C.S.H.B. 1815 78(R)    BILL ANALYSIS


C.S.H.B. 1815
By: Goodman
Juvenile Justice & Family Issues
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Since the enactment of the Family Code in 1973, courts have had
discretionary authority to appoint a guardian ad litem in any suit
affecting the parent-child relationship ("SAPCR"). Additionally, Texas
courts have been required to appoint an attorney ad litem to represent a
child in a suit filed by the Department of Protective and Regulatory
Services seeking either conservatorship or termination of parental rights
on the basis of child abuse or neglect. Since 1997 the court must also
appoint a guardian ad litem as well as an attorney ad litem for allegedly
abused or neglected children; an attorney may be appointed to serve both
roles, or an attorney may be appointed to serve as attorney ad litem, and
a volunteer advocate may be appointed as the guardian ad litem. 

The possibility of multiple appointments of individuals to a case, or
alternatively appointment of either a lawyer or a layperson with the same
title of guardian ad litem, has caused considerable confusion for lawyers
and judges. Although the roles of the attorney ad litem and layperson
guardian ad litem in abuse and neglect cases have been well-defined since
1997, major confusion remains in the nature and duties of a lawyer (or a
nonlawyer) appointed to serve as guardian ad litem in a private custody
case. 

C.S.H.B.1815 clears up this confusion by providing  definitions of the
three roles of amicus ad litem, attorney ad litem and guardian ad litem,
and of some of the unique terminology used in the appointments, and
describing the powers and duties of both an attorney ad litem and the
newly-created role denominated amicus attorney.  

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subchapters A, B, and C, Chapter 107 , Family Code, as
follows: 

Section 107.001 provides definitions of the three roles of amicus ad
litem, attorney ad litem and guardian ad litem, and of some of the unique
terminology used in the appointments.  Section 107.002 continues the
description of the powers and duties of a guardian ad litem in current
law. These appointments are specifically limited to non-attorneys or to
attorneys serving in the dual role of both guardian ad litem and attorney
ad litem. Additional detail is supplied for the actions to be taken by a
guardian ad litem in jury and non-jury trials. 
 
Section 107.003 describes the powers and duties of both an attorney ad
litem and the newly-created role denominated amicus attorney. The attorney
ad litem is appointed to represent the child in an attorney-client
relationship, while an amicus attorney is appointed to represent the best
interests of the child. Both are authorized to perform the full range of
lawyer functions.  Sections 107.004 and 107.005 explain the distinctions
between the two types of attorney. The first  section describes the duties
of the attorney ad litem who has an attorney-client relationship with the
child.  Section 107.005 distinguishes the duties of an amicus attorney who
is not bound by the child's expressed objectives of representation, but
rather provides lawyering services to assist the court in determining the
best interests of the child. 
 
Section 107.006 provides that the attorneys and the guardian ad litem
shall have access to information regarding the child, including all
relevant records.  A limitation is placed on access to the mental health
record of a child at least 12 years of age insofar as it's privileged or
confidential under other law.  Section 107.007 states that both an amicus
attorney and the attorney ad litem or an attorney serving in a dual role
function as attorneys and may not testify, provide written reports to the
court, or be compelled to produce work product. 
 
Section 107.008 provides that an attorney ad litem or an attorney
appointed in a dual role may sometimes be required to provide substituted
judgment for a child if the child, because of young age or disability, is
unable to formulate his or her own objectives of representation.  Section
107.009 provides immunity from civil damages to guardians ad litem,
attorneys ad litem, and amicus attorneys, except in situations in which
actions were taken with conscious indifference, deliberate bad faith, or
were grossly negligent.  Section 107.010 provides that the court may
appoint an attorney ad litem to represent an incapacitated person. This
continues present law. 
 
Section 107.011 provides for the mandatory appointment of a guardian ad
litem in a suit brought by a government entity in a suit involving
allegations of child abuse or neglect. This section also provides detailed
instructions to the guardian ad litem regarding the duties and function of
the guardian ad litem in suits brought by a governmental entity.  Section
107.0125 describes the functions in a suit by a governmental entity by an
attorney who is appointed in the dual role of both an attorney ad litem
and an guardian ad litem.  Section 107.013 is current law unchanged with
regard to the functions of an attorney ad litem in a suit by a
governmental entity. 
 
Section 107.015 makes conforming amendments.  Section 107.016 continues
current law with regard to continued representation after a final order is
rendered by a guardian ad litem or an attorney ad litem in a suit filed by
a governmental entity.  Section 107.017 prohibits the appointment of an
amicus attorney in a suit filed by a governmental entity.   

Section 107.021 is new law providing the discretionary appointment of an
amicus attorney ad litem or guardian ad litem in a private law suit
involving conservatorship of a child other than a suit filed by a
governmental entity. The section also instructs the court to consider
costs to the parties and the child's interest prior to making a
discretionary appointment in a private conservatorship dispute. Section
107.022 prohibits the appointment of an attorney in a dual role or a
volunteer advocate trained for abuse and neglect cases in a private
dispute over conservatorship of a child. 
 
Section 107.023 provides that attorneys fees shall be paid by the parties.
In addition, if a professional other than attorney is appointed as
guardian ad litem for the child, that person is entitled to a customary
fee for that profession.  Section 107.031 distinguishes between volunteer
advocates who are appointed in cases involving alleged abuse and neglect
and the potential appointment of a volunteer advocate whose training is to
facilitate appointment as guardian ad litem in a  private conservatorship
suit. 

SECTION 2.  This Act applies only to suits affecting the parent-child
relationship filed on or after the effective date of the Act.  Suits filed
before the effective date are governed by the law in effect at the time of
filing. 

SECTION 3.This Act takes effect September 1, 2003.

EFFECTIVE DATE

September 1, 2003.


COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B.1815 modifies the original by amending Section107.005(b) by adding
new subsection (b)(6) and changing (b)(6) and (b)(7) in the original to
(b)(7) and (b)(8) in the substitute.  C.S.H.B.1815 amends Section
107.008(b) by allowing an attorney ad litem, or an attorney appointed in
the dual role, who determines that a child cannot meaningly formulate the
child's expressed objectives of representation, to present a position that
the attorney determines that will serve the best interests of the child.
C.S.H.B.1815 modifies the original by deleting from Section 107.015(b) the
provision allowing an order entered under this section to be enforced as
child support against the parent of the child.