CHAPTER 33. NOTICE OF ABORTION - Texas Statutes

FAMILY CODE

TITLE 2. CHILD IN RELATION TO THE FAMILY

SUBTITLE A. LIMITATIONS OF MINORITY

CHAPTER 33. NOTICE OF ABORTION

Sec. 33.001. DEFINITIONS. In this chapter:

(1) "Abortion" means the use of any means to terminate the

pregnancy of a female known by the attending physician to be

pregnant, with the intention that the termination of the

pregnancy by those means will with reasonable likelihood cause

the death of the fetus. This definition, as applied in this

chapter, applies only to an unemancipated minor known by the

attending physician to be pregnant and may not be construed to

limit a minor's access to contraceptives.

(2) "Fetus" means an individual human organism from

fertilization until birth.

(3) "Guardian" means a court-appointed guardian of the person of

the minor.

(4) "Physician" means an individual licensed to practice

medicine in this state.

(5) "Unemancipated minor" includes a minor who:

(A) is unmarried; and

(B) has not had the disabilities of minority removed under

Chapter 31.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999.

Sec. 33.002. PARENTAL NOTICE. (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 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;

(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 Health and

in the patient's medical record the medical indications

supporting the physician's judgment that the circumstances

described by Paragraph (A) exist.

(b) If a person to whom notice may be given under Subsection

(a)(1) cannot be notified after a reasonable effort, a physician

may perform an abortion if the physician gives 48 hours

constructive notice, by certified mail, restricted delivery, sent

to the last known address, to the person to whom notice may be

given under Subsection (a)(1). The period under this subsection

begins when the notice is mailed. If the person required to be

notified is not notified within the 48-hour period, the abortion

may proceed even if the notice by mail is not received.

(c) The requirement that 48 hours actual notice be provided

under this section may be waived by an affidavit of:

(1) a parent of the minor, if the minor has no managing

conservator or guardian; or

(2) a court-appointed managing conservator or guardian.

(d) A physician may execute for inclusion in the minor's medical

record an affidavit stating that, according to the best

information and belief of the physician, notice or constructive

notice has been provided as required by this section. Execution

of an affidavit under this subsection creates a presumption that

the requirements of this section have been satisfied.

(e) The Texas Department of Health shall prepare a form to be

used for making the certification required by Subsection (a)(4).

(f) A certification required by Subsection (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)(4). The physician must keep the medical records on the minor

in compliance with the rules adopted by the Texas State Board of

Medical Examiners under Section 153.003, Occupations Code.

(g) A physician who intentionally performs an abortion on a

pregnant unemancipated minor in violation of this section commits

an offense. An offense under this subsection is punishable by a

fine not to exceed $10,000. In this subsection, "intentionally"

has the meaning assigned by Section 6.03(a), Penal Code.

(h) 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)(4), the defendant may seek a

hearing before the Texas State Board of Medical 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 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.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.741,

eff. Sept. 1, 2001.

Sec. 33.003. JUDICIAL APPROVAL. (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 either of

her parents or a managing conservator or guardian.

(b) The application may be filed in any county court at law,

court having probate jurisdiction, or district court, including a

family district court, in 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 of either of her parents or a 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.

(d) The clerk of the court shall deliver a courtesy copy of the

application made under this section to the judge who is to hear

the application.

(e) The court shall appoint a guardian ad litem for the minor.

If the minor has not retained an attorney, the court shall

appoint an attorney to represent the minor. If the guardian ad

litem 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.

(f) The court may appoint to serve as guardian ad litem:

(1) a person who may consent to treatment for the minor under

Sections 32.001(a)(1)-(3);

(2) a psychiatrist or an individual licensed or certified as a

psychologist under Chapter 501, Occupations Code;

(3) an appropriate employee of the Department of Protective and

Regulatory Services;

(4) a member of the clergy; or

(5) another appropriate person selected by the court.

(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.

(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 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 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 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. 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.

(i) The court shall determine by a preponderance of the evidence

whether the minor is mature and sufficiently well informed to

make the decision to have an abortion performed without

notification to either of her parents or a managing conservator

or guardian, whether notification would not be in the best

interest of the minor, or whether notification may lead to

physical, sexual, or emotional abuse of the minor. If the court

finds that the minor is mature and sufficiently well informed,

that notification would not be in the minor's best interest, or

that notification 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 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), the court may not authorize the

minor to consent to an abortion without the notification

authorized under Section 33.002(a)(1).

(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.

(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, 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.

(m) The clerk of the supreme court shall prescribe the

application form to be used by the minor filing an application

under this section.

(n) A filing fee is not required of and court costs may not be

assessed against a minor filing an application under this

section.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.742,

eff. Sept. 1, 2001.

Sec. 33.004. APPEAL. (a) A minor whose application under

Section 33.003 is denied may appeal to the court of appeals

having jurisdiction over civil matters in the county in which the

application was filed. On receipt of a notice of appeal, the

clerk of the court that denied the application shall deliver a

copy of the notice of appeal and record on appeal to the clerk of

the court of appeals. On receipt of the notice and record, the

clerk of the court of appeals shall place the appeal on the

docket of the court.

(b) The court of appeals shall rule on an appeal under this

section not 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. 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 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 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. 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.

(c) A ruling of the court of appeals 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 ruling may not be released to any person

but the pregnant minor, the pregnant minor's guardian ad litem,

the pregnant minor's attorney, another person designated to

receive the ruling 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 appeal under this

section.

(d) The clerk of the supreme court shall prescribe the notice of

appeal form to be used by the minor appealing a judgment under

this section.

(e) A filing fee is not required of and court costs may not be

assessed against a minor filing an appeal under this section.

(f) An expedited confidential appeal shall be available to any

pregnant minor to whom a court of appeals denies an order

authorizing the minor to consent to the performance of an

abortion without notification to either of her parents or a

managing conservator or guardian.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999.

Sec. 33.005. AFFIDAVIT OF PHYSICIAN. (a) A physician may

execute for inclusion in the minor's medical record an affidavit

stating that, after reasonable inquiry, it is the belief of the

physician that:

(1) the minor has made an application or filed a notice of an

appeal with a court under this chapter;

(2) the deadline for court action imposed by this chapter has

passed; and

(3) the physician has been notified that the court has not

denied the application or appeal.

(b) A physician who in good faith has executed an affidavit

under Subsection (a) may rely on the affidavit and may perform

the abortion as if the court had issued an order granting the

application or appeal.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999.

Sec. 33.006. GUARDIAN AD LITEM IMMUNITY. A guardian ad litem

appointed under this chapter and acting in the course and scope

of the appointment is not liable for damages arising from an act

or omission of the guardian ad litem committed in good faith. The

immunity granted by this section does not apply if the conduct of

the guardian ad litem is committed in a manner described by

Sections 107.003(b)(1)-(4).

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999.

Sec. 33.007. COSTS PAID BY STATE. (a) A court acting under

Section 33.003 or 33.004 may issue an order requiring the state

to pay:

(1) the cost of any attorney ad litem and any guardian ad litem

appointed for the minor;

(2) notwithstanding Sections 33.003(n) and 33.004(e), the costs

of court associated with the application or appeal; and

(3) any court reporter's fees incurred.

(b) An order issued under Subsection (a) must be directed to the

comptroller, who shall pay the amount ordered from funds

appropriated to the Texas Department of Health.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999.

Sec. 33.008. PHYSICIAN'S DUTY TO REPORT ABUSE OF A MINOR;

INVESTIGATION AND ASSISTANCE. (a) A physician 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, shall

immediately report the suspected abuse to the Department of

Protective and Regulatory Services and shall refer the minor to

the department for services or intervention that may be in the

best interest of the minor.

(b) The Department of Protective and Regulatory Services shall

investigate suspected abuse reported under this section and, if

appropriate, shall assist the minor in making an application with

a court under Section 33.003.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999.

Sec. 33.009. OTHER REPORTS OF SEXUAL ABUSE OF A MINOR. A court

or the guardian ad litem or attorney ad litem for the minor shall

report conduct reasonably believed to violate Section 21.02,

22.011, 22.021, or 25.02, Penal Code, based on information

obtained during a confidential court proceeding held under this

chapter to:

(1) any local or state law enforcement agency;

(2) the Department of Family and Protective Services, if the

alleged conduct involves a person responsible for the care,

custody, or welfare of the child;

(3) the state agency that operates, licenses, certifies, or

registers the facility in which the alleged conduct occurred, if

the alleged conduct occurred in a facility operated, licensed,

certified, or registered by a state agency; or

(4) an appropriate agency designated by the court.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

593, Sec. 3.27, eff. September 1, 2007.

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 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.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

593, Sec. 3.28, eff. September 1, 2007.

Sec. 33.011. INFORMATION RELATING TO JUDICIAL BYPASS. The Texas

Department of Health shall produce and distribute informational

materials that explain the rights of a minor under this chapter.

The materials must explain the procedures established by Sections

33.003 and 33.004 and must be made available in English and in

Spanish. The material provided by the department shall also

provide information relating to alternatives to abortion and

health risks associated with abortion.

Added by Acts 1999, 76th Leg., ch. 395, Sec. 1, eff. Sept. 1,

1999.