HBA-DMD H.B. 3413 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 3413
By: Van de Putte
State Affairs
4/6/1999
Introduced



BACKGROUND AND PURPOSE 

Current Texas law does not require that parents receive notification that
their minor daughter is seeking an abortion. H.B. 3413 authorizes a minor
seeking an abortion to obtain judicial approval for the abortion if the
minor does not wish to obtain the parental consent otherwise required by
the bill, and authorizes the physician to perform the abortion in the
absence of parental consent provided that the physician concludes that a
medical emergency exists and there is insufficient time to obtain parental
consent. The bill also establishes criminal penalties for physicians who do
not follow consent guidelines. H.B. 3413 establishes an appeal process for
minors who are denied judicial approval for an abortion.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Supreme Court of Texas in SECTION 2
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 OF ABORTION

SUBCHAPTER A.  GENERAL PROVISIONS;  NOTICE REQUIRED

Sec. 33.001. DEFINITIONS. Defines "abortion," "clergy member," "counselor,"
"guardian," "medical emergency,"and "physician" in this chapter. 

Sec. 33.002. PARENTAL NOTICE. (a) Prohibits a physician from performing an
abortion on a pregnant unemancipated minor who is younger than 16 years of
age unless certain criteria are met.  

(b) Authorizes a physician, if a person to whom notice may be given cannot
be notified after a reasonable effort, to perform an abortion if the
physician gives 48 hours constructive notice, by certified mail sent to the
last known address, to the person to whom notice may be given. Provides
that the 48 hours begins at the time notice is mailed, and the abortion is
authorized to proceed 48 hours after the notice is mailed without regard to
whether the notice is received.  

(c) Authorizes a physician to execute an affidavit for inclusion in the
minor's medical record which states that, according to the best information
and belief of the physician, notice or constructive notice has been
provided as required by this section. Provides that execution of an
affidavit creates a conclusive presumption that the requirements of this
section have been satisfied.  

(d) Requires the Texas  Department of Health to prepare a form to be used
for making the certification required by Subsection (a), which prohibits a
physician from performing an abortion unless, among other exceptions, the
physician certifies in writing that a medical emergency exists.  
 
(e) Sets forth that a physician who violates this section commits a Class A
misdemeanor offense.  

SUBCHAPTER B.  JUDICIAL APPROVAL

Sec. 33.051. APPLICATION; JUDICIAL APPROVAL. (a) Authorizes a pregnant
minor who wants to have an abortion without notification to any person
described by Section 33.002(a), to file an application for a court order
authorizing the minor to consent to the performance of an abortion without
the notification. 
 
(b) Authorizes the application for a court order to be filed in the county
court at law or a court having probate jurisdiction for the county in which
the minor resides, a county that borders a 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) Specifies the provisions included in the application which must be made
under oath.  

(d) Requires the court to appoint a guardian ad litem and an attorney for
the minor, if the minor has not retained an attorney. Authorizes the court,
if the guardian ad litem is an attorney admitted to the practice of law in
this state, to appoint the guardian ad litem to serve as the minor's
attorney.  

(e) Requires the court to set a time for a hearing on an application filed
under Subsection (a) and to 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 submitted under this
section and to issue written findings of fact and conclusions of law no
later than 5 p.m. of the second business day after the application is filed
with the court. Authorizes the minor to request an extension of the period
specified by this section. Provides that if the court fails to rule on the
application and issue written findings of fact and conclusions of law
within the period specified and an extension was not requested, the
application is considered granted at the expiration of the period and the
physician is authorized to 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(a).  Requires
proceedings under this section to be given precedence over other pending
matters to the extent necessary to assure that the court reaches a decision
promptly.  

(g) Requires the court to determine by a preponderance of the evidence
whether the minor is mature and sufficiently well-informed to make the
decision to have an abortion performed without notification to a person
described by Section 33.002(a), whether the abortion would be in the best
interest of the minor, or whether notification would not be in the best
interest of the minor. Requires the court, if the court finds that the
minor is mature and sufficiently well-informed, that the abortion would be
in the minor's best interest, or that notification would not be in the
minor's best interest, to enter an order authorizing the minor to consent
to the performance of the abortion without the notification and to execute
the required forms.  

(h) Prohibits the court, if the court finds in the negative on any of the
issues prescribed by Subsection (g), from authorizing the minor to consent
to an abortion without the notification required under Section 33.002(a).  

(i) Prohibits the court from notifying a parent, managing conservator,
guardian, or other person concerning the pregnancy of the minor or that the
minor wants to have an abortion. Requires the court proceedings to be
conducted in a manner that protects the anonymity of the minor, and the
application and all other court documents pertaining to the proceedings are
confidential and prohibits the proceedings from being made available to the
public. Authorizes the minor to file the application using a pseudonym or
initials.  
 
(j) Requires the clerk of the supreme court to prescribe the application
form to be used by the minor filing an application under this section.  

(k) Provides that a filing fee is not required of and court costs are
prohibited from being assessed against a minor filing an application under
this section.  

Sec. 33.052. APPEAL. (a) Authorizes a minor whose application under Section
33.051 is denied to appeal to the court of appeals having jurisdiction over
civil matters in the county in which the application was filed. Requires
the clerk of the court that denied the application, upon receiving a notice
of appeal, to deliver a copy of the notice of appeal and record on appeal
to the clerk of the court of appeals. Requires the clerk of the court of
appeals to place the appeal on the docket of the court, upon receiving the
notice and record. 

(b) Requires the court of appeals to rule on an appeal under this section
no later than 5 p.m. of the second business day after the notice of appeal
is filed with the court that denied the application. Authorizes the minor
to request an extension of the period specified by this subsection.
Provides that if the court of appeals fails to rule on the appeal within
the period specified by this subsection and an extension was not requested,
the appeal is considered granted on the expiration of the period and the
physician is authorized to 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(a). Requires proceedings
under this section to be given precedence over other pending matters to the
extent necessary to assure that the court reaches a decision promptly.  

(c) Requires the clerk of the supreme court to prescribe the notice of
appeal form to be used by the minor appealing a judgment under this
section.  

(d) Sets forth that a filing fee is not required of and court costs are
prohibited from being assessed against a minor filing an appeal under this
section.  

(e) Requires an expedited confidential appeal to be available to any minor
to whom a court of appeals denies an order authorizing the minor to consent
to the performance of an abortion without notification to either of her
parents or a managing conservator or guardian.  

Sec. 33.053. AD LITEM IMMUNITY. Sets forth that a guardian ad litem or
attorney ad litem appointed under this chapter has the same judicial
immunity as the appointing judge with respect to an act or omission in the
course and scope of the appointment.  

Sec. 33.054. COSTS PAID BY STATE. (a) Authorizes a court acting under
Section 33.051 or 33.052 to issue an order requiring the state to pay the
cost of any attorney ad litem and any guardian ad litem appointed for the
minor, notwithstanding Sections 33.051(k) and 33.052(d), the costs of court
associated with the application or appeal, and any court reporter's fees
incurred.  

(b) Provides that an order issued under Subsection (a) must be directed to
the comptroller, who is required to pay the amount ordered from funds
appropriated to the Texas Department of Health for family planning.  

SUBCHAPTER C.  INDEPENDENT EVALUATION

Sec. 33.101. INDEPENDENT EVALUATION OF MINOR. (a) Specifies the conditions
for the determination to be reached and certification provided by a clergy
member or counselor under which a physician is authorized to perform an
abortion without providing notice under Section 33.002(a).  

(b) Requires a physician who performs an abortion to include a copy of the
certification  described by Subsection (a) in the minor's medical record.  

Sec. 33.102. CONFIDENTIALITY. Sets forth that a certification made under
this subchapter is confidential and privileged and is not subject to
disclosure under Chapter 552 (Public Information), Government Code, or to
discovery, subpoena, or other legal process.  

Sec. 33.103. FAILURE TO OBTAIN CERTIFICATION. Provides that if the minor
does not obtain a certification described by this subchapter, the ability
of a physician to perform an abortion under Section 33.002(a) is not
affected.  

SECTION 2. Requires the Supreme Court of Texas to promptly issue such rules
as may be necessary in order that the process established by Sections
33.051 and 33.052, Family Code, as added by this Act, be conducted in a
manner that will ensure confidentiality and sufficient precedence over all
other pending matters to ensure promptness of disposition.  

SECTION 3.Effective date: September 1, 1999, except as provided by Section
5 of this Act.  

SECTION 4.  Makes application of Chapter 33, Family Code, as added by this
Act, prospective to January 1, 2000. 

SECTION 5.Effective date: September 1, 2000, for Section 33.002(e), Family
Code, as added by this Act. 
 
SECTION 6.  Requires the Texas Board of Health to adopt the form to be used
under Section 33.002(a), Family Code, as added by this Act, no later than
December 15, 1999.  

SECTION 7.  Requires the clerk of the Supreme Court of Texas to adopt the
application form and notice of appeal form to be used under Sections 33.051
and 33.052, Family Code, as added by this Act, no later than December 15,
1999.  

SECTION 8.Emergency clause.