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.