Bill Text: TX HB852 | 2021-2022 | 87th Legislature | Introduced
Bill Title: Relating to the powers, duties, and qualifications of an amicus attorney in a suit affecting the parent-child relationship.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2021-03-22 - Left pending in committee [HB852 Detail]
Download: Texas-2021-HB852-Introduced.html
By: Cook | H.B. No. 852 |
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relating to the powers, duties, and qualifications of an amicus | ||
attorney in a suit affecting the parent-child relationship. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. 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 [ |
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SECTION 2. Section 107.003(a), Family Code, is amended to | ||
read as follows: | ||
(a) An attorney ad litem appointed to represent a child [ |
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(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 3. Section 107.005, Family Code, is amended to read | ||
as follows: | ||
Sec. 107.005. POWERS AND [ |
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ATTORNEY. (a) An attorney appointed as an amicus attorney: | ||
(1) shall: | ||
(A) perform the duties described by Sections | ||
107.003(a)(1)(A) and (D)-(I); | ||
(B) conduct a home visit of: | ||
(i) any person who has the right of | ||
possession of or access to the child; and | ||
(ii) any party who is seeking possession of | ||
or access to the child; | ||
(C) on request by a party or the court: | ||
(i) provide a copy of the amicus attorney's | ||
entire case file to each party not later than the fifth business day | ||
after the date of the request; and | ||
(ii) prepare and file a written report | ||
certifying the amicus attorney's compliance with the order | ||
appointing the amicus attorney and this chapter not later than the | ||
fifth business day after the date of the request; | ||
(2) must certify to the court that the attorney: | ||
(A) has completed at least four hours of | ||
continuing legal education in the previous year specifically | ||
related to domestic violence, developmentally appropriate | ||
techniques to interview a child, and alternative dispute | ||
resolution; or | ||
(B) is certified in family law by the Texas Board | ||
of Legal Specialization; and | ||
(3) is entitled to perform the actions described by | ||
Sections 107.003(a)(3)(B)-(G). | ||
(a-1) Subject to any specific limitation in the order of | ||
appointment, an amicus attorney shall advocate the best interests | ||
of the child after reviewing the facts and circumstances of the | ||
case. Notwithstanding Subsection (b), in determining the best | ||
interests of the child, an amicus attorney is not bound by the | ||
child's expressed objectives of representation. | ||
(b) An amicus attorney shall, in a developmentally | ||
appropriate manner: | ||
(1) with the consent of the child, ensure that the | ||
child's expressed objectives of representation are made known to | ||
the court; | ||
(2) explain the role of the amicus attorney to the | ||
child; and | ||
(3) inform the child that the amicus attorney may use | ||
information that the child provides in providing assistance to the | ||
court[ |
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[ |
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(c) The order appointing an [ |
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include: | ||
(1) a list of any additional duties, other than the | ||
duties under this chapter, required by the court to be completed by | ||
the amicus attorney; and | ||
(2) specific orders regarding the payment of the fees | ||
and expenses of the amicus attorney. | ||
(d) An amicus attorney may not at any hearing or trial | ||
express an opinion or relate a recommendation to the court or to a | ||
jury regarding the conservatorship of or the possession of or | ||
access to the child who is the subject of the suit, or any issue | ||
regarding a geographic restriction applicable to the child. | ||
(e) Except as otherwise provided by Subsection (f), an | ||
amicus attorney is subject to discovery in accordance with the | ||
Texas Rules of Civil Procedure. | ||
(f) The provision of services by an amicus attorney under | ||
this chapter does not create an attorney-client relationship | ||
between the attorney and any other party, and the amicus attorney | ||
may be required to [ |
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between the amicus attorney and the child and any work product | ||
related to the case [ |
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SECTION 4. Subchapter A, Chapter 107, Family Code, is | ||
amended by adding Section 107.0051 to read as follows: | ||
Sec. 107.0051. 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; | ||
and | ||
(5) 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 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; and | ||
(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). | ||
(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 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; and | ||
(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 | ||
(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 of a party to 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, | ||
unless the relationship is prohibited under the Texas Rules of | ||
Professional Conduct. | ||
SECTION 5. Section 107.007(a), Family Code, is amended to | ||
read as follows: | ||
(a) An attorney ad litem or[ |
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dual role[ |
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(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 6. The changes in law made by this Act apply only to | ||
an amicus attorney appointed in a suit that is filed on or after the | ||
effective date of this Act. An amicus attorney appointed in a suit | ||
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 7. This Act takes effect September 1, 2021. |