77R13190 KSD-D
By Goodman H.B. No. 847
Substitute the following for H.B. No. 847:
By Menendez C.S.H.B. No. 847
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to special appointments in suits affecting the
1-3 parent-child relationship.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 107.001, Family Code, is amended to read
1-6 as follows:
1-7 Sec. 107.001. MANDATORY APPOINTMENT OF GUARDIAN AD LITEM.
1-8 (a) Except as otherwise provided by this section, in [In] a suit in
1-9 which termination of the parent-child relationship is requested by
1-10 an individual or a nongovernmental entity, the court shall appoint
1-11 or an associate judge shall recommend the appointment of [appoint]
1-12 a guardian ad litem to represent the best interests[immediately after the filing of the petition but before the full
1-15 adversary hearing to ensure adequate representation of the child,
1-16 unless]:
1-17 (1) an adult, other than an attorney, having the
1-18 competence, training, and expertise determined by the court to be
1-19 sufficient to represent the best interests of the child; or
1-20 (2) an attorney appointed to serve solely as guardian
1-21 ad litem, except as provided by Subsection (b)(2).
1-22 (b) With regard to the appointment of a guardian ad litem
1-23 under Subsection (a), the court or an associate judge:
1-24 (1) may waive the appointment of a guardian ad litem
2-1 if:
2-2 (A) [(1)] the child is a petitioner; or
2-3 (B) [(2) an attorney ad litem has been appointed
2-4 for the child; or]
2-5 [(3)] the court or [an] associate judge finds that the
2-6 interests of the child will be represented adequately by a party to
2-7 the suit and are not adverse to that party; and
2-8 (2) may not appoint an attorney to serve solely as a
2-9 guardian ad litem if another attorney is appointed to serve in the
2-10 dual role of attorney ad litem as provided by Subchapter B and
2-11 guardian ad litem for the child as provided by this subchapter.
2-12 (c) [(b)] In a suit filed by a governmental entity in which
2-13 the entity requests the termination of the parent-child
2-14 relationship or to be named conservator of a child, the court shall
2-15 appoint or an associate judge shall recommend the appointment of
2-16 [appoint] a guardian ad litem to represent the best interests of
2-17 the child immediately after the filing of the petition but before
2-18 the full adversary hearing, if any [to ensure adequate
2-19 representation of the child]. A guardian ad litem appointed under
2-20 this subsection:
2-21 (1) may be:
2-22 (A) a volunteer advocate appointed under Section
2-23 107.031 or another adult having the competence, training, and
2-24 expertise the court finds to be sufficient to represent the best
2-25 interests of the child; or
2-26 (B) an attorney appointed to serve in the dual
2-27 role of guardian ad litem under this subchapter and attorney ad
3-1 litem under Subchapter B; and
3-2 (2) may not be an attorney appointed to serve solely
3-3 as a guardian ad litem under this subchapter.
3-4 [(c) In any other suit, the court or an associate judge may
3-5 appoint a guardian ad litem.]
3-6 (d) [A guardian ad litem appointed under this section may be
3-7 an attorney, a volunteer advocate appointed under Section 107.031,
3-8 or another adult having the competence, training, and expertise
3-9 determined by the court to be sufficient to represent the best
3-10 interests of the child.]
3-11 [(e) The managing conservator may be appointed guardian ad
3-12 litem if the managing conservator:]
3-13 [(1) is not a parent of the child or a person
3-14 petitioning] [for adoption of the child; and]
3-15 [(2) has no personal interest in the suit.]
3-16 [(f)] A guardian ad litem shall be appointed to represent a
3-17 [any other] person entitled to service of citation under this code
3-18 if the person is incompetent [or a child], unless the person has
3-19 executed an affidavit of relinquishment of parental rights or an
3-20 affidavit of waiver of interest in child containing a waiver of
3-21 service of citation.
3-22 SECTION 2. Subchapter A, Chapter 107, Family Code, is amended
3-23 by adding Sections 107.0015 and 107.0016 to read as follows:
3-24 Sec. 107.0015. DISCRETIONARY APPOINTMENT OF GUARDIAN AD
3-25 LITEM. (a) The court may appoint or an associate judge may
3-26 recommend the appointment of a guardian ad litem to represent the
3-27 best interests of the child in a suit affecting the parent-child
4-1 relationship in which the appointment is not required by Section
4-2 107.001.
4-3 (b) A guardian ad litem appointed under this section may be:
4-4 (1) an adult, other than an attorney, having the
4-5 competence, training, and expertise determined by the court to be
4-6 sufficient to represent the best interests of the child; or
4-7 (2) an attorney appointed to serve solely as guardian
4-8 ad litem under this subchapter, except as provided by Subsection
4-9 (c), or appointed to serve in the dual role of guardian ad litem as
4-10 provided by this subchapter and attorney ad litem as provided by
4-11 Subchapter B.
4-12 (c) A guardian ad litem appointed under this section may not
4-13 be an attorney appointed to serve solely as a guardian ad litem if
4-14 another attorney is appointed as attorney ad litem for a child as
4-15 provided by Subchapter B or is appointed to serve in the dual role
4-16 of attorney ad litem under Subchapter B and guardian ad litem under
4-17 this subchapter.
4-18 Sec. 107.0016. COURT TO DESIGNATE ROLE OF ATTORNEY APPOINTED
4-19 AS GUARDIAN AD LITEM. (a) In every order of appointment of an
4-20 attorney as guardian ad litem for a child under this subchapter,
4-21 the court must specifically designate whether the attorney serves:
4-22 (1) solely as a guardian ad litem as provided by this
4-23 subchapter; or
4-24 (2) in the dual role of guardian ad litem under this
4-25 subchapter and attorney ad litem under Subchapter B.
4-26 (b) If the court fails to specify the role in which the
4-27 attorney is to serve and:
5-1 (1) the appointment as guardian ad litem is mandatory
5-2 under Section 107.001 and the appointment as attorney ad litem is
5-3 mandatory under Section 107.012, the attorney is considered to be
5-4 appointed in the dual role of guardian ad litem as provided by this
5-5 subchapter and attorney ad litem as provided by Subchapter B and
5-6 shall act on that basis, subject to Sections 107.002, 107.0022, and
5-7 107.014; or
5-8 (2) the appointment is discretionary under Section
5-9 107.0015, the attorney is considered to be appointed as guardian ad
5-10 litem and shall act on that basis, subject to Sections 107.002 and
5-11 107.0022.
5-12 SECTION 3. Section 107.002, Family Code, is amended to read
5-13 as follows:
5-14 Sec. 107.002. GENERAL POWERS AND DUTIES OF GUARDIAN AD
5-15 LITEM. (a) The primary duty of a guardian ad litem appointed for a
5-16 child under this subchapter is to represent the best interests of
5-17 the child.
5-18 (b) Except as otherwise provided by this subchapter, a [A]
5-19 guardian ad litem appointed under this subchapter is not a party to
5-20 the suit but is entitled to [may]:
5-21 (1) conduct an investigation to the extent that the
5-22 guardian ad litem considers necessary to determine the best
5-23 interests [interest] of the child for whom the guardian is
5-24 appointed; [and]
5-25 (2) obtain and review copies of the child's relevant
5-26 medical, psychological, and school records; [.]
5-27 [(b) A guardian ad litem appointed under this subchapter
6-1 shall, within a reasonable time after the appointment, interview:]
6-2 [(1) the child, if the child is four years of age or
6-3 older; and]
6-4 [(2) each individual that the guardian ad litem
6-5 considers likely to have significant knowledge of the child's
6-6 history and condition.]
6-7 [(c) A guardian ad litem appointed under this subchapter is
6-8 not a party to the suit but is entitled to:]
6-9 (3) [(1)] receive a copy of each pleading or other
6-10 paper filed with the court in the case in which the guardian ad
6-11 litem is appointed;
6-12 (4) [(2)] receive notice of each hearing in the case;
6-13 (5) [(3)] participate in case staffings by an
6-14 authorized agency concerning the child;
6-15 (6) [(4)] attend all legal proceedings in the case
6-16 [but may not call or question a witness unless the ad litem is a
6-17 licensed attorney];
6-18 (7) [(5)] review and sign or decline to sign any
6-19 agreed order affecting the child; and
6-20 (8) if the appointment as guardian ad litem is
6-21 discretionary under Section 107.0015, refuse to disclose, except to
6-22 the court or as required to protect the best interests of the
6-23 child, communications made by the child to the guardian ad litem
6-24 and not intended to be disclosed to third persons [(6) testify in
6-25 court, except as provided by Subsection (d), regarding the
6-26 recommendations concerning the actions that the guardian ad litem
6-27 considers to be in the best interest of the child, including giving
7-1 reasons for the guardian ad litem's opposition if the guardian ad
7-2 litem does not agree to the terms of a proposed order].
7-3 [(d) An attorney who is appointed as attorney ad litem and
7-4 guardian ad litem for a child may not testify under Subsection
7-5 (c)(6).]
7-6 [(e) An attorney who is appointed as attorney ad litem and
7-7 guardian ad litem for a child shall:]
7-8 [(1) become familiar with the American Bar
7-9 Association's standards of practice for lawyers who represent
7-10 children in abuse and neglect cases; and]
7-11 [(2) comply with the requirements of the Texas
7-12 Disciplinary Rules of Professional Conduct.]
7-13 [(f) An attorney who is appointed as attorney ad litem and
7-14 guardian ad litem for a child and who determines that a conflict
7-15 exists by performing both roles shall:]
7-16 [(1) withdraw as the child's guardian ad litem;]
7-17 [(2) continue to serve as the child's attorney ad
7-18 litem;] [and]
7-19 [(3) request appointment of a new guardian ad litem
7-20 for the child without revealing the reason a new appointment is
7-21 required.]
7-22 SECTION 4. Subchapter A, Chapter 107, Family Code, is amended
7-23 by adding Sections 107.0021 and 107.0022 to read as follows:
7-24 Sec. 107.0021. ADDITIONAL POWERS AND DUTIES OF NONATTORNEY
7-25 GUARDIAN AD LITEM. (a) A guardian ad litem appointed under this
7-26 subchapter who is not an attorney shall, within a reasonable time
7-27 after the appointment, interview:
8-1 (1) the child, if the child is at least four years of
8-2 age; and
8-3 (2) each individual the guardian ad litem considers
8-4 likely to have significant knowledge of the child's history and
8-5 condition.
8-6 (b) A guardian ad litem described by Subsection (a) may
8-7 testify in court regarding recommendations for actions the guardian
8-8 ad litem considers to be in the best interests of the child,
8-9 including giving reasons for opposing the terms of a proposed
8-10 order.
8-11 (c) A guardian ad litem described by Subsection (a) may
8-12 not:
8-13 (1) call or question a witness; or
8-14 (2) otherwise perform legal services.
8-15 Sec. 107.0022. ADDITIONAL POWERS AND DUTIES OF ATTORNEY
8-16 APPOINTED AS GUARDIAN AD LITEM. (a) Subject to the Texas
8-17 Disciplinary Rules of Professional Conduct, an attorney appointed
8-18 solely as guardian ad litem under this subchapter shall:
8-19 (1) provide legal services necessary to fulfill the
8-20 guardian ad litem's duty to represent the best interests of the
8-21 child, including:
8-22 (A) filing pleadings and motions;
8-23 (B) engaging in formal or informal discovery;
8-24 (C) examining witnesses; and
8-25 (D) presenting arguments to the court;
8-26 (2) ensure that evidence bearing on the child's best
8-27 interests is presented to the court, including evidence relating to
9-1 the present or future physical, mental, emotional, educational,
9-2 social, disciplinary, and developmental needs of the child;
9-3 (3) take any action necessary to expedite the
9-4 proceedings and to encourage settlement to reduce trauma to the
9-5 child;
9-6 (4) bring to the attention of the court facts that may
9-7 bear on the advisability of a proposed settlement of the suit;
9-8 (5) within a reasonable time after the appointment,
9-9 interview:
9-10 (A) the child, if the child is at least four
9-11 years of age; and
9-12 (B) each individual the guardian ad litem
9-13 considers likely to have significant knowledge of the child's
9-14 history and condition; and
9-15 (6) using age-appropriate and child-sensitive
9-16 methodology, attempt to understand the views of the child and
9-17 consider the child's views as a factor bearing on the child's best
9-18 interests, without being directed by the child's views.
9-19 (b) An attorney appointed solely as guardian ad litem under
9-20 this chapter:
9-21 (1) may not testify in court, unless authorized by the
9-22 Texas Disciplinary Rules of Professional Conduct;
9-23 (2) does not represent the child as an attorney; and
9-24 (3) shall explain to a child who is able to understand
9-25 the attorney-client relationship that:
9-26 (A) the role of the guardian ad litem is to
9-27 perform legal services necessary to assist the court in protecting
10-1 the child, which includes considering the child's directives but is
10-2 not determined by the child's directives;
10-3 (B) an attorney-client relationship does not
10-4 exist between the child and an attorney appointed solely as
10-5 guardian ad litem; and
10-6 (C) the communications between the child and the
10-7 guardian ad litem are not confidential.
10-8 (c) Except as provided by Section 107.014 and the Texas
10-9 Disciplinary Rules of Professional Conduct, an attorney appointed
10-10 in the dual role of attorney ad litem under Subchapter B and
10-11 guardian ad litem under this subchapter is required to fulfill the
10-12 guardian ad litem's duty to represent the best interests of the
10-13 child and to exercise the rights and comply with the duties of a
10-14 guardian ad litem provided by this subchapter.
10-15 SECTION 5. Section 107.003(a), Family Code, is amended to
10-16 read as follows:
10-17 (a) A guardian ad litem appointed under this subchapter who
10-18 is not an attorney or who is an attorney appointed solely as
10-19 guardian ad litem is not liable for civil damages arising from a
10-20 recommendation made or an opinion given in the capacity of guardian
10-21 ad litem.
10-22 SECTION 6. Subchapter A, Chapter 107, Family Code, is amended
10-23 by adding Section 107.007 to read as follows:
10-24 Sec. 107.007. GUARDIAN AD LITEM FEES. (a) A guardian ad
10-25 litem appointed under this subchapter is entitled to reasonable
10-26 fees and expenses in an amount set by the court unless the guardian
10-27 is a volunteer advocate.
11-1 (b) An attorney who is appointed solely as guardian ad litem
11-2 under this subchapter or in the dual role of attorney ad litem
11-3 under Subchapter B and guardian ad litem under this subchapter
11-4 shall be paid as provided by Section 107.015.
11-5 (c) The court may not award a guardian ad litem fee under
11-6 this chapter against the state, a state agency, or a political
11-7 subdivision of the state.
11-8 SECTION 7. Section 107.012, Family Code, is amended to read
11-9 as follows:
11-10 Sec. 107.012. MANDATORY APPOINTMENT OF ATTORNEY AD LITEM FOR
11-11 CHILD. (a) In a suit filed by a governmental entity requesting
11-12 termination of the parent-child relationship or to be named
11-13 conservator of a child, the court shall appoint an attorney ad
11-14 litem for [to represent the interests of] the child immediately
11-15 after the filing, but before the full adversary hearing, if any [to
11-16 ensure adequate representation of the child].
11-17 (b) An attorney ad litem appointed under this section may
11-18 serve in the dual role of attorney ad litem under this subchapter
11-19 and guardian ad litem under Subchapter A.
11-20 SECTION 8. Subchapter B, Chapter 107, Family Code, is amended
11-21 by adding Section 107.0125 to read as follows:
11-22 Sec. 107.0125. COURT TO DESIGNATE ROLE OF ATTORNEY AD LITEM.
11-23 (a) In each order appointing an attorney ad litem for a child
11-24 under this subchapter, the court must specifically designate
11-25 whether the attorney shall serve:
11-26 (1) solely as attorney ad litem for the child as
11-27 provided by this subchapter; or
12-1 (2) in the dual role of guardian ad litem for the
12-2 child as provided by Subchapter A and attorney ad litem as provided
12-3 by this subchapter.
12-4 (b) If the court fails to specify the role in which the
12-5 attorney is to serve, the attorney is considered to be appointed
12-6 solely as attorney ad litem under this subchapter unless a later
12-7 court order provides otherwise.
12-8 SECTION 9. Section 107.0135, Family Code, is amended to read
12-9 as follows:
12-10 Sec. 107.0135. APPOINTMENT OF ATTORNEY AD LITEM NOT
12-11 REQUIRED; CERTAIN CASES. A court is not required to appoint, and an
12-12 associate judge is not required to recommend the appointment of, an
12-13 attorney ad litem in a proceeding in which:
12-14 (1) a suit for the dissolution of a marriage is
12-15 uncontested; [or]
12-16 (2) the issues of possession of and access to a child
12-17 are agreed to by both parents; or
12-18 (3) the court or associate judge, in a suit involving
12-19 a discretionary appointment under this subchapter, finds that the
12-20 interests of the child will be represented adequately by a party to
12-21 the suit and are not adverse to that party.
12-22 SECTION 10. Section 107.014, Family Code, is amended to read
12-23 as follows:
12-24 Sec. 107.014. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
12-25 CHILD. (a) An attorney ad litem appointed under this subchapter to
12-26 represent a child shall perform legal services on behalf of the
12-27 child and, in circumstances in which the child is capable of
13-1 providing direction to the attorney, forms an attorney-client
13-2 relationship with the child.
13-3 (b) An attorney ad litem appointed under this subchapter to
13-4 represent a child:
13-5 (1) shall investigate to the extent the attorney ad
13-6 litem considers appropriate to determine the facts of the case;
13-7 (2) shall obtain and review copies of all of the
13-8 child's relevant medical, psychological, and school records;
13-9 (3) may call, examine, or cross-examine witnesses;
13-10 [and]
13-11 (4) shall become familiar with the American Bar
13-12 Association's standards of practice for lawyers who represent
13-13 children in abuse and neglect cases; and
13-14 (5) shall comply with the Texas Disciplinary Rules of
13-15 Professional Conduct.
13-16 (c) [(b)] An attorney ad litem appointed to represent a
13-17 child shall within a reasonable time after the appointment:
13-18 (1) interview the child if the child is four years of
13-19 age or older;
13-20 (2) interview individuals with significant knowledge
13-21 of the child's history and condition, including the child's foster
13-22 parents; and
13-23 (3) interview all parties to the suit.
13-24 (d) An attorney appointed in the dual role of attorney ad
13-25 litem under this subchapter and guardian ad litem under Subchapter
13-26 A who determines that performing both roles creates a conflict
13-27 shall:
14-1 (1) withdraw as the child's guardian ad litem and
14-2 continue to serve as the child's attorney ad litem; and
14-3 (2) request appointment of a new guardian ad litem for
14-4 the child without revealing the reason a new appointment is
14-5 required.
14-6 SECTION 11. Section 107.015(c), Family Code, is amended to
14-7 read as follows:
14-8 (c) If indigence [indigency] of the parents is shown, an
14-9 attorney appointed to represent a child or parent in a suit to
14-10 terminate the parent-child relationship brought by a governmental
14-11 entity shall be paid from the general funds of the county according
14-12 to the fee schedule that applies to an attorney appointed to
14-13 represent a child in a suit under Title 3 as provided by Chapter
14-14 51. The court may not award attorney ad litem fees under this
14-15 chapter against the state, a state agency, or a political
14-16 subdivision of the state except as provided by this subsection.
14-17 SECTION 12. (a) This Act takes effect September 1, 2001.
14-18 (b) The change in law made by this Act applies only to a
14-19 suit affecting the parent-child relationship filed on or after the
14-20 effective date of this Act. A suit filed before the effective date
14-21 of this Act is governed by the law in effect on the date the suit
14-22 was filed, and the former law is continued in effect for that
14-23 purpose.