                              ATTQRNEY GENERAL OF TEXAS
                                          GREG         ABBOTT




                                              January 24,2007



The Honorable David Swinford                          Opinion No. GA-0501
Chair, Committee on State Affairs
Texas House of Representatives                        Re: Criminal provisions applicable whenaphysician
Post Office Box 2910                                  fails to comply with section 164.052(a)(lS) of the
Austin, Texas 78768-2910                              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’ORNEYSASS’N, 2005-2007 LEGISLATIVEUPDATE 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. CODEANN. 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
