HBA-ALS, BTC H.B. 342 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 342 By: Wohlgemuth State Affairs 4/12/1999 Introduced BACKGROUND AND PURPOSE Currently, a physician is not required to notify the parent or guardian of a minor of an intent to perform an abortion on that minor. H.B. 342 requires a physician intending to perform an abortion on a minor to notify the parent or guardian of the minor and provides for a judicial bypass of the notification in certain circumstances. Provides that a physician who violates this notification requirement commits a Class A misdemeanor. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Supreme Court 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 Sec. 33.001. DEFINITIONS. Defines "abortion," "fetus," "guardian," "medical emergency," and "physician." Sec. 33.002. PARENTAL NOTICE. (a) Prohibits a physician from performing an abortion on an unemancipated pregnant minor unless: (1) the physician gives at least 48 hours actual notice, in person or by telephone, to a parent of the minor if the minor has no managing conservator or guardian, or a courtappointed managing conservator or guardian, of the physician's intent to perform the abortion; (2) a judge having probate jurisdiction, county court at law 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; (3) a probate court, county court at law, or appellate court, by its inaction, constructively authorizes the minor to consent to the abortion as provided by Sections 33.003 or 33.004; or (4) 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) Authorizes a physician to perform an abortion when a parent, guardian, or conservator cannot be notified after reasonable effort, if the physician gives at least 48 hours constructive notice by certified mail sent to the last known address of the parent, guardian, or conservator. Establishes that the time period under this subsection begins when the certified mail notice is mailed. Provides that the abortion may proceed after expiration of the 48-hour period even if the certified mail notice is not received by the person to whom it is sent. (c) Requires Texas Department of Health to prepare a certification form required by Subsection (a)(4). (d) Provides that a physician who violates this section commits a Class A misdemeanor. Sec. 33.003. JUDICIAL APPROVAL. (a) Authorizes a pregnant unemancipated minor who wishes to have an abortion without notification of one of her parents, managing conservator, or her guardian, to file an application for a court order authorizing the minor to consent to an abortion without notification. (b) Establishes that the application may be filed in the 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, (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. (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. Authorizes the minor to request an extension for the period specified by this subsection. Provides that an application is considered to be 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 fails to rule on the application and an extension is not requested. Requires proceedings under this section to be given 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 notification under Section 33.002, or 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 notification under Section 33.002 and is required to execute the requisite forms. (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. (a) Authorizes a minor, whose application under Section 33.003 is denied, to appeal to the appellate court 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 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 with the court that denied the application. Authorizes the minor to request an extension of the period specified in this subsection. Provides that the application is considered to be 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 fails to rule on the appeal within the period specified by this subsection and an extension is not requested. Requires that proceedings under this section be given 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) Provides that a filing fee is not required, and prohibits charging court costs against a minor filing an appeal under this section. (e) Requires an expedited confidential appeal be made available to a pregnant minor that is denied by an appellate court an order authorizing the minor to consent to the performance of an abortion without notification under Section 33.002. SECTION 2. Requires the Supreme Court to promptly issue rules necessary in order 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 3. Effective date: September 1, 1999, except as provided in Sections 4 and 5. SECTION 4. Provides that Chapter 33, Family Code, as added by this Act, applies only to an abortion performed on or after January 1, 2000. SECTION 5. Effective date: January 1, 2000, for Section 33.002(d). SECTION 6.Requires the Texas Board of Health to adopt the form to be used under Section 33.002(a) before December 15, 1999. SECTION 7.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, before December 15, 1999. 3/11/1999