HBA-JRA H.B. 1073 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1073 By: Uher State Affairs 2/17/1999 Introduced BACKGROUND AND PURPOSE Currently, abortions are being performed in Texas on minors without the notification or consent of the minor's parents. The Texas Family Code requires parental consent prior to medical procedures to be performed on a minor, but the U.S. Supreme Court has ruled that it is unconstitutional to apply such a law to an abortion procedure, absent a provision for a judicial bypass. H.B. 1073 requires a physician to notify and obtain the consent of a parent, managing conservator, or guardian of a pregnant minor prior to performing an abortion, with exceptions, including a judicial bypass mechanism. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Supreme Court in SECTION 1 (Sec. 33.006, Family Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subtitle A, Title 2, Family Code, by adding Chapter 33, as follows: CHAPTER 33. NOTICE AND CONSENT FOR ABORTION Sec. 33.001. DEFINITIONS. Defines "abortion," "guardian," "medical emergency," and "physician." Sec. 33.002. PARENTAL NOTICE AND CONSENT. (a) Prohibits a physician from performing an abortion on a pregnant unemancipated minor unless the physician gives notice of the minor's pregnancy and desire to have an abortion to each parent of the minor, if a managing conservator or guardian has not been appointed, or to the court-appointed managing conservator or guardian, if one has been appointed for the minor, and obtains oral or written consent to perform the abortion from each parent, managing conservator, or guardian of the minor. (b) Authorizes the notice to be made by mail, in person, or by telephone by the physician within 24 hours or by noon of the next business day, if the next day is Saturday, Sunday, or a holiday, after the initial office visit at which the minor requested the abortion, unless the minor requests that the notice not be provided or be provided at a later time. (c) Provides that a mailed notice is considered made at the time the notice is deposited in the United States mail, postage prepaid, addressed to the last known address of the parent, managing conservator, or guardian. Sec. 33.003. EXCEPTION: MEDICAL EMERGENCY. Authorizes a physician to perform an abortion without notice to or consent of a parent, guardian, or managing conservator of the minor if the physician concludes that a medical emergency exists and there is insufficient time to obtain the required consent and certifies the medical conditions supporting that conclusion in writing to the Texas Department of Health (TDH) and in the patient's medical record. Requires TDH to prepare a form to be used for making the required certification. Sec. 33.004. EXCEPTION: ORDER OF COURT. Authorizes a physician to perform an abortion without notice to or consent of a parent, guardian, or managing conservator of the minor if authorized by a judge of a county court at law, district court, or appellate court under Section 33.005 or 33.006. Sec. 33.005. JUDICIAL APPROVAL. (a) Authorizes a pregnant minor to file an application for a court order authorizing the minor to consent to the performance of an abortion without notice to or consent of a parent, managing conservator, or guardian. (b) Authorizes the application to be filed in the county court at law or a district court having jurisdiction for the county in which the minor resides, a county that borders the county in which the minor resides, or the county in which the hospital, clinic, or facility in which the abortion would be performed is located. (c) Provides that the application must be made under oath and include a statement that the minor is pregnant, unmarried, under 18 years of age, has not had her disabilities removed for general purposes under Chapter 31 (Removal of Disabilities of Minority), Family Code, and wishes to have an abortion without notice to or consent of either of her parents or a managing conservator or guardian. Provides that the application must also include a statement as to whether the minor has retained an attorney and, if so, the name, address and telephone number of her attorney. (d) Requires the court to appoint a guardian ad litem to protect the interests of the minor. Requires the court to appoint an attorney to represent the minor if the minor has not retained an attorney. Authorizes the court to appoint the guardian ad litem to serve as the minor's attorney if the guardian ad litem is an attorney admitted to the practice of law in this state. (e) Requires the court to set a time for a hearing on an application filed under this section and keep a record of all testimony and other oral proceedings in the action. Requires the court to enter judgment on the application immediately after the hearing is concluded. (f) Requires the court to rule on an application filed under this section and issue written findings of fact and conclusions of law by 5:00 p.m. of the 10th business day after the application is filed. Authorizes the minor to request an extension of this period. Establishes that the application is considered to be denied and the physician is prohibited from performing the abortion without the notice and consent required under Section 33.002 if the court fails to rule on the application and findings of fact and conclusions of law are not issued within the specified time period and an extension is not requested. Requires proceedings under this section to be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly. (g) Requires the court to enter an order authorizing the performance of an abortion without the required notice and consent and to execute the required forms if the court finds that the minor has established by a preponderance of the evidence that she is mature and sufficiently well informed to make a decision to have an abortion, that it is in her best interest, or that denial of the application would otherwise substantially adversely affect her physical or mental health. (h) Prohibits the court from authorizing the performance of an abortion without the notice and consent required under Section 33.002 if the court does not find in the affirmative on at least one of the issues found in Subsection (g). (i) Requires the court proceedings to be conducted in a manner that protects the anonymity of the minor. Requires the application and all other court documents pertaining to the proceedings, including an order issued in accordance with Subsection (j), to be confidential and prohibits their release to the public. Authorizes the minor to file the application using a pseudonym or her initials. (j) Sets forth a form which may be used for an order of a court granting or denying an application under this section. (k) Requires the clerk of the supreme court to prescribe the application form to be used by a minor filing an application under this section. (l) Provides that a filing fee is not required of a minor and prohibits court costs from being assessed against her. Sec. 33.006. EXPEDITED CONFIDENTIAL APPEAL. Requires the supreme court to adopt rules providing for an expedited confidential appeal from a denial of an application filed under Section 33.005, including a constructive denial of an application under Section 33.005(f). Establishes that the rules must provide for a determination with respect to the appeal within 10 days after the filing date of the notice of appeal. Sec. 33.007. CIVIL LIABILITY. Establishes that a physician who knowingly violates this chapter is liable for damages incurred by a minor or a parent, managing conservator, or guardian of the minor as a result of violation. SECTION 2. Requires the Texas State Board of Medical Examiners to adopt the forms to be used under Section 33.003, Family Code, as added by this Act, by December 15, 1999. SECTION 3. Requires the clerk of the Texas Supreme Court to prescribe the application form to be used under Section 33.005, Family Code, as added by this Act, by December 15, 1999. SECTION 4. Requires the Texas Supreme Court to promptly adopt rules governing the expedited confidential appeal required by Section 33.006, Family Code, as added by this Act. SECTION 5. Makes application of this Act prospective as of January 1, 2000. SECTION 6. Effective date: September 1, 1999. SECTION 7. Emergency clause.