PROCEEDINGS IN THE TRIAL COURT

2.1 Where to File an Application; Court Assignment and Transfer; Application Form; Effect of a Nonsuit or Prior Determination. (a) Counties in which an application may be filed. An application for an order under Section 33.003, Family Code, must be filed in the minor’s county of residence, unless one of the following exceptions applies. (1) Minor’s parent is a presiding judge. If the minor’s parent, managing conservator, or guardian is a presiding judge of a court described in (b)(1) in the county of the minor’s residence, the application must be filed in: (A) a contiguous county; or (B) the county where the minor intends to obtain the abortion. (2) Residence in a county with a population of less than 10,000. If the minor’s county of residence has a population of less than 10,000, the application must be filed in: (A) the minor’s county of residence; (B) a contiguous county; or Page 10 (C) the county where the minor intends to obtain the abortion. (3) Nonresident minor. If the minor is not a Texas resident, the application must be filed in the county where the minor intends to obtain the abortion. (b) Courts in which an application may be filed; assignment and transfer. (1) (2) 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. 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 governs the filing and assignment of applications or cases. The clerk must accept the application and transfer it immediately 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 who files an application—whether the district clerk or the county clerk—must assign it as follows: (A) (B) (C) to a district court, if the active judge of the court, or a judge assigned to it, is available; if the application cannot be assigned under (A), then to a statutory county or probate court, if the active judge of the court, or a judge assigned to it, is available; if the application cannot be assigned under (A) or (B), 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 available; Page 11 (D) if the application cannot be assigned under (A), (B), or (C), then to the district court. (5) Judges who may hear and determine applications. An application may be heard and determined by the active judge of the court to which the application is assigned, by any judge authorized to sit for the active judge, or 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—if the minor is not represented by an attorney at the time of filing. If the minor is represented by an attorney at the time of filing, the application must include a third page, the attorney’s sworn statement or declaration made under penalty of perjury. (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) (C) that the minor is unmarried, is under 18 years of age, and has not had her disabilities removed under Chapter 31, Family Code; that the minor wishes to have an abortion without notifying or obtaining consent from either of her parents or a managing conservator or guardian, and the statutory ground or grounds on which she relies; (D) that venue is proper in the county in which the application has been filed; (E) whether the minor has retained an attorney, and if so, the attorney’s name, email address, mailing address, and telephone number; Page 12 (F) whether the minor requests the court to appoint a particular person as her guardian ad litem; and (G) (H) that, concerning her current pregnancy, the minor has not previously filed an application that was denied; or if the minor has filed a previous application with respect to the current pregnancy that was denied, that this application is being filed in the same court that denied the previous application and that there has been a material change in circumstances since the time the previous application was denied. (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 by the minor under oath or under penalty of perjury, and must state: (A) (B) (C) the minor’s full name, date of birth, physical address, mailing address, and telephone number; 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; if the minor has not retained an attorney, a telephone 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. (3) Attorney’s statement. The minor’s attorney must file with the application a sworn statement or unsworn declaration made under penalty of perjury that attests to the truth of the minor’s claims regarding venue and prior applications. (d) Time of filing. An application is filed when it is actually received by the district or county clerk. Page 13 (e) Nonsuit requires permission. A minor may not withdraw or nonsuit an application without permission of the court. (f) Res judicata effect of prior determination. (1) General rule. A minor who has filed an application and obtained a determination by the court under Rule 2.5 may not initiate a new application proceeding with respect to the same pregnancy, and the prior determination is res judicata on the issue whether the minor may consent to an abortion without notification to, or consent of, a parent, managing conservator, or guardian. (2) Exception for material change in circumstances. A minor whose application is denied may submit a new application to the court that denied the application if the minor shows that there has been a material change in circumstances since the prior application was denied. 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—to persons seeking to file an application. If requested, the clerk must administer the oath for the verification page or provide a person authorized to do so. The clerk must also redact from the cover page any information identifying the minor. The clerk must 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 that does not identify the assigned judge 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 immediately. If appointment of a specific person as guardian ad litem has been requested, the clerk must also communicate the information to the appropriate court immediately. (d) If judge of assigned court not available. The clerk must determine immediately whether the judge of the court to which the application is Page 14 assigned is available to hear the application within the prescribed time period. If that judge is not available, the clerk must immediately 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 the hearing or of the appointment of a guardian ad litem or an attorney ad litem, the clerk must immediately 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) (g) Orders. The clerk must provide the minor’s attorney and the guardian ad litem with copies of all court orders, including findings of fact and conclusions of law. 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 33.003(h), Family Code, then, upon the minor’s request, the clerk must immediately issue a certificate to that effect, stating that the application is deemed to be denied. 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) (b) appoint a qualified person to serve as guardian ad litem for the minor applicant; unless the minor has a retained attorney, appoint an attorney ad litem for the minor, who must not be the same person appointed as guardian ad litem; (c) set a hearing on the application; and (d) advise the clerk of the appointments and the hearing time. 2.4 Hearing. (a) Time. Page 15 (1) General rule. The court must conduct a hearing in time to rule on the application by the deadline stated in Rule 2.5(f). (2) Minor may request postponement. The minor may postpone the hearing by written request to the clerk. 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 by the deadline stated in Rule 2.5(f). (b) (c) Place. The hearing should be held in a location, such as a judge’s chambers, that will ensure confidentiality. The hearing may be held away from the courthouse. Persons attending. The hearing must be closed to the public. Only the judge, the court reporter, other essential court personnel, the minor, her attorney, her guardian ad litem, and witnesses on the minor’s behalf may be present. (d) Record. The court, the minor, the minor’s attorney, or the guardian ad litem may request that the record—the clerk’s record and reporter’s record—be prepared. A request by the minor, the minor’s attorney, or the guardian ad litem must be in writing and may be, but is not required to be, on Form 2I (if an appeal will be taken) or 2J (if an appeal will not be taken). The court reporter must provide an original and two copies of the reporter’s record to the clerk. When the record has been prepared, the clerk must contact the minor, if she has requested the record; the minor’s attorney; and the guardian ad litem at the telephone numbers shown on Form 2I or 2J and make it available to them. The record must be prepared and made available immediately if it has been requested for appeal or to demonstrate the past or potential abuse of the minor. When a notice of appeal is filed, the clerk must forward the record to the court of appeals in accordance with Rule 3.2(b). (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 the minor are admissible. Statements in the application cannot be offered as evidence to support the application. If Page 16 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 clear and convincing evidence: (1) that the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notice to, or consent of, a parent, managing conservator, or guardian; or (2) that the notification or attempt to obtain consent would not be in the minor’s best interest. (c) The mature-and-informed inquiry. In determining whether the minor meets the requirements of (b)(1), the court must consider the experience, perspective, and judgment of the minor. The court may: (1) consider all relevant factors, including: (A) the minor’s age; (B) (C) the minor’s life experiences, such as working, traveling independently, or managing her own financial affairs; and steps taken by the minor to explore her options and the consequences of those options; (2) inquire as to the minor’s reasons for seeking an abortion; (3) (4) consider the degree to which the minor is informed about the state- published informational materials described by Chapter 171, Health and Safety Code; and require the minor to be evaluated by a licensed mental health counselor, who must return the evaluation to the court for review within three business days. Page 17 (d) The best-interest inquiry. In determining whether the minor meets the requirements of (b)(2), the court may inquire as to: (1) the minor’s reasons for not wanting to notify and obtain consent from a parent, managing conservator, or guardian; (2) whether notification or the attempt to obtain consent may lead to physical or sexual abuse; (3) whether the pregnancy was the result of sexual abuse by a parent, managing conservator, or guardian; and (4) any history of physical or sexual abuse from a parent, managing conservator, or guardian. (e) Grounds for denying the application. The court must deny the application if: (1) the minor does not establish either ground in (b) by clear and convincing evidence; or (2) the minor does not attend the hearing; and (A) the minor had actual knowledge of the setting; or (B) diligent attempts were made to notify the minor of the setting. (f) 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 p.m. on the fifth business day after the day the application is filed, or if the minor requests a postponement, by 5 p.m. on the fifth business day after the date the minor states she is ready for the hearing. (g) Failure to timely rule. If the court fails to timely rule on an application, the application is deemed to be denied. (h) Notification of the 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. Page 18 1. 2. 3. Notes and Comments Section 33.003(b), Family Code, permits an application to be filed in “a county court at law, court having probate jurisdiction, or district court, including a family district court, in the minor’s county of residence” or, if an exception applies, in a contiguous county or the county where the abortion would be performed. 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 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. 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. 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 Chapter 501, Occupations Code; (3) an appropriate employee of the Department of Family and Protective 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 Family and Protective 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 Page 19 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, or consent of, either of her parents or a managing conservator or guardian or whether notification or the attempt to obtain consent would not be in the best interest of the minor. Rule 2.5(c) and (d) list some nonexclusive factors outlined in Section 33.003(i-1)-(i-2), Family Code, that a court may consider in deciding whether the statutory criteria for a bypass have been met. Factors that have been considered in other jurisdictions with similar parental notification and consent statutes include: • whether the minor has been examined by a doctor of medicine, doctor of osteopathy, or registered nurse—who is licensed to practice in Texas—and has given that health care provider an accurate and complete statement of her medical history; • whether the minor has been provided with information or counseling bearing on her decision to have an abortion; • whether the minor desires further counseling; • whether, based on the information or counseling provided to the minor, she is able to give informed consent; • whether the minor is attending school, or is or has been employed; • whether the minor has previously filed an application that was denied; • whether the minor lives with her parents; • whether the minor desires an abortion or has been threatened, intimidated, or coerced into having an abortion; • whether the pregnancy resulted from sexual assault, sexual abuse, or incest; • whether there is a history or pattern of family violence; and Page 20 • whether the minor fears for her safety. 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 confidential and expeditious 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.