ATTQRNEY GENERAL OF TEXAS 

GREG ABBOTT 

January 24,2007 

The Honorable David Swinford 

Chair, Committee on State Affairs 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Opinion No. GA-0501 

Re: Criminal provisions applicable whenaphysician 

fails to comply with section 164.052(a)(lS) of the 

Occupations Code, which restricts third-trimester 

abortions, or section 164.052(a)(19) thereof, which 

requires parental consent for abortions performed on 

unemancipated minors (RQ-0501-GA) 

Dear Representative Swinford: 

You.seek our opinion on the proper punishment for physicians who fail to comply with 

certain requirements of the Texas Occupations Code.’ Specifically, you ask: 

Does a physician’s failure to comply with the requirements of either 

5 164.052(a)(18) (restricting third-trimester abortions performed on 

viable unborn children) or 5 164.052(a)(19) (requiring parental 

consent for abortions performed on unemancipated minors) of the 

Texas Occupations Code, as provided by 5 1.42 of S.B. 419’ 

subject the physician to liability under the criminal homicide 

provisions of ch. 19 of the Penal Code? 

Request Letter, supva note 1, at 1 (footnote added). 

‘See Letter and attachments from Honorable David Swinford, Chair, Committee on State Affairs, Texas House 

of Representatives, to Honorable Greg Abbott, Attorney General of Texas (June 26,2006) (on tile with the Opinion 

Committee, also available af http://www.oag.state.tx.w) [herein&w Request Letter]; TEXAS DISTRICT & COUNTY 

ATI’ORNEYS ASS’N, 2005-2007 LEGISLATIVE UPDATE 4-5 (2005) (pages 4-5 attached to Request Letter) [hereinafter 

TDCAA Update]. 

‘See Act ofMay 26,2005,79th Leg., R.S., ch. 269,s 1.42,2005 Tex. Gen. Laws 720,733-35 [hereinafter S.B. 

4191. 
The Honorable David Swinford - Page 2 (GA-0501) 

Your question is prompted by the Texas District and County Attorneys Association’s (the 

“TDCAA”) recent interpretation about the effect of S.B. 419. See id. at 14. You indicate that the 

TDCAA believes S.B. 419 creates a new method of committing capital murder by “expanding 

prohibited practices for doctors in the Occupations Code.” Id. at 1 (quoting TDCAA Update, supra 

note 1, at 4). The TDCAA’s argument is premised on section 19.03(a)(8) of the Penal Code, which 

provides that the crime of capital murder includes the killing of an individual under six years of age, 

See TDCAA Update, supra note 1, at 5 (citing TEX. PEN. CODE ANN. § 19.03(a)@) (Vernon Supp. 

2006)). According to the TDCAA, because the Texas Penal Code defines “individual” to include 

an unborn child, the killing of an unborn child is capital murder. See TDCAA Update, supra note 

1, at 4 (citing TEX. PEN. CODE ANN. 5 1.07(26) (Vernon Supp. 2006)). The TDCAA notes that the 

Penal Code does not except the conduct of performing an abortion from the crime of capital murder 

but does provide a defense for doctors who perform a “lawful medical procedure.” See id. (citing 

TEX. PEN. CODE ANN. 5 19.06 (Vernon Supp. 2006)). Under the TDCAA’s interpretation, because 

the Texas Occupations Code as recently amended by S.B. 419 prohibits the medical practice of 

performing an abortion in the third trimester or performing an abortion on a minor without the 

requisite consent or court order, these procedures are not “lawful medical procedure[s]” within the 

scope of the defense in section 19.06, Penal Code: See id. at 5. Thus without the defense provided 

by section 19.06, the TDCAA believes that doctors who perform abortions under these 

circumstances are at risk of being charged with, convicted of, and punished for the crime of capital 

murder. See id. 

Among other things, S.B. 419 amended section 164.052 of the Texas Occupations Code to 

expand a list of prohibited practices for physicians. See S.B. 419, supra note 2. A physician 

performs a prohibited practice when the physician: 

(18) performs an abortion on a woman who is pregnant with 

a viable unborn child during the third trimester of the pregnancy 

unless.[a listed condition is present]; or 

(19) performs an abortion on an unemancipated minor 

without the written consent of the child’s parent. or without a court 

order. 

TEx. Oct. CODE ANN. 5 164.052(a)(lS)-(19) (V emon Supp. 2006). Performing a prohibited 

practice is a violation of Occupations Code, title 3, subtitle B (governing physicians) for which 

administrative and civil penalties may be imposed. See id. 35 165.001 (Vernon 2004) 

(administrative penalty for person violating subtitle B); 165.101 (civil penalty for person violating 

subtitle B). Violations of subtitle B also constitute criminal offenses punishable by criminal 

penalties. See id. 5 165.15 1 (a) (“A person commits an offense if the person violates this subtitle 

“). Generally, the criminal punishment for an offense under subtitle B is a Class A 

misdemeanor. See id. 5 165.15 l(b). The criminal punishment for practicing “medicine in this state 

in violation of this subtitle” is a third degree felony. Id. 5 165.152(a), (c), The clear language of the 

Occupations Code prescribes the criminal punishment for a doctor who violates section 

164.052(a)(lS) or 164.052(a)(19). 
The Honorable David Swinford - Page .3 (GA-0501) 

And here the Texas Penal Code defers to the criminal punishment established by the 

Occupations Code. See TEX. PEN. CODE ANN. 5 1.03(a)-(b) (V emon 2003). Under section 1.03(b) 

if an offense defined outside the Penal Code affixes a punishment that is classified using the 

classification system of the Penal Code, then the punishment for that offense is determined by the 

Penal Code classification provided. See id. By defining the applicable criminal punishment for a 

violation of subtitle B as either a Class A misdemeanor or a third degree felony, the Occupations 

Code uses the misdemeanor and felony classification system of the Penal Code. See TEX. OCC. 

CODE ANN. 5s 165.151(b), .152(a), (c) (Vernon 2004). Thus, under section 1.03(b), the criminal 

punishment for a violation of subtitle B is determined according to the Occupations Code. 

Accordingly, we conclude that a physician who violates section 164,052(a)(18) or 164,052(a)(19) 

is subject to the criminal penalties of the Occupations Code. 
The Honorable David Swinford - Page 4 (GA-0501) 

SUMMARY 

A physician who violates section 164,052(a)(18) or 

164,052(a)(19) of the Texas Occupations Code is subject to the 

criminal penalties of the Occupations Code. 

RENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, OpiniorKommittee 

Charlotte M. Harper 

Assistant Attorney General, Opinion Committee