By Goodman, Naishtat, Reyna of Bexar, H.B. No. 1622
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the clarification of certain procedures in the Family
1-3 Code.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 102.003, Family Code, is amended to read
1-6 as follows:
1-7 Sec. 102.003. GENERAL STANDING TO FILE SUIT. (a) An
1-8 original suit may be filed at any time by:
1-9 (1) a parent of the child;
1-10 (2) the child through a representative authorized by
1-11 the court;
1-12 (3) a custodian or person having the right of
1-13 visitation with or access to the child appointed by an order of a
1-14 court of another state or country;
1-15 (4) a guardian of the person or of the estate of the
1-16 child;
1-17 (5) a governmental entity;
1-18 (6) an authorized agency;
1-19 (7) a licensed child placing agency;
1-20 (8) a man alleging himself to be the biological father
1-21 of a child filing in accordance with Chapter 160, subject to the
1-22 limitations of Section 160.101, but not otherwise;
1-23 (9) a person, other than a foster parent, who has had
1-24 actual care, control, and possession of the child for at least [not
1-25 less than] six months ending not more than 90 days preceding the
2-1 date of the filing of the petition;
2-2 (10) a person designated as the managing conservator
2-3 in a revoked or unrevoked affidavit of relinquishment under Chapter
2-4 161 or to whom consent to adoption has been given in writing under
2-5 Chapter 162;
2-6 (11) a person with whom the child and the child's
2-7 guardian, managing conservator, or parent have resided for at least
2-8 [not less than] six months ending not more than 90 days preceding
2-9 the date of the filing of the petition if the child's guardian,
2-10 managing conservator, or parent is deceased at the time of the
2-11 filing of the petition; or
2-12 (12) a person who is the foster parent of a child
2-13 placed by the Department of Protective and Regulatory Services in
2-14 the person's home for at least 12 [a period of not less than 18]
2-15 months ending not more than 90 days preceding the date of the
2-16 filing of the petition.
2-17 (b) In computing the time necessary for standing under
2-18 Subsections (a)(9), (11), and (12), the court may not require that
2-19 the time be continuous and uninterrupted but shall consider the
2-20 child's principal residence during the relevant time preceding the
2-21 date of commencement of the suit.
2-22 SECTION 2. Sections 105.001(b) and (d), Family Code, are
2-23 amended to read as follows:
2-24 (b) Except as provided by Subsection (c), temporary
2-25 restraining orders and temporary injunctions under this section
2-26 shall be granted without the necessity of an affidavit or verified
2-27 pleading stating specific facts showing that immediate and
3-1 irreparable injury, loss, or damage will result before notice can
3-2 be served and a hearing can be held. Except as provided by
3-3 Subsection (h), an order may not be rendered under Subsection
3-4 (a)(1), (2), or (5) except after notice and a hearing. A temporary
3-5 restraining order or temporary injunction granted under this
3-6 section need not:
3-7 (1) define the injury or state why it is irreparable;
3-8 [or]
3-9 (2) state why the order was granted without notice; or
3-10 (3) include an order setting the cause for trial on
3-11 the merits with respect to the ultimate relief requested.
3-12 (d) In a suit, the court may dispense with the necessity
3-13 of[:]
3-14 [(1)] a bond in connection with temporary orders on
3-15 [in] behalf of the child[; and]
3-16 [(2) setting the cause for trial on the merits with
3-17 respect to the ultimate relief requested].
3-18 SECTION 3. Section 107.0135, Family Code, is amended to read
3-19 as follows:
3-20 Sec. 107.0135. APPOINTMENT OF ATTORNEY AD LITEM NOT
3-21 REQUIRED; CERTAIN CASES. A court is not required [under this
3-22 section] to appoint an attorney ad litem in a proceeding in which:
3-23 (1) a suit for the dissolution of a marriage is
3-24 uncontested; or
3-25 (2) the issues of possession of and access to a child
3-26 are agreed to by both parents.
3-27 SECTION 4. Section 107.014(a), Family Code, is amended to
4-1 read as follows:
4-2 (a) An attorney ad litem appointed under this subchapter to
4-3 represent a child:
4-4 (1) shall investigate to the extent the attorney ad
4-5 litem considers appropriate to determine the facts of the case;
4-6 (2) shall obtain and review copies of all of the
4-7 child's relevant medical, psychological, and school records; [and]
4-8 (3) may call, examine, or cross-examine witnesses; and
4-9 (4) shall become familiar with the American Bar
4-10 Association's standards of practice for lawyers who represent
4-11 children in abuse and neglect cases.
4-12 SECTION 5. Section 107.015, Family Code, is amended to read
4-13 as follows:
4-14 Sec. 107.015. ATTORNEY AD LITEM FEES. (a) An attorney
4-15 appointed to represent a child or parent as authorized by this
4-16 subchapter is entitled to [a] reasonable fees and expenses [fee] in
4-17 the amount set by the court to be paid by the parents of the child
4-18 unless the parents are indigent.
4-19 (b) If the court or associate judge determines that one or
4-20 more of the parties [or litigants] are able to defray the costs of
4-21 an attorney ad litem's fees and expenses [compensation] as
4-22 determined by the reasonable and customary fees for similar
4-23 services in the county of jurisdiction, the fees and expenses
4-24 [costs] may be ordered paid by one [either] or more of those [both]
4-25 parties, or the court or associate judge may order one [either] or
4-26 more of those [both] parties, prior to final hearing, to pay the
4-27 sums into the registry of the court or into an account authorized
5-1 by the court for the use and benefit of the attorney ad litem on
5-2 order of the court. The sums may be taxed as costs to be assessed
5-3 against one or more of the parties.
5-4 (c) If indigency of the parents is shown, an attorney
5-5 appointed to represent a child or parent in a suit to terminate the
5-6 parent-child relationship shall be paid from the general funds of
5-7 the county according to the fee schedule that applies to an
5-8 attorney appointed to represent a child in a suit under Title 3 as
5-9 provided by Chapter 51.
5-10 SECTION 6. Section 153.434, Family Code, is amended to read
5-11 as follows:
5-12 Sec. 153.434. LIMITATION ON RIGHT TO REQUEST ACCESS. A
5-13 biological or adoptive grandparent may not request possession of or
5-14 access to a grandchild if:
5-15 (1) each of the biological parents of the grandchild
5-16 has:
5-17 (A) died;
5-18 (B) had the person's parental rights terminated;
5-19 or
5-20 (C) [the grandparent is a parent of a person
5-21 whose parental rights with the child have been terminated by court
5-22 order or by death; or]
5-23 [(2) the grandparent is a parent of a person who has]
5-24 executed an affidavit of waiver of interest in child or an
5-25 affidavit of relinquishment of parental rights under Chapter 161
5-26 and the affidavit designates an authorized agency, licensed
5-27 child-placing agency, or person other than the child's stepparent
6-1 as the managing conservator of the child; and
6-2 (2) [(3) the other biological parent has died, has
6-3 executed an affidavit of waiver of interest in child or an
6-4 affidavit of relinquishment of parental rights under Chapter 161,
6-5 or has had that parent's parental rights terminated and] the
6-6 grandchild has been adopted, or is the subject of a pending suit
6-7 for adoption, by a person other than the child's stepparent.
6-8 SECTION 7. Section 156.104(a), Family Code, is amended to
6-9 read as follows:
6-10 (a) The court may modify an order that designates a sole
6-11 managing conservator if a parent of the child requests appointment
6-12 as a joint managing conservator and the court finds that:
6-13 (1) the circumstances of the child or the sole
6-14 managing conservator have materially and substantially changed
6-15 since the rendition of the order; and
6-16 (2) [retention of a sole managing conservatorship
6-17 would be detrimental to the welfare of the child; and]
6-18 [(3)] the appointment of the parent as a joint
6-19 managing conservator would be a positive improvement for and in the
6-20 best interest of the child.
6-21 SECTION 8. Section 161.001, Family Code, is amended to read
6-22 as follows:
6-23 Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD
6-24 RELATIONSHIP. The court may order termination of the parent-child
6-25 relationship if the court finds by clear and convincing evidence:
6-26 (1) that the parent has:
6-27 (A) voluntarily left the child alone or in the
7-1 possession of another not the parent and expressed an intent not to
7-2 return;
7-3 (B) voluntarily left the child alone or in the
7-4 possession of another not the parent without expressing an intent
7-5 to return, without providing for the adequate support of the child,
7-6 and remained away for a period of at least three months;
7-7 (C) voluntarily left the child alone or in the
7-8 possession of another without providing adequate support of the
7-9 child and remained away for a period of at least six months;
7-10 (D) knowingly placed or knowingly allowed the
7-11 child to remain in conditions or surroundings which endanger the
7-12 physical or emotional well-being of the child;
7-13 (E) engaged in conduct or knowingly placed the
7-14 child with persons who engaged in conduct which endangers the
7-15 physical or emotional well-being of the child;
7-16 (F) failed to support the child in accordance
7-17 with the parent's ability during a period of one year ending within
7-18 six months of the date of the filing of the petition;
7-19 (G) abandoned the child without identifying the
7-20 child or furnishing means of identification, and the child's
7-21 identity cannot be ascertained by the exercise of reasonable
7-22 diligence;
7-23 (H) voluntarily, and with knowledge of the
7-24 pregnancy, abandoned the mother of the child beginning at a time
7-25 during her pregnancy with the child and continuing through the
7-26 birth, failed to provide adequate support or medical care for the
7-27 mother during the period of abandonment before the birth of the
8-1 child, and remained apart from the child or failed to support the
8-2 child since the birth;
8-3 (I) contumaciously refused to submit to a
8-4 reasonable and lawful order of a court under Subchapter D, Chapter
8-5 261 [264];
8-6 (J) been the major cause of:
8-7 (i) the failure of the child to be
8-8 enrolled in school as required by the Education Code; or
8-9 (ii) the child's absence from the child's
8-10 home without the consent of the parents or guardian for a
8-11 substantial length of time or without the intent to return;
8-12 (K) executed before or after the suit is filed
8-13 an unrevoked or irrevocable affidavit of relinquishment of parental
8-14 rights as provided by this chapter;
8-15 (L) been convicted or has been placed on
8-16 community supervision, including deferred adjudication community
8-17 supervision, for being criminally responsible for the death or
8-18 serious injury of a child under the following sections of the Penal
8-19 Code or adjudicated under Title 3 for conduct that caused the death
8-20 or serious injury of a child and that would constitute a violation
8-21 of one of the following Penal Code sections:
8-22 (i) Section 19.02 (murder);
8-23 (ii) Section 19.03 (capital murder);
8-24 (iii) Section 19.04 (manslaughter);
8-25 (iv) Section 21.11 (indecency with a
8-26 child);
8-27 (v) [(iv)] Section 22.01 (assault);
9-1 (vi) [(v)] Section 22.011 (sexual
9-2 assault);
9-3 (vii) [(vi)] Section 22.02 (aggravated
9-4 assault);
9-5 (viii) [(vii)] Section 22.021 (aggravated
9-6 sexual assault);
9-7 (ix) [(viii)] Section 22.04 (injury to a
9-8 child, elderly individual, or disabled individual);
9-9 (x) [(ix)] Section 22.041 (abandoning or
9-10 endangering child);
9-11 (xi) [(x)] Section 25.02 (prohibited
9-12 sexual conduct);
9-13 (xii) [(xi)] Section 43.25 (sexual
9-14 performance by a child); and
9-15 (xiii) [(xii)] Section 43.26 (possession
9-16 or promotion of child pornography);
9-17 (M) had his or her parent-child relationship
9-18 terminated with respect to another child based on a finding that
9-19 the parent's conduct was in violation of Paragraph (D) or (E) or
9-20 substantially equivalent provisions of the law of another state;
9-21 (N) constructively abandoned the child who has
9-22 been in the permanent or temporary managing conservatorship of the
9-23 Department of Protective and Regulatory Services or an authorized
9-24 agency for not less than six months, and:
9-25 (i) the department or authorized agency
9-26 has made reasonable efforts to return the child to the parent;
9-27 (ii) the parent has not regularly visited
10-1 or maintained significant contact with the child; and
10-2 (iii) the parent has demonstrated an
10-3 inability to provide the child with a safe environment;
10-4 (O) failed to comply with the provisions of a
10-5 court order that specifically established the actions necessary for
10-6 the parent to obtain the return of the child who has been in the
10-7 permanent or temporary managing conservatorship of the Department
10-8 of Protective and Regulatory Services for not less than nine months
10-9 as a result of the child's removal from the parent under Chapter
10-10 262 for the abuse or neglect of the child;
10-11 (P) used a controlled substance, as defined by
10-12 Chapter 481, Health and Safety Code,[:]
10-13 [(i)] in a manner that endangered the
10-14 health or safety of the child, and:
10-15 (i) failed to complete a court-ordered
10-16 substance abuse treatment program; or
10-17 (ii) [repeatedly,] after completion of a
10-18 court-ordered substance treatment program, continued to abuse a
10-19 controlled substance [in a manner that endangered the health or
10-20 safety of the child];
10-21 (Q) knowingly engaged in criminal conduct that
10-22 has resulted [results] in the parent's:
10-23 (i) conviction of an offense; and
10-24 (ii) confinement or imprisonment and
10-25 inability to care for the child for not less than two years from
10-26 the date of filing the petition; or
10-27 (R) been the cause of the child being born
11-1 addicted to alcohol or a controlled substance, other than a
11-2 controlled substance legally obtained by prescription, as defined
11-3 by Section 261.001(7); and
11-4 (2) that termination is in the best interest of the
11-5 child.
11-6 SECTION 9. (a) This Act takes effect September 1, 1999.
11-7 (b) The change in law made by this Act applies only to a
11-8 suit affecting the parent-child relationship filed on or after the
11-9 effective date of this Act. A suit affecting the parent-child
11-10 relationship filed before the effective date of this Act is
11-11 governed by the law in effect on the date the suit was filed, and
11-12 the former law is continued in effect for that purpose.
11-13 SECTION 10. The importance of this legislation and the
11-14 crowded condition of the calendars in both houses create an
11-15 emergency and an imperative public necessity that the
11-16 constitutional rule requiring bills to be read on three several
11-17 days in each house be suspended, and this rule is hereby suspended.