An Overview of The Texas Parental Notification Statute and Rules

An Overview ofThe Texas Parental Notification Statute and Rules Bob Pemberton Supreme Court of Texas

Background Why are Texas courts being required to hear these types of proceedings in the first place? • Roe v. Wade: U.S. Supreme Court holds there is a constitutional right to abortion • Subsequent U.S. Supreme Court cases define how states can regulate or limit right to an abortion • Many states passed “parental involvement” statutes requiring that minors either notify or obtain consent from one or both parents

Constitutional Limits on Parental Involvement Statutes • In general . . . • Must contain “judicial bypass” permitting minors to obtain abortion without parental involvement if: • Minor is “mature” • In minor’s “best interests” • Bypass must assure confidentiality • Bypass must assure expeditiousness • 2-5 days

The Texas Parental Notification Statute: Family Code Chapter 33 • Judicial bypass • Confidentiality required (see 33.003(k) & (l)) • Legislative history indicates intent to ensure confidentiality of the minor, the ruling, AND the judge • Expeditiousness required (see 33.003(g) & (h)) • Order by 5 PM on 2nd business day after filing • Findings “immediately” after hearing • If court fails to rule, automatically deemed granted by operation of law

Chapter 33 (cont.) • Court must • Set hearing (33.003(g)) • Keep a record (33.003(g)) • Appoint a guardian ad litem (33.003(e) & (f)) • Appoint an attorney ad litem, if the minor does not have an attorney (33.003(e)) • May be same person appointed GAL

Chapter 33(cont.) • Bypass MUST be granted if: • By preponderance of the evidence . . . • Section 33.03( i) • Some states require “clear and convincing” proof • Either (33.003( i)): • Minor is “mature & sufficiently well-informed” • . . . to “make the decision to have an abortion” w/o parental notification • Notification would not be in “best interest” of minor • Notification MAY lead to abuse • Physical, sexual, or emotional

Chapter 33 (cont.) • Issue is propriety of NOTIFICATION, as determined under the statutory requirements . . . • NOT the propriety of the abortion itself

Where Bypass Application Can Be Filed (33.003(b)) • Courts: Any . . . • County court at law • District court, including family district court • “Court having probate jurisdiction” • Intent was to ensure that SOME judge in each county would be available to hear applications • I.e., the constitutional county judge • No venue limitation • No fees or costs assessed. 33.003(n)

The Texas Supreme Court’s Role • Issue Rules • Section 2 of Act: SCt shall “issue promptly such rules as may be necessary in order that [the judicial bypass] may be conducted in a manner that will ensure confidentiality and sufficient precedence over all other pending matters to ensure promptness of disposition” • Sections 33.003(l) & 33.004(c): may adopt rules to assure confidential docketing of applications and appeals • Issue Forms • Section 33.003(m): Clerk shall prescribe application form • Section 33.004(d): Clerk shall prescribe notice of appeal form

How The Supreme Court Developed the Rules and Forms • Research other states • Appoint Special Subcommittee • Subcommittee Report • Reviewed by Rules Advisory Committee • Supreme Court issued draft for public comment • Comment period • County judges -- special meeting • Public hearing • Additional work by Special Subcommittee • County judges • Final version

Overview of the Rules • Explanatory Statement • Background • No position on constitutionality • Chapter 33 not sole regulation of abortion • Rule 1: General Provisions • Rule 2: Procedures in the Trial Court • Rule 3: Procedures in Court of Appeals • Rule 4: Procedures in Supreme Court

Some Key General Provisions • 1.1: Applicability • Other court rules -- TRCP, TRE, etc. -- continue to apply, but Parental Notification Rules trump where other rules are inconsistent • See Comment 1 for examples • Comment 6: Rule 1.6, governing recusals, trumps TRCP 18a & 18b and TRAP 16 • See also Comment 2: Local rules • See also Comment 1 to Rule 2

Rule 1.2: Expedition • (a) Give precedence necessary to decide applications ASAP and within time limits • (b) Prompt actual notice • Focus is practical aspects of notice • (c) “Instanter” • Immediately, without delay. • Do at first possible time and by most expeditious means available • See also Rule 3.2(b)

Rule 1.3: Anonymity • (a) In general, protect anonymity of minor • (b) No reference to minor’s identity; “Jane Doe” • (c ) Communications go through minor’s attorney

Rule 1.4: Confidentiality • (a) Generally • All officials and court personnel . . . • Must assure that minor’s contact with court is confidential and expeditious • Except as permitted by law, may not EVER disclose to persons outside the proceedings -- including minor’s parents -- that minor is or has ever been pregnant or that she wants or has ever wanted an abortion • Comment 7: Archival requirements

Rule 1.4: Confidentiality (cont.) • (b) In general, documents are confidential, except that order, ruling or certificate may be released to: • the minor or designee • GAL • Attorney • Government agency or attorney, in criminal or administrative action asserting minor’s interests • Note reporting requirements in (d) & (e), Comment 4 • Another court or judge in same or related proceedings • See Comment 3: Clarifies that any judge involved in the proceeding -- assigned judge, assigning judge, etc. -- has full access to all documents

The Application Process

Where to Obtain Applications • Application forms will be widely available • See Rule 1.7: • “A copy” of the rules and forms must be made available: • On the Supreme Court website • www.courts.state.tx.us • By request from OCA • In the clerks office • The forms must be in English and Spanish • “A copy” of pertinent local rules must be made available in the clerks’ office • Rules and forms may be copied

The Application • See Forms 1A (instruction sheet), 2A (cover page) and 2B (verification page) • See Rule 2.1(c ): Application need not use these forms, but application should conform to 2A and 2B • Contents are specified in Rule 2.1(c )

Rule 2.1(c ): Contents of Application • Cover page (Rule 2.1(c )(1)) • Information re grounds for application • Whether applicant has previously filed application • Verification Page (Rule 2.1(c )(2)) • Information identifying applicant, how to contact her • Must be signed and sworn by person completing application • Application need not be completed, sworn by minor herself

Methods of Filing • See Rule 2.1(d): Clock begins running when application is actually received by clerk • See Comment 2: Timing provisions for filing by mail provisions in Rule 21a do not apply • Rule 1.5(a): Electronic filing permitted • Comment 5 • Rule 1.5(a) = statutorily required approval • But counties are not REQUIRED to provide electronic filing • Confidentiality protection: • If sender tells the clerk the time at which the transmission will occur, the clerk “must take all reasonable steps” to assure the confidentiality of the transmission

Clerks’ Duties Upon Filing • Rule 2.2(a): Give “prompt assistance” to persons filing applications • In “manner designed to protect minor’s confidentiality and anonymity” • If requested, administer oath or furnish someone authorized to do so • Redact identifying information from Cover Page • Ensure that both Cover Page and Verification Page are completed in full

Clerk’s Filing Duties (cont.) • Rule 1.9(a): No filing fee • Rule 2.1(b)(2): Must accept application, regardless which court eventually hears it • Rule 2.1(b)(4) assigns application to court, regardless where filed • If local rule requires filing with particular clerk or court, clerk must instanter transfer it and so advise applicant

Clerks’ Filing Duties (cont.) • Rule 2.2(b): Filing procedure • Stamp cause number on both cover page and verification page • Give certified copy of verification page to person filing application • Minor can later “match” with order or certification • File verification page under seal • Limit access to essential court personnel • But judge can see. Rule 1, Comment 3 • Remember Rules 1.3 and 1.4 apply to ALL court papers, not just verification page

Assignment of Application to a Court • Upon filing, clerk must instanter • Rule 2.2(d): Ascertain whether judge of court to whom application is “assigned” is present in the county. • If not, instanter contact the local or regional administrative judge(s) so they can assign a judge • Rule 2.2(c ): Once judge is identified, instanter give them application (or copy). • Also communicate whether minor has requested a particular GAL

How is an Application “Assigned?” • Rule 2.1(b)(3): May be by local rule • Rule 2.1(b)(4): “Default” assignment rule: • First, to a district court, if judge is present • Second, to a county court at law or statutory probate court, if judge is present • Third, to the constitutional county court (if it has probate jurisdiction), if the judge is present • Fourth, back to the district court

Other Factors Affecting Which Judge Hears an Application • See Rule 2.1(b)(5) & Comment 1: • Government Code Chapter 74 still applies • Assigned judges • Visiting judges • Transfer of cases • See also Government Code Chapter 26 • Rule 1.6: Recusal

Rule 1.6: Recusal • (a) Time limits • By 12 noon on first business day after filing • Does not extend time for ruling • (b) If judge voluntarily recuses or does not sit, must instanter notify appropriate authority • Presiding judge • PJ or assigning authority must instanter assign a judge • (c ) Involuntary recusal • Must refer instanter • Rule ASAP, with or without hearing • Instanter assign replacement

Recusal (cont.) • (d) One objection or recusal motion allowed • (e) Appeal of recusal issues • Raise only on appeal of application • Untimely-raised issues and second objections or recusal motions can be raised only on appeal

Rule 2.3: Court’s Duties Upon Receipt of Application • Appoint a guardian ad litem • See Comment 3 • Appoint an attorney ad litem, if minor has no attorney • May be same person as GAL • See Rule 1.8: AAL represents minor in trial court and any appeal up to Texas Supreme Court • Not if re-filing

Duties Upon Receipt of Application (cont.) • Court must: • Set a hearing in accordance with time limits • Advise clerk of appointment(s) and hearing time • Clerk or other court personnel must: • Rule 2.2(e): Convey this information to minor and appointee(s) • See Rule 1.5(b): Can do so electronically, but must take “all reasonable steps” to assure confidentiality

Rule 2.4: The Hearing • Time: • Must have hearing in time to rule in accordance with Rule 2.5(d) (by 5pm on second business day after filing) • Remember, clock begins running upon clerk’s actual receipt of application. Rule 2.1(d) & Comment 2. • Place: • Location, such as chambers, that will assure confidentiality • Need not be in courthouse

The Hearing (cont.) • Persons attending • Closed to public; only judge, court reporter, essential court personnel, minor, her AAL and GAL, and minor’s witnesses may attend • Remember Rule 1.4(a) • See also 1.5(c ): Hearings by electronic means • Minor must appear in person, unless court determines that appearing by video would enable court to assess credibility and demeanor • Others can appear by telephone, video, or other electronic means • See Rule 2.4(e): Affidavits of persons other than minor are admissible

The Hearing (cont.) • Record must be transcribed if appeal or allegations of abuse • See Rule 1.5(d): Electronic record ok if reporter unavailable • But if appealed, court must have recording transcribed, if possible • Must certify to accuracy of transcription • Both recording and transcription go up • See Rule 1.4(c ): Court reporter notes may be filed to help assure confidentiality

The Hearing (cont.) • Informality • Court should attempt to rule without regard to technical defects in evidence • Affidavits of persons other than applicant are admissible • But statements in application are not evidence • If necessary, court may assist minor in remedying technical defects in application and in presenting relevant and material facts • E.g., amendment of application to include grounds adduced in hearing • Cost prescribed by statute • Cost of copies from clerk = $1 per page • If no statute, actual cost not to exceed 125 % of amount prescribed by GSC for providing public information • RC not required to incur personal expense to furnish copy

Rule 2.5: The Ruling • Must include order and findings of fact and conclusions of law • See Form 2D • Rule 2.5(b): Grounds • Tracks statute • See Comment 5: If one ground established, need not address other grounds • But should look for sexual abuse, assault, incest

The Ruling (cont.) • Deny if • NONE of three grounds established • Without prejudice, if court or ad litems can’t contact minor before hearing, despite diligent attempts, or minor does not show up • If denied, court must notify minor of right to appeal and furnish notice of appeal form • Rule 2.2(f): Clerk must furnish minor and AAL with all orders, including findings

The Ruling (cont.) • Rule 2.5(d): Timing • If court fails to rule in time, application is deemed granted • See Rule 2.2(g): Upon request, clerk must instanter issue certification of deemed granting • See Form 2E

Costs (Rule 1.9) • Court may order State to reimburse costs • See Form 2F • Witness fees not included • Copy of order must be sent to OCA • Order is still confidential • Procedure for adjudicating costs, appeal

Rule 3: Appeal; Pertinent Rules • Rule 2.5(e): If trial court denies application, must notify applicant of right to appeal and give her notice of appeal form • See Rule 3, Comment 1: No appeal from grant • Rule 3.1: Applicant will simultaneously file notice of appeal with trial court clerk and copy with court of appeals • Must also call court of appeals clerk

Appeal; Clerks’ Duties • Rule 3.2(a) & (b): Trial court clerk must: • Give “prompt assistance” to persons seeking to appeal • Including assuring notice is addressed to proper court • “In a manner designed to assure confidentiality” • Instanter forward to court of appeals’ clerk: • Notice of appeal • Clerk and reporters’ record (original or copies), except verification page • Method of transmission: • NOT by ordinary mail • If feasible, hand delivery or electronic transmission • If not feasible, overnight mail

For additional information contact: • Bob Pemberton • Rules Attorney • Supreme Court of Texas • (512) 463-6645

An Overview of The Texas Parental Notification Statute and Rules