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A BILL TO BE ENTITLED
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AN ACT
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relating to the powers, duties, and qualifications of an amicus |
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attorney in a suit affecting the parent-child relationship. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Section 107.003, Family Code, is |
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amended to read as follows: |
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Sec. 107.003. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR |
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CHILD [AND AMICUS ATTORNEY]. |
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SECTION 2. Section 107.003(a), Family Code, is amended to |
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read as follows: |
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(a) An attorney ad litem appointed to represent a child [or |
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an amicus attorney appointed to assist the court]: |
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(1) shall: |
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(A) subject to Rules 4.02, 4.03, and 4.04, Texas |
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Disciplinary Rules of Professional Conduct, and within a reasonable |
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time after the appointment, interview: |
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(i) the child in a developmentally |
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appropriate manner, if the child is four years of age or older; |
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(ii) each person who has significant |
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knowledge of the child's history and condition, including any |
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foster parent of the child; and |
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(iii) the parties to the suit; |
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(B) seek to elicit in a developmentally |
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appropriate manner the child's expressed objectives of |
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representation; |
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(C) consider the impact on the child in |
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formulating the attorney's presentation of the child's expressed |
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objectives of representation to the court; |
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(D) investigate the facts of the case to the |
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extent the attorney considers appropriate; |
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(E) obtain and review copies of relevant records |
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relating to the child as provided by Section 107.006; |
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(F) participate in the conduct of the litigation |
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to the same extent as an attorney for a party; |
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(G) take any action consistent with the child's |
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interests that the attorney considers necessary to expedite the |
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proceedings; |
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(H) encourage settlement and the use of |
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alternative forms of dispute resolution; and |
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(I) review and sign, or decline to sign, a |
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proposed or agreed order affecting the child; |
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(2) must be trained in child advocacy or have |
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experience determined by the court to be equivalent to that |
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training; and |
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(3) is entitled to: |
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(A) request clarification from the court if the |
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role of the attorney is ambiguous; |
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(B) request a hearing or trial on the merits; |
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(C) consent or refuse to consent to an interview |
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of the child by another attorney; |
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(D) receive a copy of each pleading or other |
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paper filed with the court; |
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(E) receive notice of each hearing in the suit; |
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(F) participate in any case staffing concerning |
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the child conducted by the Department of Family and Protective |
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Services; and |
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(G) attend all legal proceedings in the suit. |
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SECTION 3. Section 107.005, Family Code, is amended to read |
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as follows: |
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Sec. 107.005. POWERS AND [ADDITIONAL] DUTIES OF AMICUS |
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ATTORNEY. (a) An attorney appointed as an amicus attorney: |
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(1) shall: |
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(A) perform the duties described by Sections |
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107.003(a)(1)(A) and (D)-(I); |
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(B) conduct a home visit of: |
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(i) any person who has the right of |
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possession of or access to the child; and |
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(ii) any party who is seeking possession of |
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or access to the child; |
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(C) on request by a party or the court: |
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(i) provide a copy of the amicus attorney's |
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entire case file to each party not later than the fifth business day |
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after the date of the request; and |
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(ii) prepare and file a written report |
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certifying the amicus attorney's compliance with the order |
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appointing the amicus attorney and this chapter not later than the |
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fifth business day after the date of the request; |
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(2) must certify to the court that the attorney: |
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(A) has completed at least four hours of |
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continuing legal education in the previous year specifically |
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related to domestic violence, developmentally appropriate |
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techniques to interview a child, and alternative dispute |
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resolution; or |
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(B) is certified in family law by the Texas Board |
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of Legal Specialization; and |
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(3) is entitled to perform the actions described by |
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Sections 107.003(a)(3)(B)-(G). |
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(a-1) Subject to any specific limitation in the order of |
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appointment, an amicus attorney shall advocate the best interests |
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of the child after reviewing the facts and circumstances of the |
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case. Notwithstanding Subsection (b), in determining the best |
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interests of the child, an amicus attorney is not bound by the |
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child's expressed objectives of representation. |
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(b) An amicus attorney shall, in a developmentally |
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appropriate manner: |
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(1) with the consent of the child, ensure that the |
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child's expressed objectives of representation are made known to |
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the court; |
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(2) explain the role of the amicus attorney to the |
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child; and |
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(3) inform the child that the amicus attorney may use |
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information that the child provides in providing assistance to the |
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court[; and |
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[(4) become familiar with the American Bar |
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Association's standards of practice for attorneys who represent |
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children in custody cases]. |
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(c) The order appointing an [An] amicus attorney must |
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include: |
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(1) a list of any additional duties, other than the |
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duties under this chapter, required by the court to be completed by |
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the amicus attorney; and |
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(2) specific orders regarding the payment of the fees |
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and expenses of the amicus attorney. |
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(d) An amicus attorney may not at any hearing or trial |
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express an opinion or relate a recommendation to the court or to a |
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jury regarding the conservatorship of or the possession of or |
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access to the child who is the subject of the suit, or any issue |
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regarding a geographic restriction applicable to the child. |
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(e) Except as otherwise provided by Subsection (f), an |
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amicus attorney is subject to discovery in accordance with the |
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Texas Rules of Civil Procedure. |
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(f) The provision of services by an amicus attorney under |
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this chapter does not create an attorney-client relationship |
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between the attorney and any other party, and the amicus attorney |
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may be required to [not] disclose [confidential] communications |
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between the amicus attorney and the child and any work product |
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related to the case [unless the amicus attorney determines that |
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disclosure is necessary to assist the court regarding the best |
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interests of the child]. |
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SECTION 4. Subchapter A, Chapter 107, Family Code, is |
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amended by adding Section 107.0051 to read as follows: |
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Sec. 107.0051. AMICUS ATTORNEY: CONFLICTS OF INTEREST AND |
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BIAS. (a) Before a person accepts appointment as an amicus |
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attorney in a suit, the person must disclose to the court, each |
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attorney for a party to the suit, and any party to the suit who does |
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not have an attorney: |
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(1) any conflict of interest that the person believes |
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the person has with the court, any party to the suit, or a child who |
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is the subject of the suit; |
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(2) any previous knowledge that the person has of a |
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party to the suit or a child who is the subject of the suit, other |
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than knowledge obtained in a court-ordered evaluation; |
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(3) any pecuniary relationship that the person |
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believes the person has with an attorney in the suit or the court; |
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(4) any fiduciary relationship that the person |
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believes the person has with an attorney in the suit or the court; |
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and |
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(5) any other information relating to the person's |
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relationship with an attorney in the suit or the court that a |
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reasonable, prudent person would believe would affect the ability |
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of the person to act impartially as an amicus attorney. |
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(b) The court may not appoint a person as an amicus attorney |
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in a suit if the person makes any of the disclosures in Subsection |
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(a) unless: |
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(1) the court finds that: |
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(A) the person has no conflict of interest with a |
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party to the suit, the court, or a child who is the subject of the |
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suit; |
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(B) the person's previous knowledge of a party to |
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the suit, the court, or a child who is the subject of the suit is not |
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relevant; |
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(C) the person does not have a pecuniary |
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relationship with an attorney in the suit or the court; and |
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(D) the person does not have a fiduciary |
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relationship with an attorney in the suit or the court; or |
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(2) the parties agree in writing to the person's |
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appointment as an amicus attorney. |
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(c) After being appointed as an amicus attorney in a suit, a |
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person shall immediately disclose to the court, each attorney for a |
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party to the suit, and any party to the suit who does not have an |
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attorney any discovery of the following unless previously |
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disclosed: |
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(1) a conflict of interest that the person believes |
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the person has with a party to the suit, the court, or a child who is |
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the subject of the suit; |
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(2) previous knowledge the person has of a party to the |
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suit, the court, or a child who is the subject of the suit, other |
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than knowledge obtained in a court-ordered evaluation; and |
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(3) a relationship that the person has with an |
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attorney in the suit who was hired or appointed after the person's |
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appointment as amicus attorney that would have been subject to |
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disclosure under Subsection (a). |
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(d) The court shall remove a person as amicus attorney in a |
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suit if the person makes any of the disclosures in Subsection (c) |
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unless: |
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(1) the court finds that: |
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(A) the person has no conflict of interest with a |
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party to the suit, the court, or a child who is the subject of the |
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suit; |
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(B) the person's previous knowledge of a party to |
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the suit, the court, or a child who is the subject of the suit is not |
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relevant; and |
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(C) the person has no pecuniary or fiduciary |
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relationship with an attorney in the suit who was hired or appointed |
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after the person's appointment as amicus attorney; or |
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(2) the parties agree in writing to the person's |
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continued appointment as an amicus attorney. |
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(e) A person who has a preexisting relationship with an |
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attorney of a party to the suit is not disqualified from being an |
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amicus attorney if the relationship was formed in a professional |
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setting such as service to the community or a bar association, |
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unless the relationship is prohibited under the Texas Rules of |
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Professional Conduct. |
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SECTION 5. Section 107.007(a), Family Code, is amended to |
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read as follows: |
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(a) An attorney ad litem or[,] an attorney serving in the |
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dual role[, or an amicus attorney] may not: |
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(1) be compelled to produce attorney work product |
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developed during the appointment as an attorney; |
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(2) be required to disclose the source of any |
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information; |
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(3) submit a report into evidence; or |
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(4) testify in court except as authorized by Rule |
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3.08, Texas Disciplinary Rules of Professional Conduct. |
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SECTION 6. The changes in law made by this Act apply only to |
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an amicus attorney appointed in a suit that is filed on or after the |
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effective date of this Act. An amicus attorney appointed in a suit |
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filed before the effective date of this Act is governed by the law |
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in effect on the date the suit was filed, and the former law is |
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continued in effect for that purpose. |
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SECTION 7. This Act takes effect September 1, 2021. |