By: Zaffirini  S.B. No. 2277
         (In the Senate - Filed March 10, 2023; March 22, 2023, read
  first time and referred to Committee on Jurisprudence;
  April 24, 2023, reported favorably by the following vote:  Yeas 5,
  Nays 0; April 24, 2023, sent to printer.)
Click here to see the committee vote
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to special appointments in suits affecting the
  parent-child relationship.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 107.001(1), Family Code, is amended to
  read as follows:
               (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, including by acting as a
  witness or making recommendations to the court.
         SECTION 2.  The heading to Section 107.003, Family Code, is
  amended to read as follows:
         Sec. 107.003.  POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
  CHILD [AND AMICUS ATTORNEY].
         SECTION 3.  Section 107.003(a), Family Code, is amended to
  read as follows:
         (a)  An attorney ad litem appointed to represent a child [or
  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 in a developmentally
  appropriate manner the child's expressed objectives of
  representation;
                     (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; 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
               (3)  is entitled to:
                     (A)  request clarification from the court if the
  role of the 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; and
                     (G)  attend all legal proceedings in the suit.
         SECTION 4.  Section 107.007(a), Family Code, is amended to
  read as follows:
         (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:
         Sec. 107.009.  IMMUNITY. (a)  A guardian ad litem, [an
  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].
         (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.
         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:
               [(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.
         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:
         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;
                     (C)  fails to perform duties under Section
  107.0265 or ordered by the court;
                     (D)  violates a standard of care under Section
  107.026; or
                     (E)  requests to be removed because a party to the
  suit has prevented the amicus attorney from fulfilling the duties
  of the amicus attorney.
         SECTION 8.  Section 107.005, Family Code, is repealed.
         SECTION 9.  The changes in law made by this Act apply only to
  a suit affecting the parent-child relationship that is filed on or
  after the effective date of this Act.  A suit affecting the
  parent-child relationship 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 10.  This Act takes effect September 1, 2023.
 
  * * * * *