Texas 2017 - 85th Regular

Texas House Bill HB200 Compare Versions

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Version 2 (New)

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1	1	85R21727 LED-D
2	2	By: Burkett, Bailes, Laubenberg, et al. H.B. No. 200
3	3	Substitute the following for H.B. No. 200:
4	4	By: Cook C.S.H.B. No. 200
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to certain prohibited abortions and the treatment and
10	10	disposition of a human fetus, human fetal tissue, and embryonic and
11	11	fetal tissue remains; creating a civil cause of action; imposing a
12	12	civil penalty; creating criminal offenses.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Chapter 171, Health and Safety Code, is amended
15	15	by adding Subchapter F to read as follows:
16	16	SUBCHAPTER F. PARTIAL-BIRTH ABORTIONS
17	17	Sec. 171.101. DEFINITIONS. In this subchapter:
18	18	(1) "Partial-birth abortion" means an abortion in
19	19	which the person performing the abortion:
20	20	(A) for the purpose of performing an overt act
21	21	that the person knows will kill the partially delivered living
22	22	fetus, deliberately and intentionally vaginally delivers a living
23	23	fetus until:
24	24	(i) for a head-first presentation, the
25	25	entire fetal head is outside the body of the mother; or
26	26	(ii) for a breech presentation, any part of
27	27	the fetal trunk past the navel is outside the body of the mother;
28	28	and
29	29	(B) performs the overt act described in Paragraph
30	30	(A), other than completion of delivery, that kills the partially
31	31	delivered living fetus.
32	32	(2) "Physician" means an individual who is licensed to
33	33	practice medicine in this state, including a medical doctor and a
34	34	doctor of osteopathic medicine.
35	35	Sec. 171.102. PARTIAL-BIRTH ABORTIONS PROHIBITED. (a) A
36	36	physician or other person may not knowingly perform a partial-birth
37	37	abortion.
38	38	(b) Subsection (a) does not apply to a physician who
39	39	performs a partial-birth abortion that is necessary to save the
40	40	life of a mother whose life is endangered by a physical disorder,
41	41	physical illness, or physical injury, including a life-endangering
42	42	physical condition caused by or arising from the pregnancy.
43	43	Sec. 171.103. CRIMINAL PENALTY. A person who violates
44	44	Section 171.102 commits an offense. An offense under this section
45	45	is a state jail felony.
46	46	Sec. 171.104. CIVIL LIABILITY. (a) Except as provided by
47	47	Subsection (b), the father of the fetus or a parent of the mother of
48	48	the fetus, if the mother is younger than 18 years of age at the time
49	49	of the partial-birth abortion, may bring a civil action to obtain
50	50	appropriate relief, including:
51	51	(1) money damages for physical injury, mental anguish,
52	52	and emotional distress; and
53	53	(2) exemplary damages equal to three times the cost of
54	54	the partial-birth abortion.
55	55	(b) A person may not bring or maintain an action under this
56	56	section if:
57	57	(1) the person consented to the partial-birth
58	58	abortion; or
59	59	(2) the person's criminally injurious conduct resulted
60	60	in the pregnancy.
61	61	Sec. 171.105. HEARING. (a) A physician who is the subject
62	62	of a criminal or civil action for a violation of Section 171.102 may
63	63	request a hearing before the Texas Medical Board on whether the
64	64	physician's conduct was necessary to save the life of a mother whose
65	65	life was endangered by a physical disorder, physical illness, or
66	66	physical injury, including a life-endangering physical condition
67	67	caused by or arising from the pregnancy.
68	68	(b) The board's findings under Subsection (a) are
69	69	admissible in any court proceeding against the physician arising
70	70	from that conduct. On the physician's motion, the court shall delay
71	71	the beginning of a criminal or civil trial for not more than 60 days
72	72	for the hearing to be held under Subsection (a).
73	73	Sec. 171.106. APPLICABILITY. A woman on whom a
74	74	partial-birth abortion is performed or attempted in violation of
75	75	this subchapter may not be prosecuted under this subchapter or for
76	76	conspiracy to commit a violation of this subchapter.
77	77	SECTION 2. Subtitle H, Title 2, Health and Safety Code, is
78	78	amended by adding Chapter 173 to read as follows:
79	79	CHAPTER 173. DONATION OF HUMAN FETAL TISSUE
80	80	Sec. 173.001. DEFINITIONS. In this chapter:
81	81	(1) "Authorized facility" means:
82	82	(A) a hospital licensed under Chapter 241;
83	83	(B) a hospital maintained or operated by this
84	84	state or an agency of this state;
85	85	(C) an ambulatory surgical center licensed under
86	86	Chapter 243; or
87	87	(D) a birthing center licensed under Chapter 244.
88	88	(2) "Human fetal tissue" means any gestational human
89	89	organ, cell, or tissue from an unborn child. The term does not
90	90	include supporting cells or tissue derived from a pregnancy,
91	91	associated maternal tissue that is not part of the unborn child, the
92	92	umbilical cord, or the placenta.
93	93	Sec. 173.002. APPLICABILITY. This chapter does not apply
94	94	to:
95	95	(1) human fetal tissue obtained for diagnostic or
96	96	pathological testing;
97	97	(2) human fetal tissue obtained for a criminal
98	98	investigation;
99	99	(3) human fetal tissue or human tissue obtained during
100	100	pregnancy or at delivery of a child, provided the tissue is obtained
101	101	by an accredited public or private institution of higher education
102	102	for use in research approved by an institutional review board or
103	103	another appropriate board, committee, or body charged with
104	104	oversight applicable to the research; or
105	105	(4) cell lines derived from human fetal tissue or
106	106	human tissue existing on September 1, 2017, that are used by an
107	107	accredited public or private institution of higher education in
108	108	research approved by an institutional review board or another
109	109	appropriate board, committee, or body charged with oversight
110	110	applicable to the research.
111	111	Sec. 173.003. ENFORCEMENT. (a) The department shall
112	112	enforce this chapter.
113	113	(b) The attorney general, on request of the department or a
114	114	local law enforcement agency, may assist in the investigation of a
115	115	violation of this chapter.
116	116	Sec. 173.004. PROHIBITED DONATION. A person may not donate
117	117	human fetal tissue except as authorized by this chapter.
118	118	Sec. 173.005. DONATION BY AUTHORIZED FACILITY. (a) Only
119	119	an authorized facility may donate human fetal tissue. An
120	120	authorized facility may donate human fetal tissue only to an
121	121	accredited public or private institution of higher education for
122	122	use in research approved by an institutional review board or
123	123	another appropriate board, committee, or body charged with
124	124	oversight applicable to the research.
125	125	(b) An authorized facility may not donate human fetal tissue
126	126	obtained from an elective abortion.
127	127	Sec. 173.006. INFORMED CONSENT REQUIRED. An authorized
128	128	facility may not donate human fetal tissue under this chapter
129	129	unless the facility has obtained the written, voluntary, and
130	130	informed consent of the woman from whose pregnancy the fetal tissue
131	131	is obtained. The consent must be provided on a standard form
132	132	prescribed by the department.
133	133	Sec. 173.007. CRIMINAL PENALTY. (a) A person commits an
134	134	offense if the person:
135	135	(1) offers a woman monetary or other consideration to:
136	136	(A) have an abortion for the purpose of donating
137	137	human fetal tissue; or
138	138	(B) consent to the donation of human fetal
139	139	tissue; or
140	140	(2) knowingly or intentionally solicits or accepts
141	141	tissue from a fetus gestated solely for research purposes.
142	142	(b) An offense under this section is a Class A misdemeanor
143	143	punishable by a fine of not more than $10,000.
144	144	(c) With the consent of the appropriate local county or
145	145	district attorney, the attorney general has concurrent
146	146	jurisdiction with that consenting local prosecutor to prosecute an
147	147	offense under this section.
148	148	Sec. 173.008. RECORD RETENTION. Unless another law
149	149	requires a longer period of record retention, an authorized
150	150	facility may not dispose of any medical record relating to a woman
151	151	who consents to the donation of human fetal tissue before:
152	152	(1) the seventh anniversary of the date consent was
153	153	obtained under Section 173.006; or
154	154	(2) if the woman was younger than 18 years of age on
155	155	the date consent was obtained under Section 173.006, the later of:
156	156	(A) the woman's 23rd birthday; or
157	157	(B) the seventh anniversary of the date consent
158	158	was obtained.
159	159	Sec. 173.009. ANNUAL REPORT. An authorized facility that
160	160	donates human fetal tissue under this chapter shall submit an
161	161	annual report to the department that includes for each donation:
162	162	(1) the specific type of fetal tissue donated; and
163	163	(2) the accredited public or private institution of
164	164	higher education that received the donation.
165	165	SECTION 3. Subtitle B, Title 8, Health and Safety Code, is
166	166	amended by adding Chapter 697 to read as follows:
167	167	CHAPTER 697. DISPOSITION OF EMBRYONIC AND FETAL TISSUE REMAINS
168	168	Sec. 697.001. PURPOSE. The purpose of this chapter is to
169	169	express the state's profound respect for the life of the unborn by
170	170	providing for a dignified disposition of embryonic and fetal tissue
171	171	remains.
172	172	Sec. 697.002. DEFINITIONS. In this chapter:
173	173	(1) "Cremation" means the irreversible process of
174	174	reducing remains to bone fragments through direct flame, extreme
175	175	heat, and evaporation.
176	176	(2) "Department" means the Department of State Health
177	177	Services.
178	178	(3) "Embryonic and fetal tissue remains" means an
179	179	embryo, a fetus, body parts, or organs from a pregnancy that
180	180	terminates in the death of the embryo or fetus and for which the
181	181	issuance of a fetal death certificate is not required by state law.
182	182	The term does not include the umbilical cord, placenta, gestational
183	183	sac, blood, or body fluids.
184	184	(4) "Executive commissioner" means the executive
185	185	commissioner of the Health and Human Services Commission.
186	186	(5) "Incineration" means the process of burning
187	187	remains in an incinerator.
188	188	(6) "Interment" means the disposition of remains by
189	189	entombment, burial, or placement in a niche.
190	190	(7) "Steam disinfection" means the act of subjecting
191	191	remains to steam under pressure to disinfect the remains.
192	192	Sec. 697.003. APPLICABILITY OF OTHER LAW. Embryonic and
193	193	fetal tissue remains are not pathological waste under state law.
194	194	Unless otherwise provided by this chapter, Chapters 711 and 716 of
195	195	this code and Chapter 651, Occupations Code, do not apply to the
196	196	disposition of embryonic and fetal tissue remains.
197	197	Sec. 697.004. DISPOSITION OF EMBRYONIC AND FETAL TISSUE
198	198	REMAINS. (a) Subject to Section 241.010, a health care facility in
199	199	this state that provides health or medical care to a pregnant woman
200	200	shall dispose of embryonic and fetal tissue remains that are passed
201	201	or delivered at the facility by:
202	202	(1) interment;
203	203	(2) cremation;
204	204	(3) incineration followed by interment; or
205	205	(4) steam disinfection followed by interment.
206	206	(b) The ashes resulting from the cremation or incineration
207	207	of embryonic and fetal tissue remains:
208	208	(1) may be interred or scattered in any manner as
209	209	authorized by law for human remains; and
210	210	(2) may not be placed in a landfill.
211	211	(c) A health care facility responsible for disposing of
212	212	embryonic and fetal tissue remains may coordinate with an entity in
213	213	the registry established under Section 697.005 in an effort to
214	214	offset the cost associated with burial or cremation of the
215	215	embryonic and fetal tissue remains of an unborn child.
216	216	(d) Notwithstanding any other law, the umbilical cord,
217	217	placenta, gestational sac, blood, or body fluids from a pregnancy
218	218	terminating in the death of the embryo or fetus for which the
219	219	issuance of a fetal death certificate is not required by state law
220	220	may be disposed of in the same manner as and with the embryonic and
221	221	fetal tissue remains from that same pregnancy as authorized by this
222	222	chapter.
223	223	Sec. 697.005. BURIAL OR CREMATION ASSISTANCE REGISTRY. The
224	224	department shall:
225	225	(1) establish and maintain a registry of:
226	226	(A) participating funeral homes and cemeteries
227	227	willing to provide free common burial or low-cost private burial;
228	228	and
229	229	(B) private nonprofit organizations that
230	230	register with the department to provide financial assistance for
231	231	the costs associated with burial or cremation of the embryonic and
232	232	fetal tissue remains of an unborn child; and
233	233	(2) make the registry information available on request
234	234	to a physician, health care facility, or agent of a physician or
235	235	health care facility.
236	236	Sec. 697.006. ETHICAL FETAL REMAINS GRANT PROGRAM. The
237	237	department shall develop a grant program that uses private
238	238	donations to provide financial assistance for the costs associated
239	239	with disposing of embryonic and fetal tissue remains.
240	240	Sec. 697.007. SUSPENSION OR REVOCATION OF LICENSE. The
241	241	department may suspend or revoke the license of a health care
242	242	facility that violates this chapter or a rule adopted under this
243	243	chapter.
244	244	Sec. 697.008. CIVIL PENALTY. (a) A person that violates
245	245	this chapter or a rule adopted under this chapter is liable for a
246	246	civil penalty in an amount of $1,000 for each violation.
247	247	(b) The attorney general, at the request of the department,
248	248	may sue to collect the civil penalty. The attorney general may
249	249	recover reasonable expenses incurred in collecting the civil
250	250	penalty, including court costs, reasonable attorney's fees,
251	251	investigation costs, witness fees, and disposition expenses.
252	252	Sec. 697.009. RULES. The executive commissioner shall
253	253	adopt rules to implement this chapter.
254	254	SECTION 4. Section 164.052(a), Occupations Code, is amended
255	255	to read as follows:
256	256	(a) A physician or an applicant for a license to practice
257	257	medicine commits a prohibited practice if that person:
258	258	(1) submits to the board a false or misleading
259	259	statement, document, or certificate in an application for a
260	260	license;
261	261	(2) presents to the board a license, certificate, or
262	262	diploma that was illegally or fraudulently obtained;
263	263	(3) commits fraud or deception in taking or passing an
264	264	examination;
265	265	(4) uses alcohol or drugs in an intemperate manner
266	266	that, in the board's opinion, could endanger a patient's life;
267	267	(5) commits unprofessional or dishonorable conduct
268	268	that is likely to deceive or defraud the public, as provided by
269	269	Section 164.053, or injure the public;
270	270	(6) uses an advertising statement that is false,
271	271	misleading, or deceptive;
272	272	(7) advertises professional superiority or the
273	273	performance of professional service in a superior manner if that
274	274	advertising is not readily subject to verification;
275	275	(8) purchases, sells, barters, or uses, or offers to
276	276	purchase, sell, barter, or use, a medical degree, license,
277	277	certificate, or diploma, or a transcript of a license, certificate,
278	278	or diploma in or incident to an application to the board for a
279	279	license to practice medicine;
280	280	(9) alters, with fraudulent intent, a medical license,
281	281	certificate, or diploma, or a transcript of a medical license,
282	282	certificate, or diploma;
283	283	(10) uses a medical license, certificate, or diploma,
284	284	or a transcript of a medical license, certificate, or diploma that
285	285	has been:
286	286	(A) fraudulently purchased or issued;
287	287	(B) counterfeited; or
288	288	(C) materially altered;
289	289	(11) impersonates or acts as proxy for another person
290	290	in an examination required by this subtitle for a medical license;
291	291	(12) engages in conduct that subverts or attempts to
292	292	subvert an examination process required by this subtitle for a
293	293	medical license;
294	294	(13) impersonates a physician or permits another to
295	295	use the person's license or certificate to practice medicine in
296	296	this state;
297	297	(14) directly or indirectly employs a person whose
298	298	license to practice medicine has been suspended, canceled, or
299	299	revoked;
300	300	(15) associates in the practice of medicine with a
301	301	person:
302	302	(A) whose license to practice medicine has been
303	303	suspended, canceled, or revoked; or
304	304	(B) who has been convicted of the unlawful
305	305	practice of medicine in this state or elsewhere;
306	306	(16) performs or procures a criminal abortion, aids or
307	307	abets in the procuring of a criminal abortion, attempts to perform
308	308	or procure a criminal abortion, or attempts to aid or abet the
309	309	performance or procurement of a criminal abortion;
310	310	(17) directly or indirectly aids or abets the practice
311	311	of medicine by a person, partnership, association, or corporation
312	312	that is not licensed to practice medicine by the board;
313	313	(18) performs an abortion on a woman who is pregnant
314	314	with a viable unborn child during the third trimester of the
315	315	pregnancy unless:
316	316	(A) the abortion is necessary to prevent the
317	317	death of the woman;
318	318	(B) the viable unborn child has a severe,
319	319	irreversible brain impairment; or
320	320	(C) the woman is diagnosed with a significant
321	321	likelihood of suffering imminent severe, irreversible brain damage
322	322	or imminent severe, irreversible paralysis;
323	323	(19) performs an abortion on an unemancipated minor
324	324	without the written consent of the child's parent, managing
325	325	conservator, or legal guardian or without a court order, as
326	326	provided by Section 33.003 or 33.004, Family Code, unless the
327	327	abortion is necessary due to a medical emergency, as defined by
328	328	Section 171.002, Health and Safety Code;
329	329	(20) otherwise performs an abortion on an
330	330	unemancipated minor in violation of Chapter 33, Family Code; or
331	331	(21) performs or induces or attempts to perform or
332	332	induce an abortion in violation of Subchapter C or F, Chapter 171,
333	333	Health and Safety Code.
334	334	SECTION 5. Section 164.055(b), Occupations Code, is amended
335	335	to read as follows:
336	336	(b) The sanctions provided by Subsection (a) are in addition
337	337	to any other grounds for refusal to admit persons to examination
338	338	under this subtitle or to issue a license or renew a license to
339	339	practice medicine under this subtitle. The criminal penalties
340	340	provided by Section 165.152 do not apply to a violation of Section
341	341	170.002, Health and Safety Code, or Subchapter C or F, Chapter 171,
342	342	Health and Safety Code.
343	343	SECTION 6. Section 48.02(a), Penal Code, is amended to read
344	344	as follows:
345	345	(a) In this section, "human ["Human] organ" means the human
346	346	kidney, liver, heart, lung, pancreas, eye, bone, skin, [fetal
347	347	tissue,] or any other human organ or tissue, but does not include
348	348	hair or blood, blood components (including plasma), blood
349	349	derivatives, or blood reagents. The term does not include human
350	350	fetal tissue as defined by Section 48.03.
351	351	SECTION 7. Chapter 48, Penal Code, is amended by adding
352	352	Section 48.03 to read as follows:
353	353	Sec. 48.03. PROHIBITION ON PURCHASE AND SALE OF HUMAN FETAL
354	354	TISSUE. (a) In this section, "human fetal tissue" has the meaning
355	355	assigned by Section 173.001, Health and Safety Code.
356	356	(b) A person commits an offense if the person knowingly
357	357	offers to buy, offers to sell, acquires, receives, sells, or
358	358	otherwise transfers any human fetal tissue for economic benefit.
359	359	(c) An offense under this section is a state jail felony.
360	360	(d) It is a defense to prosecution under this section that
361	361	the actor:
362	362	(1) is an employee of or under contract with an
363	363	accredited public or private institution of higher education; and
364	364	(2) acquires, receives, or transfers human fetal
365	365	tissue solely for the purpose of fulfilling a donation authorized
366	366	by Section 173.005, Health and Safety Code.
367	367	(e) This section does not apply to:
368	368	(1) human fetal tissue acquired, received, or
369	369	transferred solely for diagnostic or pathological testing;
370	370	(2) human fetal tissue acquired, received, or
371	371	transferred solely for the purposes of a criminal investigation;
372	372	(3) human fetal tissue acquired, received, or
373	373	transferred solely for the purpose of disposing of the tissue in
374	374	accordance with state law or rules applicable to the disposition of
375	375	human fetal tissue remains;
376	376	(4) human fetal tissue or human tissue acquired during
377	377	pregnancy or at delivery of a child, provided the tissue is acquired
378	378	by an accredited public or private institution of higher education
379	379	for use in research approved by an institutional review board or
380	380	another appropriate board, committee, or body charged with
381	381	oversight applicable to the research; or
382	382	(5) cell lines derived from human fetal tissue or
383	383	human tissue existing on September 1, 2017, that are used by an
384	384	accredited public or private institution of higher education in
385	385	research approved by an institutional review board or another
386	386	appropriate board, committee, or body charged with oversight
387	387	applicable to the research.
388	388	(f) With the consent of the appropriate local county or
389	389	district attorney, the attorney general has concurrent
390	390	jurisdiction with that consenting local prosecutor to prosecute an
391	391	offense under this section.
392	392	SECTION 8. (a) Not later than December 1, 2017, the
393	393	executive commissioner of the Health and Human Services Commission
394	394	shall adopt any rules necessary to implement Chapters 173 and 697,
395	395	Health and Safety Code, as added by this Act.
396	396	(b) The Department of State Health Services shall:
397	397	(1) not later than October 1, 2017, establish the
398	398	grant program required by Section 697.006, Health and Safety Code,
399	399	as added by this Act;
400	400	(2) not later than December 1, 2017, prescribe the
401	401	standard consent form required by Section 173.006, Health and
402	402	Safety Code, as added by this Act; and
403	403	(3) not later than February 1, 2018, begin to award
404	404	grants under the grant program described by Subdivision (1) of this
405	405	subsection.
406	406	SECTION 9. (a) Subchapter F, Chapter 171, Health and
407	407	Safety Code, as added by this Act, applies only to an abortion
408	408	performed on or after the effective date of this Act. An abortion
409	409	performed before the effective date of this Act is governed by the
410	410	law in effect immediately before the effective date of this Act, and
411	411	that law is continued in effect for that purpose.
412	412	(b) Sections 173.003, 173.004, 173.005, and 173.006, Health
413	413	and Safety Code, as added by this Act, apply to a donation of human
414	414	fetal tissue that occurs on or after the effective date of this Act,
415	415	regardless of whether the human fetal tissue was acquired before,
416	416	on, or after that date.
417	417	(c) An authorized facility is not required to make an
418	418	initial annual report under Section 173.009, Health and Safety
419	419	Code, as added by this Act, before January 1, 2019.
420	420	(d) Chapter 697, Health and Safety Code, as added by this
421	421	Act, applies only to the disposition of embryonic and fetal tissue
422	422	remains that occurs on or after February 1, 2018. The disposition
423	423	of embryonic and fetal tissue remains that occurs before February
424	424	1, 2018, is governed by the law in effect immediately before the
425	425	effective date of this Act, and the former law is continued in
426	426	effect for that purpose.
427	427	(e) Chapter 48, Penal Code, as amended by this Act, applies
428	428	only to an offense committed on or after the effective date of this
429	429	Act. An offense committed before the effective date of this Act is
430	430	governed by the law in effect on the date the offense was committed,
431	431	and the former law is continued in effect for that purpose. For
432	432	purposes of this subsection, an offense was committed before the
433	433	effective date of this Act if any element of the offense occurred
434	434	before that date.
435	435	SECTION 10. This Act takes effect September 1, 2017.