Bill Text: TX HB1544 | 2023-2024 | 88th Legislature | Comm Sub

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Bill Title: Relating to special appointments in suits affecting the parent-child relationship.

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2023-05-05 - Committee report sent to Calendars [HB1544 Detail]

Download: Texas-2023-HB1544-Comm_Sub.html

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88R6478 MLH-F
By: Cook H.B. No. 1544

A BILL TO BE ENTITLED
AN ACT
relating to special appointments in suits affecting the
parent-child relationship.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 107.001(1), Family Code, is amended to
read as follows:
(1) "Amicus attorney" means an attorney appointed by
the court in a suit, other than a suit filed by a governmental
entity, whose role is to provide legal services necessary to assist
the court in protecting a child's best interests rather than to
provide legal services to the child, including by acting as a
witness or making recommendations to the court.
SECTION 2. The heading to Section 107.003, Family Code, is
amended to read as follows:
Sec. 107.003. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
CHILD [AND AMICUS ATTORNEY].
SECTION 3. Section 107.003(a), Family Code, is amended to
read as follows:
(a) An attorney ad litem appointed to represent a child [or
an amicus attorney appointed to assist the court]:
(1) shall:
(A) subject to Rules 4.02, 4.03, and 4.04, Texas
Disciplinary Rules of Professional Conduct, and within a reasonable
time after the appointment, interview:
(i) the child in a developmentally
appropriate manner, if the child is four years of age or older;
(ii) each person who has significant
knowledge of the child's history and condition, including any
foster parent of the child; and
(iii) the parties to the suit;
(B) seek to elicit in a developmentally
appropriate manner the child's expressed objectives of
representation;
(C) consider the impact on the child in
formulating the attorney's presentation of the child's expressed
objectives of representation to the court;
(D) investigate the facts of the case to the
extent the attorney considers appropriate;
(E) obtain and review copies of relevant records
relating to the child as provided by Section 107.006;
(F) participate in the conduct of the litigation
to the same extent as an attorney for a party;
(G) take any action consistent with the child's
interests that the attorney considers necessary to expedite the
proceedings;
(H) encourage settlement and the use of
alternative forms of dispute resolution; and
(I) review and sign, or decline to sign, a
proposed or agreed order affecting the child;
(2) must be trained in child advocacy or have
experience determined by the court to be equivalent to that
training; and
(3) is entitled to:
(A) request clarification from the court if the
role of the attorney is ambiguous;
(B) request a hearing or trial on the merits;
(C) consent or refuse to consent to an interview
of the child by another attorney;
(D) receive a copy of each pleading or other
paper filed with the court;
(E) receive notice of each hearing in the suit;
(F) participate in any case staffing concerning
the child conducted by the Department of Family and Protective
Services; and
(G) attend all legal proceedings in the suit.
SECTION 4. Section 107.007(a), Family Code, is amended to
read as follows:
(a) An attorney ad litem or [,] an attorney serving in the
dual role[, or an amicus attorney] may not:
(1) be compelled to produce attorney work product
developed during the appointment as an attorney;
(2) be required to disclose the source of any
information;
(3) submit a report into evidence; or
(4) testify in court except as authorized by Rule
3.08, Texas Disciplinary Rules of Professional Conduct.
SECTION 5. Section 107.009, Family Code, is amended to read
as follows:
Sec. 107.009. IMMUNITY. (a) A guardian ad litem, [an
attorney ad litem,] a child custody evaluator, or an adoption
evaluator [amicus attorney] appointed under this chapter is not
liable for civil damages arising from an action taken, a
recommendation made, or an opinion given in the capacity of
guardian ad litem, [attorney ad litem,] child custody evaluator, or
adoption evaluator [amicus attorney].
(a-1) An attorney ad litem or amicus attorney appointed
under this chapter is not liable for civil damages arising from an
action taken in the capacity of attorney ad litem or amicus
attorney.
(b) Subsections [Subsection] (a) and (a-1) do [does] not
apply to an action taken, a recommendation made, or an opinion
given:
(1) with conscious indifference or reckless disregard
to the safety of another;
(2) in bad faith or with malice; or
(3) that is grossly negligent or wilfully wrongful.
SECTION 6. Sections 107.021(a) and (a-1), Family Code, are
amended to read as follows:
(a) In a suit in which the best interests of a child are at
issue, other than a suit filed by a governmental entity requesting
termination of the parent-child relationship or appointment of the
entity as conservator of the child, the court may appoint [one of
the following:
[(1) an amicus attorney;
[(2)] an attorney ad litem[;] or
[(3) a] guardian ad litem.
(a-1) In a suit requesting termination of the parent-child
relationship that is not filed by a governmental entity, the court
shall, unless the court finds that the interests of the child will
be represented adequately by a party to the suit whose interests are
not in conflict with the child's interests, appoint [one of the
following:
[(1) an amicus attorney; or
[(2)] an attorney ad litem.
SECTION 7. Part 2, Subchapter B, Chapter 107, Family Code,
is amended by adding Sections 107.024, 107.0245, 107.025, 107.0255,
107.026, 107.0265, 107.027, and 107.0275 to read as follows:
Sec. 107.024. APPOINTMENT OF AMICUS ATTORNEY. (a) The
court, after notice and hearing or on agreement of the parties, may
appoint an amicus attorney in a suit.
(b) In determining whether to make an appointment under this
section, the court:
(1) shall:
(A) give due consideration to the ability of the
parties to pay reasonable fees to the amicus attorney; and
(B) balance the child's interests against the
cost to the parties that would result from an appointment by taking
into consideration the cost of available alternatives for resolving
issues without making an appointment;
(2) may make an appointment only if the court finds
that the appointment is necessary to ensure the determination of
the best interests of the child, unless the appointment is
otherwise required by this code; and
(3) may not require an amicus attorney appointed under
this section to serve without reasonable compensation for the
services rendered by the amicus attorney.
(c) An amicus attorney appointed under this section must be
qualified under Section 107.0245 or 107.025.
(d) An order appointing an amicus attorney under this
section must include:
(1) the name, bar number, address, telephone number,
and e-mail address of the appointed amicus attorney;
(2) the scope of the amicus attorney's role;
(3) a list of the duties of an amicus attorney,
including duties under Section 107.0265(c)(1);
(4) any other specific tasks requested by the court;
and
(5) specific provisions for payment of the amicus
attorney, including a retainer or cost deposit.
(e) If a party to or child subject to a suit does not speak
English as the party's or child's primary language, the court shall
ensure that the amicus attorney:
(1) is able to effectively communicate in the party's
or child's primary language; or
(2) will be assisted by a licensed or certified
interpreter.
(f) A licensed or certified interpreter assisting an amicus
attorney under Subsection (e)(2) may accompany the amicus attorney
in person or assist through use of audio or video conferencing
technology.
(g) The court may require the parties to pay any costs
associated with obtaining assistance from a licensed or certified
interpreter under Subsection (e)(2).
Sec. 107.0245. AMICUS ATTORNEY; MINIMUM QUALIFICATIONS.
(a) To be qualified to serve as an amicus attorney, an individual
must:
(1) be an attorney:
(A) who:
(i) is licensed to practice law in this
state and in good standing with the State Bar of Texas;
(ii) has practiced law for at least two
years; and
(iii) is trained in child advocacy or found
by the court to have experience equivalent to training in child
advocacy; or
(B) who is certified by the Texas Board of Legal
Specialization in family law or child welfare law;
(2) in the four years preceding the appointment, have
completed not less than a total of four hours of continuing legal
education from one or more of the following subject areas:
(A) domestic violence;
(B) techniques for interviewing a child in a
developmentally appropriate manner; or
(C) alternative dispute resolution; and
(3) if appropriate due to the nature of the
appointment, be familiar with the American Bar Association's
standards of practice for attorneys who represent children in
custody cases.
(b) The court shall determine whether a prospective amicus
attorney meets the qualifications of this section.
(c) On the request of the court, a prospective amicus
attorney must demonstrate appropriate knowledge and competence
consistent with professional models, standards, and guidelines.
Sec. 107.025. EXCEPTION TO QUALIFICATIONS REQUIRED TO SERVE
AS AMICUS ATTORNEY IN CERTAIN COUNTIES. (a) This section applies
only to a county with a population of less than 500,000.
(b) If a court finds that an individual qualified to serve
as an amicus attorney under Section 107.0245 is not available in the
county to serve as an amicus attorney, the court may, after notice
and hearing or on agreement of the parties, appoint an amicus
attorney the court determines to be otherwise qualified to serve.
Sec. 107.0255. AMICUS ATTORNEY; CONFLICTS OF INTEREST AND
BIAS. (a) Before a person accepts appointment as an amicus
attorney in a suit, the person must disclose to the court, each
attorney for a party to the suit, and any party to the suit who does
not have an attorney:
(1) any conflict of interest that the person believes
the person has with the court, any party to the suit, or a child who
is the subject of the suit;
(2) any previous knowledge that the person has of a
party to the suit or a child who is the subject of the suit, other
than knowledge obtained in a court-ordered evaluation;
(3) any pecuniary relationship that the person
believes the person has with an attorney in the suit or the court;
(4) any fiduciary relationship that the person
believes the person has with an attorney in the suit or the court;
(5) any conflict of interest that the person believes
the person has with another person participating or expected to
participate in the suit in a professional capacity; and
(6) any other information relating to the person's
relationship with an attorney in the suit or the court that a
reasonable, prudent person would believe would affect the ability
of the person to act impartially as an amicus attorney.
(b) The court may not appoint a person as an amicus attorney
in a suit if the person makes any of the disclosures in Subsection
(a) unless:
(1) the court finds, after notice and a hearing, that:
(A) the person has no conflict of interest with a
party to the suit, the court, or a child who is the subject of the
suit;
(B) the person's previous knowledge of a party to
the suit, the court, or a child who is the subject of the suit is not
relevant;
(C) the person does not have a pecuniary
relationship with an attorney in the suit or the court; and
(D) the person does not have a fiduciary
relationship with an attorney in the suit or the court; or
(2) the parties agree in writing to the person's
appointment as an amicus attorney.
(c) After being appointed as an amicus attorney in a suit, a
person shall immediately disclose to the court, each attorney for a
party to the suit, and any party to the suit who does not have an
attorney any discovery of the following unless previously
disclosed:
(1) a conflict of interest that the person believes
the person has with a party to the suit, the court, or a child who is
the subject of the suit;
(2) previous knowledge the person has of a party to the
suit, the court, or a child who is the subject of the suit, other
than knowledge obtained in a court-ordered evaluation;
(3) a relationship that the person has with an
attorney in the suit who was hired or appointed after the person's
appointment as amicus attorney that would have been subject to
disclosure under Subsection (a); and
(4) any conflict of interest that the person believes
the person has with another person who participates in the suit in a
professional capacity.
(d) The court shall remove a person as amicus attorney in a
suit if the person makes any of the disclosures in Subsection (c)
unless:
(1) the court finds, after notice and a hearing, that,
as applicable:
(A) the person has no conflict of interest with a
party to the suit, the court, or a child who is the subject of the
suit;
(B) the person's previous knowledge of a party to
the suit, the court, or a child who is the subject of the suit is not
relevant;
(C) the person has no pecuniary or fiduciary
relationship with an attorney in the suit who was hired or appointed
after the person's appointment as amicus attorney; or
(D) the person has no conflict of interest with
another person who participates in the suit in a professional
capacity; or
(2) the parties agree in writing to the person's
continued appointment as an amicus attorney.
(e) A person who has a preexisting relationship with an
attorney for a party to the suit or a professional participating in
the suit is not disqualified from being an amicus attorney if the
relationship was formed in a professional setting such as service
to the community or a bar association.
Sec. 107.026. AMICUS ATTORNEY STANDARD OF CARE. (a) Except
as provided by this title, an amicus attorney is subject to the
professional standards of care and ethical standards necessary to
remain in good standing with the State Bar of Texas.
(b) A court may impose requirements or adopt local rules
applicable to an amicus attorney that do not conflict with this
subchapter.
Sec. 107.0265. POWERS AND DUTIES OF AMICUS ATTORNEY. (a)
Subject to specific limitations given in an order of appointment
under Section 107.024, an amicus attorney's primary duty is to:
(1) review the facts and circumstances of the case;
and
(2) advocate the best interests of a child who is the
subject of the suit.
(b) In performing the duties under Subsection (a), an amicus
attorney is not bound by the expressed objectives of a child who is
the subject of the suit.
(c) An amicus attorney appointed to assist the court:
(1) shall:
(A) subject to Rules 4.02, 4.03, and 4.04, Texas
Disciplinary Rules of Professional Conduct, and within a reasonable
time after the appointment, interview:
(i) the child in a developmentally
appropriate manner, if the child is four years of age or older;
(ii) each person who has significant
knowledge of the child's history and condition, including any
foster parent of the child; and
(iii) the parties to the suit;
(B) seek to elicit and assess the child's view in
a developmentally appropriate manner;
(C) consider the impact on the child in
formulating the attorney's presentation of the child's expressed
objectives of representation to the court;
(D) investigate the facts of the case to the
extent the attorney considers appropriate;
(E) obtain and review copies of relevant records
relating to the child as provided by Section 107.006;
(F) participate in the conduct of the litigation
to the same extent as an attorney for a party;
(G) take any action consistent with the child's
interests that the attorney considers necessary to expedite the
proceedings;
(H) encourage settlement and the use of
alternative forms of dispute resolution;
(I) review and sign, or decline to sign, a
proposed or agreed order affecting the child;
(J) on the request of any party, disclose the
name, address, and phone number of each person interviewed or
consulted; and
(K) on the request of any party, make available
documents obtained by the amicus attorney for copying;
(2) may be required by the court to perform additional
tasks, including:
(A) conducting additional interviews with each
child who is the subject of the suit to:
(i) ensure balanced and impartial
representation by the amicus attorney; and
(ii) observe each child while in the care of
each party to the suit;
(B) interviewing other individuals, including,
at the discretion of the amicus attorney, a child who:
(i) is not less than four years of age; and
(ii) resides part-time or full-time in a
residence where a child who is the subject of the suit resides
part-time or full-time;
(C) visiting the residence of each party seeking
conservatorship or possession of or access to a child who is the
subject of the suit; or
(D) reviewing any information the court
determines is relevant; and
(3) is entitled to:
(A) request clarification from the court if the
role of the amicus attorney is ambiguous;
(B) request a hearing or trial on the merits;
(C) consent or refuse to consent to an interview
of the child by another attorney;
(D) receive a copy of each pleading or other
paper filed with the court;
(E) receive notice of each hearing in the suit;
(F) participate in any case staffing concerning
the child conducted by the Department of Family and Protective
Services;
(G) attend all legal proceedings in the suit; and
(H) make arguments during legal proceedings,
including:
(i) summarizing evidence; and
(ii) suggesting reasonable inferences and
deductions drawn from the evidence.
(d) In preparing for and conducting an interview with a
child, an amicus attorney shall:
(1) explain the role of an amicus attorney to the child
in a developmentally appropriate manner;
(2) inform the child in a developmentally appropriate
manner that the amicus attorney may use information the child
provides in assisting the court; and
(3) become familiar with the American Bar
Association's standards of practice for attorneys who represent
children in custody cases.
(e) The disclosure required by Subsections (c)(1)(J) and
(K):
(1) shall not be construed to require disclosure of an
amicus attorney's notes or attorney work product; and
(2) is subject to supplementation under Rule 193.5,
Texas Rules of Civil Procedure.
Sec. 107.027. LIMITATIONS ON AMICUS ATTORNEY POWERS. (a)
An amicus attorney may not:
(1) offer an opinion regarding conservatorship or
possession of or access to a child subject to a suit;
(2) engage in ex parte communications with the court;
(3) be compelled to produce attorney work product
developed during the appointment as an amicus attorney;
(4) except as required under Section
107.0265(c)(1)(J) or (K), be required to disclose the source of any
information;
(5) submit a report into evidence; or
(6) testify in court, except:
(A) as authorized under Rule 3.08, Texas
Disciplinary Rules of Professional Conduct; or
(B) as necessary for the court to make a
determination relating to the qualifications, conflicts of
interest, bias, or removal of the amicus attorney.
(b) Subsection (a) does not apply to the duty of an attorney
to report child abuse or neglect under Section 261.101.
Sec. 107.0275. REMOVAL OF AMICUS ATTORNEY. The court:
(1) may remove an amicus attorney if the parties agree
to the removal; and
(2) shall remove an amicus attorney if, after notice
and hearing, the court finds that the amicus attorney:
(A) does not have the minimum qualifications to
serve as an amicus attorney under Section 107.0245 or 107.025;
(B) has a conflict of interest or bias under
Section 107.0255(a) that is not exempted under that section;
(C) fails to perform duties under Section
107.0265 or ordered by the court;
(D) violates a standard of care under Section
107.026; or
(E) requests to be removed because a party to the
suit has prevented the amicus attorney from fulfilling the duties
of the amicus attorney.
SECTION 8. Section 107.005, Family Code, is repealed.
SECTION 9. The changes in law made by this Act apply only to
a suit affecting the parent-child relationship that is filed on or
after the effective date of this Act. A suit affecting the
parent-child relationship filed before the effective date of this
Act is governed by the law in effect on the date the suit was filed,
and the former law is continued in effect for that purpose.
SECTION 10. This Act takes effect September 1, 2023.