Full Report: Texas Courthouses Ill-Equipped to Handle Constitutionally Required Judicial Bypass Process for Minors

District Clerk Call-Around
Full Report
March 23, 2015

Legal background.
Parental involvement laws began going into effect soon after the passage of Roe v. Wade, which legalized abortion nationwide. Just three years after this ruling, the Supreme Court ruled in Planned Parenthood v. Danforth (1976) that a state could not authorize an “absolute parental veto” over a minor’s decision to terminate a pregnancy. The same constitutional prohibition applies to giving a third party an “absolute, and possibly arbitrary, veto” over a decision to have an abortion. Then, in Bellotti v. Baird (1979), the Court ruled that while a state may require minors to obtain parental consent to an abortion, there must be an alternative for those minors who cannot or will not involve a parent. Judicial bypass was thus designed as an alternative option for a minor, requiring that she petition the court and prove mature and well- informed enough to make intelligently the abortion decision on her own “independently of her parents’ wishes.” If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion would be in her best interest. If the court is persuaded that it is, the court must authorize the abortion. In addition, the bypass procedure must be confidential and expeditious.

Recognizing that minors are indigent and do not have ready access to attorneys, the Texas judicial bypass provision was designed so that any minor could contact a district clerk’s office and get assistance to file a bypass. District clerks are required by law to comply with the state and the Parental Notification Rules implementing the law.

The Survey.
Jane’s Due Process (JDP) is a 501(c)(3) organization that formed shortly after Texas’ parental involvement law went into effect in 2000. Our mission is to ensure free legal representation for every pregnant minor in Texas whether she chooses to obtain an abortion or become a parent. Among a laundry list of services, we guide minors through the judicial bypass process, guaranteeing non-biased and judgment-free legal representation. Every few years, JDP surveys the district clerks offices around Texas to ensure that clerks are in fact providing callers seeking judicial bypass with correct and comprehensive information.

This report is based on a district clerk call-around completed in February-March 2015. The caller posed as a pregnant minor seeking information about how to obtain a judicial bypass in her residing county. We chose to survey all counties in Texas with populations above 50,000 (62) and spot-check the smaller counties (19). In total, we surveyed 81 counties. The caller asked the following questions:

1. How do I apply for a judicial bypass?
2. Where do I go to file my application for a judicial bypass?
3. Whom do I ask to help me fill out my application?
4. Will anyone else find out that I am applying for a judicial bypass?
5. How do I get a lawyer?

The Results.
Our results were overwhelmingly disappointing and highly concerning. A mere 26% of counties provided the caller with factually correct information. Even more frightening, 37% of counties denied entirely their office’s involvement with judicial bypass filings, and a vast 81% of counties had no immediate knowledge of the existence of judicial bypass. A stunning 43% of counties provided the caller with blatant misinformation. Several district clerks went a step further and provided the caller with personal, religious advice, referencing “God’s plan” for the minor. One clerk announced she was an “advocate for Crisis Pregnancy Centers” and wanted to meet with the minor in person after work. Other clerks simply told the caller to “pick up the phone and call a lawyer” with one abruptly hanging up the phone.

While our results depend largely on the clerk who happened to answer the phone under Texas law, clerk’s offices should help any and all minors who seek to file a bypass application. While one clerk may be more knowledgeable than another, the clerk who answers the phone should be able to connect a minor to help immediately. This survey’s methodology replicates precisely what could happen in a real-life situation if a pregnant minor were to simply call her district clerk’s office seeking information. In cases where a clerk does not have any information, he or she should at least be able to transfer the caller immediately to someone who can provide the caller with the correct information, rather than providing the caller with misinformation or no information at all.

We cannot stress enough our concern regarding these findings. The judicial bypass provision is in place as a safety net for pregnant teens who cannot involve a parent or legal guardian in their pregnancy, often times for fear of abuse or abandonment. Judicial bypass absolutely must be accessible to this highly vulnerable population. District clerk’s offices must be trained properly to provide complete and accurate information so that every Texas minor has access to this constitutionally protected provision. Indeed, when the State is not upholding this legal requirement in practice, it creates very serious constitutional problem that may place minors in danger.

Detailed Results.
Below are the findings of the survey in detail with total percentages of the 81 counties surveyed and percentages broken down by large (populations above 50,000) and small counties (the 19 counties surveyed with populations below 50,000) surveyed:

  • Of the 81 counties surveyed, only 26% provided the caller with factually correct information meeting the requirements of constitutional and Texas law.
    –  22.5% of larger counties
    –  37% of smaller counties
  • 37% of counties said they did not handle judicial bypass and/or do not have the necessary forms to be completed in effect refusing to provide minors with access to the bypass process.
    –  31% of larger counties
    –  58% of smaller counties
  • 81% of counties had no immediate knowledge of the existence of judicial bypass, in that the first clerk to answer the phone could not help the minor
    –  79% of larger counties
    –  89% of smaller counties
  • 43% of counties provided the caller with blatant misinformation such as claiming there is no bypass procedure or that the minor must have an attorney before filing an application for bypass
    –  35% of larger counties
    –  68% of smaller counties
  • 16% of counties claimed they could not disseminate any instructions regarding how to apply for judicial bypass due to an inability to give legal advice
    –  6% of larger counties
    –  47% of smaller counties
  • 6% of counties told caller incorrectly that there would be a filing fee
    –  6% of larger counties
    –  5% of smaller counties
  • 33% of counties directed the caller to the wrong place to obtain and complete the application
    –  26% of larger counties
    –  58% of smaller counties
  • 11% of counties were unreachable after 3+ attempts, all of these being larger counties

For additional information, contact Executive Director Tina Hester or Research Associate Emily Rooke-Ley: 512.444.7891 or email [email protected]