CHAPTER 245. ABORTION FACILITIES
HEALTH AND SAFETY CODE
TITLE 4. HEALTH FACILITIES
SUBTITLE B. LICENSING OF HEALTH FACILITIES
CHAPTER 245. ABORTION FACILITIES
Sec. 245.001. SHORT TITLE. This chapter may be cited as the
Texas Abortion Facility Reporting and Licensing Act.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 245.002. DEFINITIONS. In this chapter:
(1) "Abortion" means an act or procedure performed after
pregnancy has been medically verified and with the intent to
cause the termination of a pregnancy other than for the purpose
of either the birth of a live fetus or removing a dead fetus. The
term does not include birth control devices or oral
contraceptives.
(2) "Abortion facility" means a place where abortions are
performed.
(3) "Board" means the Texas Board of Health.
(4) "Department" means the Texas Department of Health.
(5) "Patient" means a female on whom an abortion is performed,
but does not include a fetus.
(6) "Person" means an individual, firm, partnership,
corporation, or association.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 245.003. LICENSE REQUIRED. (a) Except as provided by
Section 245.004, a person may not establish or operate an
abortion facility in this state without an appropriate license
issued under this chapter.
(b) Each abortion facility must have a separate license.
(c) A license is not transferable or assignable.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Text of section as amended by Acts 2003, 78th Leg., Ch. 198, Sec.
2.63 (a).
Sec. 245.004. EXEMPTIONS FROM LICENSING REQUIREMENT. (a) The
following facilities need not be licensed under this chapter:
(1) a hospital licensed under Chapter 241 (Texas Hospital
Licensing Law); or
(2) the office of a physician licensed under Subtitle B, Title
3, Occupations Code, unless the office is used for the purpose of
performing more than 50 abortions in any 12-month period.
(b) In computing the number of abortions performed in the office
of a physician under Subsection (a)(2), an abortion performed in
accordance with Section 245.016 is not included.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1999, 76th Leg., ch. 1411, Sec. 22.01, eff. Sept.
1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.788, eff. Sept.
1, 2001; Acts 2003, 78th Leg., ch. 198, Sec. 2.63(a), eff. Sept.
1, 2003.
Text of section as amended by Acts 2003, 78th Leg., Ch. 999, Sec.
2
Sec. 245.004. EXEMPTIONS FROM LICENSING REQUIREMENT. (a) The
following facilities need not be licensed under this chapter:
(1) a hospital licensed under Chapter 241 (Texas Hospital
Licensing Law);
(2) the office of a physician licensed under Subtitle B, Title
3, Occupations Code, unless the office is used substantially for
the purpose of performing abortions; or
(3) an ambulatory surgical center licensed under Chapter 243.
(b) For purposes of this section, a facility is used
substantially for the purpose of performing abortions if the
facility:
(1) is a provider for performing:
(A) at least 10 abortion procedures during any month; or
(B) at least 100 abortion procedures in a year;
(2) operates less than 20 days in a month and the facility, in
any month, is a provider for performing a number of abortion
procedures that would be equivalent to at least 10 procedures in
a month if the facility were operating at least 20 days in a
month;
(3) holds itself out to the public as an abortion provider by
advertising by any public means, including advertising placed in
a newspaper, telephone directory, magazine, or electronic medium,
that the facility performs abortions; or
(4) applies for an abortion facility license.
(c) For purposes of this section, an abortion facility is
operating if the facility is open for any period of time during a
day and has on site at the facility or on call a physician
available to perform abortions.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1999, 76th Leg., ch. 1411, Sec. 22.01, eff. Sept.
1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.788, eff. Sept.
1, 2001; Acts 2003, 78th Leg., ch. 999, Sec. 2, eff. Sept. 1,
2003.
Sec. 245.005. LICENSE APPLICATION AND ISSUANCE. (a) An
applicant for an abortion facility license must submit an
application to the department on a form prescribed by the
department.
(b) Each application must be accompanied by a nonrefundable
license fee in an amount set by the board.
(c) The application must contain evidence that there are one or
more physicians on the staff of the facility who are licensed by
the Texas State Board of Medical Examiners.
(d) The department shall issue a license if, after inspection
and investigation, it finds that the applicant and the abortion
facility meet the requirements of this chapter and the standards
adopted under this chapter.
(e) As a condition for renewal of a license, the licensee must
submit to the department the annual license renewal fee and an
annual report, including the report required under Section
245.011.
(f) Information regarding the licensing status of an abortion
facility is an open record for the purposes of Chapter 552,
Government Code, and shall be made available by the department on
request.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 856, Sec. 2, eff. Sept. 1,
1995.
Sec. 245.006. INSPECTIONS. (a) The department may inspect an
abortion facility at reasonable times as necessary to ensure
compliance with this chapter.
(b) The department shall inspect an abortion facility before
renewing the facility's license under Section 245.005(e).
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 1120, Sec. 1, eff. Sept. 1,
1997.
Sec. 245.007. FEES. The board shall set fees imposed by this
chapter in amounts reasonable and necessary to defray the cost of
administering this chapter and Chapter 171.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 2003, 78th Leg., ch. 999, Sec. 3, eff. Sept. 1,
2003.
Sec. 245.008. ABORTION FACILITY LICENSING FUND. All fees
collected under this chapter shall be deposited in the state
treasury to the credit of the abortion facility licensing fund
and may be appropriated to the department only to administer and
enforce this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 245.009. ADOPTION OF RULES. The board shall adopt rules
necessary to implement this chapter, including requirements for
the issuance, renewal, denial, suspension, and revocation of a
license to operate an abortion facility.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 245.010. MINIMUM STANDARDS. (a) The rules must contain
minimum standards to protect the health and safety of a patient
of an abortion facility and must contain provisions requiring
compliance with the requirements of Subchapter B, Chapter 171.
(b) Only a physician as defined by Subtitle B, Title 3,
Occupations Code, may perform an abortion.
(c) The standards may not be more stringent than Medicare
certification standards, if any, for:
(1) qualifications for professional and nonprofessional
personnel;
(2) supervision of professional and nonprofessional personnel;
(3) medical treatment and medical services provided by an
abortion facility and the coordination of treatment and services,
including quality assurance;
(4) sanitary and hygienic conditions within an abortion
facility;
(5) the equipment essential to the health and welfare of the
patients;
(6) clinical records kept by an abortion facility; and
(7) management, ownership, and control of the facility.
(d) This section does not authorize the board to:
(1) establish the qualifications of a licensed practitioner; or
(2) permit a person to provide health care services who is not
authorized to provide those services under other laws of this
state.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1997, 75th Leg., ch. 23, Sec. 1, eff. Sept. 1,
1997; Acts 2001, 77th Leg., ch. 1420, Sec. 14.789, eff. Sept. 1,
2001; Acts 2003, 78th Leg., ch. 999, Sec. 4, eff. Sept. 1, 2003.
Sec. 245.0105. UNIQUE IDENTIFYING NUMBER; DISCLOSURE IN
ADVERTISEMENT. (a) The department shall assign to each abortion
facility a unique license number that may not change during the
period the facility is operating in this state.
(b) An abortion facility shall include the unique license number
assigned to the facility by the department in any abortion
advertisement directly relating to the provision of abortion
services at the facility.
(c) In this section, "abortion advertisement" means:
(1) any communication that advertises the availability of
abortion services at an abortion facility and that is
disseminated through a public medium, including an advertisement
in a newspaper or other publication or an advertisement on
television, radio, or any other electronic medium; or
(2) any commercial use of the name of the facility as a provider
of abortion services, including the use of the name in a
directory, listing, or pamphlet.
Added by Acts 1997, 75th Leg., ch. 1120, Sec. 2, eff. Sept. 1,
1997.
Sec. 245.011. REPORTING REQUIREMENTS; CRIMINAL PENALTY. (a)
Each abortion facility must submit an annual report to the
department on each abortion that is performed at the abortion
facility. The report must be submitted on a form provided by the
department.
(b) The report may not identify by any means the physician
performing the abortion or the patient.
(c) The report must include:
(1) whether the abortion facility at which the abortion is
performed is licensed under this chapter;
(2) the patient's year of birth, race, marital status, and state
and county of residence;
(3) the type of abortion procedure;
(4) the date the abortion was performed;
(5) whether the patient survived the abortion, and if the
patient did not survive, the cause of death;
(6) the period of gestation based on the best medical judgment
of the attending physician at the time of the procedure;
(7) the date, if known, of the patient's last menstrual cycle;
(8) the number of previous live births of the patient; and
(9) the number of previous induced abortions of the patient.
(d) Except as provided by Section 245.023, all information and
records held by the department under this chapter are
confidential and are not open records for the purposes of Chapter
552, Government Code. That information may not be released or
made public on subpoena or otherwise, except that release may be
made:
(1) for statistical purposes, but only if a person, patient, or
abortion facility is not identified;
(2) with the consent of each person, patient, and abortion
facility identified in the information released;
(3) to medical personnel, appropriate state agencies, or county
and district courts to enforce this chapter; or
(4) to appropriate state licensing boards to enforce state
licensing laws.
(e) A person commits an offense if the person violates this
section. An offense under this subsection is a Class A
misdemeanor.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(90), eff.
Sept. 1, 1995; Acts 1997, 75th Leg., ch. 23, Sec. 2, eff. Sept.
1, 1997; Acts 1997, 75th Leg., ch. 1120, Sec. 3, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 62, Sec. 19.02, eff. Sept. 1,
1999.
Sec. 245.012. DENIAL, SUSPENSION, PROBATION, OR REVOCATION OF
LICENSE. (a) The department may deny, suspend, or revoke a
license for a violation of this chapter or a rule adopted under
this chapter.
(b) The denial, suspension, or revocation of a license by the
department and the appeal from that action are governed by the
procedures for a contested case hearing under Chapter 2001,
Government Code.
(c) The department may immediately suspend or revoke a license
when the health and safety of persons are threatened. If the
department issues an order of immediate suspension or revocation,
the department shall immediately give the chief executive officer
of the abortion facility adequate notice of the action and the
procedure governing appeal of the action. A person whose license
is suspended or revoked under this subsection is entitled to a
hearing not later than the 14th day after the effective date of
the suspension or revocation.
(d) If the department finds that an abortion facility is in
repeated noncompliance with this chapter or rules adopted under
this chapter but that the noncompliance does not in any way
involve the health and safety of the public or an individual, the
department may schedule the facility for probation rather than
suspending or revoking the facility's license. The department
shall provide notice to the facility of the probation and of the
items of noncompliance not later than the 10th day before the
date the probation period begins. The department shall designate
a period of not less than 30 days during which the facility will
remain under probation. During the probation period, the facility
must correct the items that were in noncompliance and report the
corrections to the department for approval.
(e) The department may suspend or revoke the license of an
abortion facility that does not correct items that were in
noncompliance or that does not comply with this chapter or the
rules adopted under this chapter within the applicable probation
period.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff.
Sept. 1, 1995; Acts 1997, 75th Leg., ch. 23, Sec. 3, eff. Sept.
1, 1997; Acts 2003, 78th Leg., ch. 802, Sec. 7, 8, eff. June 20,
2003.
Sec. 245.013. INJUNCTION. (a) The department may petition a
district court for a temporary restraining order to restrain a
continuing violation of the standards or licensing requirements
provided under this chapter if the department finds that the
violation creates an immediate threat to the health and safety of
the patients of an abortion facility.
(b) A district court, on petition of the department and on a
finding by the court that a person is violating the standards or
licensing requirements provided under this chapter, may by
injunction:
(1) prohibit a person from continuing a violation of the
standards or licensing requirements provided under this chapter;
(2) restrain or prevent the establishment or operation of an
abortion facility without a license issued under this chapter; or
(3) grant any other injunctive relief warranted by the facts.
(c) The attorney general may institute and conduct a suit
authorized by this section at the request of the department.
(d) Venue for a suit brought under this section is in the county
in which the abortion facility is located or in Travis County.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 245.014. CRIMINAL PENALTY. (a) A person commits an
offense if the person violates Section 245.003(a).
(b) An offense under this section is a Class A misdemeanor.
(c) Each day of a continuing violation constitutes a separate
offense.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1999, 76th Leg., ch. 1411, Sec. 22.02, eff. Sept.
1, 1999.
Sec. 245.015. CIVIL PENALTY. (a) A person who knowingly
violates this chapter or who knowingly fails to comply with a
rule adopted under this chapter is liable for a civil penalty of
not less than $100 or more than $500 for each violation if the
department determines the violation threatens the health and
safety of a patient.
(b) Each day of a continuing violation constitutes a separate
ground for recovery.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 245.016. ABORTION IN UNLICENSED ABORTION FACILITY TO
PREVENT DEATH OR SERIOUS IMPAIRMENT. This chapter does not
remove the responsibility or limit the ability of a physician to
perform an abortion in an unlicensed abortion facility if, at the
commencement of the abortion, the physician reasonably believes
that the abortion is necessary to prevent the death of the
patient or to prevent serious impairment of the patient's
physical health.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1999, 76th Leg., ch. 1411, Sec. 22.03, eff. Sept.
1, 1999.
Sec. 245.017. ADMINISTRATIVE PENALTY. (a) The department may
assess an administrative penalty against a person who violates
this chapter or a rule adopted under this chapter.
(b) The penalty may not exceed $1,000 for each violation. Each
day of a continuing violation constitutes a separate violation.
(c) In determining the amount of an administrative penalty
assessed under this section, the department shall consider:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter future violations;
(4) efforts made to correct the violation; and
(5) any other matters that justice may require.
(d) All proceedings for the assessment of an administrative
penalty under this chapter are subject to Chapter 2001,
Government Code.
Added by Acts 1997, 75th Leg., ch. 23, Sec. 4, eff. Sept. 1,
1997.
Sec. 245.018. REPORT RECOMMENDING ADMINISTRATIVE PENALTY. (a)
If, after investigation of a possible violation and the facts
surrounding that possible violation, the department determines
that a violation has occurred, the department shall give written
notice of the violation to the person alleged to have committed
the violation. The notice shall include:
(1) a brief summary of the alleged violation;
(2) a statement of the amount of the proposed penalty, based on
the factors listed in Section 245.017(c); and
(3) a statement of the person's right to a hearing on the
occurrence of the violation, the amount of the penalty, or both
the occurrence of the violation and the amount of the penalty.
(b) Not later than the 20th day after the date the notice is
received, the person notified may accept the determination of the
department made under this section, including the recommended
penalty, or make a written request for a hearing on that
determination.
(c) If the person notified of the violation accepts the
determination of the department, the commissioner of public
health or the commissioner's designee shall issue an order
approving the determination and ordering the person to pay the
recommended penalty.
Added by Acts 1997, 75th Leg., ch. 23, Sec. 4, eff. Sept. 1,
1997.
Sec. 245.019. HEARING; ORDER. (a) If the person requests a
hearing, the commissioner of public health or the commissioner's
designee shall:
(1) set a hearing;
(2) give written notice of the hearing to the person; and
(3) designate a hearings examiner to conduct the hearing.
(b) The hearings examiner shall make findings of fact and
conclusions of law and shall promptly issue to the commissioner a
proposal for decision as to the occurrence of the violation and a
recommendation as to the amount of the proposed penalty, if a
penalty is determined to be warranted.
(c) Based on the findings of fact and conclusions of law and the
recommendations of the hearings examiner, the commissioner by
order may find that a violation has occurred and may assess a
penalty or may find that no violation has occurred.
Added by Acts 1997, 75th Leg., ch. 23, Sec. 4, eff. Sept. 1,
1997.
Sec. 245.020. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
JUDICIAL REVIEW; REFUND. (a) The commissioner of public health
or the commissioner's designee shall give notice of the
commissioner's order under Section 245.019(c) to the person
alleged to have committed the violation. The notice must include:
(1) separate statements of the findings of fact and conclusions
of law;
(2) the amount of any penalty assessed; and
(3) a statement of the right of the person to judicial review of
the commissioner's order.
(b) Not later than the 30th day after the date the decision is
final as provided by Chapter 2001, Government Code, the person
shall:
(1) pay the penalty in full;
(2) pay the amount of the penalty and file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation
and the amount of the penalty; or
(3) without paying the amount of the penalty, file a petition
for judicial review contesting the occurrence of the violation,
the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(c) Within the 30-day period, a person who acts under Subsection
(b)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond that is approved by
the court for the amount of the penalty and that is effective
until all judicial review of the commissioner's order is final;
or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court a sworn affidavit of the person
stating that the person is financially unable to pay the amount
of the penalty and is financially unable to give the supersedeas
bond; and
(B) giving a copy of the affidavit to the department by
certified mail.
(d) If the department receives a copy of an affidavit under
Subsection (c)(2), the department may file with the court, within
five days after the date the copy is received, a contest to the
affidavit. The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of proving
that the person is financially unable to pay the amount of the
penalty and to give a supersedeas bond.
(e) If the person does not pay the amount of the penalty and the
enforcement of the penalty is not stayed, the department may
refer the matter to the attorney general for collection of the
amount of the penalty.
(f) Judicial review of the order of the commissioner of public
health:
(1) is instituted by filing a petition as provided by Subchapter
G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(g) If the court sustains the occurrence of the violation, the
court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced amount of the penalty. If
the court does not sustain the occurrence of the violation, the
court shall order that no penalty is owed.
(h) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the
amount of the penalty and if that amount is reduced or is not
upheld by the court, the court shall order that the appropriate
amount plus accrued interest be remitted to the person. The rate
of the interest is the rate charged on loans to depository
institutions by the New York Federal Reserve Bank, and the
interest shall be paid for the period beginning on the date the
penalty was paid and ending on the date the penalty is remitted.
If the person gave a supersedeas bond and if the amount of the
penalty is not upheld by the court, the court shall order the
release of the bond. If the person gave a supersedeas bond and if
the amount of the penalty is reduced, the court shall order the
release of the bond after the person pays the amount.
Added by Acts 1997, 75th Leg., ch. 23, Sec. 4, eff. Sept. 1,
1997.
Sec. 245.021. PENALTY DEPOSITED TO STATE TREASURY. A civil or
administrative penalty collected under this chapter shall be
deposited in the state treasury to the credit of the general
revenue fund.
Added by Acts 1997, 75th Leg., ch. 23, Sec. 4, eff. Sept. 1,
1997.
Sec. 245.022. RECOVERY OF COSTS. (a) The department may assess
reasonable expenses and costs against a person in an
administrative hearing if, as a result of the hearing, the
person's license is denied, suspended, or revoked or if
administrative penalties are assessed against the person. The
person shall pay expenses and costs assessed under this
subsection not later than the 30th day after the date a board
order requiring the payment of expenses and costs is final. The
department may refer the matter to the attorney general for
collection of the expenses and costs.
(b) If the attorney general brings an action against a person
under Section 245.013 or 245.015 or an action to enforce an
administrative penalty assessed under Section 245.017 and an
injunction is granted against the person or the person is found
liable for a civil or administrative penalty, the attorney
general may recover, on behalf of the attorney general and the
department, reasonable expenses and costs.
(c) For purposes of this section, "reasonable expenses and
costs" include expenses incurred by the department and the
attorney general in the investigation, initiation, or prosecution
of an action, including reasonable investigative costs,
attorney's fees, witness fees, and deposition expenses.
Added by Acts 1997, 75th Leg., ch. 23, Sec. 4, eff. Sept. 1,
1997.
Sec. 245.023. PUBLIC INFORMATION; TOLL-FREE TELEPHONE NUMBER.
(a) The department on request shall make the following
information available to the public:
(1) the status of the license of any abortion facility;
(2) the date of the last inspection of the facility, any
violation discovered during that inspection that would pose a
health risk to a patient at the facility, any challenge raised by
the facility to the allegation that there was a violation, and
any corrective action that is acceptable to the department and
that is being undertaken by the facility with respect to the
violation; and
(3) an administrative or civil penalty imposed against the
facility or a physician who provides services at the facility,
professional discipline imposed against a physician who provides
services at the facility, and any criminal conviction of the
facility or a physician who provides services at the facility
that is relevant to services provided at the facility.
(b) Subsection (a) does not require the department to provide
information that is not in the possession of the department. The
Texas State Board of Medical Examiners shall provide to the
department information in the possession of the board that the
department is required to provide under Subsection (a).
(c) The department shall maintain a toll-free telephone number
that a person may call to obtain the information described by
Subsection (a).
(d) An abortion facility shall provide to a woman, at the time
the woman initially consults the facility, a written statement
indicating the number of the toll-free telephone line maintained
under Subsection (c). The written statement must be available in
English and Spanish and be in substantially the following form:
"(toll-free telephone number)
You have a right to access certain information concerning this
abortion facility by using the toll-free telephone number listed
above. If you make a call to the number, your identity will
remain anonymous. The toll-free telephone line can provide you
with the following information:
(1) Whether this abortion facility is licensed by the Texas
Department of Health.
(2) The date of the last inspection of this facility by the
Texas Department of Health and any violations of law or rules
discovered during that inspection that may pose a health risk to
you.
(3) Any relevant fine, penalty, or judgment rendered against
this facility or a doctor who provides services at this
facility."
(e) This section does not authorize the release of the name,
address, or phone number of any employee or patient of an
abortion facility or of a physician who provides services at an
abortion facility.
Added by Acts 1997, 75th Leg., ch. 1120, Sec. 4, eff. Sept. 1,
1997. Renumbered from Sec. 245.017 by Acts 1999, 76th Leg., ch.
62, Sec. 19.01(65), eff. Sept. 1, 1999.