By: Morrison, et al. (Senate Sponsor - Perry) H.B. No. 3994
         (In the Senate - Received from the House May 15, 2015;
  May 15, 2015, read first time and referred to Committee on Health
  and Human Services; May 20, 2015, reported favorably by the
  following vote:  Yeas 5, Nays 2; May 20, 2015, sent to printer.)
Click here to see the committee vote
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to notice of and consent to an abortion for a minor and
  associated requirements; amending provisions subject to a criminal
  penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  The heading to Chapter 33, Family Code, is
  amended to read as follows:
  CHAPTER 33. NOTICE OF AND CONSENT TO ABORTION
         SECTION 2.  Sections 33.002(a), (e), (f), (h), 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:
                     (A)  a parent of the minor, if the minor has no
  managing conservator or guardian; or
                     (B)  a court-appointed managing conservator or
  guardian;
               (2)  the physician performing the abortion receives a
  certificate or order issued by a court under Section 33.003 or
  33.004 [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; or
               (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
                     (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.
         (e)  The [Texas] Department of State Health Services shall
  prepare a form to be used for making the certification required by
  Subsection (a)(3) [(a)(4)].
         (f)  A certification required by Subsection (a)(3) [(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)(3)
  [(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.
         (h)  A physician shall presume that a pregnant woman is a
  minor unless the woman presents a valid governmental record of
  identification showing that she has reached the age of majority. It
  is a defense to prosecution under this section that the minor
  falsely represented her age or identity to the physician to be at
  least 18 years of age by displaying an apparently valid
  governmental record of identification such that a reasonable person
  under similar circumstances would have relied on the
  representation. The defense does not apply if the physician is
  shown to have had independent knowledge of the minor's actual age or
  identity or failed to use due diligence in determining the minor's
  age or identity. In this subsection, "defense" has the meaning and
  application assigned by Section 2.03, Penal 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)(3) [(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 3.  Chapter 33, Family Code, is amended by adding
  Section 33.0021 to read as follows:
         Sec. 33.0021.  CONSENT REQUIRED. A physician may not
  perform an abortion in violation of Section 164.052(a)(19),
  Occupations Code.
         SECTION 4.  Section 33.003, Family Code, is amended by
  amending Subsections (a), (b), (c), (e), (g), (h), (i), (j), (k),
  and (l) and adding Subsections (g-1), (i-1), (i-2), (i-3), (l-1),
  (l-2), (o), (p), (q), and (r) to read as follows:
         (a)  A pregnant minor [who wishes to have an abortion without
  notification to one of her parents, her managing conservator, or
  her guardian] may file an application for a court order authorizing
  the minor to consent to the performance of an abortion without
  notification to and consent [either] of [her parents or] a parent,
  managing conservator, or guardian.
         (b)  The application must [may] be filed in:
               (1)  a [any] county court at law, court having probate
  jurisdiction, or district court, including a family district court,
  in the minor's county of residence;
               (2)  if the minor's county of residence has a population
  of less than 10,000:
                     (A)  a court described by Subdivision (1); 
                     (B)  a county court at law, court having probate
  jurisdiction, or district court, including a family district court,
  in a neighboring county; or
                     (C)  a county court at law, court having probate
  jurisdiction, or district court, including a family district court,
  in the county in which the facility at which the minor intends to
  obtain the abortion is located; or
               (3)  a county court at law, court having probate
  jurisdiction, or district court, including a family district court,
  in the county in which the facility at which the minor intends to
  obtain the abortion is located, if the minor is not a resident of
  this state.
         (c)  The application must be made under oath and include:
               (1)  a statement that the minor is pregnant;
               (2)  a statement that the minor is unmarried, is under
  18 years of age, and has not had her disabilities removed under
  Chapter 31;
               (3)  a statement that the minor wishes to have an
  abortion without the notification to and consent of [either of her
  parents or] a parent, managing conservator, or guardian; [and]
               (4)  a statement as to whether the minor has retained an
  attorney and, if she has retained an attorney, the name, address,
  and telephone number of her attorney; and
               (5)  a statement about the minor's current residence,
  including the minor's physical address, mailing address, and
  telephone number.
         (e)  The court shall appoint a guardian ad litem for the
  minor who shall represent the best interest of the minor. If the
  minor has not retained an attorney, the court shall appoint an
  attorney to represent the minor. The [If the] guardian ad litem may
  not also [is an attorney admitted to the practice of law in this
  state, the court may appoint the guardian ad litem to] serve as the
  minor's attorney ad litem.
         (g)  The court shall fix a time for a hearing on an
  application filed under Subsection (a) and shall keep a record of
  all testimony and other oral proceedings in the action. [The court
  shall enter judgment on the application immediately after the
  hearing is concluded.]
         (g-1)  The pregnant minor must appear before the court in
  person and may not appear using videoconferencing, telephone
  conferencing, or other remote electronic means.
         (h)  The court shall rule on an application submitted under
  this section and shall issue written findings of fact and
  conclusions of law not later than 5 p.m. on the fifth [second]
  business day after the date the application is filed with the court.
  On request by the minor, the court shall grant an extension of the
  period specified by this subsection. If a request for an extension
  is made, the court shall rule on an application and shall issue
  written findings of fact and conclusions of law not later than 5
  p.m. on the fifth [second] business day after the date the minor
  states she is ready to proceed to hearing. If the court fails to
  rule on the application and issue written findings of fact and
  conclusions of law within the period specified by this subsection,
  the application is deemed to be denied [granted and the physician
  may 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]. If the court
  authorizes the minor to consent to the abortion under this
  subsection, the court clerk shall issue to the physician who is to
  perform the abortion a certificate showing that the court granted
  the application. Proceedings under this section shall be given
  precedence over other pending matters to the extent necessary to
  assure that the court reaches a decision promptly, regardless of
  whether the minor is granted an extension under this subsection.
         (i)  The court shall determine by clear and convincing [a
  preponderance of the] evidence, as described by Section 101.007,
  whether the minor has overcome the presumption that notifying and
  requesting consent from a parent, managing conservator, or guardian
  is in the minor's best interest. In making a determination under
  this subsection, the court shall consider:
               (1)  whether the minor is mature and sufficiently well
  informed to make the decision to have an abortion performed without
  notification to or consent of a parent, [either of her parents or a]
  managing conservator, or guardian;
               (2)  [,] whether the abortion [notification] would
  [not] be in the best interest of the minor; and
               (3)  [, or] whether notification or the attempt to
  obtain consent may lead to physical, sexual, or emotional abuse of
  the minor, as described by Section 261.001.
         (i-1)  In determining whether the minor meets the
  requirements of Subsection (i)(1), the court shall consider the
  experience, perspective, and judgment of the minor. The court may
  consider all relevant factors, including:
               (1)  the minor's age;
               (2)  the minor's life experiences, such as working,
  traveling independently, or managing her own financial affairs;
               (3)  steps taken by the minor to explore her options and
  the consequences of those options; and
               (4)  the minor's decision not to notify and obtain
  consent from a parent, managing conservator, or guardian.
         (i-2)  In determining whether the abortion is in the best
  interest of the minor, the court may:
               (1)  inquire as to the minor's reasons for seeking an
  abortion;
               (2)  consider the degree to which the minor is informed
  about the state-published informational materials described by
  Chapter 171, Health and Safety Code; and
               (3)  require the minor to be evaluated by a licensed
  mental health counselor, who shall return the evaluation to the
  court for review within three business days.
         (i-3)  If the court finds that the minor is mature and
  sufficiently well informed, that the abortion [notification] would
  [not] be in the minor's best interest, or that notification or the
  attempt to obtain consent may lead to physical, sexual, or
  emotional abuse of the minor, the court shall enter an order
  authorizing the minor to consent to the performance of the abortion
  without notification to and consent of a parent, [either of her
  parents or a] managing conservator, or guardian and shall execute
  the required forms.
         (j)  If the court finds that the minor does not meet the
  requirements of Subsection (i-3) [(i)], the court may not authorize
  the minor to consent to an abortion without the notification
  authorized under Section 33.002(a)(1) and consent under Section
  33.0021.
         (k)  The court may not notify a parent, managing conservator,
  or guardian that the minor is pregnant or that the minor wants to
  have an abortion. The court proceedings shall be conducted in a
  manner that protects the anonymity of the minor. The application
  and all other court documents pertaining to the proceedings are
  confidential and privileged and are not subject to disclosure under
  Chapter 552, Government Code, or to discovery, subpoena, or other
  legal process. The minor may file the application using a pseudonym
  or using only her initials. Confidential records pertaining to a
  minor under this subsection may be disclosed to the minor.
         (l)  An order of the court issued under this section is
  confidential and privileged and is not subject to disclosure under
  Chapter 552, Government Code, or discovery, subpoena, or other
  legal process. The order may not be released to any person but the
  pregnant minor, the pregnant minor's guardian ad litem, the
  pregnant minor's attorney, the physician who is to perform the
  abortion, another person designated to receive the order by the
  minor, or a governmental agency or attorney in a criminal or
  administrative action seeking to assert or protect the interest of
  the minor. The supreme court may adopt rules to permit confidential
  docketing of an application under this section.
         (l-1)  The clerk of the court, at intervals prescribed by the
  Office of Court Administration of the Texas Judicial System, shall
  submit a report to the office that includes, for each case filed
  under this section:
               (1)  the case number and style;
               (2)  the applicant's county of residence;
               (3)  the court of appeals district in which the
  proceeding occurred;
               (4)  the date of filing;
               (5)  the date of disposition; and
               (6)  the disposition of the case.
         (l-2)  The Office of Court Administration of the Texas
  Judicial System shall annually compile and publish a report
  aggregating the data received under Subsections (l-1)(2), (3), and
  (6). A report under this subsection must protect the anonymity of
  all minors and judges that are the subject of the report.
         (o)  A minor who has filed an application under this section
  may not withdraw or otherwise non-suit her application without the
  permission of the court.
         (p)  Except as otherwise provided by Subsection (q), a minor
  who has filed an application and has obtained a determination by the
  court as described by Subsection (i) may not initiate a new
  application proceeding and the prior proceeding is res judicata of
  the issue relating to the determination of whether the minor may or
  may not be authorized to consent to the performance of an abortion
  without the consent of and notification to a parent, managing
  conservator, or guardian.
         (q)  A minor whose application is denied may subsequently
  submit an application to the court that denied the application if
  the minor shows that there has been a material change in
  circumstances since the time the court denied the application.
         (r)  An attorney retained by the minor to assist her in
  filing an application under this section shall fully inform himself
  or herself of the minor's prior application history, including the
  representations made by the minor in the application regarding her
  address, proper venue in the county in which the application is
  filed, and whether a prior application has been filed and
  initiated. If an attorney assists the minor in the application
  process in any way, with or without payment, the attorney
  representing the minor must attest to the truth of the minor's
  claims regarding the venue and prior applications in a sworn
  statement.
         SECTION 5.  Section 33.004, Family Code, is amended by
  amending Subsection (b) and adding Subsection (c-1) to read as
  follows:
         (b)  The court of appeals shall rule on an appeal under this
  section not later than 5 p.m. on the fifth [second] business day
  after the date the notice of appeal is filed with the court that
  denied the application. On request by the minor, the court shall
  grant an extension of the period specified by this subsection. If a
  request for an extension is made, the court shall rule on the appeal
  not later than 5 p.m. on the fifth [second] business day after the
  date the minor states she is ready to proceed. If the court of
  appeals fails to rule on the appeal within the period specified by
  this subsection, the appeal is deemed to be denied [granted and the
  physician may 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].  If the court
  authorizes the minor to consent to the abortion under this
  subsection, the court clerk shall issue to the physician who is to
  perform the abortion a certificate showing that the court granted
  the application. Proceedings under this section shall be given
  precedence over other pending matters to the extent necessary to
  assure that the court reaches a decision promptly, regardless of
  whether the minor is granted an extension under this subsection.
         (c-1)  Notwithstanding Subsection (c), the court of appeals
  may publish an opinion relating to a ruling under this section if
  the opinion is written in a way to preserve the confidentiality of
  the identity of the pregnant minor.
         SECTION 6.  Chapter 33, Family Code, is amended by adding
  Section 33.0065 to read as follows:
         Sec. 33.0065.  RECORDS. The clerk of the court shall retain
  the records for each case before the court under this chapter in
  accordance with rules for civil cases and grant access to the
  records to the minor who is the subject of the proceeding.
         SECTION 7.  Section 33.008, Family Code, is amended to read
  as follows:
         Sec. 33.008.  PHYSICIAN'S DUTY TO REPORT ABUSE OF A MINOR;
  INVESTIGATION AND ASSISTANCE. (a) If a minor claims to have been
  physically or sexually abused or a [A] physician or physician's
  agent [who] has reason to believe that a minor has been [or may be]
  physically or sexually abused [by a person responsible for the
  minor's care, custody, or welfare, as that term is defined by
  Section 261.001], the physician or physician's agent shall
  immediately report the suspected abuse and the name of the abuser to
  the Department of Family and Protective Services and to a local law
  enforcement agency and shall refer the minor to the department for
  services or intervention that may be in the best interest of the
  minor. The local law enforcement agency shall respond and shall
  write a report within 24 hours of being notified of the alleged
  abuse. A report shall be made regardless of whether the local law
  enforcement agency knows or suspects that a report about the abuse
  may have previously been made.
         (b)  The appropriate local law enforcement agency and the
  Department of Family and Protective Services shall investigate
  suspected abuse reported under this section and, if warranted
  [appropriate], shall refer the case to the appropriate prosecuting
  authority [assist the minor in making an application with a court
  under Section 33.003].
         (c)  When the local law enforcement agency responds to the
  report of physical or sexual abuse as required by Subsection (a), a
  law enforcement officer or appropriate agent from the Department of
  Family and Protective Services may take emergency possession of the
  minor without a court order to protect the health and safety of the
  minor as described by Chapter 262.
         SECTION 8.  Chapter 33, Family Code, is amended by adding
  Section 33.0085 to read as follows:
         Sec. 33.0085.  DUTY OF JUDGE OR JUSTICE TO REPORT ABUSE OF
  MINOR. (a) Notwithstanding any other law, a judge or justice who,
  as a result of court proceedings conducted under Section 33.003 or
  33.004, has reason to believe that a minor has been or may be
  physically or sexually abused shall:
               (1)  immediately report the suspected abuse and the
  name of the abuser to the Department of Family and Protective
  Services and to a local law enforcement agency; and
               (2)  refer the minor to the department for services or
  intervention that may be in the best interest of the minor.
         (b)  The appropriate local law enforcement agency and the
  Department of Family and Protective Services shall investigate
  suspected abuse reported under this section and, if warranted,
  shall refer the case to the appropriate prosecuting authority.
         SECTION 9.  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,
  33.0085, 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 10.  (a)  Section 33.002, Family Code, as amended by
  this Act, applies only to an offense committed on or after the
  effective date of this Act.  An offense committed before the
  effective date of this Act is governed by the law in effect on the
  date the offense was committed, and the former law is continued in
  effect for that purpose.  For purposes of this section, an offense
  was committed before the effective date of this Act if any element
  of the offense occurred before that date.
         (b)  Sections 33.003 and 33.004, Family Code, as amended by
  this Act, apply only to a petition filed on or after the effective
  date of this Act. A petition filed before the effective date of
  this Act is governed by the law in effect on the date the petition
  was filed, and the former law is continued in effect for that
  purpose.
         (c)  The Office of Court Administration of the Texas Judicial
  System is not required to publish the initial report under Section
  33.003(l-2), Family Code, as added by this Act, before January 1,
  2017.
         SECTION 11.  Every provision in this Act and every
  application of the provisions in this Act are severable from each
  other. If any application of any provision in this Act to any
  person or group of persons or circumstances is found by a court to
  be invalid, the remainder of this Act and the application of the
  Act's provisions to all other persons and circumstances may not be
  affected. All constitutionally valid applications of this Act
  shall be severed from any applications that a court finds to be
  invalid, leaving the valid applications in force, because it is the
  legislature's intent and priority that the valid applications be
  allowed to stand alone. Even if a reviewing court finds a provision
  of this Act invalid in a large or substantial fraction of relevant
  cases, the remaining valid applications shall be severed and
  allowed to remain in force.
         SECTION 12.  This Act takes effect January 1, 2016.
 
  * * * * *