State of Texas: Medical board could clarify abortion ban exceptions

AUSTIN (Nexstar) -- The Texas Medical Board is scheduled to discuss clarifying what counts as medical exceptions to the state’s abortion restrictions. The board plans to take up the issue at a meeting on March 21 and 22.

The move comes after two high profile lawsuits highlighted stories of Texas women who had life-threatening pregnancy complications, but were denied emergency exceptions to the state’s ban on abortion.

The story of Kate Cox drew nationwide attention. The Dallas mother was 20 weeks pregnant with her third child when doctors delivered devastating news, a fetal diagnosis called trisomy 18. A 2012 study found that most babies born with the genetic condition die within one year of birth.

Cox’s doctors said her baby would likely die within a few days. They also told her that her own health and future fertility would be at risk if she gave birth.

A Travis County court ruled Cox could receive an abortion under the medical exceptions in the state’s abortion law, which bans nearly all abortions after six weeks. Attorney General Ken Paxton filed an emergency appeal to the Texas Supreme Court, which put the lower court’s ruling on pause.

While the state Supreme Court evaluated the merits of the case, attorneys for Cox said her condition worsened — saying she visited the emergency room four times and experienced elevated vitals and risked a uterine rupture, which could impact her ability to have children in the future.

Cox ended up traveling out of state to terminate her pregnancy. Later that same day, Texas Supreme Court issued an opinion blocking the lower court’s ruling that gave Cox permission to get an abortion in Texas.

After the Texas Supreme Court rejected Cox’s appeal, lobbyist couple Amy and Steve Bresnen felt compelled to act on their own accord. The Bresnens, who are attorneys, filed a petition earlier this year that asked the medical board to issue “clear guidance” about when exceptions are allowed to the state’s abortion ban.

“We did not want the circularity that's created by one branch of government asking the other branch of government to do its job,” Steve Bresnen explained. “Meanwhile, the flesh and blood human beings and physicians and their patients are caught in the circle.”

The author of the law banning abortions in Texas has voiced similar concerns. Republican State Senator Bryan Hughes said he wrote the board almost two years ago asking for guidance on exceptions.

“Every medical provider should know if a woman has a life-threatening condition she must be treated. Texas law does not stand in the way of that,” Hughes said.

Under Texas law, the abortion prohibition does not apply when a pregnant woman has a “life threatening physical condition… that places her at risk of death or poses a serious risk of substantial impairment of a major bodily function.”

But physicians in Texas have voiced fear of performing an abortion under the law’s exceptions for conditions that could cause harm to the mother. While Cox’s case was playing out in court, Paxton warned her doctors that they could face penalties if they performed an abortion. Paxton sent a notice saying state law allows for punishment, including prison time, regardless of a temporary order from a judge.

“I've always tried to practice within the standards of care,” said Cox’s physician, Dr. Damala Karsan, last July.  “I don't want to risk my freedom, my livelihood."

Cox’s case aligns closely with Zurawski v. Texas, another challenge to Texas’ abortion ban seeking clarification to the law’s medical exceptions. In that case, 20 women, many of whom nearly died due to pregnancy complications, argued in front of the Texas Supreme Court that the law does not give proper deference to a doctor’s good-faith medical judgment.

The Bresnens hope guidance from the Texas Medical Board will help women like Cox and Zurawaski moving forward.

“This is, in my opinion, a very pro-life move. It's one thing to be anti-abortion, and it's another thing to be anti-mother," Amy Bresnen said. "If you want families to have babies in Texas, you have to make expectant mothers and women feel comfortable that if they're in a situation where their life is on the line that they will be properly treated."

The medical board will meet Friday, and consider drafting language to clarify exceptions. Once they approve that language, there is a 30-day period of public comments where the board invites the public to weigh in before the guidance becomes final.

Districts take different approaches to meet school safety standards

A sweeping school safety law took effect last September, dramatically expanding security requirements on campuses across Texas. But some districts are still having trouble meeting those standards.

Among other requirements, the new law mandates every school district to placed armed security officers on every campus every school day and provide silent panic alert buttons in every classroom.

On Monday, the Paxton issued additional guidance on how districts can comply with the law, as some struggle to find money in their budgets.

House Bill 3 bumped the school safety allotment by 28 cents per student and $15,000 per campus. But that's not enough to cover the requirement for armed officers. Paying an officer can cost between $60,000 to $100,000.

Districts are taking different approaches to meet the requirements, depending on their finances.

Eanes ISD in the suburbs of Austin was able to establish its own campus police force. Meanwhile, in Harlingen, schools are partnering with parents. They created a district-wide program called Dads of Great Students, also known as Watch D.O.G.S. The dads are not armed, but help provide an extra layer of security on campus.

Districts without the money or staffing to hire officers can instead train and arm school employees. The Texas Education Agency told us they do not track how many districts have decided to take that approach.

Tutor's arrest reveals gaps in background check system

An Austin Independent School District email on Dec. 8 for parents with children at Akins High School had a startling subject line: Arrest of former Akins Tutor. 

Earlier that day, Austin ISD police arrested Isaiah Xavier Smith, a man hired by the local nonprofit Austin Partners in Education to tutor at Austin ISD schools. The district told parents Smith had been arrested on a felony charge of indecency with a child by contact tied to a report out of Akins.

But parents did not know that, at the same time, a state investigation was ongoing into Smith over a similar allegation in nearby Lee County. A KXAN investigation found that Smith, a former juvenile corrections officer at the Texas Juvenile Justice Department's Giddings State School, got a job at Austin Partners in Education, all while being investigated by the agency.

In late February, sparked by KXAN's investigation, Texas Sen. Paul Bettencourt, R-Houston, sent a letter to the Texas Juvenile Justice Department and Texas Education Agency requesting an explanation of how Smith could move from one juvenile education setting to another. Bettencourt is now promising to file new legislation after the head of the Texas Education Agency revealed another gap in the laws meant to prevent individuals who have harmed minors from having access to students.

Smith started his assignment with Austin Partners in Education at Akins in September 2023. By October, Austin ISD said its police department was investigating the tutor. According to an Austin ISD police investigator, one of the high school students reported Smith touched him inappropriately in a computer lab. Police arrested him on Dec. 8 related to the Akins student's outcry.

Former Austin ISD tutor was banned from working in state juvenile detention centers

The Investigation Timeline

Aug. 15, 2022– Smith starts as a Juvenile Corrections Officer(JCO) at Giddings State School Sept. 26, 2022- Smith is terminated as a JCO at Giddings State School. Sept. 27, 2022– TJJD Office of Inspector General begins investigating Smith for sexual misconduct. Days later, TJJD flags Smith in the agency's database. July 2023– TJJD’s OIG confirms an administrative violation of “abuse” had occurred and that Smith had had an “inappropriate relationship” with a youth as defined by the Texas Family Code (Chapter 261.405). OIG also referred the case for further review to the Special Prosecution Unit (SPU), which led to criminal charges. September 2023– Smith begins tutoring for Austin Partners at Education on the Akins campus. Oct. 25, 2023– Austin ISD student makes a report of sexual misconduct by Smith. AISD terminates Smith’s access to the district’s campuses. Dec. 8, 2023– Austin ISD Police arrest Smith Dec. 2023– Smith is formally made ineligible for juvenile corrections or probation professional certification. Jan. 10, 2023– Smith is indicted for Improper Sexual Activity with a Person in Custody and Indecency with a Child related to the outcry at Giddings State School.

More than a year before, in August 2022, Smith started work as a juvenile corrections officer at Giddings State School. According to officials with the Texas Juvenile Justice Department, or TJJD, Smith was fired not even two months into his job.

Smith was dismissed from his job for turning off his body-worn camera, which, according to TJJD, was a fireable offense. The body-camera violation was discovered after TJJD began reviewing video footage as a part of a sexual misconduct investigation that began into Smith in September 2022.

Agency officials said one of the minors at Giddings made a report that Smith touched his private parts.

In July 2023, TJJD's Office of Inspector General concluded Smith had an "inappropriate relationship" with a youth and that abuse occurred. The OIG also referred the case for further review to the Special Prosecution Unit, which led to Smith being indicted in January 2024.

The agency said despite the ongoing investigation, it put a flag on Smith in its database, ICIS, within days of the allegation of sexual misconduct being made in September 2022. The flag alerted anyone in the juvenile justice system to contact TJJD before hiring him.

Former Austin ISD tutor and juvenile corrections officer faces more charges of indecency with children

The flag had been on Smith's record in TJJD's database for nearly a year when he began working as a tutor at Akins High School. However, according to agency officials, the database where TJJD flagged Smith is only accessible to other juvenile justice facilities in the state. The Texas Education Agency, public and private schools, and educational non-profits do not have access. 

Austin Partners in Education has yet to clarify to KXAN whether Smith disclosed his previous work history at TJJD or the allegations he faced before being hired as a tutor. TJJD officials told KXAN the nonprofit would not have known about the ongoing investigation through a routine background check. 

Although Smith was flagged in the TJJD's database days after allegations of misconduct were made at Giddings, agency officials told KXAN he was not formally made ineligible for certification as a juvenile corrections or probation officer until December 2023, after he was already under investigation for a sexual misconduct allegation at Akins.

Smith's court-appointed attorneys in Lee and Travis counties did not respond to KXAN's request for comment. Smith, who is currently in Travis County jail, sent a letter to KXAN addressing some of the allegations against him. KXAN is working to verify the claims in Smith's letter.

In the letter, Smith told KXAN, "I am in a legally binding settlement agreement with TJJD that has wiped any disciplinary record that I have, and that listed me as ineligible for rehire after I appealed a disciplinary decision."

According to TJJD officials, the agency and Smith went to mediation after his termination, allowing him to resign for personal reasons in October 2022. The agency said Smith was still flagged in its database, alerting other juvenile detention facilities to call TJJD before hiring.

"The mediation did not stop the independent OIG investigation of the alleged sexual misconduct. Once that OIG investigation was completed and had an affirmative finding of an [abuse, neglect, and exploitation] violation, TJJD was able to change Smith’s status to 'ineligible to rehire,'" agency officials told KXAN.

Texas Sen. Paul Bettencourt, R-Houston, interviews with KXAN Investigative Reporter Kelly Wiley. (KXAN Photo/Chris Nelson)

“When I saw the story, I said, 'I had to act,' and I had to act by asking the two agencies what happened here,” Bettencourt said. 

In last year’s regular session at the Capitol, lawmakers, including the Houston senator, passed Senate Bill 1849. The bill, introduced by Sen. Lois Kolkhorst, R-Brenham, required the Department of Information Resources to create one giant search engine combining the data about neglect findings from all child-serving state agencies — including Texas Education Agency, The Department of Family Protective Services, Health and Human Services and TJJD.

In a letter sparked by KXAN’s reporting, Bettencourt asked the leaders of TEA and TJJD, “What exactly went wrong in the protections we established that allowed Xavier Smith to be passed from one juvenile education setting to another?”

In response, Education Commissioner Mike Morath and TJJD Executive Director Shandra Carter told the lawmaker Smith was hired as a tutor at Akins before the law became effective. SB 1849 went into effect on Sept. 1, 2023, the same month Smith was assigned to Akins High School as a tutor.

Morath and Carter shared that the search engine SB 1849 requires is still being designed and developed, more than six months after the bill requiring it became law. The bill did not specify a deadline for creating the search engine.

The Texas Department of Information Resources, which is building the database, told KXAN it’s now in the “assessment and design phases.” The agency said it does not expect to complete the project until the end of 2024 and added “...it is difficult to determine a precise end date.” 

“As bureaucratic as that is, that is the way state government works,” Bettencourt said. “There’s a failure here, no question, and this person should have never been around young people ever again in their life.”

Man accused of molesting child while tutoring at Austin ISD

TJJD said that since the fall of 2023, it’s reviewed previous employees who were terminated with cause to flag them as not eligible for certification retroactively. The agency told KXAN school districts and other agencies could call the agency for a reference check to ask about a person’s status while the larger search engine is developed. 

Despite the abuse report at Akins, Smith is not listed on the TEA’s Do Not Hire database. Bettencourt asked about this in his letter to the agency head.

According to Morath, Smith's name is not in the database because state law does not require school districts to report alleged misconduct to TEA if the allegations are against a contractor like Smith. The law also does not give TEA the authority to investigate contractors and put them on its Do Not Hire registry, even if reported, according to TEA officials.

“By including 'contractors' in statute, it would strengthen TEA’s authority to require school districts to report to the agency abuse and inappropriate incidents between students and contractors that occur and the placement of those contractors on the Do Not Hire registry,” Morath wrote in a letter back to Bettencourt. 

TEA officials confirmed it did not receive a report from Austin ISD about Smith's alleged misconduct at Akins.

In the last decade, multiple state laws have addressed how people with documented sexual misconduct allegations jump from one child education setting to another. That includes House Bill 3 in 2019, which created TEA's Do Not Hire registry, and Senate Bill 7, requiring school superintendents to report misconduct to the State Board of Education Certification.

Bettencourt, who authored SB 7, said he would introduce a bill in the next legislative session to require school districts to report contractor misconduct and give the TEA the authority to investigate and put contractors on its Do Not Hire registry when the allegations are substantiated.

“The school districts should be reporting it anyway."

Texas State Sen. Paul Bettencourt, R-Houston

"It's really infuriating to me to see this type of problem, but I am determined, and I know my colleagues — Senator Kolkhorst — [are] determined to stamp it out, and we'll do it again in the next legislative session," Bettencourt said. “This problem will be fixed one way or the other by the next legislative session.”

Texas medical cannabis distributor calls for hemp market regulations

The CEO of Texas' largest medical cannabis distributor is urging leaders to regulate the state's CBD market, citing concerns over health issues related to hemp-derived products such as delta-8 and delta-9 THC.

Delta-8 and delta-9 THC are compounds closely related to the psychoactive compound in marijuana that gets users "high." It's legal in most states after Congress passed the 2018 farm bill, which had an unintended loophole due to how lawmakers defined "hemp" while legalizing it.

Nico Richardson, CEO of Texas Original, points to increasing reports of young patients experiencing adverse effects and growing drug-related offenses in schools as reasons for more regulation of hemp-derived products.

He is one of the three marijuana distributors in Texas able to operate under the state's limited medical cannabis program, also known as the Compassionate Use Program, which is regulated heavily by the Texas Department of Public Safety.

Qualifying patients can get a low-level prescription from a limited group of approved doctors in the state. Currently, patients with conditions like cancer, PTSD, ALS and epilepsy can get prescribed THC.

While Richardson's company would benefit from a more regulated CBD market, he said there are health and safety concerns that "every parent" should worry about, since there are no age restrictions on products like delta-8.

"If we want to have an open recreational market in Texas, I think we should legalize that in the appropriate way and have the appropriate testing measures and appropriate age gating. So that we're not willy-nilly distributing highly intoxicating products to school kids, which is unfortunately what is happening right now in Texas," he said.

A new study published Thursday in the Journal of the American Medical Association shows 1 in 10 high school seniors report using delta-8 THC. Richardson says the easy access, as it is sold in gas stations and CBD smoke shops across the state, is what is concerning to him as a parent.

"This is a complex issue. This is not a simple issue," Richardson said. "But we don't know what the long-term health effects of this are going to be. Especially on underage kids."

Lisa Pittman, a cannabis attorney in Austin, said there are vast complexities in the laws and regulations of CBD products across the country, after the U.S. Farm Bill redefined hemp, making various derivatives of hemp legal.

The 2018 farm bill defines hemp as cannabis and “any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers."

Delta-8 is outlawed in 17 different states, according to the National Cannabis Industry Association. While it is legal in Texas, pending litigation could impact its ability to be sold and consumed in the Lone Star State. Pittman said the patchwork of regulations on a state-by-state basis has made oversight of CBD products more difficult.

"The state health departments have had to come up with their own rules for these types of products, and while there is regulation on the books, the products are supposed to meet certain testing thresholds," she said. "The oversight, the inspection of this is pretty loose, there's just way too much volume for the regulators to keep up with and the stuff is coming from all over the country."

Delta-8 THC products come in a variety of forms — including gummies, or edible treats like chocolate, as well as vaping cartridges and infused drinks. Some manufacturers market it as a treatment for medical conditions similar to the usage of medical cannabis, but the Food and Drug Administration has not evaluated or approved delta-8 for medical ailments.

The Food and Drug Administration has issued warnings regarding the possible use of unsafe chemicals in the conversion of CBD into delta-8 and delta-9.

"Sometimes it can come from a sketchy source that's just pumping out a high volume of something popular, and they don't care what's in it. And who knows what kind of solvents and other types of chemicals are in these products, who knows if [or] how they're tested," Pittman said.

While Texas lawmakers cannot enact changes until 2025, discussions in Congress — particularly regarding the Farm Bill's definitions currently up for renegotiation — could impact regulations sooner.

"There is some bathtub gin out there and it's gonna be a while until we get to the Coors and Budweiser of cannabis," Pittman said. "That is where it is eventually heading on much the same regulatory pathway."

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