By: Morrison, Bonnen of Galveston, H.B. No. 3994
King of Parker, Krause, Simmons, et al.
A BILL TO BE ENTITLED
AN ACT
relating to notice of and consent to an abortion for a minor and
associated requirements; amending provisions subject to a criminal
penalty.
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. Sections 33.002(a), (e), (f), (h), and (i),
Family Code, are amended to read as follows:
(a) A physician may not perform an abortion on a pregnant
unemancipated minor unless:
(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;
(2) the physician performing the abortion receives a
certificate or order issued by a court under Section 33.003 or
33.004 [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 performing the abortion:
(A) 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 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 the circumstances described by Paragraph (A) exist.
(e) The [Texas] Department of State Health Services shall
prepare a form to be used for making the certification required by
Subsection (a)(3) [(a)(4)].
(f) A certification required by Subsection (a)(3) [(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)
[(a)(4)]. The physician must keep the medical records on the minor
in compliance with the rules adopted by the Texas [State Board of]
Medical Board [Examiners] under Section 153.003, Occupations Code.
(h) A physician shall presume that a pregnant woman is a
minor unless the woman presents a valid governmental 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.
(i) In relation to the trial of an offense under this
section in which the conduct charged involves a conclusion made by
the physician under Subsection (a)(3) [(a)(4)], the defendant may
seek a hearing before the Texas [State Board of] Medical Board
[Examiners] on whether the physician's conduct was necessary to
avert the death of the minor or to avoid a serious risk of
substantial and irreversible impairment of a major bodily function.
The findings of the Texas [State Board of] Medical Board
[Examiners] under this subsection are admissible on that issue in
the trial of the defendant. Notwithstanding any other reason for a
continuance provided under the Code of Criminal Procedure or other
law, on motion of the defendant, the court shall delay the beginning
of the trial for not more than 30 days to permit a hearing under this
subsection to take place.
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), (k),
and (l) and adding Subsections (g-1), (i-1), (i-2), (i-3), (l-1),
(l-2), (o), (p), (q), and (r) 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
notification to and consent [either] of [her parents or] a parent,
managing conservator, or guardian.
(b) The application must [may] be filed in:
(1) a [any] county court at law, court having probate
jurisdiction, or district court, including a family district court,
in the minor's county of residence;
(2) if the minor's county of residence has a population
of less than 10,000:
(A) a court described by Subdivision (1);
(B) a county court at law, court having probate
jurisdiction, or district court, including a family district court,
in a neighboring county; or
(C) a county court at law, court having probate
jurisdiction, or district court, including a family district court,
in the county in which the facility at which the minor intends to
obtain the abortion is located; or
(3) a county court at law, court having probate
jurisdiction, or district court, including a family district court,
in the county in which the facility at which the minor intends to
obtain the abortion is located, if the minor is not a resident of
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 and consent of [either of her
parents or] a parent, 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 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 ad litem.
(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 denied [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].
If the court
authorizes the minor to consent to the abortion under this
subsection, the court clerk shall issue to the physician who is to
perform the abortion a certificate showing that the court granted
the application. 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) An order of the court issued under this section is
confidential and privileged and is not subject to disclosure under
Chapter 552, Government Code, or discovery, subpoena, or other
legal process. The order may not be released to any person but the
pregnant minor, the pregnant minor's guardian ad litem, the
pregnant minor's attorney, the physician who is to perform the
abortion, another person designated to receive the order by the
minor, or a governmental agency or attorney in a criminal or
administrative action seeking to assert or protect the interest of
the minor. The supreme court may adopt rules to permit confidential
docketing of an application under this section.
(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 of appeals district 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 and judges that are the subject of the report.
(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) Except as otherwise provided by Subsection (q), 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 and notification to a parent, managing
conservator, or guardian.
(q) A minor whose application is denied may subsequently
submit an application to the court that denied the application if
the minor shows that there has been a material change in
circumstances since the time the court denied the application.
(r) 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.
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 denied [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]. If the court
authorizes the minor to consent to the abortion under this
subsection, the court clerk shall issue to the physician who is to
perform the abortion a certificate showing that the court granted
the application. 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 33.008, 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
physically or sexually abused or a [A] physician or physician's
agent [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 24 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 (a), 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 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,
33.0085, 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. (a) Section 33.002, Family Code, as amended by
this Act, applies only to an offense committed on or after the
effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense occurred before that date.
(b) 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.
(c) 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,
2017.
SECTION 11. 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 12. This Act takes effect January 1, 2016.