Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 5,2005
The Honorable Ray Allen Opinion No. GA-0291
Chair, Committee on Corrections
Texas House of Representatives Re: Whether, given that Senate Bill 319, Act of May
Post Office Box 2910 31, 2003, 78th Leg., R.S., ch. 822, 2003 Tex. Gen.
Austin, Texas 78768-2910 Laws 2607, defines the word “individual” for certain
purposes to include “an unborn child,” a physician
must report a pregnant patient’s use of illegal
controlled substances as child abuse or as the delivery
of controlled substances to a child (RQ-0250-GA)
Dear Representative Allen:
Ypu ask whether, given that Senate Bill 319, Act ofMay 31,2003,7Sth Leg., R.S., ch. 822,
2003 Tex. Gen. Laws 2607, defines the word “individual” for certain purposes to include “an unborn
child,” aphysicianmust report a pregnant patient’s use of illegal controlled substances as child abuse
or as the delivery of controlled substances to a child.’ See TEX. FAM. CODE ANN. 5 261.103(a)
(Vernon 2002); TEX. HEALTH & SAFETY CODE ANN. 5 481.122 (Vernon 2003).
I. Senate Bill 319
Senate Bill 319 amended Civil Practice and Remedies Code chapter 71 and Penal Code
chapters 1,19, and 22 so that they apply to the death of or injury to an unborn child. See Act of May
31,2003,78th Leg., R.S., ch. 822, arts. l-2,2003 Tex. Gen. Laws 2607,2607-09. Civil Practice and
Remedies Code chapter 71, subchapter A relates to tort liability for wrongful death and provides in
section 71.002(a) that a plaintiff may bring an action for actual damages arising f?om an injury that
causes an individual’s death if liability exists under that section. See TEX. Crv. PRAC. &REM. CODE
ANN. 5 71.002(a) (Vernon 1997). Section 71.002’s remaining sections list the circumstances in
which a person is liable for damages arising from such a fatal injury inflicted by the person or the
person’s agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or default. See id.
3 71.002(b)-(e). Senate Bill 319 added to this subchapter definitions of the terms “death” and
“individual”:
‘See Letter from Honorable Ray Allen, Chair, Committee on Corrections, Texas House of Representatives, to
Honorable Greg Abbott, Texas Attorney General (July 15,2004) (on file with Opinion Committee, also available of
http:il\nvw.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Ray Allen - Page 2 (GA-0291)
In this subchapter:
.
(3) “Death” includes for an individual who is an unborn child, the failure to
be born alive.
(4) “Individual” includes an unborn child at every stage of gestation from
fertilization until birth.
Id. 5 71.001(3)-(4) (Vernon Supp. 2004-05). Senate Bill 319 also amended section 71.003(a) to
define the circumstances in which subchapter A applies: “This subchapter applies only if the
individual injured would have been entitled to bring an action for the injury if the individual had
lived or had been born alive.” Id. 5 71.003(a) (emphasis added to indicate amendments); Act of
May 31,2003,78th Leg., R.S., ch. 822, art. 1,s 1.02,2003 Tex. Gen. Laws 2607,2608. Senate Bill
319 further amended section 71.003 by adding anew subsection(c), which excepts certain conduct
from the subchapter’s reach:
This subchapter does not apply to a claim for the death of an individual who
is an unborn child that is brought against:
(1) the mother of the unborn child;
(2) a physician or other licensed health care provider, if the
death is the intended result of a lawful medical procedure performed
by the physician or health care provider with the requisite consent;
(3) a person who dispenses or administers a drug in
accordance with law, if the death is the result of the dispensation or
administration of the drug; or
(4) a physician or other health care provider licensed in this
state, if the death directly or indirectly is caused by, associated with,
arises out of, or relates to a lawful medical or health care practice or
procedure of the physician or the health care provider.
TEX. CIV. PRAC. &REM. CODE ANN. 5 71.003(c) (Vernon Supp. 2004-05); Act of May 31,2003,
78th Leg., R.S., ch. 822, art. 1, 5 1.02,2003 Tex. Gen. Laws 2607,2608.
Senate Bill 3 19 made similar amendments to various sections of the Penal Code. First, the
bill amended section 1.07, the Penal Code’s general definitional section, by revising the definition
of the term “individual” and adding a definition of the term “death”:
(a) In this code:
The Honorable Ray Allen - Page 3 (GA-0291)
.
(26) “Individual” means a human being who &&em-&m
and is alive, including an unborn child at every stage of gestation
from fertilization until birth.
(49) “Death” includes, for an individual who is an unborn
child, the failure to be born alive.
TEX. PEN. CODE ANN. 5 l.O7(a)(26), (49) (Vernon Supp. 2004-05) (strikeout indicates deletions;
emphasis indicates additions); Act of May 31,2003, 78th Leg., R.S., ch. 822, art. 2, 5 2.01,2003
Tex. Gen. Laws 2607, 2608. Second, Senate Bill 319 amended chapter 19, which pertains to
criminal homicide, by adding section 19.06, and chapter 22, which pertains to assaultive offenses,
byaddingsection22.12. See Act ofMay31,2003,78thLeg., R.S., ch. 822, art. 2, $5 2.02, .04,2003
Tex. Gen. Laws 2607,2608-09. Both sections 19.06 and 22.12 except Tom chapter 19 and chapter
22, respectively, conduct committed by the unborn child’s mother; a lawful medical procedure
performed by a physician or other health care provider with the requisite consent; “a lawful medical
procedure performed by a physician or other licensed health care provider with the requisite consent
as part of an assisted reproduction”; and the dispensation or administration of a prescribed drug.
TEX. PEN. CODE ANN. $5 19.06, 22.12 (Vernon Supp. 2004-05). Third, Senate Bill 319 exempts
from sections 49.07, relating to intoxication assault, and 49.08, relating to intoxication manslaughter,
the injury or death “of an unborn child if the conduct charged is conduct committed by the mother
of the unborn child.” See id. 5 49.12; see also id. 55 49.07-.08 (Vernon 2003).
II. The 47th District Attorney’s Construction of Senate Bill 319
According to your letter, three weeks after the amendments enacted by Senate Bill 3 19 took
effect on September 1,2003, the 47th District Attorney informed physicians within Potter County
that, in accordance with Senate Bill 3 19, they must “report to the local law enforcement agency or
the Department of Protective Services* women patients who are using or have used illegal narcotics
during their pregnancy.” Request Letter, sup-a note 1, at I? The district attorney’s construction,
according to her letter, is apparently based upon applying the expanded definition of the term
“individual” in Penal Code section 1.07 to two statutes not explicitly amended by Senate Bill 319,
the Controlled Substances Act, Health and Safety Code chapter 481, and the child abuse reporting
requirements in Family Code chapter 261. See Ring Letter, supra note 3, at 1. You do not believe
the district attorney has construed Senate Bill 3 19 correctly, and you therefore ask whether Senate
2As of February 1,2004, the Texas Department ofProtective and Regulatory Services is now called the Texas
Department ofFamily and Protective Services. See www.tdprs.state.tx.us; see also Act of June 1,2003,7Sth Leg., R.S.,
ch. 198,$ 1.11,2003 Tex. Gen. Laws 611,623 (codified as an amendment to TEX. HUM. RES. CODE ANN. 5 40.002).
‘SeealsoLetterfromRebeccaKing,47thDistrictAttomey, toAllPhysiciansPracticinginPotterCounty(Sept.
22,2003) (attached to Request Letter, supra note 1) [hereinafter King Letter].
The Honorable Ray Allen - Page 4 (GA-0291)
Bill 3 19 amends either the Controlled Substances Act or Family Code chapter 261 “so as to require
physicians to report to local law enforcement agencies or the [Department of Family and Protective
Services] pregnant. patients who are using or have used controlled substances during pregnancy.”
Request Letter, supra note 1, at 1; see supra note 2 (noting Department of Family and Protective
Service’s recent name change).
III. The Controlled Substances Act, Health & Safetv Code chauter 481. and the Child
Abuse Reuortiw Requirement in Familv Code chapter 261
The Controlled Substances Act classifies certain drugs such as opiates and opium derivatives,
hallucinogens, stimulants, depressants, and anabolic steroids as controlled substances. See TEX.
HEALTH&SAFETYCODEANN.§~~~.O~~(V~~~~~OO~). Undersection481.122,HealthandSafety
Code, “[a] person commits an offense ifthe person knowingly delivers” certain controlled substances
or marihuana “to a. child.” Id. 9 481.122(a)(l); see also id. $5 481.002(S) (Vernon Supp. 2004-
05) (defining the term “deliver”), 481.122(b) (Vernon 2003) (listing affirmative defenses). The
offense is a second degree felony. See id. 5 48 1.122(c) (Vernon 2003). Section 48 1.122(d) defines
the term “child” as “a person younger than 18 years of age.” Id. 5 481.122(d). For purposes of the
Controlled Substances Act, a person is “an individual, corporation, government, business trust,
estate, trust, partnership, association, or other legal entity.” Id. 9 481.002(33) (Vernon Supp. 2004-
05).
Section 261.101(a) of the Family Code generally requires any “person having cause to
believe that a child’s physical or mental health or welfare has been adversely affected by abuse or
neglect by any person” to report the information to the appropriate local or state law enforcement
agency or other state agency immediately. TEX. FAM. CODE ANN. 5 261,101(a) (Vernon 2002); see
id. 5 261.103(a) (listing the agencies to which a report may be made). Under section 261.101(b), a
professional, including a physician, who has “cause to believe that a child has been abused or
neglected or may be abused or neglected” has a nondelegable duty to report the suspicion “not later
than the 48th hour after the hour the professional first suspects that the child has been or may be
abused or neglected.” Id. 5 261.101(b). A person’s failure to report suspected child abuse is a class
B misdemeanor. See id. 9 261.109.
The term “abuse” is defined for chapter 26 l’s purposes to include “the current use by a
person of a controlled substance in a manner or to the extent that the use results in physical,
mental, or emotional injury to a child”; or “causing, expressly permitting, or encouraging a child to
use a controlled substance.” Id. 5 261.001(1)(I), (J). Section 101.003 defines “child” for purposes
of chapter 261 as “a person under 18 years of age who is not and has not been married or who has
not had thedisabilities ofminorityremoved for generalpurposes.“Zd. 5 101.003(a); id. 5 101.001(a)
(stating that “[dlefinitions in this subchapter apply to this title”).
IV. Analvsis
You suggest that construing the statutes as the district attorney has done essentially amends
section 481.122 of the Health and Safety Code and section 261.101(b) of the Family Code in
violation of article III, section 36 of the Texas Constitution, which prohibits amending a law “by
The Honorable Ray Allen - Page 5 (GA-0291)
reference to its title.” TEX. CONST. art. III, 5 36; see Request Letter, supru note 1, at 3. Under article
III, section 36, a law may be amended only by “re-enact[ment] and publish[ing] at length.” TEX.
CONST. art. III, 5 36. Article III, section 36’s purpose is to prohibit the practice “of amending a
statute by reference to its title and providing that it should be amended by adding to or striking
out certain words, or by omitting certain language, and inserting in lieu thereof certain other words.”
Snyder v. Compton, 28 SW. 1061, 1062 (Tex. 1894). Article III, section 36 “does not apply to
legislative enactments which are complete within themselves, even though their effect may be to
amend some other law.” State v. S. W. Gas & Elec. Co., 193 S.W.2d 675,679 (Tex. 1946). The text
ofthe amended statutes areprinted in Senate Bill 3 19, and thebill does not, therefore, amend statutes
by reference to their titles. Article III, section 36 does not apply to this issue.
Preliminarily, we find nothing in the Controlled Substances Act that imposes a duty on
physicians to report the delivery of controlled substances to a child. For this reason, we do not
consider whether the Controlled Substances Act incorporates the definition of “individual” in Penal
Code section l.O7(a)(26). We focus only on Family Code chapter 261.
Section 1.03(b) of the Penal Code suggests that certain definitions found in the Penal Code
may apply to statutes outside that code: “The provisions of Titles 1, 2, and 3 apply to offenses
defined by other laws, unless the statute defining the offense provides otherwise[ .I” TEX. PEN. CODE
ANN. 3 1.03(b) (Vernon 2003). Section l.O3(b)‘s “plain intent” is “that only an act ofthe legislature
may remove an offense from the general principles established in the first three titles” of the Penal
Code. Honeycutt v. State, 627 S.W.2d 417,423 (Tex. Crim. App. 1981); accordMartinez v. State,
879 S.W.2d 54, 56 n.4 (Tex. Crim. App. 1994); Tex. Att’y Gen. Op. No. JC-0307 (2000) at 6.
Section 261.101 (b) creates an offense for a physician’s failure to report suspected child abuse or
neglect. See TEX. FAM. CODE ANN. 5 261.101(b) (Vernon 2002). Section 1.07 of the Penal Code,
part of title 1, defines the term “individual,” as amended by Senate Bill 319, to include “an unborn
child.” TEX. PEN. CODE ANN. 5 l.O7(a)(26) (Vernon Supp. 2004-05). Under Penal Code section
1.03(b), this definition of “individual” applies to Family Code chapter 261 unless the legislature has
provided otherwise.
Section 261.101 (b) imposes a duty on physicians to report suspected abuse of a “child”; the
section does not use the term “individual” to define the physician’s duty. Family Code section
101.003(a) defines “child” for purposes of section 261.101 as a person under the age of 18. TEX.
FAM. CODE ANN. 5 101.003(a) (Vernon 2002). In a 2000 case considering the termination of
parental rights, the San Antonio court of appeals assumed that the Family Code’s definition of
“child” does not include an unborn child. SeeZn reM.J.M.L., 31 S.W.3d 347,351 (Tex. App.-San
Antonio 2000, pet. denied) (stating that the definition does not conflict with defining a course of
conduct endangering a child to include conduct that occurred before the child was born). In addition,
Witty v. American General Capital Distributors, Inc., a 1987 case of the Texas Supreme Court,
articulates a presumption that the term “child” does not include an unborn child unless the legislature
has expresslydetinedthe term to include the fetus. See Witty Y.Am. Gen. CapitulDistribs., Inc., 727
S.W.2d 503, 505 (Tex. 1987) (stating that the term “individual” in the state’s wrongful-death act
should not be construed to include a fetus unless the legislature has “specifically so stated”). The
Supreme Court recently declined to overrule Witty with respect to wrongful-death cases arising
before Senate Bill 319 became effective. See Fort Worth Osteopathic Hosp., Inc. v. Reese, 148
The Honorable Ray Allen - Page 6 (GA-0291)
S.W.3d 94, 97 (Tex. 2004). In specifically defining the term “child” to establish the scope of a
physician’s duty under chapter 261, Family Code section 101.003 “provides otherwise” for purposes
of section 1.03(b) of the Penal Code. TEX. PEN. CODE ANN. § 1.03(b) (Vernon 2003). Thus, the
Penal Code’s definition of “individual” does not apply to chapter 261. See id.
Construing the term “child” in chapter 261 to incorporate the Penal Code’s definition of
“individual” would be, moreover, inconsistent with the apparent legislative intent for Senate Bill
3 19, which carefully excepts certainphysicianconduct from the amended statutes’ applicability. See
Act of May 31, 2003, 78th Leg., R.S., ch. 822, arts. l-2, 2003 Tex. Gen. Laws 2607, 2607-09.
Section 71.003 of the Civil Practice and Remedies Code excludes from a claim for the wrongful
death of an unborn child an action “against a physician , if the death is the intended result of
a lawful medical procedure[,]” as well as an action against “a physician if the death directly or
indirectly is caused by. . . or relates to a lawful medical or health care practice.” TEX. CIV. PRAC.
&REM.CODEANN.§~~.OO~(C)(~),(~)(V emon Supp. 2004-05). Similarly, sections 19.06 and22.12
of the Penal Code except lawful medical procedures performed by a physician (1) “if the death of
the unborn child was the intended result”; or (2) “with the requisite consent,” including a procedure
performed as part of an assisted reproduction. See TEX. PEN. CODE ANN. 55 19.06(2)-(3), 22.12(2)-
(3) (Vernon Supp. 2004-05). We find it difficult to believe that the legislature would so carefully
except certain physician conduct expressly, but obliquely intend to amend section 261.101 of the
Family Code to affect physician conduct.
Likewise, all of the statutes amended by Senate Bill 319 carefully except the mother’s
conduct from actions for wrongful death, criminal homicide, and assault. See TEX. CIV. PRAC. &
REM. CODE ANN. 5 71.003(c)(l) (V emon Supp. 2004-05); TEX. PEN. CODE ANN. $5 19.06(l),
22.12(l) (Vernon Supp. 2004-05), 49.07-.08 (Vernon 2003), 49.12 (Vernon Supp. 2004-05). For
the legislature implicitly to require a physician to report a pregnant patient’s drug use under section
261.101~ of the Family Code and make the failure to do so an offense, but to except the abusing
mother from an action for wrongful death or from prosecution under chapter 19, 22, or 49 of the
Penal Code would be extremely inconsistent. See TEX. GOV’T CODE ANN. 4 3 11.02 l(3) (Vernon
1998) (directing a court to presume that the legislature intends a statute to achieve a reasonable
result).
Finally, Family Code section 261.001(S) defines the phrase “[blom addicted to alcohol or
a controlled substance” as a child “who is born to amother who” used an illegal controlled substance
or alcohol during pregnancy and who consequently exhibits observable symptoms of exposure to
illegal drugs or to alcohol after birth. TEX. FAM. CODE ANN. 5 261.001(S) (Vernon 2002). Chapter
261 of the Family Code does not create an offense for the mother of a child born addicted to alcohol
or a controlled substance, however, nor for the mother’s physician. The phrase is applied only in the
context of Family Code section 161.001, which lists it among the reasons for which a court may
order a parent-child relationship terminated. See id. 5 161.001(l)(R).
For all of these reasons, the Penal Code’s definition of “individual” does not apply to
offenses under Family Code chapter 261. A physician is not obligated to report a pregnant patient’s
use of a controlled substance as child abuse under Family Code section 26 1.101 (b).
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SUMMARY
The Controlled Substances Act, Health and Safety Code
chapter 48 1, does not impose a duty on a physician to report to local
prosecutors or to the Department of Family and Protective Services
a pregnant patient who is using or has used illegal drugs during
pregnancy. In addition, a physician is not required to report a
pregnant patient’s illegal drug use under section 261.101(b) of the
Family Code. The definition of the term “individual” in section
l.O7(a)(26) ofthe Penal Code, recently revised to include “an unborn
child,” does not affect the definition of the ternr “child” in Family
Code section 261.101(b).
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kyrnberly K. Oltrogge
Assistant Attorney General, Opinion Committee