section 33.003 or 33.004 may not require [issue an order
requiring] the state to pay any costs associated with the
proceeding under this chapter, including:
(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; or [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.]
SECTION 8. 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) 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. A minor's claim that she is being physically or sexually
abused constitutes a reason to believe that abuse has occurred.
(b) A report made to the [The] Department of Family and
Protective Services under Subsection (a) shall be investigated as
provided by Chapter 261 [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].
SECTION 9. (a) Sections 33.003 and 33.004, Family Code, as
amended by this Act, apply only to a petition filed on or after the
effective date of this Act. A petition filed before the effective
date of this Act is governed by the law in effect on the date the
petition was filed, and the former law is continued in effect for
that purpose.
(b) The Office of Court Administration of the Texas Judicial
System is not required to publish the initial report under Section
33.003(l-2), Family Code, as added by this Act, before January 1,
2015.
SECTION 10. Every provision in this Act and every
application of the provisions in this Act are severable from each
other. If any application of any provision in this Act to any
person or group of persons or circumstances is found by a court to
be invalid, the remainder of this Act and the application of the
Act's provisions to all other persons and circumstances may not be
affected. All constitutionally valid applications of this Act
shall be severed from any applications that a court finds to be
invalid, leaving the valid applications in force, because it is the
legislature's intent and priority that the valid applications be
allowed to stand alone. Even if a reviewing court finds a provision
of this Act invalid in a large or substantial fraction of relevant
cases, the remaining valid applications shall be severed and
allowed to remain in force.
SECTION 11. This Act takes effect January 1, 2014.