### 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 ofthe Texas Occupations Code.’ Specifically, you ask:

Does aphysician’s failure to comply with the requirements ofeither 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 ofthe Penal Code? Request Letter, supva note 1, at 1(footnote added).

‘SeeLetter and attachments from Honorable David Swinford, Chair, Committee on State Affairs, Texas House ofRepresentatives,

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]; TEXASDISTRICT& COUNTY ATI’ORNEYS

ASS’N, 2005-2007 LEGISLATIVE UPDATE4-5 (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 inthe Occupations Code.” Id.at 1(quoting TDCAA Update, supra note 1,at4). The TDCAA’s argument ispremised on section 19.03(a)(8) ofthe Penal Code, which provides that the crime ofcapital murder includes the killing ofan individual under six years ofage, See TDCAA Update, supra note 1,at 5(citing TEX.PEN.CODEANN. § 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.CODEANN. 5 1.07(26) (Vernon Supp. 2006)). The TDCAA notes that the Penal Code does not except the conduct ofperforming an abortion from the crime ofcapital murder but does provide a defense for doctors who perform a “lawful medical procedure.” See id.(citing TEX.PEN.CODEANN. 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 ofthe 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 atrisk ofbeing charged with, convicted of, and punished for the crime of capital murder. See id. Among other things, S.B. 419 amended section 164.052 ofthe Texas Occupations Code to expand a list of prohibited practices for physicians. See S.B. 419, supra note 2. A physician performs aprohibited practice when the physician: (18) performs an abortion on awoman who ispregnant 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 ofthe child’s parent. orwithout acourt order. TEx. Oct. CODEANN. 5 164.052(a)(lS)-(19) (Vemon 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 ifthe 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 forpracticing “medicine in this state in violation ofthis subtitle” is athird degree felony. Id.5 165.152(a), (c), The clear language ofthe 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.CODEANN. 5 1.03(a)-(b) (Vemon 2003). Under section 1.03(b) if an offense defined outside the Penal Code affixes a punishment that is classified using the classification system ofthe 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 athird degree felony, the Occupations Code uses the misdemeanor and felony classification system of the Penal Code. See TEX.OCC. CODEANN. 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 aphysician who violates section 164,052(a)(18) or 164,052(a)(19) is subject to the criminal penalties ofthe 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 ofthe 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