HBA- ALS H.B. 1638 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1638 By: King, Phil State Affairs 3/12/1999 Introduced BACKGROUND AND PURPOSE Currently, a physician is not required to obtain parental consent before performing an abortion on a minor. H.B. 1638 prohibits a physician from performing an abortion on a minor unless written consent is obtained from the minor's parent, managing conservator, or guardian; a judicial order is issued authorizing the minor to consent to the abortion; or the physician concludes that a medical emergency exists and there is insufficient time to obtain the required consent. This bill requires the Texas State Board of Medical Examiners to take disciplinary action against any physician who violates this consent requirement. 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 5 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 Sec. 33.001. DEFINITIONS. Defines "abortion," "fetus," "guardian," "medical emergency," "physician," and "minor." Sec. 33.002. PARENTAL CONSENT. (a) Prohibits a physician from performing an abortion on a pregnant minor unless: (1) a parent, managing conservator, or guardian of the minor consents to the abortion in writing; or (2) a judge having probate jurisdiction, a county court at law judge, district court judge, or appellate court judge issues an order authorizing the minor to consent to the abortion as provided by Sections 33.003 or 33.004; or (3) the physician performing the abortion concludes that a medical emergency exists and there is insufficient time to provide the required notice, and certifies in writing to the Texas Department of Health and in the patient's medical record the indications supporting the physician's judgment that such an emergency exists and there is not sufficient time to provide notice. (b) Requires Texas Department of Health to prepare a certification form to be used under Subsection (a)(3). (c) Requires the Texas State Board of Medical Examiners to take appropriate disciplinary action against a physician who violates this section. Requires complaints and investigations to be conducted pursuant to the Texas Medical Malpractice Act. Sec. 33.003. JUDICIAL APPROVAL. (a) Authorizes a pregnant minor who wishes to have an abortion without the consent of one of her parents, her managing conservator, or her guardian, to file an application requesting a court to authorize the minor to consent to an abortion without parental consent. (b) Establishes that the application may be filed in the district court, county court at law, or a court having probate jurisdiction for the minor's county of residence, a county that borders the minor's county of residence, or the county in which the hospital, clinic, or facility in which the abortion is to be performed is located. (c) Provides that the application must be made under oath and include a statement that the minor is pregnant; unmarried, is under 18 years old and has not had her disabilities removed for general purposes under Chapter 31, Family Code (Removal of Disabilities of Minority [Repealed]); wishes to have an abortion without the notification of either parent, managing conservator or guardian; and whether the minor has retained an attorney, and if so, the attorney's name, address and telephone number. (d) Requires the court to appoint a guardian ad litem for the minor and to appoint an attorney for the minor if one has not been retained. Authorizes the court to appoint the guardian ad litem to serve as the attorney if the guardian ad litem is licensed to practice law in the state. (e) Requires the court to set a time for a hearing on an application under Subsection (a) and keep a record of all testimony and other oral proceedings in the action. Requires the court to enter judgement on the application immediately after the conclusion of the hearing. (f) Requires the court to rule on an application submitted under this section and issue written findings of fact and conclusions of law no later than 5 p.m. on the second business day after the date the application was filed with the court, and authorizes the minor to request an extension. Requires the court to give the proceedings under this section precedence over other pending matters to the extent necessary to ensure that the court reaches a prompt decision. (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 without the required consent, and whether the notification would not be in the best interest of the minor. If the court finds that the minor is mature and sufficiently well-informed or that notification would not be in the minor's best interest, the court is required to enter an order authorizing the minor to consent to the abortion without the consent of her parents, managing conservator, or guardian. (h) Prohibits the court from authorizing the minor to consent to an abortion without the notification under Section 33.002(a)(1) if the court finds that the minor does not meet the requirements outlined in Subsection (g). (i) Prohibits the court from notifying a parent, managing conservator, or guardian that the minor is pregnant 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. Establishes the confidentiality of the application and all other documents pertaining to the proceedings and prohibits their distribution to the public. Authorizes the filing of the application using a pseudonym or an individual's initials. (j) Requires the clerk of the Supreme Court to prescribe the application form to be used by the minor filing the application. (k) Provides that a filing fee is not required, and prohibits charging court costs against a minor filing an appeal under this section. Sec. 33.004. APPEAL TO APPELLATE COURT. (a) Authorizes a minor, whose application under Section 33.003 is denied, to appeal to the appellate court having jurisdiction over the cause. Requires the district clerk of the court that denied the application, upon receipt of a notice of appeal, to deliver a copy of the notice and record on appeal to the clerk of the court of appeals who is then required to place the appeal on the court docket. (b) Requires the appellate court to rule on the appeal under this section no later than 5 p.m. on the second business day after the date the notice of appeal is filed. Authorizes the minor to request an extension of that period. Requires the appellate court to give proceedings under this section precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly. (c) Requires the clerk of the Supreme Court to prescribe the notice of appeal form used by the minor appealing a judgment under this section. (d) Prohibits requiring a minor who is filing an appeal under this section to post an appeal bond. SECTION 2. Effective date: September 1, 1999. SECTION 3. Makes application of this Act prospective. SECTION 4. Requires the Texas Board of Health to adopt the form to be used under Section 33.002(a)(3), no later than August 1, 1999. SECTION 5. Requires the Supreme Court to promptly issue rules necessary to ensure that proceedings under Sections 33.003 and 33.004, Family Code, are conducted in a manner ensuring confidentiality and have sufficient precedence to ensure prompt disposition. SECTION 6. Requires the clerk of the Supreme Court of Texas to adopt the application and notice of appeal forms to be used under Sections 33.003 and 33.004, no later than August 1, 1999. SECTION 7. Emergency clause.