1-1 By: Harris S.B. No. 1408
1-2 (In the Senate - Filed March 13, 1995; March 20, 1995, read
1-3 first time and referred to Committee on Jurisprudence;
1-4 April 11, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 11, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1408 By: Harris
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the parent-child relationship and certain child welfare
1-11 services.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsection (a), Section 11.09, Family Code, is
1-14 amended to read as follows:
1-15 (a) Except as provided in Subsection (b) <of this section>,
1-16 the following <persons> are entitled to service of citation on the
1-17 filing of a petition in a suit affecting the parent-child
1-18 relationship:
1-19 (1) the managing conservator, if any;
1-20 (2) possessory conservators, if any;
1-21 (3) persons, if any, having access to the child under
1-22 an order of the court;
1-23 (4) persons, if any, required by law or by order of a
1-24 court to provide for the support of a child;
1-25 (5) the guardian of the person of the child, if any;
1-26 (6) the guardian of the estate of the child, if any;
1-27 (7) each parent as to whom the parent-child
1-28 relationship has not been terminated or process has not been waived
1-29 under Section 15.03(c)(2) <of this code>; <and>
1-30 (8) the alleged father or probable father, unless
1-31 there is attached to the petition an affidavit of waiver of
1-32 interest in a child executed by the alleged father or probable
1-33 father as provided in Section 15.041; and <of this code>
1-34 (9) the Department of Protective and Regulatory
1-35 Services, if the petition requests that the department be appointed
1-36 as managing conservator of the child.
1-37 SECTION 2. Subsection (d), Section 11.10, Family Code, is
1-38 amended to read as follows:
1-39 (d) In any suit brought by a governmental entity seeking
1-40 termination of the parent-child relationship or to be named
1-41 conservator of a child, the court immediately shall appoint an
1-42 attorney ad litem to represent the interests of the child <as soon
1-43 as practicable> to insure adequate representation of the child's
1-44 interest. In a suit in which the Department of Protective and
1-45 Regulatory Services, an authorized agency, or a licensed
1-46 child-placing agency is named managing conservator of a child who,
1-47 regardless of whether the child is institutionalized, requires
1-48 continuous care and personal supervision because of a mental or
1-49 physical disability, the court shall appoint a guardian ad litem to
1-50 represent the interests of the child. In any suit in which
1-51 termination of the parent-child relationship is sought, the court
1-52 shall appoint an attorney ad litem to represent the interests of
1-53 each indigent parent of the child who responds in opposition to the
1-54 termination. If both parents of the child are indigent and oppose
1-55 termination and the court finds that the interests of the parents
1-56 are not in conflict, the court may appoint a single attorney ad
1-57 litem to represent the interests of both parents.
1-58 SECTION 3. Section 14.02, Family Code, is amended to read as
1-59 follows:
1-60 Sec. 14.02. COURT TO SPECIFY RIGHTS AND DUTIES<, PRIVILEGES,
1-61 DUTIES, AND POWERS> OF PARENT APPOINTED AS <A> CONSERVATOR.
1-62 <(a)> If both parents are appointed as conservators of the child,
1-63 <either by agreement between the parties or by court order,> the
1-64 court shall specify the rights and<, privileges,> duties<, and
1-65 powers of a parent that are to be retained by both parents, the
1-66 rights, privileges, duties, and powers> of a parent that are to be
1-67 exercised:
1-68 (1) by each parent independently;
2-1 (2) by the agreement of the parents; and
2-2 (3) <jointly, and the rights, privileges, duties, and
2-3 powers that are to be exercised> exclusively by one parent.
2-4 Sec. 14.0201. LIMITATION OF PARENTAL RIGHTS AND DUTIES. The
2-5 court may limit the rights and duties of <Each parent retains the
2-6 right to receive information from the other parent concerning the
2-7 health, education, and welfare of the child and, to the extent
2-8 possible, the right to confer with the other parent before making a
2-9 decision concerning the health, education, and welfare of the
2-10 child, and the court shall specify these rights in the order.>
2-11 <(b) Unless by written findings the court determines it
2-12 would not be in the best interest of the child,> a parent appointed
2-13 as a conservator if the court determines the limitation is in the
2-14 child's best interests.
2-15 Sec. 14.0202. RIGHTS AND DUTIES DURING POSSESSION. Subject
2-16 to a limitation imposed under Section 14.0201, <of the child
2-17 retains the following rights, privileges, duties, and powers of a
2-18 parent, subject to any limitation imposed by court order in
2-19 allowing access to the child:>
2-20 <(1)> a parent appointed as a conservator of a child
2-21 has the following rights and duties during the period that the
2-22 parent has possession of the child:
2-23 (1) <(A)> the right to physical possession and to
2-24 direct the moral and religious training of the child;
2-25 (2) <(B)> the duty of care, control, protection, and
2-26 reasonable discipline of the child;
2-27 (3) <(C)> the duty to support the child, including
2-28 providing the child with clothing, food, shelter, and medical and
2-29 dental care not involving an invasive procedure; and
2-30 (4) <(D)> the right <power> to consent to medical,
2-31 dental, and surgical treatment during an emergency involving an
2-32 immediate danger to the health and safety of the child.<;>
2-33 Sec. 14.0203. RIGHTS AND DUTIES AT ALL TIMES. Subject to a
2-34 limitation imposed under Section 14.0201, a <(2) each> parent
2-35 appointed as a conservator of a child has the following rights and
2-36 duties <at all times>:
2-37 (1) as specified by court order:
2-38 (A) the right to receive information from the
2-39 other parent concerning the health, education, and welfare of the
2-40 child; and
2-41 (B) to the extent possible, the right to confer
2-42 with the other parent before making a decision concerning the
2-43 health, education, and welfare of the child;
2-44 (2) <(A)> the right of access to medical, dental,
2-45 psychological, and educational records of the child;
2-46 (3) <(B)> the right to consult with a <any> physician,
2-47 dentist, or psychologist of the child;
2-48 (4) <(C)> the right to consult with school officials
2-49 concerning the child's welfare and educational status, including
2-50 school activities;
2-51 (5) <(D)> the right to attend school activities;
2-52 (6) <(E)> the right to be designated on the child's
2-53 <any> records as a person to be notified in case of an emergency;
2-54 (7) the right to consent to medical, dental, and
2-55 surgical treatment during an emergency involving an immediate
2-56 danger to the health and safety of the child; and
2-57 (8) <(F)> the right to manage the estate of the child
2-58 to the extent the estate has been created by the parent or the
2-59 parent's family.<; and>
2-60 Sec. 14.0204. RIGHTS AND DUTIES OF PARENT WHO IS SOLE
2-61 MANAGING CONSERVATOR. Subject to a limitation imposed under
2-62 Section 14.0201, <(3)> a parent appointed as the sole managing
2-63 conservator of a child exclusively has:
2-64 (1) <(A)> the right to the services and earnings of
2-65 the child;
2-66 (2) <(B)> the right <power> to consent to marriage, to
2-67 enlistment in the armed forces of the United States, to medical,
2-68 dental, and surgical treatment involving invasive procedures, and
2-69 to psychiatric and psychological treatment;
2-70 (3) <(C)> the right <power> to represent the child in
3-1 legal action and to make other decisions of substantial legal
3-2 significance concerning the child, including the right to establish
3-3 the primary residence of the child;
3-4 (4) <,> except when a guardian of the child's estate
3-5 or a guardian or attorney ad litem has been appointed for the
3-6 child, a right <power> as an agent of the child to act in relation
3-7 to the child's estate if the child's action is required by a state,
3-8 the United States, or a foreign government; and
3-9 (5) <(D)> the right <power> to receive and give
3-10 receipt for periodic payments for the support of the child and to
3-11 hold or disburse these funds for the benefit of the child.
3-12 Sec. 14.0205. RIGHTS AND DUTIES OF MANAGING CONSERVATOR
3-13 OTHER THAN PARENT. <(c)> A managing conservator who is not the
3-14 parent of the child has the following rights and<, privileges,>
3-15 duties<, and powers>, subject to the same limitations that apply to
3-16 a parent under Section 14.0201, <Subsection (b) of this section,
3-17 to> the rights and<, privileges,> duties<, and powers> of a
3-18 possessory conservator as provided in Section 14.04 <of this code>,
3-19 and <to> any limitation imposed by court order in allowing access
3-20 to the child:
3-21 (1) the right to have physical possession and<,> to
3-22 direct the moral and religious training<, and to establish the
3-23 legal domicile> of the child;
3-24 (2) the duty of care, control, protection, and
3-25 reasonable discipline of the child;
3-26 (3) the duty to provide the child with clothing, food,
3-27 shelter, and education;
3-28 (4) the right to the services and earnings of the
3-29 child;
3-30 (5) the right <power> to consent to marriage, to
3-31 enlistment in the armed forces of the United States, and to
3-32 medical, psychiatric, psychological, dental, and surgical
3-33 treatment;
3-34 (6) the right <power> to represent the child in legal
3-35 action and to make other decisions of substantial legal
3-36 significance concerning the child;
3-37 (7) <including,> except when a guardian of the child's
3-38 estate or a guardian or attorney ad litem has been appointed for
3-39 the child, a right <power> as an agent of the child to act in
3-40 relation to the child's estate if the child's action is required by
3-41 a state, the United States, or a foreign government;
3-42 (8) <(7)> the right <power> to receive and give
3-43 receipt for periodic payments for the support of the child and to
3-44 hold or disburse these funds for the benefit of the child;
3-45 (9) the right to establish the primary residence of
3-46 the child; and
3-47 (10) <(8)> if the parent-child relationship has been
3-48 terminated with respect to the parents, or only living parent, or
3-49 if there is no living parent, the right <power> to consent to the
3-50 adoption of the child and to make any other decision concerning the
3-51 child that a parent could make.
3-52 Sec. 14.0206. RIGHTS AND DUTIES OF MANAGING CONSERVATOR
3-53 DESIGNATED IN AFFIDAVIT OF RELINQUISHMENT. <(d)> A person or
3-54 authorized agency designated managing conservator of a child in an
3-55 irrevocable or unrevoked affidavit of relinquishment executed
3-56 pursuant to Section 15.03 <of this code> shall have a right to
3-57 possession of the child superior to the right of the person
3-58 executing the affidavit, the right to consent to medical and
3-59 surgical treatment of the child, and the rights and<, privileges,>
3-60 duties<, and powers> given by Section 14.04 <of this code> to a
3-61 possessory conservator until such time as these rights and<,
3-62 privileges,> duties<, and powers> are modified or terminated by
3-63 court order.
3-64 Sec. 14.0207. EFFECT OF APPOINTMENT OF MANAGING CONSERVATOR
3-65 ON RIGHT TO INHERIT. <(e)> The appointment of a managing
3-66 conservator does not create, rescind, or otherwise alter a right to
3-67 inherit as established by law or as modified under Chapter 15 <of
3-68 this code>.
3-69 SECTION 4. The heading of Section 14.051, Family Code, is
3-70 amended to read as follows:
4-1 Sec. 14.051. SUPPORT AND POSSESSION OF, AND ACCESS TO, <FOR>
4-2 A MINOR OR ADULT DISABLED CHILD.
4-3 SECTION 5. Section 14.051, Family Code, is amended by
4-4 amending Subsections (b), (g), and (h) and by adding Subsection (l)
4-5 to read as follows:
4-6 (b) The court may order either or both parents to provide
4-7 for the support of a child for an indefinite period and determine
4-8 the rights and<, privileges,> duties<, and powers> of the child's
4-9 parents for the support of the child if the court finds that:
4-10 (1) the child, whether institutionalized or not,
4-11 requires substantial care and personal supervision because of a
4-12 mental or physical disability and will not be able to support
4-13 himself; and
4-14 (2) the disability exists, or the cause of the
4-15 disability is known to exist, before or on the 18th birthday of the
4-16 child.
4-17 (g) In determining the amount of support to be paid after a
4-18 child's 18th birthday, the specific terms and conditions of that
4-19 support, and the rights and<, privileges,> duties<, and powers> of
4-20 both parents with respect to the support of the child, the court
4-21 shall determine and give special consideration to:
4-22 (1) any existing or future needs of the adult child
4-23 directly related to the adult child's mental or physical disability
4-24 and the substantial care and personal supervision directly required
4-25 by or related to that disability;
4-26 (2) whether the parent pays for or will pay for the
4-27 care or supervision of the adult child or provides or will provide
4-28 substantial care or personal supervision of the adult child;
4-29 (3) the financial resources available to both parents
4-30 for the support, care, and supervision of the adult child; and
4-31 (4) any other financial resources or other resources
4-32 or programs available for the support, care, and supervision of the
4-33 adult child.
4-34 (h) An order under this section may contain provisions
4-35 governing the rights and<, privileges,> duties<, and powers> of
4-36 both parents with respect to the support of the child and may be
4-37 modified or enforced in the same manner as any other order under
4-38 this title.
4-39 (l) The court may render an order for the possession of or
4-40 access to an adult disabled child that is appropriate under the
4-41 circumstances. Possession of or access to the adult disabled child
4-42 is enforceable in the manner provided by Subchapter B, except that
4-43 an adult disabled child may refuse possession or access if the
4-44 adult disabled child is mentally competent.
4-45 SECTION 6. Section 107.004, Family Code, as added by H.B.
4-46 No. 655, Acts of the 74th Legislature, Regular Session, 1995, is
4-47 amended by amending Subsection (c) and adding Subsection (d) to
4-48 read as follows:
4-49 (c) A court-appointed volunteer, a board member or employee
4-50 of a volunteer advocate charitable organization, or a member of an
4-51 administrative review board <person> is not liable for civil
4-52 damages for a recommendation made or opinion rendered while serving
4-53 or having served as a court-appointed volunteer, board member or
4-54 employee of a volunteer advocate charitable organization, or member
4-55 of an administrative review board under this section unless the act
4-56 or failure to act is wilfully wrongful, committed with conscious
4-57 indifference or reckless disregard for the safety of another,
4-58 committed in bad faith or with malice, or is grossly negligent.
4-59 (d) The court shall require that a volunteer advocate
4-60 prepare a written report for the court. The report may only
4-61 contain information that is relevant to the suit for which the
4-62 volunteer advocate was appointed. A court or jury may consider a
4-63 report prepared by a volunteer advocate only if:
4-64 (1) the volunteer advocate is present and available to
4-65 testify; or
4-66 (2) the deposition of the volunteer advocate has been
4-67 taken under the Texas Rules of Civil Procedure and all parties to
4-68 the suit have had an opportunity to cross-examine the volunteer
4-69 advocate under oath.
4-70 SECTION 7. Subsection (a), Section 264.602, Family Code, as
5-1 added by H.B. No. 655, Acts of the 74th Legislature, Regular
5-2 Session, 1995, is amended to read as follows:
5-3 (a) The statewide organization with which the attorney
5-4 general contracts under Section 264.603 shall contract for services
5-5 with <each> eligible volunteer advocate programs <program> to
5-6 expand the existing services of the program.
5-7 SECTION 8. Section 264.603, Family Code, as added by H.B.
5-8 No. 655, Acts of the 74th Legislature, Regular Session, 1995, is
5-9 amended to read as follows:
5-10 Sec. 264.603. ADMINISTRATIVE CONTRACTS. (a) The attorney
5-11 general shall contract with one statewide organization of
5-12 individuals or groups of individuals who have expertise in the
5-13 dynamics of child abuse and neglect and experience in operating
5-14 volunteer advocate programs to<:>
5-15 <(1)> provide training, technical assistance, and
5-16 evaluation services for the benefit of local volunteer advocate
5-17 programs<; and>
5-18 <(2) manage the attorney general's contracts under
5-19 Section 264.602>.
5-20 (b) The contract under this section shall provide that not
5-21 more than 12 percent of the annual legislative appropriation to
5-22 implement this subchapter may be spent for administrative purposes
5-23 by the statewide organization with which the attorney general
5-24 contracts under this section.
5-25 SECTION 9. Subsection (b), Section 264.604, Family Code, as
5-26 added by H.B. No. 655, Acts of the 74th Legislature, Regular
5-27 Session, 1995, is amended to read as follows:
5-28 (b) The statewide organization with which the attorney
5-29 general contracts under Section 264.603 may not contract with a
5-30 person that is not eligible under this section. However, the
5-31 statewide organization <attorney general> may waive the requirement
5-32 in Subsection (a)(3) for an established program in a rural area or
5-33 under other special circumstances.
5-34 SECTION 10. Section 264.606, Family Code, as added by H.B.
5-35 No. 655, Acts of the 74th Legislature, Regular Session, 1995, is
5-36 amended to read as follows:
5-37 Sec. 264.606. CRITERIA FOR AWARD OF CONTRACTS. The
5-38 statewide organization with which the attorney general contracts
5-39 under Section 264.603 shall consider the following in awarding a
5-40 contract under Section 264.602:
5-41 (1) the volunteer advocate program's eligibility for
5-42 and use of funds from local, state, or federal governmental
5-43 sources, philanthropic organizations, and other sources;
5-44 (2) community support for the volunteer advocate
5-45 program as indicated by financial contributions from civic
5-46 organizations, individuals, and other community resources;
5-47 (3) whether the volunteer advocate program provides
5-48 services that encourage the permanent placement of children through
5-49 reunification with their families or timely placement with an
5-50 adoptive family; and
5-51 (4) whether the volunteer advocate program has the
5-52 endorsement and cooperation of the local juvenile court system.
5-53 SECTION 11. Subsection (b), Section 264.607, Family Code, as
5-54 added by H.B. No. 655, Acts of the 74th Legislature, Regular
5-55 Session, 1995, is amended to read as follows:
5-56 (b) The statewide organization with which the attorney
5-57 general contracts under Section 264.603 may require that a contract
5-58 under Section 264.602 require the volunteer advocate program to use
5-59 forms provided by the attorney general.
5-60 SECTION 12. Subsection (c), Section 264.612, Family Code, as
5-61 added by H.B. No. 655, Acts of the 74th Legislature, Regular
5-62 Session, 1995, is repealed.
5-63 SECTION 13. This Act takes effect September 1, 1995. The
5-64 change in law to Section 107.004, Family Code, made by this Act
5-65 applies only to a cause of action that arises on or after that
5-66 date. A cause of action that arose before September 1, 1995, is
5-67 governed by the law in effect at the time the cause of action
5-68 arose, and the former law is continued in effect for that purpose.
5-69 SECTION 14. The importance of this legislation and the
5-70 crowded condition of the calendars in both houses create an
6-1 emergency and an imperative public necessity that the
6-2 constitutional rule requiring bills to be read on three several
6-3 days in each house be suspended, and this rule is hereby suspended.
6-4 * * * * *