Explanatory Statement
Chapter 33 of the Texas Family Code, adopted by Act of May 25, 1999, 76th Leg., R.S., ch. 395, 1999 Tex. Gen. Laws 2466 (S.B. 30), provides for judicial authorization of an unemancipated minor to consent to an abortion in Texas without notice to her parents, managing conservator, or guardian. Section 2 of the Act states: "The Supreme Court of Texas shall issue promptly such rules as may be necessary in order that the process established by Sections 33.003 and 33.004, Family Code, as added by this Act, may be conducted in a manner that will ensure confidentiality and sufficient precedence over all other pending matters to ensure promptness of disposition." See also Tex. Fam. Code §§ 33.003(l), 33.004(c). Section 6 of the Act adds: "The clerk of the Supreme Court of Texas shall adopt the application form and notice of appeal form to be used under Sections 33.003 and 33.004, Family Code, as added by this Act, not later than December 15, 1999." See also Tex. Fam. Code §§ 33.003(m), 33.004(d).
The following rules and forms are promulgated as directed by the Act without any determination that the Act or any part of it comports with the United States Constitution or the Texas Constitution. During the public hearings and debates on the rules and forms, questions were raised concerning the constitutionality of Chapter 33, among which were whether the statute can make court rulings secret, and whether the statute can require courts to act within the specified, short deadlines it imposes. Because such issues should not be resolved outside an adversarial proceeding with full briefing and argument, the rules and forms merely track statutory requirements of the Legislature. Adoption of these rules does not, of course, imply that abortion is or is not permitted in any specific situation. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Tex. Rev. Civ. Stat. Ann. art. 4495b, § 4.011 (restrictions on third trimester abortions of viable fetuses).
The notes and comments appended to the rules are
intended to inform their construction and application by courts
and practitioners.
RULE 1. GENERAL PROVISIONS
1.1 Applicability of These Rules. These rules govern proceedings for obtaining a court order authorizing a minor to consent to an abortion without notice to either of her parents or a managing conservator or guardian under Chapter 33, Family Code (or as amended). Other Texas court rules -- including the Rules of Civil Procedure, Rules of Evidence, Rules of Appellate Procedure, Rules of Judicial Administration, and local rules approved by the Supreme Court -- also apply, but when the application of another rule would be inconsistent with the general framework or policy of Chapter 33, Family Code, or these rules, these rules control.
1.2 Expedition Required.
(a) Proceedings. A court must give proceedings under these rules precedence over all other pending matters to the extent necessary to assure that applications and appeals are adjudicated as soon as possible and within the time required by Rules 2.4(a), 2.5(d), and 3.3(c).
(b) Prompt actual notice required. Without compromising the confidentiality and anonymity required by statute and these rules, courts and clerks must serve orders, decisions, findings, and notices required under these rules in a manner designed to give prompt actual notice in order that the deadlines imposed by Chapter 33, Family Code, can be met.
(c) Instanter. "Instanter" means immediately, without delay. An action required by these rules to be taken instanter should be done at the first possible time and with the most expeditious means available.
1.3 Anonymity of Minor Protected.
(a) Generally. Proceedings under these rules must be conducted in a way that protects the anonymity of the minor.
(b) No reference to minor's identity in proceeding. With the exception of the verification page required under Rule 2.1(c)(2) and the communications required under Rule 2.2(e), no reference may be made in any order, decision, finding, or notice, or on the record, to the name of the minor, her address, or other information by which she might be identified by persons not participating in the proceedings. Instead, the minor must be referred to as "Jane Doe" in a numbered cause.
(c) Notice required to minor's attorney. With the exception of orders and rulings released under Rule 1.4(b), all service and communications from the court to the minor must be directed to the minor's attorney. This requirement takes effect when an attorney appears for the minor, or when the clerk has notified the minor of the appointment of an attorney.
1.4 Confidentiality of Proceedings Required; Exceptions.
(a) Generally. All officials and court personnel involved in the proceedings must ensure that the minor's contact with the clerk and court is confidential and expeditious. Except as permitted by law, no officials or court personnel involved in the proceedings may ever disclose to anyone outside the proceedings -- 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.
(b) Documents pertaining to the proceeding. As required by Chapter 33, Family Code, the application and all other court documents 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. But an order, ruling, opinion, or clerk's certificate may be released to:
(1) the minor;
(2) the minor's guardian ad litem;
(3) the minor's attorney;
(4) a person designated in writing by the minor to receive the order, ruling, opinion, or certificate;
(5) a governmental agency or governmental attorney, in connection with a criminal or administrative action seeking to assert or protect the minor's interests; or
(6) another court, judge, or clerk in the same or related proceedings.
(c) Filing of court reporter's notes permitted. To assure confidentiality, court reporter notes, in whatever form, may be filed with other court documents in the proceeding.
(d) Duty to report possible sexual abuse. A court, guardian ad litem, or attorney ad litem who reasonably believes, based on information obtained in the proceeding, that a violation of Section 22.011, 22.021, or 25.02, Penal Code, has occurred must report the information to the appropriate officials or agencies as required by Section 33.009, Family Code.
(e) Department of Protective and Regulatory Services to disclose certain information in proceeding. The Department of Protective and Regulatory Services may disclose to the court, the attorney ad litem, and the guardian ad litem any information obtained under Section 33.008, Family Code, without being ordered to do so. The trial court may order the Department to disclose such information to such persons, and the Department must comply.
1.5 Electronic Transmission of Documents; Hearings Conducted By Remote Electronic Means; Electronic Record Allowed When Necessary.
(a) Electronic filing. Documents may be filed by facsimile or other electronic data transmission. If the sender communicates directly with the clerk the time at which the transmission will occur, the clerk must take all reasonable steps to assure that the confidentiality of the received transmission will be maintained.
(b) Electronic transmission by court and clerk. The court and clerk may transmit orders, rulings, notices, and other documents by facsimile or other electronic data transmission. But before the transmission is initiated, the sender must take all reasonable steps to assure that the confidentiality of the received transmission will be maintained. The time and date of a transmission by the court is the time and date when it was initiated.
(c) Hearings by electronic means. Consistent with the anonymity and confidentiality requirements of these rules, with the court's permission, the attorney ad litem, the guardian ad litem, and any witnesses may participate in hearings under these rules by video conferencing, telephone, or other remote electronic means. The minor must appear before the court in person unless the court determines that the minor's appearance by video conferencing will allow the court to view the minor during the hearing sufficiently well to assess her credibility and demeanor.
(d) Record of hearing made by electronic means if necessary. If the court determines that a court reporter is unavailable for a hearing, the court may have a record of the hearing made by audio recording or other electronic means. If a notice of appeal is filed, the court must have the recording transcribed if possible. The person transcribing the recording must certify to the accuracy of the transcription. The court must transmit both the recording and the transcription to the court of appeals.
1.6 Disqualification, Recusal, or Objection to a Judge.
(a) Time for filing and ruling. An objection to a judge, or a motion to recuse or disqualify a judge, must be filed before 10:00 a.m. of the first business day after an application or notice of appeal is filed. A judge who chooses to recuse voluntarily must do so before 12:00 noon of the first business day after an application or notice of appeal is filed. An objection to a judge or a motion to disqualify or recuse does not extend the deadline for ruling on the minor's application.
(b) Voluntary disqualification or recusal, or objection. A judge to whom objection is made under Chapter 74, Government Code, or a judge or justice who voluntarily does not sit, must notify instanter the appropriate authority for assigning another judge by local rules or by statute. That authority must instanter assign a judge or justice to the proceeding.
(c) Involuntary disqualification or recusal. A judge or justice who refuses to remove himself or herself voluntarily from a proceeding in response to a motion must instanter refer the motion to the appropriate judge or justice, pursuant to local rule, rule, or statute, for determination. The judge or justice to whom the motion is referred must rule on it as soon as possible and may do so with or without a hearing. If the motion is granted, the judge or justice to whom the motion was referred must instanter assign a judge or justice to the proceeding.
(d) Only one objection or motion to recuse permitted. A minor who objects to a judge assigned to the proceeding may not thereafter file a motion to recuse or disqualify, and a minor who files a motion to recuse or disqualify a judge may not thereafter object to a judge assigned to the proceeding.
(e) Issues on appeal. Any error in the denial of a motion to recuse or disqualify, or any error in the disallowance of an objection, or any challenge to a judge that a minor is precluded from making by subsections (a) or (d), may be raised only on appeal from the court's denial of the application.
1.7 Rules and Forms to be Made Available. A copy of these rules, and a copy of the attached forms in English and Spanish, must be made available to any person without charge in the clerk's offices of all courts in which applications or appeals may be filed under these rules, on the Texas Judiciary Internet site at www.courts.state.tx.us, and by the Office of Court Administration upon request. A copy of a court's local rules relating to proceedings under Chapter 33, Family Code, must be made available to any person without charge in the office of the clerk for that court where applications may be filed. Rules and forms may be copied.
1.8 Duties of Attorneys Ad Litem. An attorney ad litem must represent the minor in the trial court in the proceeding in which the attorney is assigned, and in any appeal under these rules to the court of appeals or the Supreme Court. But an attorney ad litem is not required to represent the minor in any other court or any other proceeding.
1.9 Fees and Costs.
(a) No fees or costs charged to minor. No filing fee or court cost may be assessed against a minor for any proceeding in a trial or appellate court.
(b) State ordered to pay fees and costs. The State may be ordered to pay the reasonable and necessary fees and expenses of the attorney ad litem, the reasonable and necessary fees and expenses of the guardian ad litem, the court reporter's fee as certified by the court reporter, and filing fees and costs as certified by the clerk. The order must be directed to the Comptroller of Public Accounts and must state the amounts to be awarded the attorney ad litem and the guardian ad litem. The order must be separate from any other order in the proceeding and must not address any subject other than the assessment of costs. A trial court may use Form 2F, but it is not required to do so.
(c) Witness fees. Court costs do not include the fees or expenses of a witness.
(d) Motion to reconsider; time for filing. Within thirty days of actual receipt of the order, the Comptroller may file a motion in the trial court to reconsider the assessment of costs. The trial court retains jurisdiction of the case to hear and determine any timely filed motion to reconsider.
(e) Appeal. The Comptroller may appeal from the trial court's ruling on the motion to reconsider as from any other final judgment of the court.
(f) Report to the Office of Court Administration. The court must transmit to the Office of Court Administration a copy of every order assessing costs in a proceeding under Chapter 33, Family Code.
(g) Confidentiality. The confidentiality of an order awarding costs -- as prescribed by Chapter 33, Family Code -- is not affected by its transmission to the Comptroller or the Office of Court Administration, nor is the order subject to public disclosure in response to a request under any statute, rule, or other law. But these rules do not preclude the Comptroller and the Office of Court Administration from disclosing summary information from orders assessing costs for statistical or other such purposes.
Notes and Comments
1. Rule 1.1 contemplates that other court rules of procedure and administration remain as a "default" governing matters not addressed in these rules. Thus, for example, these rules do not state a deadline for filing notices of appeal, so the ordinary 30-day deadline controls, see Tex. R. App. P. 26.1, but these rules control over inconsistent provisions in the appellate rules governing the docketing statement, the record, and briefing.
2. Rule 1.1 also contemplates that individual jurisdictions may enact local rules pursuant to Tex. R. Civ. P. 3a, Tex. R. App. P. 1.2, or Tex. R. Jud. Admin. 10, to the extent consistent with Chapter 33, Family Code, and with these rules, to tailor the implementation of the statute and these rules to local needs and preferences. Local rules may address, for example, the specific location or office where applications are to be filed, how applications are to be assigned for hearing, and whether an appellate court will permit or require briefing or oral argument. See also Rule 2, Comment 1.
3. Any judge involved in a proceeding, whether as the judge assigned to hear and decide the application, or a judge authorized to transfer the application or assign another judge to it, may have access to all information (including the verification page) in the proceeding or any related proceeding, such as a prior filing by the minor.
4. Section 33.008, Family Code, requires a physician who suspects that a minor has been physically or sexually abused by a person responsible for the minor's care to report the matter to the Texas Department of Protective and Regulatory Services. That section also requires the Department to investigate and to assist the minor in making an application, if appropriate. Section 33.010 makes confidential -- "[n]otwithstanding any other law" -- all information obtained by the Department under Section 33.008 except to the extent necessary to prove certain criminal conduct. Rule 1.4(e) construes Section 33.010 in harmony with Section 33.008. If Section 33.010 precluded the Department from disclosing information obtained under Section 33.008 to the court, the attorney ad litem, and the guardian ad litem in proceedings under section 33.003, the Department's statutorily mandated role in such proceedings would be seriously impaired. The Department could be required by Section 33.008 to assist a minor in filing an application but prohibited by Section 33.010 from providing the court with information supporting the application. The disclosure permitted and required by Rule 1.4(e) avoids this result.
5. Rule 1.5(a) constitutes the approval required by Section 51.803, Government Code, for electronic filing of documents in proceedings under these rules. To facilitate expedition of proceedings, restrictions imposed on electronic filing in other cases are not imposed here. However, electronic filing is only permitted, not required, and Rule 1.5(a) does not necessitate the provision of means for electronic filing. A person filing by electronic means cannot, of course, expect that the document will be treated confidentiality upon receipt unless the recipient has been told the time the transmission will occur.
6. Rule 1.6 controls to the extent that it conflicts with other provisions regarding the disqualification or recusal of judges, such as Tex. R. Civ. P. 18a, Tex. R. App. P. 16, and Tex. Gov't Code 25.00255. But the rule incorporates the referral and reassignment processes otherwise applicable by local rule, rule, or statute.
7. The archival requirements relating to proceedings under Chapter 33, Family Code, and these rules is governed by Sections 441.158 and 441.185, Government Code, and the schedules promulgated by the Texas State Library and Archives Commission pursuant to those authorities.
8. Because orders awarding costs contain information
made confidential by Chapter 33, Family Code, that
confidentiality should not be affected by the transmission to the
Comptroller, which is necessary to effectuate payment, or to the
Office of Court Administration, which is necessary to oversee
the costs associated with the proceedings. Rule 1.9(g) does not
preclude either the Comptroller or the Office of Court
Administration from disclosing total amounts paid for all
proceedings, or average amount per proceeding, or other such
statistical summaries or analyses which do not impair the
confidentiality of the proceedings.
RULE 2. PROCEEDINGS IN THE TRIAL COURT
2.1 Where to File an Application; Court Assignment and Transfer; Application Form.
(a) Counties in which an application may be filed. An application for an order under Section 33.003, Family Code, may be filed in any county, regardless of the minor's residence or where the abortion sought is to be performed.
(b) Courts in which an application may be filed; assignment and transfer.
(1) Courts with jurisdiction. An application may be filed in a district court (including a family district court), a county court-at-law, or a court having probate jurisdiction.
(2) Application filed with district or county clerk. An application must be filed with either the district clerk or the county clerk, who will assign the application to a court as provided by local rule or these rules. The clerk to whom the application is tendered cannot refuse to accept it because of any local rule or other rule or law that provides for filing and assignment of such applications but must accept the application and transfer it instanter to the proper clerk, advising the person tendering the application where it is being transferred.
(3) Court assignment and transfer by local rule. The courts in a county that have jurisdiction to hear applications may determine by local rule how applications will be assigned between or among them. A local rule must be approved by the Supreme Court under Rule 3a, Texas Rules of Civil Procedure.
(4) Initial court assignment if no local rule. Absent a local rule, the clerk that files an application -- whether the district clerk or the county clerk -- must assign it as follows:
(i) to a district court, if the active judge of the court, or a judge assigned to it, is then present in the county;
(ii) if the application cannot be assigned under (i), then to a statutory county or probate court, if the active judge of the court, or a judge assigned to it, is then present in the county;
(iii) if the application cannot be assigned under (i) or (ii), then to the constitutional county court, if it has probate jurisdiction, and if the active judge of the court, or a judge assigned to it, is then present in the county;
(iv) if the application cannot be assigned under (i), (ii), or (iii), then to the district court.
(5) Judges who may hear and determine applications. An application may be heard and determined (i) by the active judge of the court to which the application is assigned, or (ii) by any judge authorized to sit for the active judge, or (iii) by any judge who may be assigned to the court in which the application is pending. An application may not be heard or determined, or any proceedings under these rules conducted, by a master or magistrate.
(c) Application form. An application consists of two pages: a cover page and a separate verification page.
(1) Cover page. The cover page may be submitted on Form 2A, but use of the form is not required. The cover page must be styled "In re Jane Doe" and must not disclose the name of the minor or any information from which the minor's identity could be derived. The cover page must state:
(A) that the minor is pregnant;
(B) that the minor is unmarried, is under 18 years of age, and has not had her disabilities removed under Chapter 31, Family Code;
(C) that the minor wishes to have an abortion without notifying either of her parents or a managing conservator or guardian, and the statutory ground or grounds on which she relies;
(D) whether the minor has retained an attorney, and if so, the attorney's name, address, and telephone number;
(E) whether the minor requests the court to appoint a particular person as her guardian ad litem; and
(F) whether, concerning her current pregnancy, the minor has previously filed an application that was denied, and if so, where the application was filed.
(2) Verification page. The verification page may be submitted on Form 2B, but use of the form is not required. The verification page must be separate from the cover page, must be signed under oath by the person completing the application, and must state:
(A) the minor's full name and date of birth;
(B) the name, address, telephone number, and relationship to the minor of any person the minor requests the court to appoint as her guardian ad litem;
(C) a telephone or pager number -- whether that of the minor or someone else (such as a physician, friend, or relative) -- at which the minor may be contacted immediately and confidentially until an attorney is appointed to represent her; and
(D) that all information contained in the application, including both the cover page and the verification page, is true.
(d) Time of filing. An application is filed when it is actually received by the district or county clerk.
2.2 Clerk's Duties.
(a) Assistance in filing. The clerk must give prompt assistance -- in a manner designed to protect the minor's confidentiality and anonymity -- to persons seeking to file an application. If requested, the clerk must administer the oath required for the verification page or provide a person authorized to do so. The clerk should also redact from the cover page any information identifying the minor. The clerk should ensure that both the cover page and the separate verification page are completed in full.
(b) Filing procedure. The clerk must assign the application a cause number and affix it to both the cover page and the verification page. The clerk must then provide a certified copy of the verification page to the person filing the application. The clerk must file the verification page under seal in a secure place where access is limited to essential court personnel.
(c) Distribution. When an application is filed, the clerk must distribute the cover page and verification page, or a copy of them, to the appropriate court instanter. If appointment of a specific person as guardian ad litem has been requested, the clerk must also communicate the information to the appropriate court instanter.
(d) If judge of assigned court not present in county. The clerk must determine instanter whether the judge of the court to which the application is assigned is present in the county. If that judge is not present in the county, the clerk must instanter notify the local administrative judge or judges and the presiding judge of the administrative judicial region and must send them any information requested, including the cover page and verification page.
(e) Notice of hearing and appointments. When the clerk is advised by the court of a time for hearing or an appointment of a guardian ad litem or attorney ad litem, the clerk must instanter give notice -- as directed in the verification page and to each appointee -- of the hearing time or appointment. A court coordinator or other court personnel may give notice instead of the clerk.
(f) Orders. The clerk must provide the minor and the attorney ad litem with copies of all court orders, including findings of fact and conclusions of law.
(g) Certificate of court's failure to rule within time prescribed by statute. If the court fails to rule on an application within the time required by Section 33.002(g) and (h), Family Code, upon the minor's request, the clerk must instanter issue a certificate to that effect, stating that the application is deemed by statute to be granted. The clerk may use Form 2E but is not required to do so.
2.3 Court's Duties. Upon receipt of an application from the clerk, the court must promptly:
(a) appoint a qualified person to serve as guardian ad litem for the minor;
(b) appoint an attorney for the minor, who may be the same person appointed guardian ad litem if that person is an attorney admitted to practice law in Texas and there is no conflict of interest in the same person serving as attorney ad litem and guardian ad litem;
(c) set a hearing on the application in accordance with Rule 2.4(a); and
(d) advise the clerk of the appointment or appointments and the hearing time.
2.4 Hearing.
(a) Time. The court must conduct a hearing in time to rule on the application as required by Rule 2.5(d). But the minor may postpone the hearing by written request to the clerk when the application is filed or thereafter. The request may be submitted on Form 2C, but use of the form is not required. The request must either specify a date on which the minor will be ready for the hearing, or state that the minor will later provide a date on which she will be ready for the hearing. Once the minor determines when she will be ready for the hearing, she must notify the clerk of that time in writing. The postponed hearing must be conducted in time for the court to rule on the application as required by Rule 2.5(d).
(b) Place. The hearing should be held in a location, such as a judge's chambers, that will assure confidentiality. The hearing may be held away from the courthouse.
(c) Persons attending. Hearings must be closed to the public. Only the judge, the court reporter and any other essential court personnel, the minor, her attorney, her guardian ad litem, and witnesses on the minor's behalf may be present.
(d) Record. If the minor appeals, or if there is evidence of past or potential abuse of the minor, the hearing must be transcribed instanter.
(e) Hearing to be informal. The court should attempt to rule on the application without regard to technical defects in the application or the evidence. Affidavits of persons other than applicants are admissible. Statements in the application cannot be offered as evidence to support the application. If necessary, the court may assist the minor in remedying technical defects in the application and in presenting relevant and material facts.
2.5 Ruling.
(a) Form of ruling. The court's ruling on the application must include a signed order and written findings of fact and conclusions of law. The findings and conclusions may be included in the order. The court may use Form 2D, but it is not required to do so.
(b) Grounds for granting application. The court must grant the application if the minor establishes, by a preponderance of the evidence, that:
(1) the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notifying either of the minor's parents, the minor's managing conservator, or the minor's legal guardian, as the case may be;
(2) notifying either of the minor's parents, the minor's managing conservator, or the minor's legal guardian, as the case may be, would not be in the minor's best interest; or
(3) notifying either of the minor's parents, the minor's managing conservator, or the minor's legal guardian, as the case may be, may lead to physical, sexual, or emotional abuse of the minor.
(c) Grounds for denying application. If the minor can establish none of the grounds in Rule 2.5(b) by a preponderance of the evidence, the court must deny the application. If the court, the guardian ad litem, or the attorney ad litem are unable to contact the minor before the hearing despite diligent attempts to do so, or if the minor does not attend the hearing, the court must deny the application without prejudice.
(d) Time for ruling. The court must rule on an application as soon as possible after it is filed, subject to any postponement requested by the minor, and immediately after the hearing is concluded. Section 33.003(h), Family Code, states that a court must rule on an application by 5:00 p.m. on the second business day after the day the application is filed, or if the minor requests a postponement, after the date the minor states she is ready for the hearing, and that if the court does not rule within this time, the application is deemed to be granted.
(e) Notification of right to appeal. If the court denies the application, it must inform the minor of her right to appeal under Rule 3 and furnish her with the notice of appeal form, Form 3A.
Notes and Comments
1. Section 33.003(b), Family Code, permits an application to be filed in "any county court at law, court having probate jurisdiction, or district court, including a family district court, in this state." The initial assignment of an application to a specific court in a county is made by the clerk with whom the application is filed (not by the minor). Given the diversity of needs and circumstances among Texas courts, these rules allow the courts in each county to to tailor the procedures for filing, handling, and assigning applications prescribed by these rules to best meet those needs and circumstances. Chapter 74, Subchapter C, Government Code, affords the presiding judge of an administrative judicial region broad discretion to assign active judges within the region, as well as visiting judges, to hear matters pending in courts within the region. See Tex. Govt. Code §§ 74.054, 74.056; see also id., § 74.056(b) (presiding judges may request judges from other judicial regions for assignment); § 74.057 (Chief Justice may assign judges from one judicial region to another). Section 25.0022, Government Code, provides for assignment of probate judges. Furthermore, Chapter 74, Subchapter D, Government Code, authorizes district and statutory county court judges within a county to hear matters pending in any district or statutory county court in the county. Id., § 74.094(a). Finally, Section 74.121, Government Code, permits courts within a county to transfer cases among courts having jurisdiction over the case. If no local rule governs assignments, then Rule 2.1(b)(4) controls.
2. Because an application is considered filed when it is actually received by the clerk, the timing provisions relating to filing by mail of Tex. R. Civ. P. 21a are inapplicable.
3. Section 33.003(f), Family Code, provides that a guardian ad litem may be (1) a person who may consent to treatment for the minor under Sections 32.001(a)(1)-(3), Family Code; (2) a psychiatrist or an individual licensed or certified as a psychologist under the Psychologist's Licensing Act, Article 4512c, Vernon's Texas Civil Statutes; (3) an appropriate employee of the Department of Protective or Regulatory Services; (4) a member of the clergy; or (5) another appropriate person selected by the court. The trial court may also consider appointing a qualified person requested by the minor. Although not directly applicable to these proceedings, the standards embodied in Chapter 107, Family Code, reflect legislative intent that competent and qualified persons be appointed to serve as ad litems and may provide general guidance concerning the nature of those qualifications. Appointment of an employee of the Department of Protective and Regulatory Services to serve as guardian ad litem may give rise to a conflict of interest not immediately apparent at the time since the Department may be involved with the minor's family due to an abuse or neglect investigation, or may be party to a suit affecting the parent-child relationship, or may already be serving as the child's managing conservator.
4. The duties of guardians ad litem are not susceptible
of precise definition. Generally, a guardian ad litem should
interview the minor and conduct any investigation the guardian
believes to be appropriate, without violating Rules 1.3 and 1.4,
to assist the court in arriving at an opinion whether the minor is
mature and sufficiently well informed to make the decision to
have an abortion performed without notification to either of her
parents or a managing conservator or guardian, whether
notification would not be in the best interest of the minor, or
whether notification may lead to physical, sexual, or emotional
abuse of the minor. In making these determinations, the
following factors have been considered in other jurisdictions
with similar parental notification statutes:
These considerations may not be relevant in every case, are not exclusive, and may not be sufficient to discharge the guardian ad litem's responsibilities in every case. Use of these factors as a basis for civil liability or as a statement of the standard of care is contrary to their intended purpose. Nothing in this comment alters existing standards of conduct under the Texas Disciplinary Rules of Professional Conduct, the Texas Rules of Disciplinary Procedure, or the Code of Judicial Conduct.
In addition to these general guidelines, Chapter 107, Family Code, sets forth duties of guardians and attorneys ad litem appointed in suits affecting the parent-child relationship. These duties are not directly applicable to proceedings under Chapter 33, Family Code, and may be incompatible with the nature of such proceedings, but they reflect general legislative intent concerning the responsibilities of ad litems.
5. Under Rule 2.5(b), once a court concludes that an
application should be granted on a single ground, it need not
address other grounds. But in addressing any ground, the court
should attempt to ascertain, among other factors, whether the
pregnancy resulted from sexual assault, sexual abuse, or incest.
The legislative history of Chapter 33, Family Code, indicates
that one of the principal purposes of the statute was to screen for
sexual crimes and abuse of minors so as to protect them against
further victimization.
RULE 3. APPEAL FROM DENIAL OF APPLICATION
3.1 How to Appeal. To appeal the denial of an application, the minor must simultaneously file a notice of appeal with the clerk of the court that denied the application, file a copy of the notice of appeal with the clerk of the court of appeals to which an appeal is to be taken, and advise the clerk of the court of appeals by telephone that an appeal is being taken under Chapter 33, Family Code. The minor may use Form 3A but is not required to do so. The notice of appeal must:
(a) be styled "In re Jane Doe";
(b) state the number of the cause in the trial court;
(c) be addressed to a court of appeals with jurisdiction in the county in which the application was filed;
(d) state an intention to appeal; and
(e) be signed by the minor's attorney or attorney ad litem appointed by the trial court.
3.2 Clerk's Duties.
(a) Assistance in filing. The trial court clerk must give prompt assistance -- in a manner designed to protect the minor's confidentiality -- to persons seeking to file an appeal. Such assistance must include assuring that the notice of appeal is addressed to the proper court of appeals and that the minor's name and identifying information are not disclosed.
(b) Forwarding record to court of appeals. Upon receipt of a notice of appeal, the trial court clerk must instanter forward to the clerk of the court of appeals the notice of appeal, the clerk's record (original papers or copies) excluding the verification page, and the reporter's record. The trial court clerk must not send the record to the clerk of the court of appeals by mail but must, if feasible, deliver it by hand or transmit it by facsimile or other electronic means. If neither of these methods is feasible, then the record may be sent by overnight delivery.
(c) Certificate of court's failure to rule within time prescribed by statute. If the court of appeals fails to rule on an application within the time required by Section 33.004(b), Family Code, upon the minor's request, the clerk of the court of appeals must instanter issue a certificate to that effect, stating that the trial court's order is reversed and judgment is rendered that the application is deemed by statute to be granted. The clerk may use Form 3D but is not required to do so.
3.3 Proceedings in the Court of Appeals.
(a) Briefing and argument. A minor may request to be allowed to submit a brief and to present oral argument, but the Court may decide to rule without a brief or oral argument.
(b) Ruling. The court of appeals -- sitting in a three-judge panel -- must issue a judgment affirming or reversing the trial court's order denying the application. If the court of appeals reverses the trial court order, it must also state in its judgment that the application is granted. The court may use Form 3C but is not required to do so.
(c) Time for ruling. The court of appeals must rule on an appeal as soon as possible, subject to any postponement requested by the minor. Section 33.004(b), Family Code, states that a court must rule on an appeal by 5:00 p.m. on the second business day after the notice of appeal is filed with the court that denied the application, or if the minor requests a postponement, after the date the minor states she is ready to proceed, and that if the court does not rule within this time, the appeal is deemed to be granted.
(d) Postponement by minor. The minor may postpone the time of ruling by written request filed either with the trial court clerk at the time she files the notice of appeal or thereafter with the court of appeals clerk. The request may be submitted on Form 3B, but use of the form is not required. The request must either specify a date on which the minor will be ready to proceed to ruling, or state that the minor will later provide a date on which she will be ready to proceed to ruling. Once the minor determines when she will be ready to proceed to ruling, she must notify the court of appeals clerk of that date in writing.
(e) Opinion.
(1) Opinion optional. A court of appeals may issue an opinion explaining its ruling, but it is not required to do so.
(2) Time. Any opinion must issue not later than:
(A) ten business days after the day on which a notice of appeal is filed in the Supreme Court, if an appeal is taken to the Supreme Court; or
(B) sixty days after the day on which the court of appeals issued its judgment, if no appeal is taken to the Supreme Court.
(3) Confidential transmission to Supreme Court. When the court of appeals issues an opinion, the clerk must confidentially transmit it instanter to the Supreme Court and to the trial court.
Notes and Comments
1. Chapter 33, Family Code, provides for no appeal from an order granting an application.
2. A request to postpone the ruling of the court of appeals may be used in conjunction with a request for oral argument or to submit briefing.
3. Neither Chapter 33, Family Code, nor these rules prescribes the appellate standard of review.
4. Although publication of appellate court opinions is
prohibited by statute, the Supreme Court may amend these rules
to address issues arising from their application and
interpretation.
RULE 4. APPEAL TO THE SUPREME COURT
4.1 How to Appeal to the Supreme Court. To appeal from the court of appeals to the Supreme Court, the minor must simultaneously file a notice of appeal with the Clerk of the Supreme Court, file a copy of the notice of appeal with the clerk of the court of appeals, and advise the clerk of each court by telephone that an appeal is being taken under Chapter 33, Family Code. The minor may use Form 4A but is not required to do so. The notice of appeal must:
(a) be styled "In re Jane Doe";
(b) state the number of the cause in the court of appeals;
(c) state an intention to appeal; and
(d) be signed by the minor's attorney or attorney ad litem appointed by the trial court.
4.2 Clerk's Duties.
(a) Assistance in filing. The Clerk of the Supreme Court must give prompt assistance -- in a manner designed to protect the minor's confidentiality -- to persons seeking to file an appeal. Such assistance must include assuring that the notice of appeal is addressed to the Supreme Court and that the minor's name and identifying information are not disclosed.
(b) Forwarding record to Supreme Court. Upon receipt of a notice of appeal to the Supreme Court, the clerks of the court of appeals and Supreme Court must instanter have forwarded to the Supreme Court the record that was before the court of appeals.
4.3 Proceedings in the Supreme Court. A minor may request to be allowed to submit a brief and to present oral argument, but the Court may decide to rule without a brief or oral argument. The Court must rule as soon as possible.