By: Phillips (Senate Sponsor - Harris) H.B. No. 3833
(In the Senate - Received from the House May 16, 2011;
May 16, 2011, read first time and referred to Committee on
Jurisprudence; May 21, 2011, reported favorably by the following
vote: Yeas 5, Nays 0; May 21, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
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.
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