Can a Texas doctor be charged with capital murder for an illegal third-trimester or minor abortion?

TX AG Opinion GA-0501: What penalty applies to a physician who violates Texas's abortion-practice rules?

Plain-English summary

A Texas House committee chair asked the Attorney General which criminal penalty applies to a physician who fails to comply with two Occupations Code provisions added by S.B. 419 in 2005: section 164.052(a)(18), which restricts third-trimester abortions on a viable unborn child, and section 164.052(a)(19), which requires written parental consent or a court order before an abortion is performed on an unemancipated minor. The specific worry was whether such a violation could expose the physician to the criminal homicide provisions of chapter 19 of the Penal Code, including capital murder.

The question came from a reading advanced by the Texas District and County Attorneys Association. That reading ran as follows: the Penal Code's capital murder statute (section 19.03(a)(8)) covers killing an individual under six years of age; the Penal Code defines "individual" to include an unborn child; the Penal Code provides a defense for a doctor performing a "lawful medical procedure" (section 19.06); and because S.B. 419 made third-trimester and certain minor abortions prohibited practices, those procedures arguably fall outside the "lawful medical procedure" defense, leaving the doctor exposed to a capital murder charge.

The opinion did not adopt that chain. It looked at how the Occupations Code itself punishes these violations. Performing a prohibited practice violates title 3, subtitle B of the Occupations Code, which carries administrative and civil penalties and also makes the conduct a criminal offense. The general criminal punishment for a subtitle B offense is a Class A misdemeanor, and practicing medicine in violation of the subtitle is a third-degree felony. The Penal Code, in section 1.03(b), says that when an offense defined outside the Penal Code sets a punishment using the Penal Code's misdemeanor and felony classification system, the punishment is determined by that classification. Because the Occupations Code defines the punishment for these violations as a Class A misdemeanor or a third-degree felony, using the Penal Code's own classification system, the Penal Code defers to it. The opinion concluded that a physician who violates section 164.052(a)(18) or (a)(19) is subject to the criminal penalties of the Occupations Code.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas abortion law has changed substantially since 2007 through later legislation and court decisions, and the Occupations Code and Penal Code provisions cited here may have been amended or renumbered. This page describes only what the 2007 opinion concluded about the statutes as they stood then. Anyone dealing with current Texas abortion law should consult the present statutes and recent authority rather than relying on anything stated here.

Who this opinion affected (as of 2007)

The Legislature and the requesting committee: The opinion answered the committee's question by concluding that the 2005 amendments did not route these physician violations into the capital murder statute; the punishment the Occupations Code itself set (a Class A misdemeanor, or a third-degree felony for practicing medicine in violation of the subtitle) controlled.

Prosecutors: The opinion addressed the Texas District and County Attorneys Association's interpretation directly and concluded that a physician who violated section 164.052(a)(18) or (a)(19) was subject to the Occupations Code's criminal penalties rather than chapter 19 of the Penal Code.

Physicians: The opinion meant that, under the law as it stood in 2007, the criminal exposure for these specific Occupations Code violations was the misdemeanor or third-degree-felony penalty in the Occupations Code, not a capital murder charge.

Common questions

Did the 2007 opinion say a doctor could be charged with capital murder for these abortions?
No. The opinion concluded that a physician who violates section 164.052(a)(18) or (a)(19) is subject to the criminal penalties of the Occupations Code, not the capital murder provisions of the Penal Code.

What penalties did the Occupations Code set for these violations?
The opinion explained that violating subtitle B is generally a Class A misdemeanor, and that practicing medicine in violation of the subtitle is a third-degree felony, along with available administrative and civil penalties.

Why didn't the Penal Code's homicide statute apply?
The opinion relied on Penal Code section 1.03(b): when a non-Penal-Code statute affixes a punishment using the Penal Code's classification system, the punishment is determined by that classification. Because the Occupations Code did exactly that, the Penal Code deferred to the Occupations Code penalties.

What were sections 164.052(a)(18) and (a)(19) about?
The opinion described (a)(18) as restricting abortions on a woman pregnant with a viable unborn child during the third trimester (absent a listed condition), and (a)(19) as prohibiting an abortion on an unemancipated minor without the written consent of the child's parent or a court order.

Background and statutory framework

S.B. 419 (2005) amended section 164.052 of the Occupations Code to add two prohibited practices for physicians: performing a third-trimester abortion on a viable unborn child absent a listed condition (subsection (a)(18)), and performing an abortion on an unemancipated minor without written parental consent or a court order (subsection (a)(19)). Performing a prohibited practice violates title 3, subtitle B, for which administrative and civil penalties may be imposed and which also constitutes a criminal offense (Act of May 26, 2005, 79th Leg., R.S., ch. 269, § 1.42, 2005 Tex. Gen. Laws 720, 733-35 (S.B. 419); Tex. Occ. Code Ann. §§ 164.052(a)(18)-(19) (Vernon Supp. 2006), 165.001, 165.101, 165.151(a)).

The general criminal punishment for a subtitle B offense is a Class A misdemeanor, and practicing medicine in violation of the subtitle is a third-degree felony (Tex. Occ. Code Ann. §§ 165.151(b), 165.152(a), (c) (Vernon 2004)).

The prosecutors' association reading rested on the capital murder statute (which covers killing an individual under six), the Penal Code's definition of "individual" to include an unborn child, and the "lawful medical procedure" defense. The opinion did not adopt that reading. Under Penal Code section 1.03(b), if an offense defined outside the Penal Code affixes a punishment using the Penal Code's classification system, the punishment is determined by that classification. Because the Occupations Code defined these violations as a Class A misdemeanor or a third-degree felony using the Penal Code's classification system, the criminal punishment was determined by the Occupations Code (Tex. Pen. Code Ann. §§ 19.03(a)(8), 1.07(26), 19.06 (Vernon Supp. 2006), 1.03(a)-(b) (Vernon 2003); Tex. Occ. Code Ann. §§ 165.151(b), 165.152(a), (c) (Vernon 2004)).

Citations

Statutes and session laws:

• Tex. Occ. Code Ann. §§ 164.052(a)(18)-(19) (Vernon Supp. 2006), 165.001, 165.101, 165.151(a)-(b), 165.152(a), (c) (Vernon 2004)
• Tex. Pen. Code Ann. §§ 1.03(a)-(b) (Vernon 2003), 1.07(26), 19.03(a)(8), 19.06 (Vernon Supp. 2006)
• Act of May 26, 2005, 79th Leg., R.S., ch. 269, § 1.42, 2005 Tex. Gen. Laws 720, 733-35 (S.B. 419)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0501
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0501.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY 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 when a physician fails to comply with section 164.052(a)(18) 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.[1] Specifically, you ask:

Does a physician's failure to comply with the requirements of either § 164.052(a)(18) (restricting third-trimester abortions performed on viable unborn children) or § 164.052(a)(19) (requiring parental consent for abortions performed on unemancipated minors) of the Texas Occupations Code, as provided by § 1.42 of S.B. 419[2] subject the physician to liability under the criminal homicide provisions of ch. 19 of the Penal Code?

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

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 1-4. 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)(8) (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. § 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. § 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. OCC. CODE ANN. § 164.052(a)(18)-(19) (Vernon 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. §§ 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. § 165.151(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. § 165.151(b). The criminal punishment for practicing "medicine in this state in violation of this subtitle" is a third degree felony. Id. § 165.152(a), (c). The clear language of the Occupations Code prescribes the criminal punishment for a doctor who violates section 164.052(a)(18) or 164.052(a)(19).

And here the Texas Penal Code defers to the criminal punishment established by the Occupations Code. See TEX. PEN. CODE ANN. § 1.03(a)-(b) (Vernon 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. §§ 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.

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.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

[1] 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 file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter]; TEXAS DISTRICT & COUNTY ATTORNEYS ASS'N, 2005-2007 LEGISLATIVE UPDATE 4-5 (2005) (pages 4-5 attached to Request Letter) [hereinafter TDCAA Update].

[2] See Act of May 26, 2005, 79th Leg., R.S., ch. 269, § 1.42, 2005 Tex. Gen. Laws 720, 733-35 [hereinafter S.B. 419].