By: Harris S.B. No. 1408
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the parent-child relationship and certain child welfare
1-2 services.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (a), Section 11.09, Family Code, is
1-5 amended to read as follows:
1-6 (a) Except as provided in Subsection (b) <of this section>,
1-7 the following <persons> are entitled to service of citation on the
1-8 filing of a petition in a suit affecting the parent-child
1-9 relationship:
1-10 (1) the managing conservator, if any;
1-11 (2) possessory conservators, if any;
1-12 (3) persons, if any, having access to the child under
1-13 an order of the court;
1-14 (4) persons, if any, required by law or by order of a
1-15 court to provide for the support of a child;
1-16 (5) the guardian of the person of the child, if any;
1-17 (6) the guardian of the estate of the child, if any;
1-18 (7) each parent as to whom the parent-child
1-19 relationship has not been terminated or process has not been waived
1-20 under Section 15.03(c)(2) <of this code>; <and>
1-21 (8) the alleged father or probable father, unless
1-22 there is attached to the petition an affidavit of waiver of
1-23 interest in a child executed by the alleged father or probable
1-24 father as provided in Section 15.041; and <of this code>
2-1 (9) the Department of Protective and Regulatory
2-2 Services, if the petition requests that the department be appointed
2-3 as managing conservator of the child.
2-4 SECTION 2. Subsection (d), Section 11.10, Family Code, is
2-5 amended to read as follows:
2-6 (d) In any suit brought by a governmental entity seeking
2-7 termination of the parent-child relationship or to be named
2-8 conservator of a child, the court immediately shall appoint an
2-9 attorney ad litem to represent the interests of the child <as soon
2-10 as practicable> to insure adequate representation of the child's
2-11 interest. In a suit in which the Department of Protective and
2-12 Regulatory Services, an authorized agency, or a licensed
2-13 child-placing agency is named managing conservator of a child who,
2-14 regardless of whether the child is institutionalized, requires
2-15 continuous care and personal supervision because of a mental or
2-16 physical disability, the court shall appoint a guardian ad litem to
2-17 represent the interests of the child. In any suit in which
2-18 termination of the parent-child relationship is sought, the court
2-19 shall appoint an attorney ad litem to represent the interests of
2-20 each indigent parent of the child who responds in opposition to the
2-21 termination. If both parents of the child are indigent and oppose
2-22 termination and the court finds that the interests of the parents
2-23 are not in conflict, the court may appoint a single attorney ad
2-24 litem to represent the interests of both parents.
2-25 SECTION 3. Section 14.02, Family Code, is amended to read as
2-26 follows:
2-27 Sec. 14.02. COURT TO SPECIFY RIGHTS AND DUTIES<, PRIVILEGES,
3-1 DUTIES, AND POWERS> OF PARENT APPOINTED AS <A> CONSERVATOR.
3-2 <(a)> If both parents are appointed as conservators of the child,
3-3 <either by agreement between the parties or by court order,> the
3-4 court shall specify the rights and<, privileges,> duties<, and
3-5 powers of a parent that are to be retained by both parents, the
3-6 rights, privileges, duties, and powers> of a parent that are to be
3-7 exercised:
3-8 (1) by each parent independently;
3-9 (2) by the agreement of the parents; and
3-10 (3) <jointly, and the rights, privileges, duties, and
3-11 powers that are to be exercised> exclusively by one parent.
3-12 Sec. 14.0201. LIMITATION OF PARENTAL RIGHTS AND DUTIES. The
3-13 court may limit the rights and duties of <Each parent retains the
3-14 right to receive information from the other parent concerning the
3-15 health, education, and welfare of the child and, to the extent
3-16 possible, the right to confer with the other parent before making a
3-17 decision concerning the health, education, and welfare of the
3-18 child, and the court shall specify these rights in the order.>
3-19 <(b) Unless by written findings the court determines it
3-20 would not be in the best interest of the child,> a parent appointed
3-21 as a conservator if the court determines the limitation is in the
3-22 child's best interests.
3-23 Sec. 14.0202. RIGHTS AND DUTIES DURING POSSESSION. Subject
3-24 to a limitation imposed under Section 14.0201, <of the child
3-25 retains the following rights, privileges, duties, and powers of a
3-26 parent, subject to any limitation imposed by court order in
3-27 allowing access to the child:>
4-1 <(1)> a parent appointed as a conservator of a child
4-2 has the following rights and duties during the period that the
4-3 parent has possession of the child:
4-4 (1) <(A)> the right to physical possession and to
4-5 direct the moral and religious training of the child;
4-6 (2) <(B)> the duty of care, control, protection, and
4-7 reasonable discipline of the child;
4-8 (3) <(C)> the duty to support the child, including
4-9 providing the child with clothing, food, shelter, and medical and
4-10 dental care not involving an invasive procedure; and
4-11 (4) <(D)> the right <power> to consent to medical,
4-12 dental, and surgical treatment during an emergency involving an
4-13 immediate danger to the health and safety of the child.<;>
4-14 Sec. 14.0203. RIGHTS AND DUTIES AT ALL TIMES. Subject to a
4-15 limitation imposed under Section 14.0201, a <(2) each> parent
4-16 appointed as a conservator of a child has the following rights and
4-17 duties <at all times>:
4-18 (1) as specified by court order:
4-19 (A) the right to receive information from the
4-20 other parent concerning the health, education, and welfare of the
4-21 child; and
4-22 (B) to the extent possible, the right to confer
4-23 with the other parent before making a decision concerning the
4-24 health, education, and welfare of the child;
4-25 (2) <(A)> the right of access to medical, dental,
4-26 psychological, and educational records of the child;
4-27 (3) <(B)> the right to consult with a <any> physician,
5-1 dentist, or psychologist of the child;
5-2 (4) <(C)> the right to consult with school officials
5-3 concerning the child's welfare and educational status, including
5-4 school activities;
5-5 (5) <(D)> the right to attend school activities;
5-6 (6) <(E)> the right to be designated on the child's
5-7 <any> records as a person to be notified in case of an emergency;
5-8 (7) the right to consent to medical, dental, and
5-9 surgical treatment during an emergency involving an immediate
5-10 danger to the health and safety of the child; and
5-11 (8) <(F)> the right to manage the estate of the child
5-12 to the extent the estate has been created by the parent or the
5-13 parent's family.<; and>
5-14 Sec. 14.0204. RIGHTS AND DUTIES OF PARENT WHO IS SOLE
5-15 MANAGING CONSERVATOR. Subject to a limitation imposed under
5-16 Section 14.0201, <(3)> a parent appointed as the sole managing
5-17 conservator of a child exclusively has:
5-18 (1) <(A)> the right to the services and earnings of
5-19 the child;
5-20 (2) <(B)> the right <power> to consent to marriage, to
5-21 enlistment in the armed forces of the United States, to medical,
5-22 dental, and surgical treatment involving invasive procedures, and
5-23 to psychiatric and psychological treatment;
5-24 (3) <(C)> the right <power> to represent the child in
5-25 legal action and to make other decisions of substantial legal
5-26 significance concerning the child, including the right to establish
5-27 the primary residence of the child;
6-1 (4) <,> except when a guardian of the child's estate
6-2 or a guardian or attorney ad litem has been appointed for the
6-3 child, a right <power> as an agent of the child to act in relation
6-4 to the child's estate if the child's action is required by a state,
6-5 the United States, or a foreign government; and
6-6 (5) <(D)> the right <power> to receive and give
6-7 receipt for periodic payments for the support of the child and to
6-8 hold or disburse these funds for the benefit of the child.
6-9 Sec. 14.0205. RIGHTS AND DUTIES OF MANAGING CONSERVATOR
6-10 OTHER THAN PARENT. <(c)> A managing conservator who is not the
6-11 parent of the child has the following rights and<, privileges,>
6-12 duties<, and powers>, subject to the same limitations that apply to
6-13 a parent under Section 14.0201, <Subsection (b) of this section,
6-14 to> the rights and<, privileges,> duties<, and powers> of a
6-15 possessory conservator as provided in Section 14.04 <of this code>,
6-16 and <to> any limitation imposed by court order in allowing access
6-17 to the child:
6-18 (1) the right to have physical possession and<,> to
6-19 direct the moral and religious training<, and to establish the
6-20 legal domicile> of the child;
6-21 (2) the duty of care, control, protection, and
6-22 reasonable discipline of the child;
6-23 (3) the duty to provide the child with clothing, food,
6-24 shelter, and education;
6-25 (4) the right to the services and earnings of the
6-26 child;
6-27 (5) the right <power> to consent to marriage, to
7-1 enlistment in the armed forces of the United States, and to
7-2 medical, psychiatric, psychological, dental, and surgical
7-3 treatment;
7-4 (6) the right <power> to represent the child in legal
7-5 action and to make other decisions of substantial legal
7-6 significance concerning the child;
7-7 (7) <including,> except when a guardian of the child's
7-8 estate or a guardian or attorney ad litem has been appointed for
7-9 the child, a right <power> as an agent of the child to act in
7-10 relation to the child's estate if the child's action is required by
7-11 a state, the United States, or a foreign government;
7-12 (8) <(7)> the right <power> to receive and give
7-13 receipt for periodic payments for the support of the child and to
7-14 hold or disburse these funds for the benefit of the child;
7-15 (9) the right to establish the primary residence of
7-16 the child; and
7-17 (10) <(8)> if the parent-child relationship has been
7-18 terminated with respect to the parents, or only living parent, or
7-19 if there is no living parent, the right <power> to consent to the
7-20 adoption of the child and to make any other decision concerning the
7-21 child that a parent could make.
7-22 Sec. 14.0206. RIGHTS AND DUTIES OF MANAGING CONSERVATOR
7-23 DESIGNATED IN AFFIDAVIT OF RELINQUISHMENT. <(d)> A person or
7-24 authorized agency designated managing conservator of a child in an
7-25 irrevocable or unrevoked affidavit of relinquishment executed
7-26 pursuant to Section 15.03 <of this code> shall have a right to
7-27 possession of the child superior to the right of the person
8-1 executing the affidavit, the right to consent to medical and
8-2 surgical treatment of the child, and the rights and<, privileges,>
8-3 duties<, and powers> given by Section 14.04 <of this code> to a
8-4 possessory conservator until such time as these rights and<,
8-5 privileges,> duties<, and powers> are modified or terminated by
8-6 court order.
8-7 Sec. 14.0207. EFFECT OF APPOINTMENT OF MANAGING CONSERVATOR
8-8 ON RIGHT TO INHERIT. <(e)> The appointment of a managing
8-9 conservator does not create, rescind, or otherwise alter a right to
8-10 inherit as established by law or as modified under Chapter 15 <of
8-11 this code>.
8-12 SECTION 4. The heading of Section 14.051, Family Code, is
8-13 amended to read as follows:
8-14 Sec. 14.051. SUPPORT AND POSSESSION OF, AND ACCESS TO, <FOR>
8-15 A MINOR OR ADULT DISABLED CHILD.
8-16 SECTION 5. Section 14.051, Family Code, is amended by
8-17 amending Subsections (b), (g), and (h) and by adding Subsection (l)
8-18 to read as follows:
8-19 (b) The court may order either or both parents to provide
8-20 for the support of a child for an indefinite period and determine
8-21 the rights and<, privileges,> duties<, and powers> of the child's
8-22 parents for the support of the child if the court finds that:
8-23 (1) the child, whether institutionalized or not,
8-24 requires substantial care and personal supervision because of a
8-25 mental or physical disability and will not be able to support
8-26 himself; and
8-27 (2) the disability exists, or the cause of the
9-1 disability is known to exist, before or on the 18th birthday of the
9-2 child.
9-3 (g) In determining the amount of support to be paid after a
9-4 child's 18th birthday, the specific terms and conditions of that
9-5 support, and the rights and<, privileges,> duties<, and powers> of
9-6 both parents with respect to the support of the child, the court
9-7 shall determine and give special consideration to:
9-8 (1) any existing or future needs of the adult child
9-9 directly related to the adult child's mental or physical disability
9-10 and the substantial care and personal supervision directly required
9-11 by or related to that disability;
9-12 (2) whether the parent pays for or will pay for the
9-13 care or supervision of the adult child or provides or will provide
9-14 substantial care or personal supervision of the adult child;
9-15 (3) the financial resources available to both parents
9-16 for the support, care, and supervision of the adult child; and
9-17 (4) any other financial resources or other resources
9-18 or programs available for the support, care, and supervision of the
9-19 adult child.
9-20 (h) An order under this section may contain provisions
9-21 governing the rights and<, privileges,> duties<, and powers> of
9-22 both parents with respect to the support of the child and may be
9-23 modified or enforced in the same manner as any other order under
9-24 this title.
9-25 (l) The court may render an order for the possession of or
9-26 access to an adult disabled child that is appropriate under the
9-27 circumstances. Possession of or access to the adult disabled child
10-1 is enforceable in the manner provided by Subchapter B, except that
10-2 an adult disabled child may refuse possession or access if the
10-3 adult disabled child is mentally competent.
10-4 SECTION 6. Section 107.004, Family Code, as added by H.B.
10-5 No. 655, Acts of the 74th Legislature, Regular Session, 1995, is
10-6 amended by amending Subsection (c) and adding Subsection (d) to
10-7 read as follows:
10-8 (c) A court-appointed volunteer, a board member or employee
10-9 of a volunteer advocate charitable organization, or a member of an
10-10 administrative review board <person> is not liable for civil
10-11 damages for a recommendation made or opinion rendered while serving
10-12 or having served as a court-appointed volunteer, board member or
10-13 employee of a volunteer advocate charitable organization, or member
10-14 of an administrative review board under this section unless the act
10-15 or failure to act is wilfully wrongful, committed with conscious
10-16 indifference or reckless disregard for the safety of another,
10-17 committed in bad faith or with malice, or is grossly negligent.
10-18 (d) The court shall require that a volunteer advocate
10-19 prepare a written report for the court. The report may only
10-20 contain information that is relevant to the suit for which the
10-21 volunteer advocate was appointed. A court or jury may consider a
10-22 report prepared by a volunteer advocate only if:
10-23 (1) the volunteer advocate is present and available to
10-24 testify; or
10-25 (2) the deposition of the volunteer advocate has been
10-26 taken under the Texas Rules of Civil Procedure and all parties to
10-27 the suit have had an opportunity to cross-examine the volunteer
11-1 advocate under oath.
11-2 SECTION 7. Subsection (a), Section 264.602, Family Code, as
11-3 added by H.B. No. 655, Acts of the 74th Legislature, Regular
11-4 Session, 1995, is amended to read as follows:
11-5 (a) The statewide organization with which the attorney
11-6 general contracts under Section 264.603 shall contract for services
11-7 with <each> eligible volunteer advocate programs <program> to
11-8 expand the existing services of the program.
11-9 SECTION 8. Section 264.603, Family Code, as added by H.B.
11-10 No. 655, Acts of the 74th Legislature, Regular Session, 1995, is
11-11 amended to read as follows:
11-12 Sec. 264.603. ADMINISTRATIVE CONTRACTS. (a) The attorney
11-13 general shall contract with one statewide organization of
11-14 individuals or groups of individuals who have expertise in the
11-15 dynamics of child abuse and neglect and experience in operating
11-16 volunteer advocate programs to<:>
11-17 <(1)> provide training, technical assistance, and
11-18 evaluation services for the benefit of local volunteer advocate
11-19 programs<; and>
11-20 <(2) manage the attorney general's contracts under
11-21 Section 264.602>.
11-22 (b) The contract under this section shall provide that not
11-23 more than 12 percent of the annual legislative appropriation to
11-24 implement this subchapter may be spent for administrative purposes
11-25 by the statewide organization with which the attorney general
11-26 contracts under this section.
11-27 SECTION 9. Subsection (b), Section 264.604, Family Code, as
12-1 added by H.B. No. 655, Acts of the 74th Legislature, Regular
12-2 Session, 1995, is amended to read as follows:
12-3 (b) The statewide organization with which the attorney
12-4 general contracts under Section 264.603 may not contract with a
12-5 person that is not eligible under this section. However, the
12-6 statewide organization <attorney general> may waive the requirement
12-7 in Subsection (a)(3) for an established program in a rural area or
12-8 under other special circumstances.
12-9 SECTION 10. Section 264.606, Family Code, as added by H.B.
12-10 No. 655, Acts of the 74th Legislature, Regular Session, 1995, is
12-11 amended to read as follows:
12-12 Sec. 264.606. CRITERIA FOR AWARD OF CONTRACTS. The
12-13 statewide organization with which the attorney general contracts
12-14 under Section 264.603 shall consider the following in awarding a
12-15 contract under Section 264.602:
12-16 (1) the volunteer advocate program's eligibility for
12-17 and use of funds from local, state, or federal governmental
12-18 sources, philanthropic organizations, and other sources;
12-19 (2) community support for the volunteer advocate
12-20 program as indicated by financial contributions from civic
12-21 organizations, individuals, and other community resources;
12-22 (3) whether the volunteer advocate program provides
12-23 services that encourage the permanent placement of children through
12-24 reunification with their families or timely placement with an
12-25 adoptive family; and
12-26 (4) whether the volunteer advocate program has the
12-27 endorsement and cooperation of the local juvenile court system.
13-1 SECTION 11. Subsection (b), Section 264.607, Family Code, as
13-2 added by H.B. No. 655, Acts of the 74th Legislature, Regular
13-3 Session, 1995, is amended to read as follows:
13-4 (b) The statewide organization with which the attorney
13-5 general contracts under Section 264.603 may require that a contract
13-6 under Section 264.602 require the volunteer advocate program to use
13-7 forms provided by the attorney general.
13-8 SECTION 12. Subsection (c), Section 264.612, Family Code, as
13-9 added by H.B. No. 655, Acts of the 74th Legislature, Regular
13-10 Session, 1995, is repealed.
13-11 SECTION 13. This Act takes effect September 1, 1995. The
13-12 change in law to Section 107.004, Family Code, made by this Act
13-13 applies only to a cause of action that arises on or after that
13-14 date. A cause of action that arose before September 1, 1995, is
13-15 governed by the law in effect at the time the cause of action
13-16 arose, and the former law is continued in effect for that purpose.
13-17 SECTION 14. The importance of this legislation and the
13-18 crowded condition of the calendars in both houses create an
13-19 emergency and an imperative public necessity that the
13-20 constitutional rule requiring bills to be read on three several
13-21 days in each house be suspended, and this rule is hereby suspended.