Texas Judicial Bypass Procedure. Professor Alex Wilson Albright University of Texas School of Law Of Counsel: Alexander, Dubose, Jefferson & Townsend

Transcription

1 Texas Judicial Bypass Procedure Professor Alex Wilson Albright University of Texas School of Law Of Counsel: Alexander, Dubose, Jefferson & Townsend

2 Overview Constitutional Framework How Parental Bypass Works The Duties of Clerks & Judges New Statute & New Rules Discussion? How can the cases go smoothly in your county?

3 Parental Involvement Laws 38 states that require parental involvement in a minor s decision to terminate a pregnancy Notification or consent of one or both parent or legal guardian Texas Law : notification to one parent/guardian Since 2005: consent of one parent/guardian

4 Bellotti v. Baird (1979) Constitutional Requirements Minors have constitutional rights, balanced with the state s interest and parental rights Pregnancy is both time sensitive and has lasting implications The State can encourage parental involvement in a minor s decision when faced with an unintended pregnancy No absolute veto over a minor s decision to terminate a pregnancy; there must be a bypass. Bypass process must be an effective opportunity to obtain an abortion

5 Bypass to parental involvement Under Bellotti bypass process must: (1) allow a minor to show she is mature and well informed enough to make the decision, (2) allow immature minors to show the abortion would be in her best interest, (3) ensure her anonymity (and certainly be confidential), (4) be expeditious. Under Texas law, courts provide bypass process Grant = right to consent to an abortion, not deciding whether she should have an abortion Best interest = Is involving a parent in her best interest?

6 Expeditious Court must rule as soon as possible and immediately after the hearing. Rule 2.5(f). Statute says must rule by 5 pm on 5 th day after filing Abortion risks increase with gestational age Significant increases at 8 weeks and 14 weeks While an abortion at every stage of pregnancy is safer than carrying a pregnancy to term, the risk of abortion increases 38% with each gestational week 6

7 Confidential Minors are referred to as Jane Doe and cases are styled In re Jane Doe. Rule 1.3(b). Cases are not docketed electronically or otherwise processed in a way where confidentiality cannot be maintained. Rule 1.5 Court reporter notes must be filed with other documents. Rule 1.4(c) The fact that a case was even filed is confidential May not disclose to anyone, including a parent or legal guardian, that the minor is or has ever been pregnant or that she ever wanted an abortion. Rule 1.4(a).

8 Who is Jane? 89% are 16 or 17 years old Both parents of 35% are missing, dead, incarcerated or deported (resulting in practical orphans ) 60% are living with at least one parent 35% feared being kicked out of the home or disowned for being pregnant 12% reported having experienced physical or emotional abuse from parent or guardian 53% had no knowledge of the bypass law prior to their pregnancy

9 Who is Jane? 21% had been pregnant before 16% were already mothers supporting at least one child 27% used condoms 6% used other birth control Of those not on birth control, top 5 reasons: Thought they needed parental consent Could not afford it Believed a condom alone was sufficient Kept putting off getting birth control Just started having sex

10 Bypass Procedure Generally Jane files the application with the clerk Case assigned to a court and a judge Court appoints a guardian ad litem and attorney ad litem (if Jane has no attorney) and sets a hearing Hearing can be in chambers or outside the courthouse. Rule 2.2(b).

11 Bypass Procedure Generally Jane must prove by clear & convincing evidence: She is sufficiently mature and well-informed to consent to her own health care, OR Involving a parent would not be in her best interest This includes the danger of abuse whether physical, sexual or emotional The judge issues order within 5 days of filing Jane has right to expeditious appeal if denied Costs and fees paid by the State. 11

12 Important Issues for 2016 Venue Confidentiality (previously anonymity ) Guardians & Attorneys Ad Litem Burden of Proof Time to Rule & Deemed Denied Res Judicata Provisions enforced by Attorney General, with civil penalties for all but Jane and Judge 12

13 Limited Venue Jane must file in county of residence if >10,000 population If <10,000, or a parent is the judge, may also file in: Contiguous county, or County where the abortion would be performed If not a Texas resident, in the county where abortion clinic is located 13

14 Venue Venue in residence county if greater than 10,000 population Only dark colored counties are below 10,000

15 The Application Rule 2.1(c) (1) Cover Page (Form 2A) Must be styled In re Jane Doe no identifying information Minor, pregnant, wishes bypass Venue proper Identify her lawyer and requested guardian, if she has them No previous application denied with this pregnancy, or if so, identify material change in circumstances 15

16 The Application Rule 2.1(c) (2) Verification Page (Form 2B) (sealed, limit access) Includes Jane s name, date of birth, address Swears all information is true (3) Attorney s Statement Swears to truth of Jane s claims regarding venue & prior applications* * Res Judicata * Rule 2.1(f) Minor may not initiate a new proceeding for same pregnancy and prior determination is determinative unless material change in circumstances 16

17 Clerk s Duties: Assistance Keep rules & forms available in English & Spanish. Rule 1.7(a) Note: Supreme Court has not yet issued Spanish version of new Rules. Provide prompt assistance in a manner designed to protect the minor s confidentiality to persons seeking to file an application. Rule 2.2(a) 17

18 Clerk Duties: Filing Application filed with District or County Clerk, who must accept and transfer to proper clerk in the county. Rule 2.1(b)(2). Assign a cause number and affix to cover page and verification page that does not identify assigned judge. Rule 2.2(b) Provide a certified copy of the verification page to the person filing the application File the verification page under seal in a secure place where access is limited to essential court personnel. Rule 2.2(b) Distribute file to the appropriate court immediately and inform if specific guardian requested. Rule 2.2(c)

19 Confidential Electronic Filing Filing through statewide portal prohibited File by paper, fax or Clerk must designate address or fax number for filing, maintaining confidentiality Attorney must notify clerk by phone when filing by or fax Court and clerk may transmit documents by fax or , maintaining confidentiality 19

20 Confidential File & Proceedings All officials and court personnel involved in the proceedings must ensure that the minor s contact with the clerk and the court is confidential and expeditious. Rule 1.4(a) Officials and court personnel must never disclose to anyone outside the proceeding including the minor s parent, managing conservator, or legal guardian that the minor is or has ever been pregnant, or that she wants or has ever wanted an abortion. Rule 1.4(a) The application and all other court documents and information pertaining to the proceedings are confidential and privileged and are not subject to disclosure under Chapter 552, Government Code, or to discovery, subpoena, or other legal process. Rule 1.4(b)(1). Reporter notes must be filed with other court documents. Rule 1.4(c).

21 Identity of Minor Protected: Rule 1.3(b) No reference to identifying information of minor in any order, decision, finding, or notice, or on the record. Minor is always Jane Doe except on Verification Page, which is sealed Communications only with Jane s attorney, copy to guardian ad litem (although Jane and her attorney may choose to include the guardian in conversations with the court or clerk s office) 21

22 Clerk Duties: Judge Assignment Follow local rule, if there is one, to assign a judge. Rule 2.1(b)(3) If no local rule, assign the case to court where the active judge, or a judge assigned to it, is available, as follows Rule 2.1(b)(4): District court, If not, to the statutory county or probate court, If not, to the constitutional county court, if it has probate jurisdiction If none of the above, back to the district court.

23 Clerk Duties: Judge Assignment Once assigned to a court, the case may be heard by: The active judge of that court, Any judge authorized to sit for that judge, or Any judge who may be assigned to that court. Rule 2.1(b)(5) If assigned judge unavailable, immediately notify the administrative judges(s) and presiding judge of the administrative judicial region. Rule 2.2(d)

24 Best Practices Assign to court/judge immediately upon filing Make appointments and set hearing same day as filing Attorney should work with court coordinator to find time Jane can attend hearing confidentially and judge is available 24

25 Court s Duties: Preliminaries Make Appointments. Rule 2.3(a)&(b) A qualified person to be guardian ad litem An attorney ad litem if Jane has no retained attorney Attorney and guardian ad litem cannot be the same person Attorney may have suggestions for trained & available guardian Set a hearing. Rule 2.3(c) In time to rule as soon as possible after filing, and certainly before 5 pm of 5 th business day after filing. Rule 2.5(f) Advise clerk of appointments and hearing time Rule 2.3(d) Clerk or court coordinators or other court personnel must immediately gives notice. Rule 2.2(e) 25

26 Court s Duties: Hearing & Ruling Participation by remote electronic means, maintaining confidentiality. Rule 1.5(d) Ok for witnesses Jane must appear before judge, in person Record by audio recording or other electronic means if court reporter unavailable. Rule 1.5(e) Hearing closed to public, informal, in chambers or away from courthouse. Rule 2.4(b), (c), (e) Rule with signed order & findings. Rule 2.5, Form 2D As soon as possible after filing and immediately after hearing If not ruled on by 5 pm on 5 th day after filing, deemed denied If denied, inform Jane of her right to appeal 26

27 Clerk Duties: Record Provide copies of orders to attorney & guardian. Rule 2.2(f) Note: Jane or her attorney must have a copy of the Verification Page to take to the clinic with the order Issue certificate of failure to rule within statutory deadline, if requested. Rule 2.2(g), Form 2E Immediately prepare and provide clerk s and court reporters record, if requested. Rule 2.4(d); See Forms 2I & 2J (with and without appeal)

28 Clerk Duties: Appeal Give prompt assistance to persons seeking to file an appeal. Rule 3.2(a) Forward the record, excluding Verification page, to the court of appeals when a notice of appeal is filed. Rules 2.4(d), 3.2(b) By hand or fax or . Rule 3.2(b)

29 Clerk Reporting to OCA Submit report to Office of Court Administration (OCA), at intervals OCA prescribes, for each case of: Case number and style Applicant s county of residence Court of Appeals District where case filed Date of filing Date of disposition; and Disposition (l-1) This report is confidential, privileged, and not subject to the Public Information Act (Gov t ch. 552), discovery, subpoena, or other legal process (l-2)

30 OCA Reports OCA must annually compile data and publish a report aggregating the data on case disposition by court of appeals district. This report must protect the confidentiality of: The identity of the judge The identity of the minor The case number and style

31 Ad litems and Bypass Cases Bypass cases are not subject to the new reporting and public disclosure of ad litem appointments and compensation H.B requiring reports of ad litem appointments exempts bypass appointments. Gov t Code (2) S.B (Gov t Code ch. 37) for counties > 25,000 requires a wheel for appointments but excepts appointments: Where the parties agree and the judge approves Where a complex case requires specialized knowledge So any bypass list is separate and discreet

32 How to make bypass cases run confidentially and expeditiously Don t panic! Make a plan! Think through the process that will work best for your courthouse: ID which personnel to involve Train ALL personnel a Jane might come into contact with Visit with your district judge(s) about their preferences Let Jane s Due Process know your protocol and JDP will advise attorneys ID which attorneys in your county would handle these cases appropriately They can contact JDP for training (and free CLE)

33 Questions? What problems do you foresee? 33