By Goodman                                            H.B. No. 1622
         76R5788 JMM-F                           
                                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.  An original
 1-8     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 who has had actual care, control, and
1-24     possession of the child for at least [not less than] six months
 2-1     during a 12-month period ending not more than 90 days preceding the
 2-2     date of the filing of the petition;
 2-3                 (10)  a person designated as the managing conservator
 2-4     in a revoked or unrevoked affidavit of relinquishment under Chapter
 2-5     161 or to whom consent to adoption has been given in writing under
 2-6     Chapter 162;
 2-7                 (11)  a person with whom the child and the child's
 2-8     guardian, managing conservator, or parent have resided for at least
 2-9     [not less than] six months during a 12-month period ending not more
2-10     than 90 days preceding the date of the filing of the petition if
2-11     the child's guardian, managing conservator, or parent is deceased
2-12     at the time of the filing of the petition; or
2-13                 (12)  a person who is the foster parent of a child
2-14     placed by the Department of Protective and Regulatory Services in
2-15     the person's home for at least [a period of not less than] 18
2-16     months during a 24-month period ending not more than 90 days
2-17     preceding the date of the filing of the petition.
2-18           SECTION 2.  Sections 105.001(b) and (d), Family Code, are
2-19     amended to read as follows:
2-20           (b)  Except as provided by Subsection (c), temporary
2-21     restraining orders and temporary injunctions under this section
2-22     shall be granted without the necessity of an affidavit or verified
2-23     pleading stating specific facts showing that immediate and
2-24     irreparable injury, loss, or damage will result before notice can
2-25     be served and a hearing can be held.  Except as provided by
2-26     Subsection (h), an order may not be rendered under Subsection
2-27     (a)(1), (2), or (5) except after notice and a hearing.  A temporary
 3-1     restraining order or temporary injunction granted under this
 3-2     section need not:
 3-3                 (1)  define the injury or state why it is irreparable;
 3-4     [or]
 3-5                 (2)  state why the order was granted without notice; or
 3-6                 (3)  include an order setting the cause for trial on
 3-7     the merits with respect to the ultimate relief requested.
 3-8           (d)  In a suit, the court may dispense with the necessity
 3-9     of[:]
3-10                 [(1)]  a bond in connection with temporary orders on
3-11     [in] behalf of the child[; and]
3-12                 [(2)  setting the cause for trial on the merits with
3-13     respect to the ultimate relief requested].
3-14           SECTION 3.  Subchapter A, Chapter 107, Family Code, is
3-15     amended by adding Section 107.004 to read as follows:
3-16           Sec. 107.004.  GUARDIAN AD LITEM FEES.  (a)  A guardian ad
3-17     litem appointed to represent a child or parent under this
3-18     subchapter may be awarded reasonable fees and expenses in an amount
3-19     set by the court to compensate the guardian ad litem for the duties
3-20     performed.  The fees and expenses shall be paid by the parents of
3-21     the child unless the parents are indigent.
3-22           (b)  If the court or associate judge determines that one or
3-23     more of the parties are able to defray the costs of a guardian ad
3-24     litem's fees and expenses as determined by the reasonable and
3-25     customary fees for similar services in the county of jurisdiction,
3-26     the fees and expenses may be ordered paid by one or more of those
3-27     parties, or the court or associate judge may order one or more of
 4-1     those parties, before final hearing, to pay the sums into the
 4-2     registry of the court or into an account authorized by the court
 4-3     for the use and benefit of the guardian ad litem on order of the
 4-4     court.  The sums may be taxed as costs to be assessed against one
 4-5     or more of the parties.
 4-6           SECTION 4.  Section 107.0135, Family Code, is amended to read
 4-7     as follows:
 4-8           Sec. 107.0135.  APPOINTMENT OF ATTORNEY AD LITEM NOT
 4-9     REQUIRED; CERTAIN CASES.  A court is not required [under this
4-10     section] to appoint an attorney ad litem in a proceeding in which:
4-11                 (1)  a suit for the dissolution of a marriage is
4-12     uncontested; or
4-13                 (2)  the issues of possession of and access to a child
4-14     are agreed to by both parents.
4-15           SECTION 5.  Section 107.014(a), Family Code, is amended to
4-16     read as follows:
4-17           (a)  An attorney ad litem appointed under this subchapter to
4-18     represent a child:
4-19                 (1)  shall investigate to the extent the attorney ad
4-20     litem considers appropriate to determine the facts of the case;
4-21                 (2)  shall obtain and review copies of all of the
4-22     child's relevant medical, psychological, and school records; [and]
4-23                 (3)  may call, examine, or cross-examine witnesses; and
4-24                 (4)  shall become familiar with the American Bar
4-25     Association's standards of practice for lawyers who represent
4-26     children in abuse and neglect cases.
4-27           SECTION 6.  Section 107.015, Family Code, is amended to read
 5-1     as follows:
 5-2           Sec. 107.015.  ATTORNEY AD LITEM FEES.  (a)  An attorney
 5-3     appointed to represent a child or parent as authorized by this
 5-4     subchapter is entitled to [a] reasonable fees and expenses [fee] in
 5-5     the amount set by the court to be paid by the parents of the child
 5-6     unless the parents are indigent.
 5-7           (b)  If the court or associate judge determines that one or
 5-8     more of the parties [or litigants] are able to defray the costs of
 5-9     an attorney ad litem's fees and expenses [compensation] as
5-10     determined by the reasonable and customary fees for similar
5-11     services in the county of jurisdiction, the fees and expenses
5-12     [costs] may be ordered paid by one [either] or more of those [both]
5-13     parties, or the court or associate judge may order one [either] or
5-14     more of those [both] parties, prior to final hearing, to pay the
5-15     sums into the registry of the court or into an account authorized
5-16     by the court for the use and benefit of the attorney ad litem on
5-17     order of the court.  The sums may be taxed as costs to be assessed
5-18     against one or more of the parties.
5-19           (c)  If indigency of the parents is shown, an attorney
5-20     appointed to represent a child or parent in a suit to terminate the
5-21     parent-child relationship shall be paid from the general funds of
5-22     the county according to the fee schedule that applies to an
5-23     attorney appointed to represent a child in a suit under Title 3 as
5-24     provided by Chapter 51.
5-25           SECTION 7.  Section 153.434, Family Code, is amended to read
5-26     as follows:
5-27           Sec. 153.434.  LIMITATION ON RIGHT TO REQUEST ACCESS.  A
 6-1     biological or adoptive grandparent may not request possession of or
 6-2     access to a grandchild if:
 6-3                 (1)  the grandparent is a parent of a person:
 6-4                       (A)  whose parental rights with the child have
 6-5     been terminated by court order or by death; or
 6-6                       (B) [(2)  the grandparent is a parent of a
 6-7     person] who has executed an affidavit of waiver of interest in
 6-8     child or an affidavit of relinquishment of parental rights under
 6-9     Chapter 161 and the affidavit designates an authorized agency,
6-10     licensed child-placing agency, or person other than the child's
6-11     stepparent as the managing conservator of the child; and
6-12                 (2) [(3)]  the other biological parent has died, has
6-13     executed an affidavit of waiver of interest in child or an
6-14     affidavit of relinquishment of parental rights under Chapter 161,
6-15     or has had that parent's parental rights terminated and the
6-16     grandchild has been adopted by a person other than the child's
6-17     stepparent.
6-18           SECTION 8.  Section 156.104(a), Family Code, is amended to
6-19     read as follows:
6-20           (a)  The court may modify an order that designates a sole
6-21     managing conservator if a parent of the child requests appointment
6-22     as a joint managing conservator and the court finds that:
6-23                 (1)  the circumstances of the child or the sole
6-24     managing conservator have materially and substantially changed
6-25     since the rendition of the order; and
6-26                 (2)  [retention of a sole managing conservatorship
6-27     would be detrimental to the welfare of the child; and]
 7-1                 [(3)]  the appointment of the parent as a joint
 7-2     managing conservator would be a positive improvement for and in the
 7-3     best interest of the child.
 7-4           SECTION 9.  Section 161.001, Family Code, is amended to read
 7-5     as follows:
 7-6           Sec. 161.001.  INVOLUNTARY TERMINATION OF PARENT-CHILD
 7-7     RELATIONSHIP.  The court may order termination of the parent-child
 7-8     relationship if the court finds by clear and convincing evidence:
 7-9                 (1)  that the parent has:
7-10                       (A)  voluntarily left the child alone or in the
7-11     possession of another not the parent and expressed an intent not to
7-12     return;
7-13                       (B)  voluntarily left the child alone or in the
7-14     possession of another not the parent without expressing an intent
7-15     to return, without providing for the adequate support of the child,
7-16     and remained away for a period of at least three months;
7-17                       (C)  voluntarily left the child alone or in the
7-18     possession of another without providing adequate support of the
7-19     child and remained away for a period of at least six months;
7-20                       (D)  knowingly placed or knowingly allowed the
7-21     child to remain in conditions or surroundings which endanger the
7-22     physical or emotional well-being of the child;
7-23                       (E)  engaged in conduct or knowingly placed the
7-24     child with persons who engaged in conduct which endangers the
7-25     physical or emotional well-being of the child;
7-26                       (F)  failed to support the child in accordance
7-27     with the parent's ability during a period of one year ending within
 8-1     six months of the date of the filing of the petition;
 8-2                       (G)  abandoned the child without identifying the
 8-3     child or furnishing means of identification, and the child's
 8-4     identity cannot be ascertained by the exercise of reasonable
 8-5     diligence;
 8-6                       (H)  voluntarily, and with knowledge of the
 8-7     pregnancy, abandoned the mother of the child beginning at a time
 8-8     during her pregnancy with the child and continuing through the
 8-9     birth, failed to provide adequate support or medical care for the
8-10     mother during the period of abandonment before the birth of the
8-11     child, and remained apart from the child or failed to support the
8-12     child since the birth;
8-13                       (I)  contumaciously refused to submit to a
8-14     reasonable and lawful order of a court under Subchapter D, Chapter
8-15     261 [264];
8-16                       (J)  been the major cause of:
8-17                             (i)  the failure of the child to be
8-18     enrolled in school as required by the Education Code; or
8-19                             (ii)  the child's absence from the child's
8-20     home without the consent of the parents or guardian for a
8-21     substantial length of time or without the intent to return;
8-22                       (K)  executed before or after the suit is filed
8-23     an unrevoked or irrevocable affidavit of relinquishment of parental
8-24     rights as provided by this chapter;
8-25                       (L)  been convicted or has been placed on
8-26     community supervision, including deferred adjudication community
8-27     supervision, for being criminally responsible for the death or
 9-1     serious injury of a child under the following sections of the Penal
 9-2     Code or adjudicated under Title 3 for conduct that caused the death
 9-3     or serious injury of a child and that would constitute a violation
 9-4     of one of the following Penal Code sections:
 9-5                             (i)  Section 19.02 (murder);
 9-6                             (ii)  Section 19.03 (capital murder);
 9-7                             (iii)  Section 19.04 (manslaughter);
 9-8                             (iv)  Section 21.11 (indecency with a
 9-9     child);
9-10                             (v) [(iv)]  Section 22.01 (assault);
9-11                             (vi) [(v)]  Section 22.011 (sexual
9-12     assault);
9-13                             (vii) [(vi)]  Section 22.02 (aggravated
9-14     assault);
9-15                             (viii) [(vii)]  Section 22.021 (aggravated
9-16     sexual assault);
9-17                             (ix) [(viii)]  Section 22.04 (injury to a
9-18     child, elderly individual, or disabled individual);
9-19                             (x) [(ix)]  Section 22.041 (abandoning or
9-20     endangering child);
9-21                             (xi) [(x)]  Section 25.02 (prohibited
9-22     sexual conduct);
9-23                             (xii) [(xi)]  Section 43.25 (sexual
9-24     performance by a child); and
9-25                             (xiii) [(xii)]  Section 43.26 (possession
9-26     or promotion of child pornography);
9-27                       (M)  had his or her parent-child relationship
 10-1    terminated with respect to another child based on a finding that
 10-2    the parent's conduct was in violation of Paragraph (D) or (E) or
 10-3    substantially equivalent provisions of the law of another state;
 10-4                      (N)  constructively abandoned the child who has
 10-5    been in the permanent or temporary managing conservatorship of the
 10-6    Department of Protective and Regulatory Services or an authorized
 10-7    agency for not less than six months, and:
 10-8                            (i)  the department or authorized agency
 10-9    has made reasonable efforts to return the child to the parent;
10-10                            (ii)  the parent has not regularly visited
10-11    or maintained significant contact with the child; and
10-12                            (iii)  the parent has demonstrated an
10-13    inability to provide the child with a safe environment;
10-14                      (O)  failed to comply with the provisions of a
10-15    court order that specifically established the actions necessary for
10-16    the parent to obtain the return of the child who has been in the
10-17    permanent or temporary managing conservatorship of the Department
10-18    of Protective and Regulatory Services for not less than nine months
10-19    as a result of the child's removal from the parent under Chapter
10-20    262 for the abuse or neglect of the child;
10-21                      (P)  used a controlled substance, as defined by
10-22    Chapter 481, Health and Safety Code,[:]
10-23                            [(i)]  in a manner that endangered the
10-24    health or safety of the child, and:
10-25                            (i)  failed to complete a court-ordered
10-26    substance abuse treatment program; or
10-27                            (ii)  [repeatedly,] after completion of a
 11-1    court-ordered substance treatment program, continued to abuse a
 11-2    controlled substance [in a manner that endangered the health or
 11-3    safety of the child];
 11-4                      (Q)  knowingly engaged in criminal conduct that
 11-5    has resulted [results] in the parent's:
 11-6                            (i)  conviction of an offense; and
 11-7                            (ii)  confinement or imprisonment and
 11-8    inability to care for the child for not less than two years from
 11-9    the date of filing the petition; or
11-10                      (R)  been the cause of the child being born
11-11    addicted to alcohol or a controlled substance, other than a
11-12    controlled substance legally obtained by prescription, as defined
11-13    by Section 261.001(7); and
11-14                (2)  that termination is in the best interest of the
11-15    child.
11-16          SECTION 10.  (a)  This Act takes effect September 1, 1999.
11-17          (b)  The change in law made by this Act applies only to a
11-18    suit affecting the parent-child relationship filed on or after the
11-19    effective date of this Act.  A suit affecting the parent-child
11-20    relationship filed before the effective date of this Act is
11-21    governed by the law in effect on the date the suit was filed, and
11-22    the former law is continued in effect for that purpose.
11-23          SECTION 11.  The importance of this legislation and the
11-24    crowded condition of the calendars in both houses create an
11-25    emergency and an imperative public necessity that the
11-26    constitutional rule requiring bills to be read on three several
11-27    days in each house be suspended, and this rule is hereby suspended.