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78R9207 KSD-D
By: Goodman H.B. No. 1815
Substitute the following for H.B. No. 1815:
By: Moreno of Harris C.S.H.B. No. 1815
A BILL TO BE ENTITLED
AN ACT
relating to court-ordered representation in suits affecting the
parent-child relationship.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapters A, B, and C, Chapter 107, Family
Code, are amended to read as follows:
SUBCHAPTER A. COURT-ORDERED [GUARDIAN AD LITEM] REPRESENTATION IN
SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP
Sec. 107.001. DEFINITIONS. In this chapter:
(1) "Amicus attorney" means an attorney appointed by
the court in a suit, other than a suit filed by a governmental
entity, whose role is to provide legal services necessary to assist
the court in protecting a child's best interests rather than to
provide legal services to the child.
(2) "Attorney ad litem" means an attorney who provides
legal services to a person, including a child, and who owes to the
person the duties of undivided loyalty, confidentiality, and
competent representation.
(3) "Developmentally appropriate" means structured to
account for a child's age, level of education, cultural background,
and degree of language acquisition.
(4) "Dual role" means the role of an attorney who is
appointed under Section 107.0125 to act as both guardian ad litem
and attorney ad litem for a child in a suit filed by a governmental
entity.
(5) "Guardian ad litem" means a person appointed to
represent the best interests of a child. The term includes:
(A) a volunteer advocate appointed under
Subchapter C;
(B) a professional, other than an attorney, who
holds a relevant professional license and whose training relates to
the determination of a child's best interests;
(C) an adult having the competence, training, and
expertise determined by the court to be sufficient to represent the
best interests of the child; or
(D) an attorney ad litem appointed to serve in
the dual role. [APPOINTMENT OF GUARDIAN AD LITEM. (a) In a suit in
which termination of the parent-child relationship is requested,
the court or an associate judge shall appoint a guardian ad litem to
represent the interests of the child immediately after the filing
of the petition but before the full adversary hearing to ensure
adequate representation of the child, unless:
[(1) the child is a petitioner;
[(2) an attorney ad litem has been appointed for the
child; or
[(3) the court or an associate judge finds that the
interests of the child will be represented adequately by a party to
the suit and are not adverse to that party.
[(b) In a suit filed by a governmental entity in which the
entity requests the termination of the parent-child relationship or
to be named conservator of a child, the court or an associate judge
shall appoint a guardian ad litem to represent the best interests of
the child immediately after the filing of the petition but before
the full adversary hearing to ensure adequate representation of the
child.
[(c) In any other suit, the court or an associate judge may
appoint a guardian ad litem.
[(d) A guardian ad litem appointed under this section may be
an attorney, a volunteer advocate appointed under Section 107.031,
or another adult having the competence, training, and expertise
determined by the court to be sufficient to represent the best
interests of the child.
[(e) The managing conservator may be appointed guardian ad
litem if the managing conservator:
[(1) is not a parent of the child or a person
petitioning for adoption of the child; and
[(2) has no personal interest in the suit.
[(f) A guardian ad litem shall be appointed to represent any
other person entitled to service of citation under this code if the
person is incompetent or a child, unless the person has executed an
affidavit of relinquishment of parental rights or an affidavit of
waiver of interest in child containing a waiver of service of
citation.]
Sec. 107.002. POWERS AND DUTIES OF GUARDIAN AD LITEM FOR
CHILD. (a) A guardian ad litem appointed for a child under this
chapter [subchapter] is not a party to the suit but may:
(1) conduct an investigation to the extent that the
guardian ad litem considers necessary to determine the best
interests [interest] of the child [for whom the guardian is
appointed]; and
(2) obtain and review copies of the child's relevant
medical, psychological, and school records as provided by Section
107.006.
(b) A guardian ad litem appointed for the child under this
chapter [subchapter] shall:
(1) [,] within a reasonable time after the
appointment, interview:
(A) [(1)] the child in a developmentally
appropriate manner, if the child is four years of age or older;
[and]
(B) [(2)] each person who has [individual that
the guardian ad litem considers likely to have] significant
knowledge of the child's history and condition, including any
foster parent of the child; and
(C) the parties to the suit;
(2) seek to elicit in a developmentally appropriate
manner the child's expressed objectives of representation;
(3) consider the child's expressed objectives of
representation without being bound by those objectives;
(4) encourage settlement and the use of alternative
forms of dispute resolution; and
(5) perform any specific task directed by the court.
(c) A guardian ad litem appointed for the child under this
chapter [subchapter] is not a party to the suit but is entitled to:
(1) receive a copy of each pleading or other paper
filed with the court in the case in which the guardian ad litem is
appointed;
(2) receive notice of each hearing in the case;
(3) participate in case staffings by an authorized
agency concerning the child;
(4) attend all legal proceedings in the case but may
not call or question a witness or otherwise provide legal services
unless the guardian ad litem is a licensed attorney who has been
appointed in the dual role;
(5) review and sign, or decline to sign, an [any]
agreed order affecting the child; and
(6) explain the basis [testify in court, except as
provided by Subsection (d), regarding the recommendations
concerning the actions that the guardian ad litem considers to be in
the best interest of the child, including giving reasons] for the
guardian ad litem's opposition to the agreed order if the guardian
ad litem does not agree to the terms of a proposed order.
(d) The court may compel the guardian ad litem to attend a
trial or hearing and to testify as necessary for the proper
disposition of the suit. [An attorney who is appointed as attorney
ad litem and guardian ad litem for a child may not testify under
Subsection (c)(6).]
(e) Unless the guardian ad litem is an attorney who has been
appointed in the dual role and subject to the Texas Rules of
Evidence, the court shall ensure in a hearing or in a trial on the
merits that a guardian ad litem has an opportunity to testify or
submit a report regarding the guardian ad litem's recommendations
regarding:
(1) the best interests of the child; and
(2) the bases for the guardian ad litem's
recommendations. [An attorney who is appointed as attorney ad litem
and guardian ad litem for a child shall:
[(1) become familiar with the American Bar
Association's standards of practice for lawyers who represent
children in abuse and neglect cases; and
[(2) comply with the requirements of the Texas
Disciplinary Rules of Professional Conduct.]
(f) In a nonjury trial, a party may call the guardian ad
litem as a witness for the purpose of cross-examination regarding
the guardian's report without the guardian ad litem being listed as
a witness by a party. If the guardian ad litem is not called as a
witness, the court shall permit the guardian ad litem to testify in
the narrative [An attorney who is appointed as attorney ad litem and
guardian ad litem for a child and who determines that a conflict
exists by performing both roles shall:
[(1) withdraw as the child's guardian ad litem;
[(2) continue to serve as the child's attorney ad
litem; and
[(3) request appointment of a new guardian ad litem
for the child without revealing the reason a new appointment is
required].
(g) In a contested case, the guardian ad litem shall provide
copies of the guardian ad litem's report, if any, to the attorneys
for the parties as directed by the court, but not later than the
earlier of:
(1) the date required by the scheduling order; or
(2) the 10th day before the date of the commencement of
the trial.
(h) Disclosure to the jury of the contents of a guardian ad
litem's report to the court is subject to the Texas Rules of
Evidence.
Sec. 107.003. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
CHILD AND AMICUS ATTORNEY. An attorney ad litem appointed to
represent a child or an amicus attorney appointed to assist the
court:
(1) shall:
(A) subject to Rule 4.04, Texas Disciplinary
Rules of Professional Conduct, and within a reasonable time after
the appointment, interview:
(i) the child in a developmentally
appropriate manner, if the child is four years of age or older;
(ii) each person who has significant
knowledge of the child's history and condition, including any
foster parent of the child; and
(iii) the parties to the suit;
(B) investigate the facts of the case to the
extent the attorney considers appropriate;
(C) obtain and review copies of relevant records
relating to the child as provided by Section 107.006;
(D) participate in the conduct of the litigation
to the same extent as an attorney for a party;
(E) take any action consistent with the child's
interests that the attorney considers necessary to expedite the
proceedings; and
(F) encourage settlement and the use of
alternative forms of dispute resolution;
(2) must be trained in child advocacy or have
experience determined by the court to be equivalent to that
training; and
(3) is entitled to:
(A) receive a copy of each pleading or other
paper filed with the court;
(B) receive notice of each hearing in the suit;
(C) participate in any case staffing concerning
the child conducted by an authorized agency; and
(D) attend all legal proceedings in the suit
[IMMUNITY. (a) A guardian ad litem appointed under this
subchapter is not liable for civil damages arising from a
recommendation made or an opinion given in the capacity of guardian
ad litem.
[(b) Subsection (a) does not apply to a recommendation or
opinion that is:
[(1) wilfully wrongful;
[(2) given with conscious indifference or reckless
disregard to the safety of another;
[(3) given in bad faith or with malice; or
[(4) grossly negligent].
Sec. 107.004. ADDITIONAL DUTIES OF ATTORNEY AD LITEM FOR
CHILD. Except as otherwise provided by this chapter, the attorney
ad litem appointed for a child shall:
(1) seek to elicit in a developmentally appropriate
manner the child's expressed objectives of representation;
(2) advise the child;
(3) provide guidance to the child;
(4) represent the child's expressed objectives of
representation and follow the child's expressed objectives of
representation during the course of litigation if the attorney ad
litem determines that the child is competent to understand the
nature of an attorney-client relationship and has formed that
relationship with the attorney ad litem;
(5) consider the impact on the child in formulating
the attorney ad litem's presentation of the child's expressed
objectives of representation to the court; and
(6) become familiar with:
(A) the American Bar Association's standards of
practice for attorneys who represent children in abuse and neglect
cases; and
(B) the suggested amendments to those standards
adopted by the National Association of Counsel for Children.
Sec. 107.005. ADDITIONAL DUTIES OF AMICUS ATTORNEY. (a)
Subject to any specific limitation in the order of appointment, an
amicus attorney shall advocate the best interests of the child
after reviewing the facts and circumstances of the case.
Notwithstanding Subsection (b), in determining the best interests
of the child, an amicus attorney is not bound by the child's
expressed objectives of representation.
(b) An amicus attorney shall:
(1) seek to elicit in a developmentally appropriate
manner the child's expressed objectives of representation;
(2) with the consent of the child, ensure that the
child's expressed objectives of representation are made known to
the court;
(3) consider the impact on the child in formulating
the amicus attorney's presentation of the child's expressed
objectives of representation to the court;
(4) review and sign, or decline to sign, an agreed
order affecting the child;
(5) explain the basis for the amicus attorney's
opposition to the agreed order if the amicus attorney does not agree
to the terms of a proposed order;
(6) explain the role of the amicus attorney to the
child; and
(7) inform the child that the amicus attorney may use
information that the child provides in providing assistance to the
court.
(c) An amicus attorney may not disclose confidential
communications between the amicus attorney and the child unless the
amicus attorney determines that disclosure is necessary to assist
the court regarding the best interests of the child.
Sec. 107.006. ACCESS TO CHILD AND INFORMATION RELATING TO
CHILD. (a) Except as provided by Subsection (c), in conjunction
with an appointment under this chapter, other than an appointment
of an attorney ad litem for an adult or a parent, the court shall
issue an order authorizing the attorney ad litem, guardian ad litem
for the child, or amicus attorney to have immediate access to:
(1) the child; and
(2) any otherwise privileged or confidential
information relating to the child.
(b) Without requiring a further order or release, the
custodian of any relevant records relating to the child, including
records regarding social services, drug and alcohol treatment, or
medical or mental health evaluation or treatment of the child, law
enforcement records, school records, records of a probate or court
proceeding, and records of a trust or account for which the child is
a beneficiary, shall provide access to a person authorized to
access the records under Subsection (a).
(c) A mental health record of a child at least 12 years of
age that is privileged or confidential under other law may be
released to a person appointed under Subsection (a) only in
accordance with the other law [GUARDIAN AD LITEM AND ATTORNEY AD
LITEM POOL; QUALIFICATIONS. (a) The local administrative district
judge in each county in a Department of Protective and Regulatory
Services region for child protective services that contains a
county having a population of 2.8 million or more shall establish a
pool from which guardians ad litem and attorneys ad litem are
appointed for proceedings in the district courts of the county. A
local administrative district judge in any other county may
establish a pool from which guardians ad litem and attorneys ad
litem are appointed for proceedings in the district courts of that
county. To be eligible for a pool established under this
subsection, a person must:
[(1) complete training approved by the State Bar of
Texas in family law and the responsibilities of ad litems;
[(2) complete as part of the person's annual
continuing legal education requirement not fewer than three hours
in family law issues; and
[(3) meet other requirements established by the local
administrative district judge.
[(b) Before appointment as a guardian ad litem or an
attorney ad litem, the person must have read, acknowledged by
signing, and filed with the local administrative judge a written
statement prepared by the local administrative district judge that
lists the responsibilities of an ad litem, some or all of which may
be appropriate to the person's specific case. The court shall
retain a copy of the acknowledgment for two years. To continue to
receive appointments under this section, the person must execute a
new statement at least every two years.
[(c) A party to a proceeding in which a person is appointed
as a guardian ad litem or an attorney ad litem may object to
appointment of the person at any time before the date of the trial
of the proceeding. A party may object under this subsection by
filing a written motion stating the grounds and facts on which the
party believes that the person appointed lacks objectivity or is
failing to fulfill the person's responsibilities as an ad litem as
outlined in the written statement of ad litem responsibilities.
The court shall promptly rule on an objection raised under this
subsection and shall order the removal of the guardian ad litem or
attorney ad litem if the court finds that the objection is
justifiable.
[(d) A person appointed as a guardian ad litem or attorney
ad litem shall complete and submit to the court a voucher or claim
for payment that includes the fees charged and hours worked by the
ad litem. Information submitted under this section is subject to
disclosure under Chapter 552, Government Code.
[(e) The Bureau of Vital Statistics may compile information
submitted under Subsection (d) for a county that maintains that
information on an electronic database. On the request of the
bureau, the county shall provide the information. Information
compiled by the bureau under this section shall be made available to
the Department of Protective and Regulatory Services].
Sec. 107.007. ATTORNEY WORK PRODUCT AND TESTIMONY. (a) An
attorney ad litem, an attorney serving in the dual role, or an
amicus attorney may not:
(1) be compelled to produce attorney work product
developed during the appointment as an attorney;
(2) be required to disclose the source of any
information;
(3) submit a report into evidence; or
(4) testify in court except as authorized by Rule
3.08, Texas Disciplinary Rules of Professional Conduct.
(b) Subsection (a) does not apply to the duty of an attorney
to report child abuse or neglect under Section 261.101.
Sec. 107.008. SUBSTITUTED JUDGMENT OF ATTORNEY FOR CHILD.
(a) An attorney ad litem appointed to represent a child or an
attorney appointed in the dual role may determine that the child
cannot meaningfully formulate the child's objectives of
representation in a case because the child:
(1) lacks sufficient maturity to understand and form
an attorney-client relationship with the attorney;
(2) despite appropriate legal counseling, continues
to express objectives of representation that would be seriously
injurious to the child; or
(3) for any other reason is incapable of making
reasonable judgments and engaging in meaningful communication.
(b) Except as provided by Subsection (c), an attorney ad
litem or an attorney appointed in the dual role who determines that
the child cannot meaningfully formulate the child's expressed
objectives of representation under Subsection (a) may present to
the court a position that the attorney determines will serve the
best interests of the child.
(c) An attorney ad litem or attorney appointed in the dual
role who determines that the child cannot meaningfully formulate
the child's expressed objectives of representation under
Subsection (a) shall, if a guardian ad litem has been appointed for
the child:
(1) consult with the guardian ad litem; and
(2) present the child's objectives of representation
to the court based on the guardian ad litem's opinion regarding the
best interests of the child.
Sec. 107.009. IMMUNITY. (a) A guardian ad litem, an
attorney ad litem, or an amicus attorney appointed under this
chapter is not liable for civil damages arising from a
recommendation made or an opinion given in the capacity of guardian
ad litem, attorney ad litem, or amicus attorney.
(b) Subsection (a) does not apply to an action taken or a
recommendation or opinion given:
(1) with conscious indifference or reckless disregard
to the safety of another;
(2) in bad faith or with malice; or
(3) that is grossly negligent or wilfully wrongful.
Sec. 107.010. DISCRETIONARY APPOINTMENT OF ATTORNEY AD
LITEM FOR INCAPACITATED PERSON. The court may appoint an attorney
to serve as an attorney ad litem for a person entitled to service of
citation in a suit if the court finds that the person is
incapacitated. The attorney ad litem shall follow the person's
expressed objectives of representation and, if appropriate, refer
the proceeding to the proper court for guardianship proceedings.
SUBCHAPTER B. APPOINTMENTS IN CERTAIN SUITS [ATTORNEY AD LITEM]
PART 1. APPOINTMENTS IN SUITS BY GOVERNMENTAL ENTITY
Sec. 107.011. MANDATORY [DISCRETIONARY] APPOINTMENT OF
GUARDIAN [ATTORNEY] AD LITEM. (a) Except as otherwise provided by
this subchapter, in a suit filed by a governmental entity seeking
termination of the parent-child relationship or the appointment of
a conservator for a child, the court shall appoint a guardian ad
litem to represent the best interests of the child immediately
after the filing of the petition but before the full adversary
hearing. [An associate judge shall recommend the appointment of an
attorney ad litem for any party in a case in which the associate
judge deems representation necessary to protect the interests of
the child who is the subject matter of the suit.]
(b) The guardian ad litem appointed for a child under this
section may be:
(1) a charitable organization composed of volunteer
advocates or an individual volunteer advocate appointed under
Subchapter C;
(2) an adult having the competence, training, and
expertise determined by the court to be sufficient to represent the
best interests of the child; or
(3) an attorney appointed in the dual role [court
shall appoint an attorney ad litem for any party in a case in which
the court deems representation necessary to protect the interests
of the child who is the subject matter of the suit].
(c) The court may not appoint a guardian ad litem in a suit
filed by a governmental entity if an attorney is appointed in the
dual role unless the court appoints another person to serve as
guardian ad litem for the child and restricts the role of the
attorney to acting as an attorney ad litem for the child.
(d) The court may appoint an attorney to serve as guardian
ad litem for a child without appointing the attorney to serve in the
dual role only if the attorney is specifically appointed to serve
only in the role of guardian ad litem. An attorney appointed solely
as a guardian ad litem:
(1) may take only those actions that may be taken by a
nonattorney guardian ad litem; and
(2) may not:
(A) perform legal services in the case; or
(B) take any action that is restricted to a
licensed attorney, including engaging in discovery other than as a
witness, making opening and closing statements, or examining
witnesses.
Sec. 107.012. MANDATORY APPOINTMENT OF ATTORNEY AD LITEM
FOR CHILD. In a suit filed by a governmental entity requesting
termination of the parent-child relationship or to be named
conservator of a child, the court shall appoint an attorney ad litem
to represent the interests of the child immediately after the
filing, but before the full adversary hearing, to ensure adequate
representation of the child.
Sec. 107.0125. APPOINTMENT OF ATTORNEY IN DUAL ROLE. (a)
In order to comply with the mandatory appointment of a guardian ad
litem under Section 107.011 and the mandatory appointment of an
attorney ad litem under Section 107.012, the court may appoint an
attorney to serve in the dual role.
(b) If the court appoints an attorney to serve in the dual
role under this section, the court may at any time during the
pendency of the suit appoint another person to serve as guardian ad
litem for the child and restrict the attorney to acting as an
attorney ad litem for the child.
(c) An attorney appointed to serve in the dual role may
request the court to appoint another person to serve as guardian ad
litem for the child. If the court grants the attorney's request,
the attorney shall serve only as the attorney ad litem for the
child.
(d) Unless the court appoints another person as guardian ad
litem in a suit filed by a governmental entity, an appointment of an
attorney to serve as an attorney ad litem in a suit filed by a
governmental entity is an appointment to serve in the dual role
regardless of the terminology used in the appointing order.
Sec. 107.013. MANDATORY APPOINTMENT OF ATTORNEY AD LITEM
FOR PARENT. (a) In a suit filed by a governmental entity in which
termination of the parent-child relationship is requested, the
court shall appoint an attorney ad litem to represent the interests
of:
(1) an indigent parent of the child who responds in
opposition to the termination;
(2) a parent served by citation by publication;
(3) an alleged father who failed to register with the
registry under Chapter 160 and whose identity or location is
unknown; and
(4) an alleged father who registered with the
paternity registry under Chapter 160, but the petitioner's attempt
to personally serve citation at the address provided to the
registry and at any other address for the alleged father known by
the petitioner has been unsuccessful.
(b) If both parents of the child are entitled to the
appointment of an attorney ad litem under this section and the court
finds that the interests of the parents are not in conflict, the
court may appoint an [a single] attorney ad litem to represent the
interests of both parents.
[Sec. 107.0135. APPOINTMENT OF ATTORNEY AD LITEM NOT
REQUIRED; CERTAIN CASES. A court is not required to appoint an
attorney ad litem in a proceeding in which:
[(1) a suit for the dissolution of a marriage is
uncontested; or
[(2) the issues of possession of and access to a child
are agreed to by both parents.
[Sec. 107.014. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
CHILD. (a) An attorney ad litem appointed under this subchapter to
represent a child:
[(1) shall investigate to the extent the attorney ad
litem considers appropriate to determine the facts of the case;
[(2) shall obtain and review copies of all of the
child's relevant medical, psychological, and school records;
[(3) may call, examine, or cross-examine witnesses;
and
[(4) shall become familiar with the American Bar
Association's standards of practice for lawyers who represent
children in abuse and neglect cases.
[(b) An attorney ad litem appointed to represent a child
shall within a reasonable time after the appointment:
[(1) interview the child if the child is four years of
age or older;
[(2) interview individuals with significant knowledge
of the child's history and condition, including the child's foster
parents; and
[(3) interview all parties to the suit.]
Sec. 107.015. ATTORNEY [AD LITEM] FEES. (a) An attorney
appointed under this chapter to serve as an attorney ad litem for a
child, an attorney in the dual role, [to represent a child] or an
attorney ad litem for a parent [as authorized by this subchapter] is
entitled to reasonable fees and expenses in the amount set by the
court to be paid by the parents of the child unless the parents are
indigent.
(b) If the court [or associate judge] determines that one or
more of the parties are able to defray the [costs of an attorney ad
litem's] fees and expenses of an attorney ad litem or guardian ad
litem for the child as determined by the reasonable and customary
fees for similar services in the county of jurisdiction, the fees
and expenses may be ordered paid by one or more of those parties, or
the court [or associate judge] may order one or more of those
parties, prior to final hearing, to pay the sums into the registry
of the court or into an account authorized by the court for the use
and benefit of the payee [attorney ad litem] on order of the court.
The sums may be taxed as costs to be assessed against one or more of
the parties.
(c) If indigency of the parents is shown, an attorney ad
litem appointed to represent a child or parent in a suit filed by a
governmental entity in which termination of [to terminate] the
parent-child relationship is requested shall be paid from the
general funds of the county according to the fee schedule that
applies to an attorney appointed to represent a child in a suit
under Title 3 as provided by Chapter 51. The court may not award
attorney ad litem fees under this chapter against the state, a state
agency, or a political subdivision of the state except as provided
by this subsection.
(d) A person appointed as a guardian ad litem or attorney ad
litem shall complete and submit to the court a voucher or claim for
payment that lists the fees charged and hours worked by the guardian
ad litem or attorney ad litem. Information submitted under this
section is subject to disclosure under Chapter 552, Government
Code.
Sec. 107.016. CONTINUED REPRESENTATION. In a suit filed
[brought] by a governmental entity in which [seeking] termination
of the parent-child relationship or appointment of the entity as
conservator of the child is requested, an order appointing the
Department of Protective and Regulatory Services as the child's
managing conservator may provide for the continuation of the
appointment of the guardian ad litem or attorney ad litem
[appointment] for the child for any period set by the court.
Sec. 107.017. APPOINTMENT OF AMICUS ATTORNEY PROHIBITED.
The court may not appoint a person to serve as an amicus attorney in
a suit filed by a governmental entity under this chapter.
PART 2. APPOINTMENTS IN SUITS OTHER THAN SUITS
BY GOVERNMENTAL ENTITY
Sec. 107.021. DISCRETIONARY APPOINTMENTS. (a) In a suit in
which the best interests of a child are at issue, other than a suit
filed by a governmental entity, the court may appoint:
(1) an amicus attorney;
(2) an attorney ad litem; or
(3) a guardian ad litem.
(b) In determining whether to make an appointment under this
section, the court:
(1) shall:
(A) give due consideration to the ability of the
parties to pay reasonable fees to the appointee; and
(B) balance the child's interests against the
cost to the parties that would result from an appointment by taking
into consideration the cost of available alternatives for resolving
issues without making an appointment;
(2) may make an appointment only if the court finds
that the appointment is necessary to ensure the determination of
the best interests of the child; and
(3) may not require a person appointed under this
section to serve without reasonable compensation for the services
rendered by the person.
Sec. 107.022. CERTAIN PROHIBITED APPOINTMENTS. In a suit
other than a suit filed by a governmental entity, the court may not
appoint:
(1) an attorney to serve in the dual role; or
(2) a volunteer advocate to serve as guardian ad litem
for a child unless the training of the volunteer advocate is
designed for participation in suits other than suits filed by a
governmental entity.
Sec. 107.023. FEES IN SUITS OTHER THAN SUITS BY
GOVERNMENTAL ENTITY. (a) In a suit other than a suit filed by a
governmental entity, in addition to the attorney's fees that may be
awarded under Chapter 106, the following persons are entitled to
reasonable fees and expenses in an amount set by the court and
ordered to be paid by one or more parties to the suit:
(1) an attorney appointed as an amicus attorney or as
an attorney ad litem for the child; and
(2) a professional who holds a relevant professional
license and who is appointed as guardian ad litem for the child,
other than a volunteer advocate or a person employed by a
governmental entity.
(b) The court shall:
(1) determine the fees and expenses of an amicus
attorney, an attorney ad litem, or a guardian ad litem by reference
to the reasonable and customary fees for similar services in the
county of jurisdiction;
(2) order a reasonable cost deposit to be made at the
time the court makes the appointment; and
(3) before the final hearing, order an additional
amount to be paid to the credit of a trust account for the use and
benefit of the amicus attorney, attorney ad litem, or guardian ad
litem.
(c) A court may not award costs, fees, or expenses to an
amicus attorney, attorney ad litem, or guardian ad litem against
the state, a state agency, or a political subdivision of the state
under this part.
SUBCHAPTER C. APPOINTMENT OF VOLUNTEER ADVOCATES [OTHER COURT
APPOINTMENTS]
Sec. 107.031. VOLUNTEER ADVOCATES. (a) In a suit filed by
a governmental entity, the court may appoint a charitable
organization composed of volunteer advocates whose charter
mandates the provision of services to allegedly abused and
neglected children or an individual [person] who has received the
court's approved training regarding abused and neglected children
and who has been certified by the court to appear at court hearings
as a guardian ad litem for the child or as a volunteer advocate for
[on behalf of] the child.
(b) In a suit other than a suit filed by a governmental
entity, the court may appoint a charitable organization composed of
volunteer advocates whose training provides for the provision of
services in private custody disputes or a person who has received
the court's approved training regarding the subject matter of the
suit and who has been certified by the court to appear at court
hearings as a guardian ad litem for the child or as a volunteer
advocate for the child. A person appointed under this subsection is
not entitled to fees under Section 107.023 [addition, the court may
appoint a group of court-certified volunteers to serve as an
administrative review board to advise the court as to the
conservatorship appointment and the placement of the child by the
Department of Protective and Regulatory Services or authorized
agency in substitute care].
[(c) A court-appointed volunteer, a board member or
employee of a volunteer advocate charitable organization, or a
member of an administrative review board is not liable for civil
damages for a recommendation made or opinion rendered while serving
or having served as a court-appointed volunteer, board member or
employee of a volunteer advocate charitable organization, or member
of an administrative review board under this section unless the act
or failure to act is wilfully wrongful, committed with conscious
indifference or reckless disregard for the safety of another,
committed in bad faith or with malice, or is grossly negligent.
[(d) This section does not prohibit the court from
appointing as a guardian ad litem for a child under Section 107.001
a court-certified volunteer advocate appointed for the child under
this section.
[(e) A court-certified volunteer advocate appointed under
this section for a child with a disability may be assigned to act as
a surrogate parent for the child, as provided by 20 U.S.C. Section
1415(b) and its subsequent amendments, if:
[(1) the child is in the conservatorship of the
Department of Protective and Regulatory Services;
[(2) the volunteer advocate is serving as guardian ad
litem for the child; and
[(3) a foster parent of the child is not acting as the
child's parent under Section 29.015, Education Code.]
SECTION 2. The changes in law made by this Act apply only to
a suit affecting the parent-child relationship filed on or after
the effective date of this Act. A suit filed before the effective
date of this Act is governed by the law in effect on the date the
suit was filed, and the former law is continued in effect for that
purpose.
SECTION 3. This Act takes effect September 1, 2003.