CHAPTER 33. NOTICE OF ABORTION
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.