HBA-DMD H.B. 343 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 343
By: Wohlgemuth
State Affairs
2/10/1999
Introduced



BACKGROUND AND PURPOSE 

Currently, the Texas Family Code requires a child to obtain parental
consent before any surgical procedure is performed on the child.  This
current law is inconsistent with U.S. Supreme Court rulings that have
struck down certain parental consent laws which do not contain a judicial
bypass. H.B. 343 authorizes minors who are seeking an abortion to obtain
judicial approval for the abortion if the minor does not wish to obtain the
parental consent otherwise required by the bill and authorizes the
physician to perform the abortion in the absence of parental consent
provided that the physician concludes that a medical emergency exists and
there is insufficient time to obtain consent or approval.  The bill also
establishes penalties for physicians who do not follow consent guidelines. 

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 6
(Family Code) 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 CONSENT. (a) Prohibits a physician from performing
an abortion on a pregnant minor without consent from a parent, managing
conservator, or guardian; or unless the physician receives authorization
for the abortion from the judge of a court having probate jurisdiction, the
judge of a county court at law, a district court, or the court of appeals
as provided by Section 33.003, 33.004, or 33.005; or unless any such court,
by its inaction, constructively authorizes the minor to consent to an
abortion, or the physician performing the abortion on a pregnant minor
concludes that a medical emergency exists and there is insufficient time to
obtain consent and the physician certifies in writing to the Texas
Department of Health (department) and in the patient's medical record that
the medical circumstances support the decision. 

(b) Requires the department to prepare a form certifying that there is a
medical emergency with insufficient time to obtain appropriate consent. 

(c) Sets forth that a physician who violates this section commits the
offense of a Class A misdemeanor. 

Sec. 33.003.  JUDICIAL APPROVAL. (a) Authorizes a pregnant minor who wishes
to have an abortion without the consent of either of her parents, managing
conservator, or guardian to apply for a court order authorizing the minor
to consent to an abortion without the consent of either of her parents or a
managing conservator or guardian. 

(b) Authorizes an application to be filed in a county court at law or court
having probate  jurisdiction for the county in which the minor resides, a
county that borders a county in which the minor resides, or the county in
which the hospital, clinic, or facility in which the abortion would be
performed is located. 

(c) Establishes that the application must be made under oath and include a
statement that the minor is pregnant, unmarried, under 18 years of age, and
has not had her disabilities removed for general purposes under Chapter 31;
the minor wishes to have an abortion without the consent of either of her
parents, managing conservator, or guardian; and states whether the minor
has retained an attorney and what the name, address, and telephone number
of the attorney is, if one has been retained. 

(d) Requires the court to appoint for the minor a guardian ad litem, and an
attorney, if she has not retained one, and authorizes the court to appoint
the guardian ad litem to serve concurrently as the minor's attorney if the
appointed guardian ad litem is an attorney licensed to practice law in this
state. 

(e) Requires the court to set a hearing time for the application filed
under Subsection (a), to keep a record of all testimony and oral
proceedings, and to enter judgment on the application immediately after the
hearing is concluded. 

(f) Requires the court to rule on the application and issue written
findings of fact and conclusions of law not later than 5 p.m. on the second
business day after the date the application is filed with the court and
authorizes the minor to request an extension of that period.  Establishes
that if the court does not rule and issue written findings and conclusions
on the specified date, the application is granted and the physician is
authorized to perform the abortion as if the court order had been issued.
Requires the court to give precedence to proceedings under this section
over other pending matters to the extent necessary to ensure that the court
reaches a decision promptly.  

(g) Requires the court to determine by a preponderance of the evidence if
the minor is mature and sufficiently well-informed to decide on abortion
without the consent of either of her parents, managing conservator, or
guardian, or whether requiring that consent would not be in the best
interest of the minor.  Requires the court to enter an order authorizing
the minor to consent to an abortion and execute the required forms if the
court finds that the minor is mature and sufficiently well-informed or that
requiring consent is not in the minor's best interest. 

(h) Prohibits the court from authorizing the minor to have an abortion
without the consent of either of her parents, managing conservator, or
guardian if the requirements in Subsection (g) are not met. 

(i) Prohibits the court from informing a parent, managing conservator, or
guardian that the minor is pregnant and is seeking an abortion and requires
that the court proceedings and all related materials  be kept confidential
and the minor's anonymity be protected and authorizes the minor to use a
pseudonym or her initials when filing the application. 

(j) Requires the clerk of the supreme court to prescribe the application
form to be used by the minor when filing an application under this section. 

(k) Establishes that a filing fee is not required and prohibits court costs
from being assessed against a minor filing an application under this
section. 

Sec. 33.004.  APPEAL TO DISTRICT COURT. (a) Authorizes a minor whose
application was denied to appeal to the district court that has
jurisdiction over civil matters in the county in which it was filed. Upon
receiving the notice of appeal, the clerk of the court that denied the
application is required to deliver a copy of the notice of appeal and
record on appeal to the clerk of the district court.  Requires the clerk of
the district court, upon receipt of the notice and record, to place the
appeal on the court docket.   

 (b) Requires the district court to rule on the appeal not later than 5
p.m. on the second business day after the date the appeal is filed with the
court and authorizes the minor to request an extension of that period.
Establishes that if the court does not rule on the appeal by the specified
date and an extension was not requested, the appeal is granted and the
physician is authorized to perform the abortion as if a court order had
been issued. Requires the 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 to be used by the minor when appealing a judgment under this
section. 

(d) Establishes that a filing fee is not required and prohibits court costs
from being assessed when a minor is filing an appeal under this section. 

Sec. 33.005.  APPEAL TO APPELLATE COURT. (a) Authorizes a minor whose
application is denied to appeal to the court of appeals that has
jurisdiction.  Requires the clerk of the district court that denied the
application, upon receiving notice of appeal, to deliver a copy of the
notice of appeal and record on appeal to the clerk of the court of appeals.
Requires the clerk of the appellate court, upon receipt of the notice and
record, to place the appeal on the court docket.   

(b) Requires the appeals court to rule on the appeal not later than 5p.m.
on the second business day after the date the appeal is filed and
authorizes the minor to request an extension of that period.  Establishes
that if the court does not rule on the appeal by the specified date and an
extension was not requested, the appeal is granted and the physician is
authorized to perform the abortion as if a court order had been issued.
Requires the court of appeals 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 to be used by the minor when appealing a judgment under this
section. 

(d) Prohibits a minor from being required to post an appeal bond when
filing an appeal under this section. 

SECTION 2.  Effective date:  September 1, 1999, except as provided by
Section 4 of this Act. 
           
SECTION 3.  Makes prospective application of this Act to an abortion
performed on or after January 1, 2000. 

SECTION 4.  Effective date for Section 33.002(c):  January 1, 2000.

SECTION 5.  Requires the Texas Board of Health to adopt the form to be used
under Section 33.002(a)(4), Family Code, as added by this Act, not later
than December 15, 1999. 

SECTION 6.  Requires the Texas Supreme Court to issue necessary rules
promptly to ensure that the process established by Sections 33.003, 33.004,
and 33.005, Family Code, as added by this Act, will be conducted in a
manner that will ensure confidentiality and sufficient precedence over all
other pending matters to ensure promptness of disposition. 

SECTION 7.  Requires the clerk of the Texas Supreme Court to adopt the
application form and notice of appeal form to be used under Sections
33.003, 33.004, and 33.005, Family Code, as added by this Act, not later
that December 15, 1999. 

SECTION 8.  Emergency clause.