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  82R3425 YDB-D
 
  By: Parker H.B. No. 2988
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to prohibiting abortion except when medically necessary.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  The heading to Chapter 170, Health and Safety
  Code, is amended to read as follows:
  CHAPTER 170. ABORTION PROHIBITED [ACTS REGARDING ABORTION]
         SECTION 2.  Section 170.002, Health and Safety Code, is
  amended to read as follows:
         Sec. 170.002.  ABORTION PROHIBITED [ACTS]; EXEMPTION. (a)
  Except as provided by Subsection (b), a person may not
  intentionally or knowingly perform an abortion on a woman who is
  pregnant [with a viable unborn child during the third trimester of
  the pregnancy].
         (b)  Subsection (a) does not prohibit a person from
  performing an abortion if at the time of the abortion the person is
  a physician and concludes in good faith according to the
  physician's best medical judgment that[:
               [(1)     the fetus is not a viable fetus and the pregnancy
  is not in the third trimester;
               [(2)]  the abortion is necessary to prevent the death
  or a substantial risk of serious impairment to the physical [or
  mental] health of the woman[; or
               [(3)     the fetus has a severe and irreversible
  abnormality, identified by reliable diagnostic procedures].
         (c)  A physician who performs an abortion [that, according to
  the physician's best medical judgment at the time of the abortion,
  is to abort a viable unborn child during the third trimester of the
  pregnancy] shall certify in writing to the department, on a form
  prescribed by the department, the medical indications supporting
  the physician's judgment that the abortion was authorized by
  Subsection (b) [(b)(2) or (3)]. The certification must be made not
  later than the 30th day after the date the abortion was performed.
         SECTION 3.  Chapter 33, Family Code, is amended by adding
  Section 33.0011 to read as follows:
         Sec. 33.0011.  PROHIBITED ABORTION NOT AUTHORIZED. This
  chapter may not be construed to authorize the performance of an
  abortion prohibited under Chapter 170, Health and Safety Code.
         SECTION 4.  Sections 33.002(a), (d), (e), (f), 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 and, in accordance
  with Section 164.052, Occupations Code, obtains written consent
  from:
                     (A)  a parent of the minor, if the minor has no
  managing conservator or guardian; or
                     (B)  a court-appointed managing conservator or
  guardian; or
               (2)  [the 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;
               [(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 that there is
  insufficient time to provide the notice and obtain the consent of
  the minor's parent, managing conservator, or guardian; 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.
         (d)  A physician may execute for inclusion in the minor's
  medical record an affidavit stating that, according to the best
  information and belief of the physician, notice [or constructive
  notice] has been provided as required by this section. Execution of
  an affidavit under this subsection creates a presumption that the
  notice requirements of this section have been satisfied.
         (e)  The [Texas] Department of State Health Services shall
  prepare a form to be used for making the certification required by
  Subsection (a)(2) [(a)(4)].
         (f)  A certification required by Subsection (a)(2) [(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)(2)
  [(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.
         (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)(2) [(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 5.  Section 33.008(b), Family Code, is amended to
  read as follows:
         (b)  The Department of Family and Protective [and
  Regulatory] Services shall investigate suspected abuse reported
  under this section [and, if appropriate, shall assist the minor in
  making an application with a court under Section 33.003].
         SECTION 6.  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 [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 7.  Section 419.908(c), Government Code, as added by
  Chapter 994 (H.B. 3866), Acts of the 81st Legislature, Regular
  Session, 2009, is amended to read as follows:
         (c)  This section does not apply to state agency personnel
  who conduct a life safety code survey of a building or facility in
  connection with determining whether to issue or renew a license
  under Chapter 142, 241, 242, 243, 244, [245,] 247, 248, 251, 252,
  464, 466, or 577, Health and Safety Code, or Chapter 103, Human
  Resources Code.
         SECTION 8.  Section 248.003, Health and Safety Code, is
  amended to read as follows:
         Sec. 248.003.  EXEMPTIONS. This chapter does not apply to:
               (1)  a home and community support services agency
  required to be licensed under Chapter 142;
               (2)  a person required to be licensed under Chapter 241
  (Texas Hospital Licensing Law);
               (3)  an institution required to be licensed under
  Chapter 242;
               (4)  an ambulatory surgical center required to be
  licensed under Chapter 243 (Texas Ambulatory Surgical Center
  Licensing Act);
               (5)  a birthing center required to be licensed under
  Chapter 244 (Texas Birthing Center Licensing Act);
               (6)  [a facility required to be licensed under Chapter
  245 (Texas Abortion Facility Reporting and Licensing Act);
               [(7)]  a child care institution, foster group home,
  foster family home, and child-placing agency, for children in
  foster care or other residential care who are under the
  conservatorship of the Department of Family and Protective [and
  Regulatory] Services; or
               (7) [(8)]  a person providing medical or nursing care
  or services under a license or permit issued under other state law.
         SECTION 9.  Section 164.052(a), Occupations Code, is amended
  to read as follows:
         (a)  A physician or an applicant for a license to practice
  medicine commits a prohibited practice if that person:
               (1)  submits to the board a false or misleading
  statement, document, or certificate in an application for a
  license;
               (2)  presents to the board a license, certificate, or
  diploma that was illegally or fraudulently obtained;
               (3)  commits fraud or deception in taking or passing an
  examination;
               (4)  uses alcohol or drugs in an intemperate manner
  that, in the board's opinion, could endanger a patient's life;
               (5)  commits unprofessional or dishonorable conduct
  that is likely to deceive or defraud the public, as provided by
  Section 164.053, or injure the public;
               (6)  uses an advertising statement that is false,
  misleading, or deceptive;
               (7)  advertises professional superiority or the
  performance of professional service in a superior manner if that
  advertising is not readily subject to verification;
               (8)  purchases, sells, barters, or uses, or offers to
  purchase, sell, barter, or use, a medical degree, license,
  certificate, or diploma, or a transcript of a license, certificate,
  or diploma in or incident to an application to the board for a
  license to practice medicine;
               (9)  alters, with fraudulent intent, a medical license,
  certificate, or diploma, or a transcript of a medical license,
  certificate, or diploma;
               (10)  uses a medical license, certificate, or diploma,
  or a transcript of a medical license, certificate, or diploma that
  has been:
                     (A)  fraudulently purchased or issued;
                     (B)  counterfeited; or
                     (C)  materially altered;
               (11)  impersonates or acts as proxy for another person
  in an examination required by this subtitle for a medical license;
               (12)  engages in conduct that subverts or attempts to
  subvert an examination process required by this subtitle for a
  medical license;
               (13)  impersonates a physician or permits another to
  use the person's license or certificate to practice medicine in
  this state;
               (14)  directly or indirectly employs a person whose
  license to practice medicine has been suspended, canceled, or
  revoked;
               (15)  associates in the practice of medicine with a
  person:
                     (A)  whose license to practice medicine has been
  suspended, canceled, or revoked; or
                     (B)  who has been convicted of the unlawful
  practice of medicine in this state or elsewhere;
               (16)  performs or procures a criminal abortion, aids or
  abets in the procuring of a criminal abortion, attempts to perform
  or procure a criminal abortion, or attempts to aid or abet the
  performance or procurement of a criminal abortion;
               (17)  directly or indirectly aids or abets the practice
  of medicine by a person, partnership, association, or corporation
  that is not licensed to practice medicine by the board;
               (18)  performs an abortion on a woman who is pregnant,
  [with a viable unborn child during the third trimester of the
  pregnancy] unless[:
                     [(A)]  the abortion is authorized under Section
  170.002(b), Health and Safety Code [necessary to prevent the death
  of the woman;
                     [(B)     the viable unborn child has a severe,
  irreversible brain impairment; or
                     [(C)     the woman is diagnosed with a significant
  likelihood of suffering imminent severe, irreversible brain damage
  or imminent severe, irreversible paralysis]; or
               (19)  performs an abortion on an unemancipated minor
  without the written consent of the child's parent, managing
  conservator, or legal guardian [or without a court order, as
  provided by Section 33.003 or 33.004, Family Code, authorizing the
  minor to consent to the abortion], unless the physician 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 impairment of a major bodily function and that there is
  insufficient time to obtain the consent of the child's parent,
  managing conservator, or legal guardian.
         SECTION 10.  The following provisions are repealed:
               (1)  Section 33.002(b), Family Code;
               (2)  Sections 33.003, 33.004, 33.005, 33.006, 33.007,
  33.009, and 33.011, Family Code;
               (3)  Section 170.001(3), Health and Safety Code;
               (4)  Chapter 171, Health and Safety Code; and
               (5)  Chapter 245, Health and Safety Code.
         SECTION 11.  If any provision of this Act or its application
  to any person or circumstance is held invalid, the entire Act is
  invalid, and to this end the provisions of this Act are declared to
  be nonseverable.
         SECTION 12.  The changes in law made by this Act apply only
  to an offense committed or conduct that occurs on or after the
  effective date of this Act. An offense committed or conduct that
  occurs before the effective date of this Act is governed by the law
  in effect when the offense was committed or the conduct occurred,
  and the former law is continued in effect for that purpose. For
  purposes of this section, an offense is committed or conduct occurs
  before the effective date of this Act if any element of the offense
  or conduct occurs before the effective date.
         SECTION 13.  Information obtained before the effective date
  of this Act by the Department of Family and Protective Services or
  another entity under Section 33.009, Family Code, as it existed
  before the effective date of this Act, remains confidential to the
  extent provided by Section 33.010, Family Code, as it existed
  before the effective date of this Act.
         SECTION 14.  The repeal by this Act of Section 33.006, Family
  Code, does not apply to a cause of action that accrues before the
  effective date of this Act. A cause of action that accrues before
  the effective date of this Act is governed by the law as it existed
  immediately before that date, and that law is continued in effect
  for that purpose.
         SECTION 15.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.  
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect September 1, 2011.