85R21727 LED-D     By: Schwertner, et al. S.B. No. 8     (Burkett, Cook, Laubenberg, Raney, Bailes)     Substitute the following for S.B. No. 8:  No.       A BILL TO BE ENTITLED   AN ACT   relating to certain prohibited abortions and the treatment and   disposition of a human fetus, human fetal tissue, and embryonic and   fetal tissue remains; creating a civil cause of action; imposing a   civil penalty; creating criminal 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;                (3)  human fetal tissue or human tissue obtained during   pregnancy or at delivery of a child, provided the tissue is obtained   by an accredited public or private institution of higher education   for use in research approved by an institutional review board or   another appropriate board, committee, or body charged with   oversight applicable to the research; or                (4)  cell lines derived from human fetal tissue or   human tissue existing on September 1, 2017, that are used by an   accredited public or private institution of higher education in   research approved by an institutional review board or another   appropriate 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 public or private institution of higher education for   use in research approved by an institutional review board or   another appropriate 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 public or private institution of   higher education that received the donation.          SECTION 3.  Subtitle B, Title 8, Health and Safety Code, is   amended by adding Chapter 697 to read as follows:   CHAPTER 697. DISPOSITION OF EMBRYONIC AND FETAL TISSUE REMAINS          Sec. 697.001.  PURPOSE. The purpose of this chapter is to   express the state's profound respect for the life of the unborn by   providing for a dignified disposition of embryonic and fetal tissue   remains.          Sec. 697.002.  DEFINITIONS. In this chapter:                (1)  "Cremation" means the irreversible process of   reducing remains to bone fragments through direct flame, extreme   heat, and evaporation.                (2)  "Department" means the Department of State Health   Services.                (3)  "Embryonic and fetal tissue remains" means an   embryo, a fetus, body parts, or organs from a pregnancy that   terminates in the death of the embryo or fetus and for which the   issuance of a fetal death certificate is not required by state law.   The term does not include the umbilical cord, placenta, gestational   sac, blood, or body fluids.                (4)  "Executive commissioner" means the executive   commissioner of the Health and Human Services Commission.                (5)  "Incineration" means the process of burning   remains in an incinerator.                (6)  "Interment" means the disposition of remains by   entombment, burial, or placement in a niche.                (7)  "Steam disinfection" means the act of subjecting   remains to steam under pressure to disinfect the remains.          Sec. 697.003.  APPLICABILITY OF OTHER LAW. Embryonic and   fetal tissue remains are not pathological waste under state law.   Unless otherwise provided by this chapter, Chapters 711 and 716 of   this code and Chapter 651, Occupations Code, do not apply to the   disposition of embryonic and fetal tissue remains.          Sec. 697.004.  DISPOSITION OF EMBRYONIC AND FETAL TISSUE   REMAINS. (a) Subject to Section 241.010, a health care facility in   this state that provides health or medical care to a pregnant woman   shall dispose of embryonic and fetal tissue remains that are passed   or delivered at the facility by:                (1)  interment;                (2)  cremation;                (3)  incineration followed by interment; or                (4)  steam disinfection followed by interment.          (b)  The ashes resulting from the cremation or incineration   of embryonic and fetal tissue remains:                (1)  may be interred or scattered in any manner as   authorized by law for human remains; and                (2)  may not be placed in a landfill.          (c)  A health care facility responsible for disposing of   embryonic and fetal tissue remains may coordinate with an entity in   the registry established under Section 697.005 in an effort to   offset the cost associated with burial or cremation of the   embryonic and fetal tissue remains of an unborn child.          (d)  Notwithstanding any other law, the umbilical cord,   placenta, gestational sac, blood, or body fluids from a pregnancy   terminating in the death of the embryo or fetus for which the   issuance of a fetal death certificate is not required by state law   may be disposed of in the same manner as and with the embryonic and   fetal tissue remains from that same pregnancy as authorized by this   chapter.          Sec. 697.005.  BURIAL OR CREMATION ASSISTANCE REGISTRY. The   department shall:                (1)  establish and maintain a registry of:                      (A)  participating funeral homes and cemeteries   willing to provide free common burial or low-cost private burial;   and                      (B)  private nonprofit organizations that   register with the department to provide financial assistance for   the costs associated with burial or cremation of the embryonic and   fetal tissue remains of an unborn child; and                (2)  make the registry information available on request   to a physician, health care facility, or agent of a physician or   health care facility.          Sec. 697.006.  ETHICAL FETAL REMAINS GRANT PROGRAM. The   department shall develop a grant program that uses private   donations to provide financial assistance for the costs associated   with disposing of embryonic and fetal tissue remains.          Sec. 697.007.  SUSPENSION OR REVOCATION OF LICENSE. The   department may suspend or revoke the license of a health care   facility that violates this chapter or a rule adopted under this   chapter.          Sec. 697.008.  CIVIL PENALTY. (a) A person that violates   this chapter or a rule adopted under this chapter is liable for a   civil penalty in an amount of $1,000 for each violation.          (b)  The attorney general, at the request of the department,   may sue to collect the civil penalty.  The attorney general may   recover reasonable expenses incurred in collecting the civil   penalty, including court costs, reasonable attorney's fees,   investigation costs, witness fees, and disposition expenses.          Sec. 697.009.  RULES.  The executive commissioner shall   adopt rules to implement this chapter.          SECTION 4.  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 5.  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 6.  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 7.  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 public or private institution of higher education; 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 fetal tissue remains;                (4)  human fetal tissue or human tissue acquired during   pregnancy or at delivery of a child, provided the tissue is acquired   by an accredited public or private institution of higher education   for use in research approved by an institutional review board or   another appropriate board, committee, or body charged with   oversight applicable to the research; or                (5)  cell lines derived from human fetal tissue or   human tissue existing on September 1, 2017, that are used by an   accredited public or private institution of higher education in   research approved by an institutional review board or another   appropriate 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 8.  (a)  Not later than December 1, 2017, the   executive commissioner of the Health and Human Services Commission   shall adopt any rules necessary to implement Chapters 173 and 697,   Health and Safety Code, as added by this Act.          (b)  The Department of State Health Services shall:                (1)  not later than October 1, 2017, establish the   grant program required by Section 697.006, Health and Safety Code,   as added by this Act;                (2)  not later than December 1, 2017, prescribe the   standard consent form required by Section 173.006, Health and   Safety Code, as added by this Act; and                (3)  not later than February 1, 2018, begin to award   grants under the grant program described by Subdivision (1) of this   subsection.          SECTION 9.  (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 697, Health and Safety Code, as added by this   Act, applies only to the disposition of embryonic and fetal tissue   remains that occurs on or after February 1, 2018.  The disposition   of embryonic and fetal tissue remains that occurs before February   1, 2018, is governed by the law in effect immediately before the   effective date of this Act, and the former law is continued in   effect for that purpose.          (e)  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 subsection, an offense was committed before the   effective date of this Act if any element of the offense occurred   before that date.          SECTION 10.  This Act takes effect September 1, 2017.