79R1755 MFC-D
By: Raymond H.B. No. 2347
A BILL TO BE ENTITLED
AN ACT
relating to guardians ad litem.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 135 to read as follows:
CHAPTER 135. GUARDIAN AD LITEM
Sec. 135.001. DEFINITIONS. In this chapter:
(1) "Incapacitated person" means:
(A) a minor;
(B) an adult individual who, because of a
physical or mental condition, is substantially unable to:
(i) provide the person's own food,
clothing, or shelter;
(ii) care for the person's own physical
health; or
(iii) manage the person's own financial
affairs;
(C) a person who is mentally, physically, or
legally incompetent or has been judicially declared incompetent; or
(D) a person who must have a guardian appointed
to receive funds due the person from any governmental source.
(2) "Minor" has the meaning assigned by Section 601,
Texas Probate Code.
Sec. 135.002. APPOINTMENT OF GUARDIAN AD LITEM. (a) The
court shall appoint a guardian ad litem for an incapacitated person
if the incapacitated person is:
(1) a defendant to a suit and has no guardian within
this state; or
(2) a party to a suit as a plaintiff, defendant, or
intervenor represented by a next friend or a guardian and:
(A) the next friend or guardian appears to the
court to have an interest adverse to the incapacitated person; or
(B) the parties agree.
(b) The court shall appoint the same guardian ad litem for
similarly situated parties unless the court finds that the
appointment of different guardians ad litem is necessary.
(c) This chapter does not apply to an appointment of a
guardian ad litem that is governed by another statute or rule.
Sec. 135.003. PROCEEDING TO APPOINT GUARDIAN AD LITEM. (a)
The court may appoint a guardian ad litem on the motion of any party
or on the court's own initiative.
(b) An appointment under this chapter must be made by
written order.
(c) Any party may object to the appointment of a guardian ad
litem.
Sec. 135.004. ROLE OF GUARDIAN AD LITEM. (a) A guardian ad
litem appointed under this chapter is an officer and advisor to the
court. A guardian ad litem shall determine and advise the court
whether a party's next friend or guardian has an interest that is
adverse to the party.
(b) When an offer has been made to settle the claim of a
party represented by a next friend or guardian, a guardian ad
litem's duty is limited to determining and advising the court
whether the settlement is in the party's best interest.
(c) A guardian ad litem:
(1) shall participate in any proceeding before the
court whose purpose is to determine whether:
(A) a party's next friend or guardian has an
interest adverse to the party; or
(B) a settlement of the party's claim is in the
party's best interest;
(2) may participate in mediation or a similar
proceeding to attempt to reach a settlement; and
(3) may not participate in discovery, trial, or any
other part of the litigation unless:
(A) further participation is necessary to
protect the party's interest that is adverse to the next friend's or
guardian's interest; and
(B) the participation is directed by the court in
a written order stating sufficient reasons.
Sec. 135.005. PRIVILEGED COMMUNICATIONS. Communications
between the guardian ad litem and the party, the party's next friend
or guardian, or the next friend's or guardian's attorney are
privileged as if the guardian ad litem is an attorney for the party.
Sec. 135.006. COMPENSATION. (a) A guardian ad litem who
files an application for compensation at the conclusion of an
appointment under this chapter may be:
(1) reimbursed for reasonable and necessary expenses
incurred; and
(2) paid a reasonable hourly fee for necessary
services performed.
(b) An application for compensation filed under this
section must be verified and must detail the basis for the
compensation requested. Unless all parties agree to the
application, the court shall conduct an evidentiary hearing to
determine the total amount of fees and expenses that are reasonable
and necessary. In making this determination, the court may not
consider the guardian ad litem's compensation as a percentage of
any judgment or settlement.
(c) The court may tax a guardian ad litem's compensation as
costs of court.
(d) Except as provided by this section, a guardian ad litem
may not receive, directly or indirectly, anything of value in
consideration of an appointment under this chapter.
Sec. 135.007. REVIEW. (a) Any party may seek mandamus
review of an order appointing a guardian ad litem or directing a
guardian ad litem's participation in the litigation. A guardian ad
litem or any party may appeal an order awarding the guardian ad
litem compensation.
(b) On motion of the guardian ad litem or any party, the
court shall sever any order awarding a guardian ad litem
compensation to create a final, appealable order.
(c) An appellate proceeding to review an order pertaining to
a guardian ad litem does not affect the finality of a settlement or
judgment.
SECTION 2. This Act applies only to a court appointment of a
guardian ad litem in connection with an action filed on or after the
effective date of this Act. A court appointment of a guardian ad
litem in connection with an action filed before the effective date
of this Act is governed by the law in effect at the time the
appointment was made, and that law is continued in effect for that
purpose.
SECTION 3. This Act takes effect September 1, 2005.