FAMILY CODE

TITLE 2. CHILD IN RELATION TO THE FAMILY

SUBTITLE A. LIMITATIONS OF MINORITY

CHAPTER 33. NOTICE OF AND CONSENT TO ABORTION

Sec. 33.001.

DEFINITIONS. In this chapter:

(1) "Abortion" has the meaning assigned by

Section 245.002 , Health and Safety Code. This definition, as applied in this chapter, 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.

(3-a) "Medical emergency" has the meaning assigned by

Section 171.002 , Health and Safety Code.

(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.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 436 (H.B. 3994 ),

Sec. 2, eff. January 1, 2016.

Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8 ),

Sec. 1, eff. September 1, 2017.

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 physician who is to perform the abortion receives an order issued by a court under

Section 33.003 or 33.004 authorizing the minor to consent to the abortion as provided by

Section 33.003 or 33.004 ; or

(3) the physician who is to perform the abortion:

(

A) concludes that a medical emergency exists;

(

B) certifies in writing to the Department of State Health Services and in the patient's medical record the medical indications supporting the physician's judgment that a medical emergency exists; and

(

C) provides the notice required by

Section 33.0022 .

(

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 Department of State Health Services shall prepare a form to be used for making the certification required by Subsection (a)(3)(B).

(

f) A certification required by Subsection (a)(3)(

B) 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)(3)(B). The physician must keep the medical records on the minor in compliance with the rules adopted by the Texas Medical Board 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 proof of identity and age described by Subsection (

k) 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)(3)(A), the defendant may seek a hearing before the Texas Medical Board on whether the physician's conduct was necessary because of a medical emergency. The findings of the Texas Medical Board 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.

(

j) A physician shall use due diligence to determine that any woman on which the physician performs an abortion who claims to have reached the age of majority or to have had the disabilities of minority removed has, in fact, reached the age of majority or has had the disabilities of minority removed.

(

k) For the purposes of this section, "due diligence" includes requesting proof of identity and age described by

Section 2.005 (

b) or a copy of the court order removing disabilities of minority.

(

l) If proof of identity and age cannot be provided, the physician shall provide information on how to obtain proof of identity and age. If the woman is subsequently unable to obtain proof of identity and age and the physician chooses to perform the abortion, the physician shall document that proof of identity and age was not obtained and report to the Department of State Health Services that proof of identity and age was not obtained for the woman on whom the abortion was performed. The department shall report annually to the legislature regarding the number of abortions performed without proof of identity and age.

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.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 436 (H.B. 3994 ),

Sec. 3, eff. January 1, 2016.

Sec. 33.0021. CONSENT REQUIRED. A physician may not perform an abortion in violation of

Section 164.052 (a)(19), Occupations Code.

Added by Acts 2015, 84th Leg., R.S., Ch. 436 (H.B. 3994 ),

Sec. 4, eff. January 1, 2016.

Sec. 33.0022. MEDICAL EMERGENCY NOTIFICATION; AFFIDAVIT FOR MEDICAL RECORD. (

a) If the physician who is to perform the abortion concludes under

Section 33.002 (a)(3)(

A) that a medical emergency exists and that there is insufficient time to provide the notice required by

Section 33.002 or obtain the consent required by

Section 33.0021 , the physician shall make a reasonable effort to inform, in person or by telephone, the parent, managing conservator, or guardian of the unemancipated minor within 24 hours after the time a medical emergency abortion is performed on the minor of:

(1) the performance of the abortion; and

(2) the basis for the physician's determination that a medical emergency existed that required the performance of a medical emergency abortion without fulfilling t