By: Schwertner, et al.  S.B. No. 8
         (In the Senate - Filed November 17, 2016; January 24, 2017,
  read first time and referred to Committee on Health & Human
  Services; March 7, 2017, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 7, Nays 1;
  March 7, 2017, sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 8 By:  Schwertner
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to certain prohibited abortions and the treatment and
  disposition of a human fetus and human fetal tissue; creating a
  civil cause of action; creating offenses.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 171, Health and Safety Code, is amended
  by adding Subchapter F to read as follows:
  SUBCHAPTER F.  PARTIAL-BIRTH ABORTIONS
         Sec. 171.101.  DEFINITIONS. In this subchapter:
               (1)  "Partial-birth abortion" means an abortion in
  which the person performing the abortion:
                     (A)  for the purpose of performing an overt act
  that the person knows will kill the partially delivered living
  fetus, deliberately and intentionally vaginally delivers a living
  fetus until:
                           (i)  for a head-first presentation, the
  entire fetal head is outside the body of the mother; or
                           (ii)  for a breech presentation, any part of
  the fetal trunk past the navel is outside the body of the mother;
  and
                     (B)  performs the overt act described in Paragraph
  (A), other than completion of delivery, that kills the partially
  delivered living fetus.
               (2)  "Physician" means an individual who is licensed to
  practice medicine in this state, including a medical doctor and a
  doctor of osteopathic medicine.
         Sec. 171.102.  PARTIAL-BIRTH ABORTIONS PROHIBITED.  (a)  A
  physician or other person may not knowingly perform a partial-birth
  abortion.
         (b)  Subsection (a) does not apply to a physician who
  performs a partial-birth abortion that is necessary to save the
  life of a mother whose life is endangered by a physical disorder,
  physical illness, or physical injury, including a life-endangering
  physical condition caused by or arising from the pregnancy.
         Sec. 171.103.  CRIMINAL PENALTY. A person who violates
  Section 171.102 commits an offense.  An offense under this section
  is a state jail felony.
         Sec. 171.104.  CIVIL LIABILITY. (a)  Except as provided by
  Subsection (b), the father of the fetus or a parent of the mother of
  the fetus, if the mother is younger than 18 years of age at the time
  of the partial-birth abortion, may bring a civil action to obtain
  appropriate relief, including:
               (1)  money damages for physical injury, mental anguish,
  and emotional distress; and
               (2)  exemplary damages equal to three times the cost of
  the partial-birth abortion.
         (b)  A person may not bring or maintain an action under this
  section if:
               (1)  the person consented to the partial-birth
  abortion; or
               (2)  the person's criminally injurious conduct resulted
  in the pregnancy.
         Sec. 171.105.  HEARING. (a)  A physician who is the subject
  of a criminal or civil action for a violation of Section 171.102 may
  request a hearing before the Texas Medical Board on whether the
  physician's conduct was necessary to save the life of a mother whose
  life was endangered by a physical disorder, physical illness, or
  physical injury, including a life-endangering physical condition
  caused by or arising from the pregnancy.
         (b)  The board's findings under Subsection (a) are
  admissible in any court proceeding against the physician arising
  from that conduct. On the physician's motion, the court shall delay
  the beginning of a criminal or civil trial for not more than 60 days
  for the hearing to be held under Subsection (a).
         Sec. 171.106.  APPLICABILITY. A woman on whom a
  partial-birth abortion is performed or attempted in violation of
  this subchapter may not be prosecuted under this subchapter or for
  conspiracy to commit a violation of this subchapter.
         SECTION 2.  Subtitle H, Title 2, Health and Safety Code, is
  amended by adding Chapter 173 to read as follows:
  CHAPTER 173.  DONATION OF HUMAN FETAL TISSUE
         Sec. 173.001.  DEFINITIONS. In this chapter:
               (1)  "Authorized facility" means:
                     (A)  a hospital licensed under Chapter 241;
                     (B)  a hospital maintained or operated by this
  state or an agency of this state;
                     (C)  an ambulatory surgical center licensed under
  Chapter 243; or
                     (D)  a birthing center licensed under Chapter 244.
               (2)  "Human fetal tissue" means any gestational human
  organ, cell, or tissue from an unborn child.  The term does not
  include supporting cells or tissue derived from a pregnancy,
  associated maternal tissue that is not part of the unborn child, the
  umbilical cord, or the placenta.
         Sec. 173.002.  APPLICABILITY. This chapter does not apply
  to:
               (1)  human fetal tissue obtained for diagnostic or
  pathological testing; 
               (2)  human fetal tissue obtained for a criminal
  investigation; or
               (3)  human fetal tissue or human tissue obtained during
  pregnancy or at delivery of a child, provided the tissue is obtained
  by an accredited university for use in research approved by an
  institutional review board or another appropriate university
  board, committee, or body charged with oversight applicable to the
  research.
         Sec. 173.003.  ENFORCEMENT. (a)  The department shall
  enforce this chapter.
         (b)  The attorney general, on request of the department or a
  local law enforcement agency, may assist in the investigation of a
  violation of this chapter.
         Sec. 173.004.  PROHIBITED DONATION.  A person may not donate
  human fetal tissue except as authorized by this chapter.
         Sec. 173.005.  DONATION BY AUTHORIZED FACILITY. (a)  Only
  an authorized facility may donate human fetal tissue. An
  authorized facility may donate human fetal tissue only to an
  accredited university for use in research approved by an
  institutional review board or another appropriate university
  board, committee, or body charged with oversight applicable to the
  research.
         (b)  An authorized facility may not donate human fetal tissue
  obtained from an elective abortion.
         Sec. 173.006.  INFORMED CONSENT REQUIRED. An authorized
  facility may not donate human fetal tissue under this chapter
  unless the facility has obtained the written, voluntary, and
  informed consent of the woman from whose pregnancy the fetal tissue
  is obtained. The consent must be provided on a standard form
  prescribed by the department.
         Sec. 173.007.  CRIMINAL PENALTY.  (a)  A person commits an
  offense if the person:
               (1)  offers a woman monetary or other consideration to:
                     (A)  have an abortion for the purpose of donating
  human fetal tissue; or
                     (B)  consent to the donation of human fetal
  tissue; or
               (2)  knowingly or intentionally solicits or accepts
  tissue from a fetus gestated solely for research purposes.
         (b)  An offense under this section is a Class A misdemeanor
  punishable by a fine of not more than $10,000.
         (c)  With the consent of the appropriate local county or
  district attorney, the attorney general has concurrent
  jurisdiction with that consenting local prosecutor to prosecute an
  offense under this section.
         Sec. 173.008.  RECORD RETENTION. Unless another law
  requires a longer period of record retention, an authorized
  facility may not dispose of any medical record relating to a woman
  who consents to the donation of human fetal tissue before:
               (1)  the seventh anniversary of the date consent was
  obtained under Section 173.006; or
               (2)  if the woman was younger than 18 years of age on
  the date consent was obtained under Section 173.006, the later of:
                     (A)  the woman's 23rd birthday; or
                     (B)  the seventh anniversary of the date consent
  was obtained.
         Sec. 173.009.  ANNUAL REPORT. An authorized facility that
  donates human fetal tissue under this chapter shall submit an
  annual report to the department that includes for each donation:
               (1)  the specific type of fetal tissue donated; and
               (2)  the accredited university that received the
  donation.
         SECTION 3.  Section 164.052(a), Occupations Code, is amended
  to read as follows:
         (a)  A physician or an applicant for a license to practice
  medicine commits a prohibited practice if that person:
               (1)  submits to the board a false or misleading
  statement, document, or certificate in an application for a
  license;
               (2)  presents to the board a license, certificate, or
  diploma that was illegally or fraudulently obtained;
               (3)  commits fraud or deception in taking or passing an
  examination;
               (4)  uses alcohol or drugs in an intemperate manner
  that, in the board's opinion, could endanger a patient's life;
               (5)  commits unprofessional or dishonorable conduct
  that is likely to deceive or defraud the public, as provided by
  Section 164.053, or injure the public;
               (6)  uses an advertising statement that is false,
  misleading, or deceptive;
               (7)  advertises professional superiority or the
  performance of professional service in a superior manner if that
  advertising is not readily subject to verification;
               (8)  purchases, sells, barters, or uses, or offers to
  purchase, sell, barter, or use, a medical degree, license,
  certificate, or diploma, or a transcript of a license, certificate,
  or diploma in or incident to an application to the board for a
  license to practice medicine;
               (9)  alters, with fraudulent intent, a medical license,
  certificate, or diploma, or a transcript of a medical license,
  certificate, or diploma;
               (10)  uses a medical license, certificate, or diploma,
  or a transcript of a medical license, certificate, or diploma that
  has been:
                     (A)  fraudulently purchased or issued;
                     (B)  counterfeited; or
                     (C)  materially altered;
               (11)  impersonates or acts as proxy for another person
  in an examination required by this subtitle for a medical license;
               (12)  engages in conduct that subverts or attempts to
  subvert an examination process required by this subtitle for a
  medical license;
               (13)  impersonates a physician or permits another to
  use the person's license or certificate to practice medicine in
  this state;
               (14)  directly or indirectly employs a person whose
  license to practice medicine has been suspended, canceled, or
  revoked;
               (15)  associates in the practice of medicine with a
  person:
                     (A)  whose license to practice medicine has been
  suspended, canceled, or revoked; or
                     (B)  who has been convicted of the unlawful
  practice of medicine in this state or elsewhere;
               (16)  performs or procures a criminal abortion, aids or
  abets in the procuring of a criminal abortion, attempts to perform
  or procure a criminal abortion, or attempts to aid or abet the
  performance or procurement of a criminal abortion;
               (17)  directly or indirectly aids or abets the practice
  of medicine by a person, partnership, association, or corporation
  that is not licensed to practice medicine by the board;
               (18)  performs an abortion on a woman who is pregnant
  with a viable unborn child during the third trimester of the
  pregnancy unless:
                     (A)  the abortion is necessary to prevent the
  death of the woman;
                     (B)  the viable unborn child has a severe,
  irreversible brain impairment; or
                     (C)  the woman is diagnosed with a significant
  likelihood of suffering imminent severe, irreversible brain damage
  or imminent severe, irreversible paralysis;
               (19)  performs an abortion on an unemancipated minor
  without the written consent of the child's parent, managing
  conservator, or legal guardian or without a court order, as
  provided by Section 33.003 or 33.004, Family Code, unless the
  abortion is necessary due to a medical emergency, as defined by
  Section 171.002, Health and Safety Code;
               (20)  otherwise performs an abortion on an
  unemancipated minor in violation of Chapter 33, Family Code; or
               (21)  performs or induces or attempts to perform or
  induce an abortion in violation of Subchapter C or F, Chapter 171,
  Health and Safety Code.
         SECTION 4.  Section 164.055(b), Occupations Code, is amended
  to read as follows:
         (b)  The sanctions provided by Subsection (a) are in addition
  to any other grounds for refusal to admit persons to examination
  under this subtitle or to issue a license or renew a license to
  practice medicine under this subtitle.  The criminal penalties
  provided by Section 165.152 do not apply to a violation of Section
  170.002, Health and Safety Code, or Subchapter C or F, Chapter 171,
  Health and Safety Code.
         SECTION 5.  Section 48.02(a), Penal Code, is amended to read
  as follows:
         (a)  In this section, "human ["Human] organ" means the human
  kidney, liver, heart, lung, pancreas, eye, bone, skin, [fetal
  tissue,] or any other human organ or tissue, but does not include
  hair or blood, blood components (including plasma), blood
  derivatives, or blood reagents.  The term does not include human
  fetal tissue as defined by Section 48.03.
         SECTION 6.  Chapter 48, Penal Code, is amended by adding
  Section 48.03 to read as follows:
         Sec. 48.03.  PROHIBITION ON PURCHASE AND SALE OF HUMAN FETAL
  TISSUE. (a)  In this section, "human fetal tissue" has the meaning
  assigned by Section 173.001, Health and Safety Code.
         (b)  A person commits an offense if the person knowingly
  offers to buy, offers to sell, acquires, receives, sells, or
  otherwise transfers any human fetal tissue for economic benefit.
         (c)  An offense under this section is a state jail felony.
         (d)  It is a defense to prosecution under this section that
  the actor:
               (1)  is an employee of or under contract with an
  accredited university; and
               (2)  acquires, receives, or transfers human fetal
  tissue solely for the purpose of fulfilling a donation authorized
  by Section 173.005, Health and Safety Code.
         (e)  This section does not apply to:
               (1)  human fetal tissue acquired, received, or
  transferred solely for diagnostic or pathological testing; 
               (2)  human fetal tissue acquired, received, or
  transferred solely for the purposes of a criminal investigation;
               (3)  human fetal tissue acquired, received, or
  transferred solely for the purpose of disposing of the tissue in
  accordance with state law or rules applicable to the disposition of
  human remains; or
               (4)  human fetal tissue or human tissue acquired during
  pregnancy or at delivery of a child, provided the tissue is acquired
  by an accredited university for use in research approved by an
  institutional review board or another appropriate university
  board, committee, or body charged with oversight applicable to the
  research.
         (f)  With the consent of the appropriate local county or
  district attorney, the attorney general has concurrent
  jurisdiction with that consenting local prosecutor to prosecute an
  offense under this section.
         SECTION 7.  Not later than December 1, 2017:
               (1)  the Department of State Health Services shall
  prescribe the standard consent form required by Section 173.006,
  Health and Safety Code, as added by this Act; and
               (2)  the executive commissioner of the Health and Human
  Services Commission shall adopt any rules necessary to implement
  Chapter 173, Health and Safety Code, as added by this Act.
         SECTION 8.  (a)  Subchapter F, Chapter 171, Health and
  Safety Code, as added by this Act, applies only to an abortion
  performed on or after the effective date of this Act. An abortion
  performed before the effective date of this Act is governed by the
  law in effect immediately before the effective date of this Act, and
  that law is continued in effect for that purpose.
         (b)  Sections 173.003, 173.004, 173.005, and 173.006, Health
  and Safety Code, as added by this Act, apply to a donation of human
  fetal tissue that occurs on or after the effective date of this Act,
  regardless of whether the human fetal tissue was acquired before,
  on, or after that date.
         (c)  An authorized facility is not required to make an
  initial annual report under Section 173.009, Health and Safety
  Code, as added by this Act, before January 1, 2019.
         (d)  Chapter 48, Penal Code, as amended by this Act, applies
  only to an offense committed on or after the effective date of this
  Act. An offense committed before the effective date of this Act is
  governed by the law in effect on the date the offense was committed,
  and the former law is continued in effect for that purpose. For
  purposes of this section, an offense was committed before the
  effective date of this Act if any element of the offense occurred
  before that date.
         SECTION 9.  This Act takes effect September 1, 2017.
 
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