| |
| |
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A BILL TO BE ENTITLED
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AN ACT
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relating to special appointments in suits affecting the |
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parent-child relationship. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 107.001(1), Family Code, is amended to |
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read as follows: |
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(1) "Amicus attorney" means an attorney appointed by |
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the court in a suit, other than a suit filed by a governmental |
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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, including by acting as a |
|
|
witness or making recommendations to the court. |
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SECTION 2. 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 3. 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 |
|
|
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) seek to elicit in a developmentally |
|
|
appropriate manner the child's expressed objectives of |
|
|
representation; |
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|
(C) consider the impact on the child in |
|
|
formulating the attorney's presentation of the child's expressed |
|
|
objectives of representation to the court; |
|
|
(D) investigate the facts of the case to the |
|
|
extent the attorney considers appropriate; |
|
|
(E) obtain and review copies of relevant records |
|
|
relating to the child as provided by Section 107.006; |
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|
(F) participate in the conduct of the litigation |
|
|
to the same extent as an attorney for a party; |
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|
(G) take any action consistent with the child's |
|
|
interests that the attorney considers necessary to expedite the |
|
|
proceedings; |
|
|
(H) encourage settlement and the use of |
|
|
alternative forms of dispute resolution; and |
|
|
(I) review and sign, or decline to sign, a |
|
|
proposed or agreed order affecting the child; |
|
|
(2) must be trained in child advocacy or have |
|
|
experience determined by the court to be equivalent to that |
|
|
training; and |
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|
(3) is entitled to: |
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|
(A) request clarification from the court if the |
|
|
role of the attorney is ambiguous; |
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|
(B) request a hearing or trial on the merits; |
|
|
(C) consent or refuse to consent to an interview |
|
|
of the child by another attorney; |
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|
(D) receive a copy of each pleading or other |
|
|
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 |
|
|
the child conducted by the Department of Family and Protective |
|
|
Services; and |
|
|
(G) attend all legal proceedings in the suit. |
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SECTION 4. Section 107.007(a), Family Code, is amended to |
|
|
read as follows: |
|
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(a) An attorney ad litem or [,] 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. |
|
|
SECTION 5. Section 107.009, Family Code, is amended to read |
|
|
as follows: |
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|
Sec. 107.009. IMMUNITY. (a) A guardian ad litem, [an |
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|
attorney ad litem,] a child custody evaluator, or an adoption |
|
|
evaluator [amicus attorney] appointed under this chapter is not |
|
|
liable for civil damages arising from an action taken, a |
|
|
recommendation made, or an opinion given in the capacity of |
|
|
guardian ad litem, [attorney ad litem,] child custody evaluator, or |
|
|
adoption evaluator [amicus attorney]. |
|
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(a-1) An attorney ad litem or amicus attorney appointed |
|
|
under this chapter is not liable for civil damages arising from an |
|
|
action taken in the capacity of attorney ad litem or amicus |
|
|
attorney. |
|
|
(b) Subsections [Subsection] (a) and (a-1) do [does] not |
|
|
apply to an action taken, a recommendation made, or an 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. |
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|
SECTION 6. Sections 107.021(a) and (a-1), Family Code, are |
|
|
amended to read as follows: |
|
|
(a) In a suit in which the best interests of a child are at |
|
|
issue, other than a suit filed by a governmental entity requesting |
|
|
termination of the parent-child relationship or appointment of the |
|
|
entity as conservator of the child, the court may appoint [one of |
|
|
the following: |
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|
[(1) an amicus attorney; |
|
|
[(2)] an attorney ad litem[;] or |
|
|
[(3) a] guardian ad litem. |
|
|
(a-1) In a suit requesting termination of the parent-child |
|
|
relationship that is not filed by a governmental entity, the court |
|
|
shall, unless the court finds that the interests of the child will |
|
|
be represented adequately by a party to the suit whose interests are |
|
|
not in conflict with the child's interests, appoint [one of the |
|
|
following: |
|
|
[(1) an amicus attorney; or |
|
|
[(2)] an attorney ad litem. |
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|
SECTION 7. Part 2, Subchapter B, Chapter 107, Family Code, |
|
|
is amended by adding Sections 107.024, 107.0245, 107.025, 107.0255, |
|
|
107.026, 107.0265, 107.027, and 107.0275 to read as follows: |
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|
Sec. 107.024. APPOINTMENT OF AMICUS ATTORNEY. (a) The |
|
|
court, after notice and hearing or on agreement of the parties, may |
|
|
appoint an amicus attorney in a suit. |
|
|
(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 amicus attorney; 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, unless the appointment is |
|
|
otherwise required by this code; and |
|
|
(3) may not require an amicus attorney appointed under |
|
|
this section to serve without reasonable compensation for the |
|
|
services rendered by the amicus attorney. |
|
|
(c) An amicus attorney appointed under this section must be |
|
|
qualified under Section 107.0245 or 107.025. |
|
|
(d) An order appointing an amicus attorney under this |
|
|
section must include: |
|
|
(1) the name, bar number, address, telephone number, |
|
|
and e-mail address of the appointed amicus attorney; |
|
|
(2) the scope of the amicus attorney's role; |
|
|
(3) a list of the duties of an amicus attorney, |
|
|
including duties under Section 107.0265(c)(1); |
|
|
(4) any other specific tasks requested by the court; |
|
|
and |
|
|
(5) specific provisions for payment of the amicus |
|
|
attorney, including a retainer or cost deposit. |
|
|
(e) If a party to or child subject to a suit does not speak |
|
|
English as the party's or child's primary language, the court shall |
|
|
ensure that the amicus attorney: |
|
|
(1) is able to effectively communicate in the party's |
|
|
or child's primary language; or |
|
|
(2) will be assisted by a licensed or certified |
|
|
interpreter. |
|
|
(f) A licensed or certified interpreter assisting an amicus |
|
|
attorney under Subsection (e)(2) may accompany the amicus attorney |
|
|
in person or assist through use of audio or video conferencing |
|
|
technology. |
|
|
(g) The court may require the parties to pay any costs |
|
|
associated with obtaining assistance from a licensed or certified |
|
|
interpreter under Subsection (e)(2). |
|
|
Sec. 107.0245. AMICUS ATTORNEY; MINIMUM QUALIFICATIONS. |
|
|
(a) To be qualified to serve as an amicus attorney, an individual |
|
|
must: |
|
|
(1) be an attorney: |
|
|
(A) who: |
|
|
(i) is licensed to practice law in this |
|
|
state and in good standing with the State Bar of Texas; |
|
|
(ii) has practiced law for at least two |
|
|
years; and |
|
|
(iii) is trained in child advocacy or found |
|
|
by the court to have experience equivalent to training in child |
|
|
advocacy; or |
|
|
(B) who is certified by the Texas Board of Legal |
|
|
Specialization in family law or child welfare law; |
|
|
(2) in the four years preceding the appointment, have |
|
|
completed not less than a total of four hours of continuing legal |
|
|
education from one or more of the following subject areas: |
|
|
(A) domestic violence; |
|
|
(B) techniques for interviewing a child in a |
|
|
developmentally appropriate manner; or |
|
|
(C) alternative dispute resolution; and |
|
|
(3) if appropriate due to the nature of the |
|
|
appointment, be familiar with the American Bar Association's |
|
|
standards of practice for attorneys who represent children in |
|
|
custody cases. |
|
|
(b) The court shall determine whether a prospective amicus |
|
|
attorney meets the qualifications of this section. |
|
|
(c) On the request of the court, a prospective amicus |
|
|
attorney must demonstrate appropriate knowledge and competence |
|
|
consistent with professional models, standards, and guidelines. |
|
|
Sec. 107.025. EXCEPTION TO QUALIFICATIONS REQUIRED TO SERVE |
|
|
AS AMICUS ATTORNEY IN CERTAIN COUNTIES. (a) This section applies |
|
|
only to a county with a population of less than 500,000. |
|
|
(b) If a court finds that an individual qualified to serve |
|
|
as an amicus attorney under Section 107.0245 is not available in the |
|
|
county to serve as an amicus attorney, the court may, after notice |
|
|
and hearing or on agreement of the parties, appoint an amicus |
|
|
attorney the court determines to be otherwise qualified to serve. |
|
|
Sec. 107.0255. AMICUS ATTORNEY; CONFLICTS OF INTEREST AND |
|
|
BIAS. (a) Before a person accepts appointment as an amicus |
|
|
attorney in a suit, the person must disclose to the court, each |
|
|
attorney for a party to the suit, and any party to the suit who does |
|
|
not have an attorney: |
|
|
(1) any conflict of interest that the person believes |
|
|
the person has with the court, any party to the suit, or a child who |
|
|
is the subject of the suit; |
|
|
(2) any previous knowledge that the person has of a |
|
|
party to the suit or a child who is the subject of the suit, other |
|
|
than knowledge obtained in a court-ordered evaluation; |
|
|
(3) any pecuniary relationship that the person |
|
|
believes the person has with an attorney in the suit or the court; |
|
|
(4) any fiduciary relationship that the person |
|
|
believes the person has with an attorney in the suit or the court; |
|
|
(5) any conflict of interest that the person believes |
|
|
the person has with another person participating or expected to |
|
|
participate in the suit in a professional capacity; and |
|
|
(6) any other information relating to the person's |
|
|
relationship with an attorney in the suit or the court that a |
|
|
reasonable, prudent person would believe would affect the ability |
|
|
of the person to act impartially as an amicus attorney. |
|
|
(b) The court may not appoint a person as an amicus attorney |
|
|
in a suit if the person makes any of the disclosures in Subsection |
|
|
(a) unless: |
|
|
(1) the court finds, after notice and a hearing, that: |
|
|
(A) the person has no conflict of interest with a |
|
|
party to the suit, the court, or a child who is the subject of the |
|
|
suit; |
|
|
(B) the person's previous knowledge of a party to |
|
|
the suit, the court, or a child who is the subject of the suit is not |
|
|
relevant; |
|
|
(C) the person does not have a pecuniary |
|
|
relationship with an attorney in the suit or the court; and |
|
|
(D) the person does not have a fiduciary |
|
|
relationship with an attorney in the suit or the court; or |
|
|
(2) the parties agree in writing to the person's |
|
|
appointment as an amicus attorney. |
|
|
(c) After being appointed as an amicus attorney in a suit, a |
|
|
person shall immediately disclose to the court, each attorney for a |
|
|
party to the suit, and any party to the suit who does not have an |
|
|
attorney any discovery of the following unless previously |
|
|
disclosed: |
|
|
(1) a conflict of interest that the person believes |
|
|
the person has with a party to the suit, the court, or a child who is |
|
|
the subject of the suit; |
|
|
(2) previous knowledge the person has of a party to the |
|
|
suit, the court, or a child who is the subject of the suit, other |
|
|
than knowledge obtained in a court-ordered evaluation; |
|
|
(3) a relationship that the person has with an |
|
|
attorney in the suit who was hired or appointed after the person's |
|
|
appointment as amicus attorney that would have been subject to |
|
|
disclosure under Subsection (a); and |
|
|
(4) any conflict of interest that the person believes |
|
|
the person has with another person who participates in the suit in a |
|
|
professional capacity. |
|
|
(d) The court shall remove a person as amicus attorney in a |
|
|
suit if the person makes any of the disclosures in Subsection (c) |
|
|
unless: |
|
|
(1) the court finds, after notice and a hearing, that, |
|
|
as applicable: |
|
|
(A) the person has no conflict of interest with a |
|
|
party to the suit, the court, or a child who is the subject of the |
|
|
suit; |
|
|
(B) the person's previous knowledge of a party to |
|
|
the suit, the court, or a child who is the subject of the suit is not |
|
|
relevant; |
|
|
(C) the person has no pecuniary or fiduciary |
|
|
relationship with an attorney in the suit who was hired or appointed |
|
|
after the person's appointment as amicus attorney; or |
|
|
(D) the person has no conflict of interest with |
|
|
another person who participates in the suit in a professional |
|
|
capacity; or |
|
|
(2) the parties agree in writing to the person's |
|
|
continued appointment as an amicus attorney. |
|
|
(e) A person who has a preexisting relationship with an |
|
|
attorney for a party to the suit or a professional participating in |
|
|
the suit is not disqualified from being an amicus attorney if the |
|
|
relationship was formed in a professional setting such as service |
|
|
to the community or a bar association. |
|
|
Sec. 107.026. AMICUS ATTORNEY STANDARD OF CARE. (a) Except |
|
|
as provided by this title, an amicus attorney is subject to the |
|
|
professional standards of care and ethical standards necessary to |
|
|
remain in good standing with the State Bar of Texas. |
|
|
(b) A court may impose requirements or adopt local rules |
|
|
applicable to an amicus attorney that do not conflict with this |
|
|
subchapter. |
|
|
Sec. 107.0265. POWERS AND DUTIES OF AMICUS ATTORNEY. (a) |
|
|
Subject to specific limitations given in an order of appointment |
|
|
under Section 107.024, an amicus attorney's primary duty is to: |
|
|
(1) review the facts and circumstances of the case; |
|
|
and |
|
|
(2) advocate the best interests of a child who is the |
|
|
subject of the suit. |
|
|
(b) In performing the duties under Subsection (a), an amicus |
|
|
attorney is not bound by the expressed objectives of a child who is |
|
|
the subject of the suit. |
|
|
(c) An amicus attorney appointed to assist the court: |
|
|
(1) shall: |
|
|
(A) subject to Rules 4.02, 4.03, and 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) seek to elicit and assess the child's view in |
|
|
a developmentally appropriate manner; |
|
|
(C) consider the impact on the child in |
|
|
formulating the attorney's presentation of the child's expressed |
|
|
objectives of representation to the court; |
|
|
(D) investigate the facts of the case to the |
|
|
extent the attorney considers appropriate; |
|
|
(E) obtain and review copies of relevant records |
|
|
relating to the child as provided by Section 107.006; |
|
|
(F) participate in the conduct of the litigation |
|
|
to the same extent as an attorney for a party; |
|
|
(G) take any action consistent with the child's |
|
|
interests that the attorney considers necessary to expedite the |
|
|
proceedings; |
|
|
(H) encourage settlement and the use of |
|
|
alternative forms of dispute resolution; |
|
|
(I) review and sign, or decline to sign, a |
|
|
proposed or agreed order affecting the child; |
|
|
(J) on the request of any party, disclose the |
|
|
name, address, and phone number of each person interviewed or |
|
|
consulted; and |
|
|
(K) on the request of any party, make available |
|
|
documents obtained by the amicus attorney for copying; |
|
|
(2) may be required by the court to perform additional |
|
|
tasks, including: |
|
|
(A) conducting additional interviews with each |
|
|
child who is the subject of the suit to: |
|
|
(i) ensure balanced and impartial |
|
|
representation by the amicus attorney; and |
|
|
(ii) observe each child while in the care of |
|
|
each party to the suit; |
|
|
(B) interviewing other individuals, including, |
|
|
at the discretion of the amicus attorney, a child who: |
|
|
(i) is not less than four years of age; and |
|
|
(ii) resides part-time or full-time in a |
|
|
residence where a child who is the subject of the suit resides |
|
|
part-time or full-time; |
|
|
(C) visiting the residence of each party seeking |
|
|
conservatorship or possession of or access to a child who is the |
|
|
subject of the suit; or |
|
|
(D) reviewing any information the court |
|
|
determines is relevant; and |
|
|
(3) is entitled to: |
|
|
(A) request clarification from the court if the |
|
|
role of the amicus attorney is ambiguous; |
|
|
(B) request a hearing or trial on the merits; |
|
|
(C) consent or refuse to consent to an interview |
|
|
of the child by another attorney; |
|
|
(D) receive a copy of each pleading or other |
|
|
paper filed with the court; |
|
|
(E) receive notice of each hearing in the suit; |
|
|
(F) participate in any case staffing concerning |
|
|
the child conducted by the Department of Family and Protective |
|
|
Services; |
|
|
(G) attend all legal proceedings in the suit; and |
|
|
(H) make arguments during legal proceedings, |
|
|
including: |
|
|
(i) summarizing evidence; and |
|
|
(ii) suggesting reasonable inferences and |
|
|
deductions drawn from the evidence. |
|
|
(d) In preparing for and conducting an interview with a |
|
|
child, an amicus attorney shall: |
|
|
(1) explain the role of an amicus attorney to the child |
|
|
in a developmentally appropriate manner; |
|
|
(2) inform the child in a developmentally appropriate |
|
|
manner that the amicus attorney may use information the child |
|
|
provides in assisting the court; and |
|
|
(3) become familiar with the American Bar |
|
|
Association's standards of practice for attorneys who represent |
|
|
children in custody cases. |
|
|
(e) The disclosure required by Subsections (c)(1)(J) and |
|
|
(K): |
|
|
(1) shall not be construed to require disclosure of an |
|
|
amicus attorney's notes or attorney work product; and |
|
|
(2) is subject to supplementation under Rule 193.5, |
|
|
Texas Rules of Civil Procedure. |
|
|
Sec. 107.027. LIMITATIONS ON AMICUS ATTORNEY POWERS. (a) |
|
|
An amicus attorney may not: |
|
|
(1) offer an opinion regarding conservatorship or |
|
|
possession of or access to a child subject to a suit; |
|
|
(2) engage in ex parte communications with the court; |
|
|
(3) be compelled to produce attorney work product |
|
|
developed during the appointment as an amicus attorney; |
|
|
(4) except as required under Section |
|
|
107.0265(c)(1)(J) or (K), be required to disclose the source of any |
|
|
information; |
|
|
(5) submit a report into evidence; or |
|
|
(6) testify in court, except: |
|
|
(A) as authorized under Rule 3.08, Texas |
|
|
Disciplinary Rules of Professional Conduct; or |
|
|
(B) as necessary for the court to make a |
|
|
determination relating to the qualifications, conflicts of |
|
|
interest, bias, or removal of the amicus attorney. |
|
|
(b) Subsection (a) does not apply to the duty of an attorney |
|
|
to report child abuse or neglect under Section 261.101. |
|
|
Sec. 107.0275. REMOVAL OF AMICUS ATTORNEY. The court: |
|
|
(1) may remove an amicus attorney if the parties agree |
|
|
to the removal; and |
|
|
(2) shall remove an amicus attorney if, after notice |
|
|
and hearing, the court finds that the amicus attorney: |
|
|
(A) does not have the minimum qualifications to |
|
|
serve as an amicus attorney under Section 107.0245 or 107.025; |
|
|
(B) has a conflict of interest or bias under |
|
|
Section 107.0255(a) that is not exempted under that section; |
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(C) fails to perform duties under Section |
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107.0265 or ordered by the court; |
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(D) violates a standard of care under Section |
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107.026; or |
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(E) requests to be removed because a party to the |
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suit has prevented the amicus attorney from fulfilling the duties |
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of the amicus attorney. |
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SECTION 8. Section 107.005, Family Code, is repealed. |
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SECTION 9. The changes in law made by this Act apply only to |
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a suit affecting the parent-child relationship that is filed on or |
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after the effective date of this Act. A suit affecting the |
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parent-child relationship filed before the effective date of this |
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|
Act is governed by the law in effect on the date the suit was filed, |
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and the former law is continued in effect for that purpose. |
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SECTION 10. This Act takes effect September 1, 2023. |