HBA-SEB C.S.H.B. 3423 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 3423
By: Morrison
Juvenile Justice and Family Issues
4/15/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Current law does not authorize a provider of emergency medical services to
take possession of an unwanted baby.  If a parent of an unwanted baby left
the baby at an emergency medical facility, the baby could receive any
necessary medical attention and could then be turned over to the Department
of Protective and Regulatory Services (DPRS) for the next steps.   

C.S.H.B. 3423 requires an emergency medical care provider to take
possession of a child 30 days old or younger if the parent or other person
who is entitled to possess the child voluntarily leaves the child with the
provider and does not express an intent to return for the child.  It also
requires the provider to immediately notify DPRS so that DPRS may make
arrangements for the child's care, custody, and control.  In the event that
a parent or other person chooses to voluntarily leave the child in the
possession of an emergency health care provider, the person may use that
choice as an affirmative defense to a charge of abandoning or endangering a
child.     

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 161.001, Family Code, to authorize a court to
order the termination of a parent-child relationship if the court finds by
clear and convincing evidence that the parent has been the cause of the
child being born addicted to alcohol or a controlled substance, other than
a prescription, as defined by Section 261.001 (Definitions), rather than
Section 261.001(7) (definition of born addicted to alcohol or a controlled
substance).  Authorizes the court to terminate the relationship if the
court finds that the parent has voluntarily delivered the child to an
emergency medical services provider (provider) under Section 262.301
without expressing an intent to return for the child.  Makes a conforming
change. 

SECTION 2.  Amends Chapter 262, Family Code, by adding Subchapter D, as
follows: 

SUBCHAPTER D.  EMERGENCY POSSESSION OF 
CERTAIN ABANDONED CHILDREN 

Sec. 262.301.  ACCEPTING POSSESSION OF CERTAIN ABANDONED CHILDREN. Requires
a provider licensed under Chapter 773, Health and Safety Code (Emergency
Medical Services), to take possession of a child who is 30 days old or
younger if the child is voluntarily delivered to the provider by the
child's parent and the parent did not express an intent to return for the
child.  Requires a provider to perform any act necessary to protect the
physical health or safety of a child taken into possession by the provider.

Sec. 262.302.  NOTIFICATION OF POSSESSION OF ABANDONED CHILD.  Requires the
provider to notify the Department of Protective and Regulatory Services
(DPRS) that the provider has taken possession of a child under Section
262.301.  Requires the notification to take place not later than the close
of the first business day after taking possession of the child.  Requires
DPRS to assume the care, control, and custody of the child immediately
upon receipt of the notice.    

Sec. 262.303.  FILING PETITION AFTER ACCEPTING POSSESSION OF ABANDONED
CHILD.  Requires DPRS to treat a child for whom DPRS has assumed care,
control, and custody under Section 262.302 as a child taken into possession
without a court order. Requires DPRS to take action as required by Section
262.105 (Filing Petition After Taking Possession of Child in Emergency)
with regard to the child.   

SECTION 3.  Amends Section 22.041, Penal Code, by adding Subsection (h), to
provide that it is an affirmative defense to prosecution under Subsection
(b) if the actor voluntarily delivers a child to a provider under Section
262.301, Family Code.  Subsection (b) provides that a person having
custody, care, or control of a child younger than 15 years commits an
offense if the person intentionally abandons the child in any place under
circumstances that expose the child to an unreasonable risk of harm.   

SECTION 4.  Makes application of the change in law made by Section 161.001,
Family Code, as amended by this Act, prospective. 

SECTION 5.  Makes application of the change in law made by Section
22.041(h), Penal Code, as added by this Act, prospective.   

SECTION 6.  Effective date: September 1, 1999.

SECTION 7.  Emergency clause.   

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute makes a conforming change in the caption.

The substitute modifies the original by deleting the text of SECTIONS 1, 2,
3, and 5 of the original. The substitute redesignates SECTIONS 4, 6, 7, and
8 of the original to SECTIONS 1, 3, 6, and 7 of the substitute.  The
substitute also adds new text for SECTIONS 2, 4, and 5, which amend
different sections of the law, but maintain the theme of the original bill.

The substitute modifies SECTION 1, as redesignated from SECTION 4 of the
original, by amending Section 161.001, Family Code, to authorize a court to
order the termination of a parent-child relationship if the court finds by
clear and convincing evidence that the parent has voluntarily delivered the
child to an emergency medical services provider (provider) without
expressing an intent to return for the child.  The original would not have
mentioned the parent's intention to return for the child. The substitute
also authorizes the court to terminate the relationship if the court finds
that the parent has been the cause of the child being born addicted to
alcohol or a controlled substance, other than a prescription, as defined by
Section 261.001 (Definitions), rather than Section 261.001(7) (definition
of born addicted to alcohol or a controlled substance).   

SECTION 1 of the original, which is now deleted, would have amended Section
262.004, Family Code, to make requirements substantially similar to those
that appear in SECTION 2 of the substitute.   

The substitute adds new text for SECTION 2 of the substitute to amend
Chapter 262, Family Code, by adding Subchapter D (Emergency Possession of
Certain Abandoned Children).  Specifications in Subchapter D, composed of
Section 262.301 (Accepting Possession of Certain Abandoned Children),
Section 262.302 (Notification of Possession of Abandoned Child), and
Section 262.303 (Filing Petition After Accepting Possession of Abandoned
Child), that differ from the original are as follows: 

Sec. 262.301.  Requires a provider to take possession of a child who is 30
days old or younger, rather than under six months of age, and who is
voluntarily delivered by a parent who did not express an intent to return
for the child.   

 Sec. 262.303.  Requires DPRS to treat a child for whom DPRS has assumed
care, control, and custody as a child taken into possession without a court
order.  Requires DPRS to take action as required by Section 262.105 (Filing
Petition After Taking Possession of Child in Emergency) with regard to the
child.  

SECTION 2 of the original, which is now deleted, would have amended Section
262.005, Family Code, to require DPRS to cause a suit to be filed not later
than the 30th day after a child was taken into possession through voluntary
delivery of the child to a provider. 

The substitute modifies SECTION 3 of the substitute, as redesignated from
SECTION 6 of the original, to amend Section 22.041, Penal Code, by adding
Subsection (h), rather than Subsection (g). Subsection (h) provides that it
is an affirmative defense, rather than a defense, to prosecution under
Section 22.041(b), rather than proposed Section 262.004(b), which no longer
exists.  Section 22.041(b) provides that a person having custody, care, or
control of a child younger than 15 years commits an offense if the person
intentionally abandons the child in any place under circumstances that
expose the child to an unreasonable risk of harm.   

SECTION 3 of the original, which is now deleted, would have amended Section
262.008, Family Code, to make a conforming change with respect to proposed
Section 262.004(b), which is also deleted. 

SECTION 4 of the substitute adds a prospective clause with respect to
Section 161.001, Family Code, as amended by this Act.   

SECTION 5 of the substitute adds a prospective clause with respect to
Section 22.041(h), Penal Code, as added by this Act.   

SECTION 5 of the original, which is now deleted, would have amended Chapter
773, Health and Safety Code, by adding Section 773.0573, to make
requirements substantially similar to those specified in SECTION 2 of the
substitute.