Bill Text: TX HB3833 | 2011-2012 | 82nd Legislature | Enrolled
Bill Title: Relating to the adoption of a uniform collaborative law Act in regard to family law matters.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB3833 Detail]
Download: Texas-2011-HB3833-Enrolled.html
| H.B. No. 3833 | ||
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|
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| relating to the adoption of a uniform collaborative law Act in | ||
| regard to family law matters. | ||
| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
| SECTION 1. The Family Code is amended by adding Title 1-A | ||
| to read as follows: | ||
| TITLE 1-A. COLLABORATIVE FAMILY LAW | ||
| CHAPTER 15. COLLABORATIVE FAMILY LAW ACT | ||
| SUBCHAPTER A. APPLICATION AND CONSTRUCTION | ||
| Sec. 15.001. POLICY. It is the policy of this state to | ||
| encourage the peaceable resolution of disputes, with special | ||
| consideration given to disputes involving the parent-child | ||
| relationship, including disputes involving the conservatorship of, | ||
| possession of or access to, and support of a child, and the early | ||
| settlement of pending litigation through voluntary settlement | ||
| procedures. | ||
| Sec. 15.002. CONFLICTS BETWEEN PROVISIONS. If a provision | ||
| of this chapter conflicts with another provision of this code or | ||
| another statute or rule of this state and the conflict cannot be | ||
| reconciled, this chapter prevails. | ||
| Sec. 15.003. UNIFORMITY OF APPLICATION AND CONSTRUCTION. | ||
| In applying and construing this chapter, consideration must be | ||
| given to the need to promote uniformity of the law with respect to | ||
| its subject matter among states that enact a collaborative law | ||
| process Act for family law matters. | ||
| Sec. 15.004. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL | ||
| AND NATIONAL COMMERCE ACT. This chapter modifies, limits, and | ||
| supersedes the federal Electronic Signatures in Global and National | ||
| Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify, | ||
| limit, or supersede Section 101(c) of that Act (15 U.S.C. Section | ||
| 7001(c)), or authorize electronic delivery of any of the notices | ||
| described in Section 103(b) of that Act (15 U.S.C. Section | ||
| 7003(b)). | ||
| [Sections 15.005-15.050 reserved for expansion] | ||
| SUBCHAPTER B. GENERAL PROVISIONS | ||
| Sec. 15.051. SHORT TITLE. This chapter may be cited as the | ||
| Collaborative Family Law Act. | ||
| Sec. 15.052. DEFINITIONS. In this chapter: | ||
| (1) "Collaborative family law communication" means a | ||
| statement made by a party or nonparty participant, whether oral or | ||
| in a record, or verbal or nonverbal, that: | ||
| (A) is made to conduct, participate in, continue, | ||
| or reconvene a collaborative family law process; and | ||
| (B) occurs after the parties sign a collaborative | ||
| family law participation agreement and before the collaborative | ||
| family law process is concluded. | ||
| (2) "Collaborative family law participation | ||
| agreement" means an agreement by persons to participate in a | ||
| collaborative family law process. | ||
| (3) "Collaborative family law matter" means a dispute, | ||
| transaction, claim, problem, or issue for resolution that arises | ||
| under Title 1 or 5 and that is described in a collaborative family | ||
| law participation agreement. The term includes a dispute, claim, | ||
| or issue in a proceeding. | ||
| (4) "Collaborative family law process" means a | ||
| procedure intended to resolve a collaborative family law matter | ||
| without intervention by a tribunal in which parties: | ||
| (A) sign a collaborative family law | ||
| participation agreement; and | ||
| (B) are represented by collaborative family law | ||
| lawyers. | ||
| (5) "Collaborative lawyer" means a lawyer who | ||
| represents a party in a collaborative family law process. | ||
| (6) "Law firm" means: | ||
| (A) lawyers who practice law together in a | ||
| partnership, professional corporation, sole proprietorship, | ||
| limited liability company, or association; and | ||
| (B) lawyers employed in a legal services | ||
| organization or in the legal department of a corporation or other | ||
| organization or of a government or governmental subdivision, | ||
| agency, or instrumentality. | ||
| (7) "Nonparty participant" means a person, including a | ||
| collaborative lawyer, other than a party, who participates in a | ||
| collaborative family law process. | ||
| (8) "Party" means a person who signs a collaborative | ||
| family law participation agreement and whose consent is necessary | ||
| to resolve a collaborative family law matter. | ||
| (9) "Proceeding" means a judicial, administrative, | ||
| arbitral, or other adjudicative process before a tribunal, | ||
| including related prehearing and posthearing motions, conferences, | ||
| and discovery. | ||
| (10) "Prospective party" means a person who discusses | ||
| with a prospective collaborative lawyer the possibility of signing | ||
| a collaborative family law participation agreement. | ||
| (11) "Record" means information that is inscribed on a | ||
| tangible medium or that is stored in an electronic or other medium | ||
| and is retrievable in perceivable form. | ||
| (12) "Related to a collaborative family law matter" | ||
| means a matter involving the same parties, transaction or | ||
| occurrence, nucleus of operative fact, dispute, claim, or issue as | ||
| the collaborative family law matter. | ||
| (13) "Sign" means, with present intent to authenticate | ||
| or adopt a record, to: | ||
| (A) execute or adopt a tangible symbol; or | ||
| (B) attach to or logically associate with the | ||
| record an electronic symbol, sound, or process. | ||
| (14) "Tribunal" means a court, arbitrator, | ||
| administrative agency, or other body acting in an adjudicative | ||
| capacity that, after presentation of evidence or legal argument, | ||
| has jurisdiction to render a decision affecting a party's interests | ||
| in a matter. | ||
| Sec. 15.053. APPLICABILITY. This chapter applies only to a | ||
| matter arising under Title 1 or 5. | ||
| [Sections 15.054-15.100 reserved for expansion] | ||
| SUBCHAPTER C. COLLABORATIVE FAMILY LAW PROCESS | ||
| Sec. 15.101. REQUIREMENTS FOR COLLABORATIVE FAMILY LAW | ||
| PARTICIPATION AGREEMENT. (a) A collaborative family law | ||
| participation agreement must: | ||
| (1) be in a record; | ||
| (2) be signed by the parties; | ||
| (3) state the parties' intent to resolve a | ||
| collaborative family law matter through a collaborative family law | ||
| process under this chapter; | ||
| (4) describe the nature and scope of the collaborative | ||
| family law matter; | ||
| (5) identify the collaborative lawyer who represents | ||
| each party in the collaborative family law process; and | ||
| (6) contain a statement by each collaborative lawyer | ||
| confirming the lawyer's representation of a party in the | ||
| collaborative family law process. | ||
| (b) A collaborative family law participation agreement must | ||
| include provisions for: | ||
| (1) suspending tribunal intervention in the | ||
| collaborative family law matter while the parties are using the | ||
| collaborative family law process; and | ||
| (2) unless otherwise agreed in writing, jointly | ||
| engaging any professionals, experts, or advisors serving in a | ||
| neutral capacity. | ||
| (c) Parties may agree to include in a collaborative family | ||
| law participation agreement additional provisions not inconsistent | ||
| with this chapter. | ||
| Sec. 15.102. BEGINNING AND CONCLUDING COLLABORATIVE FAMILY | ||
| LAW PROCESS. (a) A collaborative family law process begins when | ||
| the parties sign a collaborative family law participation | ||
| agreement. | ||
| (b) A tribunal may not order a party to participate in a | ||
| collaborative family law process over that party's objection. | ||
| (c) A collaborative family law process is concluded by: | ||
| (1) resolution of a collaborative family law matter as | ||
| evidenced by a signed record; | ||
| (2) resolution of a part of a collaborative family law | ||
| matter, evidenced by a signed record, in which the parties agree | ||
| that the remaining parts of the matter will not be resolved in the | ||
| process; or | ||
| (3) termination of the process under Subsection (d). | ||
| (d) A collaborative family law process terminates: | ||
| (1) when a party gives notice to other parties in a | ||
| record that the process is ended; | ||
| (2) when a party: | ||
| (A) begins a proceeding related to a | ||
| collaborative family law matter without the agreement of all | ||
| parties; or | ||
| (B) in a pending proceeding related to the | ||
| matter: | ||
| (i) without the agreement of all parties, | ||
| initiates a pleading, motion, or request for a conference with the | ||
| tribunal; | ||
| (ii) initiates an order to show cause or | ||
| requests that the proceeding be put on the tribunal's active | ||
| calendar; or | ||
| (iii) takes similar action requiring notice | ||
| to be sent to the parties; or | ||
| (3) except as otherwise provided by Subsection (g), | ||
| when a party discharges a collaborative lawyer or a collaborative | ||
| lawyer withdraws from further representation of a party. | ||
| (e) A party's collaborative lawyer shall give prompt notice | ||
| in a record to all other parties of the collaborative lawyer's | ||
| discharge or withdrawal. | ||
| (f) A party may terminate a collaborative family law process | ||
| with or without cause. | ||
| (g) Notwithstanding the discharge or withdrawal of a | ||
| collaborative lawyer, a collaborative family law process continues | ||
| if, not later than the 30th day after the date the notice of the | ||
| collaborative lawyer's discharge or withdrawal required by | ||
| Subsection (e) is sent to the parties: | ||
| (1) the unrepresented party engages a successor | ||
| collaborative lawyer; and | ||
| (2) in a signed record: | ||
| (A) the parties consent to continue the process | ||
| by reaffirming the collaborative family law participation | ||
| agreement; | ||
| (B) the agreement is amended to identify the | ||
| successor collaborative lawyer; and | ||
| (C) the successor collaborative lawyer confirms | ||
| the lawyer's representation of a party in the collaborative | ||
| process. | ||
| (h) A collaborative family law process does not conclude if, | ||
| with the consent of the parties to a signed record resolving all or | ||
| part of the collaborative matter, a party requests a tribunal to | ||
| approve a resolution of the collaborative family law matter or any | ||
| part of that matter as evidenced by a signed record. | ||
| (i) A collaborative family law participation agreement may | ||
| provide additional methods of concluding a collaborative family law | ||
| process. | ||
| Sec. 15.103. PROCEEDINGS PENDING BEFORE TRIBUNAL; STATUS | ||
| REPORT. (a) The parties to a proceeding pending before a tribunal | ||
| may sign a collaborative family law participation agreement to seek | ||
| to resolve a collaborative family law matter related to the | ||
| proceeding. The parties shall file promptly with the tribunal a | ||
| notice of the agreement after the agreement is signed. Subject to | ||
| Subsection (c) and Sections 15.104 and 15.105, the filing operates | ||
| as a stay of the proceeding. | ||
| (b) A tribunal that is notified, not later than the 30th day | ||
| before the date of a proceeding, that the parties are using the | ||
| collaborative family law process to attempt to settle a | ||
| collaborative family law matter may not, until a party notifies the | ||
| tribunal that the collaborative family law process did not result | ||
| in a settlement: | ||
| (1) set a proceeding or a hearing in the collaborative | ||
| family law matter; | ||
| (2) impose discovery deadlines; | ||
| (3) require compliance with scheduling orders; or | ||
| (4) dismiss the proceeding. | ||
| (c) The parties shall notify the tribunal in a pending | ||
| proceeding if the collaborative family law process results in a | ||
| settlement. If the collaborative family law process does not | ||
| result in a settlement, the parties shall file a status report: | ||
| (1) not later than the 180th day after the date the | ||
| collaborative family law participation agreement was signed or, if | ||
| the proceeding was filed by agreement after the collaborative | ||
| family law participation agreement was signed, not later than the | ||
| 180th day after the date the proceeding was filed; and | ||
| (2) on or before the first anniversary of the date the | ||
| collaborative family law participation agreement was signed or, if | ||
| the proceeding was filed by agreement after the collaborative | ||
| family law participation agreement was signed, on or before the | ||
| first anniversary of the date the proceeding was filed, accompanied | ||
| by a motion for continuance. | ||
| (d) The tribunal shall grant a motion for continuance filed | ||
| under Subsection (c)(2) if the status report indicates that the | ||
| parties desire to continue to use the collaborative family law | ||
| process. | ||
| (e) If the collaborative family law process does not result | ||
| in a settlement on or before the second anniversary of the date the | ||
| proceeding was filed, the tribunal may: | ||
| (1) set the proceeding for trial on the regular | ||
| docket; or | ||
| (2) dismiss the proceeding without prejudice. | ||
| (f) Each party shall file promptly with the tribunal notice | ||
| in a record when a collaborative family law process concludes. The | ||
| stay of the proceeding under Subsection (a) is lifted when the | ||
| notice is filed. The notice may not specify any reason for | ||
| termination of the process. | ||
| (g) A tribunal in which a proceeding is stayed under | ||
| Subsection (a) may require the parties and collaborative lawyers to | ||
| provide a status report on the collaborative family law process and | ||
| the proceeding. A status report: | ||
| (1) may include only information on whether the | ||
| process is ongoing or concluded; and | ||
| (2) may not include a report, assessment, evaluation, | ||
| recommendation, finding, or other communication regarding a | ||
| collaborative family law process or collaborative family law | ||
| matter. | ||
| (h) A tribunal may not consider a communication made in | ||
| violation of Subsection (g). | ||
| (i) A tribunal shall provide parties notice and an | ||
| opportunity to be heard before dismissing a proceeding based on | ||
| delay or failure to prosecute in which a notice of collaborative | ||
| family law process is filed. | ||
| Sec. 15.104. EMERGENCY ORDER. During a collaborative | ||
| family law process, a tribunal may issue an emergency order to | ||
| protect the health, safety, welfare, or interest of a party or a | ||
| family, as defined by Section 71.003. If the emergency order is | ||
| granted without the agreement of all parties, the granting of the | ||
| order terminates the collaborative process. | ||
| Sec. 15.105. EFFECT OF WRITTEN SETTLEMENT AGREEMENT. (a) A | ||
| settlement agreement under this chapter is enforceable in the same | ||
| manner as a written settlement agreement under Section 154.071, | ||
| Civil Practice and Remedies Code. | ||
| (b) Notwithstanding Rule 11, Texas Rules of Civil | ||
| Procedure, or another rule or law, a party is entitled to judgment | ||
| on a collaborative family law settlement agreement if the | ||
| agreement: | ||
| (1) provides, in a prominently displayed statement | ||
| that is in boldfaced type, capitalized, or underlined, that the | ||
| agreement is not subject to revocation; and | ||
| (2) is signed by each party to the agreement and the | ||
| collaborative lawyer of each party. | ||
| Sec. 15.106. DISQUALIFICATION OF COLLABORATIVE LAWYER AND | ||
| LAWYERS IN ASSOCIATED LAW FIRM; EXCEPTION. (a) In this section, | ||
| "family" has the meaning assigned by Section 71.003. | ||
| (b) Except as provided by Subsection (d), a collaborative | ||
| lawyer is disqualified from appearing before a tribunal to | ||
| represent a party in a proceeding related to the collaborative | ||
| family law matter regardless of whether the collaborative lawyer is | ||
| representing the party for a fee. | ||
| (c) Except as provided by Subsection (d) and Sections 15.107 | ||
| and 15.108, a lawyer in a law firm with which the collaborative | ||
| lawyer is associated is disqualified from appearing before a | ||
| tribunal to represent a party in a proceeding related to the | ||
| collaborative family law matter if the collaborative lawyer is | ||
| disqualified from doing so under Subsection (b). | ||
| (d) A collaborative lawyer or a lawyer in a law firm with | ||
| which the collaborative lawyer is associated may represent a party: | ||
| (1) to request a tribunal to approve an agreement | ||
| resulting from the collaborative family law process; or | ||
| (2) to seek or defend an emergency order to protect the | ||
| health, safety, welfare, or interest of a party or a family if a | ||
| successor lawyer is not immediately available to represent that | ||
| party. | ||
| (e) The exception prescribed by Subsection (d) does not | ||
| apply after the party is represented by a successor lawyer or | ||
| reasonable measures are taken to protect the health, safety, | ||
| welfare, or interest of that party or family. | ||
| Sec. 15.107. EXCEPTION FROM DISQUALIFICATION FOR | ||
| REPRESENTATION OF LOW-INCOME PARTIES. After a collaborative family | ||
| law process concludes, another lawyer in a law firm with which a | ||
| collaborative lawyer disqualified under Section 15.106(b) is | ||
| associated may represent a party without a fee in the collaborative | ||
| family law matter or a matter related to the collaborative family | ||
| law matter if: | ||
| (1) the party has an annual income that qualifies the | ||
| party for free legal representation under the criteria established | ||
| by the law firm for free legal representation; | ||
| (2) the collaborative family law participation | ||
| agreement authorizes that representation; and | ||
| (3) the collaborative lawyer is isolated from any | ||
| participation in the collaborative family law matter or a matter | ||
| related to the collaborative family law matter through procedures | ||
| within the law firm that are reasonably calculated to isolate the | ||
| collaborative lawyer from such participation. | ||
| Sec. 15.108. GOVERNMENTAL ENTITY AS PARTY. (a) In this | ||
| section, "governmental entity" has the meaning assigned by Section | ||
| 101.014. | ||
| (b) The disqualification prescribed by Section 15.106(b) | ||
| applies to a collaborative lawyer representing a party that is a | ||
| governmental entity. | ||
| (c) After a collaborative family law process concludes, | ||
| another lawyer in a law firm with which the collaborative lawyer is | ||
| associated may represent a governmental entity in the collaborative | ||
| family law matter or a matter related to the collaborative family | ||
| law matter if: | ||
| (1) the collaborative family law participation | ||
| agreement authorizes that representation; and | ||
| (2) the collaborative lawyer is isolated from any | ||
| participation in the collaborative family law matter or a matter | ||
| related to the collaborative family law matter through procedures | ||
| within the law firm that are reasonably calculated to isolate the | ||
| collaborative lawyer from such participation. | ||
| Sec. 15.109. DISCLOSURE OF INFORMATION. (a) Except as | ||
| provided by law other than this chapter, during the collaborative | ||
| family law process, on the request of another party, a party shall | ||
| make timely, full, candid, and informal disclosure of information | ||
| related to the collaborative matter without formal discovery. A | ||
| party shall update promptly any previously disclosed information | ||
| that has materially changed. | ||
| (b) The parties may define the scope of the disclosure under | ||
| Subsection (a) during the collaborative family law process. | ||
| Sec. 15.110. STANDARDS OF PROFESSIONAL RESPONSIBILITY AND | ||
| MANDATORY REPORTING NOT AFFECTED. This chapter does not affect: | ||
| (1) the professional responsibility obligations and | ||
| standards applicable to a lawyer or other licensed professional; or | ||
| (2) the obligation of a person under other law to | ||
| report abuse or neglect, abandonment, or exploitation of a child or | ||
| adult. | ||
| Sec. 15.111. INFORMED CONSENT. Before a prospective party | ||
| signs a collaborative family law participation agreement, a | ||
| prospective collaborative lawyer must: | ||
| (1) assess with the prospective party factors the | ||
| lawyer reasonably believes relate to whether a collaborative family | ||
| law process is appropriate for the prospective party's matter; | ||
| (2) provide the prospective party with information | ||
| that the lawyer reasonably believes is sufficient for the | ||
| prospective party to make an informed decision about the material | ||
| benefits and risks of a collaborative family law process as | ||
| compared to the material benefits and risks of other reasonably | ||
| available alternatives for resolving the proposed collaborative | ||
| matter, including litigation, mediation, arbitration, or expert | ||
| evaluation; and | ||
| (3) advise the prospective party that: | ||
| (A) after signing an agreement, if a party | ||
| initiates a proceeding or seeks tribunal intervention in a pending | ||
| proceeding related to the collaborative family law matter, the | ||
| collaborative family law process terminates; | ||
| (B) participation in a collaborative family law | ||
| process is voluntary and any party has the right to terminate | ||
| unilaterally a collaborative family law process with or without | ||
| cause; and | ||
| (C) the collaborative lawyer and any lawyer in a | ||
| law firm with which the collaborative lawyer is associated may not | ||
| appear before a tribunal to represent a party in a proceeding | ||
| related to the collaborative family law matter, except as | ||
| authorized by Section 15.106(d), 15.107(b), or 15.108(c). | ||
| Sec. 15.112. FAMILY VIOLENCE. (a) In this section: | ||
| (1) "Dating relationship" has the meaning assigned by | ||
| Section 77.0021(b). | ||
| (2) "Family violence" has the meaning assigned by | ||
| Section 71.004. | ||
| (3) "Household" has the meaning assigned by Section | ||
| 71.005. | ||
| (4) "Member of a household" has the meaning assigned | ||
| by Section 71.006. | ||
| (b) Before a prospective party signs a collaborative family | ||
| law participation agreement in a collaborative family law matter in | ||
| which another prospective party is a member of the prospective | ||
| party's family or household or with whom the prospective party has | ||
| or has had a dating relationship, a prospective collaborative | ||
| lawyer must make reasonable inquiry regarding whether the | ||
| prospective party has a history of family violence with the other | ||
| prospective party. | ||
| (c) If a collaborative lawyer reasonably believes that the | ||
| party the lawyer represents, or the prospective party with whom the | ||
| collaborative lawyer consults, as applicable, has a history of | ||
| family violence with another party or prospective party, the lawyer | ||
| may not begin or continue a collaborative family law process | ||
| unless: | ||
| (1) the party or prospective party requests beginning | ||
| or continuing a process; and | ||
| (2) the collaborative lawyer or prospective | ||
| collaborative lawyer determines with the party or prospective party | ||
| what, if any, reasonable steps could be taken to address the | ||
| concerns regarding family violence. | ||
| Sec. 15.113. CONFIDENTIALITY OF COLLABORATIVE FAMILY LAW | ||
| COMMUNICATION. (a) A collaborative family law communication is | ||
| confidential to the extent agreed to by the parties in a signed | ||
| record or as provided by law other than this chapter. | ||
| (b) If the parties agree in a signed record, the conduct and | ||
| demeanor of the parties and nonparty participants, including their | ||
| collaborative lawyers, are confidential. | ||
| (c) If the parties agree in a signed record, communications | ||
| related to the collaborative family law matter occurring before the | ||
| signing of the collaborative family law participation agreement are | ||
| confidential. | ||
| Sec. 15.114. PRIVILEGE AGAINST DISCLOSURE OF COLLABORATIVE | ||
| FAMILY LAW COMMUNICATION. (a) Except as provided by Section | ||
| 15.115, a collaborative family law communication, whether made | ||
| before or after the institution of a proceeding, is privileged and | ||
| not subject to disclosure and may not be used as evidence against a | ||
| party or nonparty participant in a proceeding. | ||
| (b) Any record of a collaborative family law communication | ||
| is privileged, and neither the parties nor the nonparty | ||
| participants may be required to testify in a proceeding related to | ||
| or arising out of the collaborative family law matter or be subject | ||
| to a process requiring disclosure of privileged information or data | ||
| related to the collaborative matter. | ||
| (c) An oral communication or written material used in or | ||
| made a part of a collaborative family law process is admissible or | ||
| discoverable if it is admissible or discoverable independent of the | ||
| collaborative family law process. | ||
| (d) If this section conflicts with other legal requirements | ||
| for disclosure of communications, records, or materials, the issue | ||
| of privilege may be presented to the tribunal having jurisdiction | ||
| of the proceeding to determine, in camera, whether the facts, | ||
| circumstances, and context of the communications or materials | ||
| sought to be disclosed warrant a protective order of the tribunal or | ||
| whether the communications or materials are subject to disclosure. | ||
| The presentation of the issue of privilege under this subsection | ||
| does not constitute a termination of the collaborative family law | ||
| process under Section 15.102(d)(2)(B). | ||
| (e) A party or nonparty participant may disclose privileged | ||
| collaborative family law communications to a party's successor | ||
| counsel, subject to the terms of confidentiality in the | ||
| collaborative family law participation agreement. Collaborative | ||
| family law communications disclosed under this subsection remain | ||
| privileged. | ||
| (f) A person who makes a disclosure or representation about | ||
| a collaborative family law communication that prejudices the rights | ||
| of a party or nonparty participant in a proceeding may not assert a | ||
| privilege under this section. The restriction provided by this | ||
| subsection applies only to the extent necessary for the person | ||
| prejudiced to respond to the disclosure or representation. | ||
| Sec. 15.115. LIMITS OF PRIVILEGE. (a) The privilege | ||
| prescribed by Section 15.114 does not apply to a collaborative | ||
| family law communication that is: | ||
| (1) in an agreement resulting from the collaborative | ||
| family law process, evidenced in a record signed by all parties to | ||
| the agreement; | ||
| (2) subject to an express waiver of the privilege in a | ||
| record or orally during a proceeding if the waiver is made by all | ||
| parties and nonparty participants; | ||
| (3) available to the public under Chapter 552, | ||
| Government Code, or made during a session of a collaborative family | ||
| law process that is open, or is required by law to be open, to the | ||
| public; | ||
| (4) a threat or statement of a plan to inflict bodily | ||
| injury or commit a crime of violence; | ||
| (5) a disclosure of a plan to commit or attempt to | ||
| commit a crime, or conceal an ongoing crime or ongoing criminal | ||
| activity; | ||
| (6) a disclosure in a report of: | ||
| (A) suspected abuse or neglect of a child to an | ||
| appropriate agency under Subchapter B, Chapter 261, or in a | ||
| proceeding regarding the abuse or neglect of a child, except that | ||
| evidence may be excluded in the case of communications between an | ||
| attorney and client under Subchapter C, Chapter 261; or | ||
| (B) abuse, neglect, or exploitation of an elderly | ||
| or disabled person to an appropriate agency under Subchapter B, | ||
| Chapter 48, Human Resources Code; or | ||
| (7) sought or offered to prove or disprove: | ||
| (A) a claim or complaint of professional | ||
| misconduct or malpractice arising from or related to a | ||
| collaborative family law process; | ||
| (B) an allegation that the settlement agreement | ||
| was procured by fraud, duress, coercion, or other dishonest means | ||
| or that terms of the settlement agreement are illegal; | ||
| (C) the necessity and reasonableness of | ||
| attorney's fees and related expenses incurred during a | ||
| collaborative family law process or to challenge or defend the | ||
| enforceability of the collaborative family law settlement | ||
| agreement; or | ||
| (D) a claim against a third person who did not | ||
| participate in the collaborative family law process. | ||
| (b) If a collaborative family law communication is subject | ||
| to an exception under Subsection (a), only the part of the | ||
| communication necessary for the application of the exception may be | ||
| disclosed or admitted. | ||
| (c) The disclosure or admission of evidence excepted from | ||
| the privilege under Subsection (a) does not make the evidence or any | ||
| other collaborative family law communication discoverable or | ||
| admissible for any other purpose. | ||
| Sec. 15.116. AUTHORITY OF TRIBUNAL IN CASE OF | ||
| NONCOMPLIANCE. (a) Notwithstanding that an agreement fails to | ||
| meet the requirements of Section 15.101 or that a lawyer has failed | ||
| to comply with Section 15.111 or 15.112, a tribunal may find that | ||
| the parties intended to enter into a collaborative family law | ||
| participation agreement if the parties: | ||
| (1) signed a record indicating an intent to enter into | ||
| a collaborative family law participation agreement; and | ||
| (2) reasonably believed the parties were | ||
| participating in a collaborative family law process. | ||
| (b) If a tribunal makes the findings specified in Subsection | ||
| (a) and determines that the interests of justice require the | ||
| following action, the tribunal may: | ||
| (1) enforce an agreement evidenced by a record | ||
| resulting from the process in which the parties participated; | ||
| (2) apply the disqualification provisions of Sections | ||
| 15.106, 15.107, and 15.108; and | ||
| (3) apply the collaborative family law privilege under | ||
| Section 15.114. | ||
| SECTION 2. Sections 6.603 and 153.0072, Family Code, are | ||
| repealed. | ||
| SECTION 3. Title 1-A, Family Code, as added by this Act, | ||
| applies only to a collaborative family law participation agreement | ||
| signed on or after the effective date of this Act. A collaborative | ||
| family law participation agreement signed before that date is | ||
| governed by the law in effect on the date the agreement was signed, | ||
| and the former law is continued in effect for that purpose. | ||
| SECTION 4. This Act takes effect September 1, 2011. | ||
| ______________________________ | ______________________________ | |
| President of the Senate | Speaker of the House | |
| I certify that H.B. No. 3833 was passed by the House on May | ||
| 13, 2011, by the following vote: Yeas 138, Nays 0, 1 present, not | ||
| voting. | ||
| ______________________________ | ||
| Chief Clerk of the House | ||
| I certify that H.B. No. 3833 was passed by the Senate on May | ||
| 24, 2011, by the following vote: Yeas 30, Nays 0. | ||
| ______________________________ | ||
| Secretary of the Senate | ||
| APPROVED: _____________________ | ||
| Date | ||
| _____________________ | ||
| Governor | ||
