Bill Text: TX SB24 | 2023 | 88th Legislature 1st Special Session | Introduced
Bill Title: Relating to special appointments in suits affecting the parent-child relationship.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2023-06-19 - Filed [SB24 Detail]
Download: Texas-2023-SB24-Introduced.html
| By: Zaffirini | S.B. No. 24 | |
|
|
||
|
|
||
| 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. | ||
