84R9914 AJZ-F
By: Krause H.B. No. 2531
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.