By: Thompson of Harris (Senate Sponsor - Garcia) H.B. No. 3003
(In the Senate - Received from the House May 4, 2015;
May 4, 2015, read first time and referred to Committee on State
Affairs; May 12, 2015, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
May 12, 2015, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 3003 By: Zaffirini
A BILL TO BE ENTITLED
AN ACT
relating to the appointment of counsel in certain suits affecting
the parent-child relationship.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 107, Family Code, is amended by adding
Subchapters E and F to read as follows:
SUBCHAPTER E. OFFICE OF CHILD REPRESENTATION AND OFFICE OF PARENT
REPRESENTATION
Sec. 107.061. DEFINITION. In this subchapter,
"governmental entity" includes a county, a group of counties, a
department of a county, an administrative judicial region created
by Section 74.042, Government Code, and any entity created under
the Interlocal Cooperation Act as permitted by Chapter 791,
Government Code.
Sec. 107.062. APPLICABILITY. This subchapter applies to a
suit filed by a governmental entity seeking termination of the
parent-child relationship or the appointment of a conservator for a
child in which appointment of an attorney is required under Section
107.012 or 107.013.
Sec. 107.063. NONPROFIT FUNDING. This subchapter does not
limit or prevent a nonprofit corporation from receiving and using
money obtained from other entities to provide legal representation
and services as authorized by this subchapter.
Sec. 107.064. OFFICE OF CHILD REPRESENTATION. An office of
child representation is an entity that uses public money to provide
legal representation and services for a child in a suit filed by a
governmental entity seeking termination of the parent-child
relationship or the appointment of a conservator for the child in
which appointment is mandatory for a child under Section 107.012.
Sec. 107.065. OFFICE OF PARENT REPRESENTATION. An office of
parent representation is an entity that uses public money to
provide legal representation and services for a parent in a suit
filed by a governmental entity seeking termination of the
parent-child relationship or the appointment of a conservator for a
child in which appointment is mandatory for a parent under Section
107.013.
Sec. 107.066. CREATION OF OFFICE OF CHILD REPRESENTATION OR
OFFICE OF PARENT REPRESENTATION. (a) An office described by
Section 107.064 or 107.065 may be a governmental entity or a
nonprofit corporation operating under a written agreement with a
governmental entity, other than an individual judge or court.
(b) The commissioners court of any county, on written
approval of a judge of a statutory county court or a district court
having family law jurisdiction in the county, may create an office
of child representation, an office of parent representation, or
both offices by establishing a department of the county or
designating under a contract a nonprofit corporation to perform the
duties of an office.
(c) The commissioners courts of two or more counties may
enter into a written agreement to jointly create and jointly fund a
regional office of child representation, a regional office of
parent representation, or both regional offices.
(d) In creating an office of child representation or office
of parent representation under this section, the commissioners
court shall specify or the commissioners courts shall jointly
specify, as applicable:
(1) the duties of the office;
(2) the types of cases to which the office may be
appointed under this chapter and the courts in which an attorney
employed by the office may be required to appear;
(3) if the office is a nonprofit corporation, the term
during which the contract designating the office is effective and
how that contract may be renewed on expiration of the term; and
(4) if an oversight board is established under Section
107.072 for the office, the powers and duties that have been
delegated to the oversight board.
Sec. 107.067. NONPROFIT AS OFFICE. (a) Before contracting
with a nonprofit corporation to serve as an office of child
representation or office of parent representation, the
commissioners court or commissioners courts, as applicable, must
solicit proposals for the office.
(b) After considering each proposal for an office of child
representation or office of parent representation submitted by a
nonprofit corporation, the commissioners court or commissioners
courts, as applicable, shall select a proposal that reasonably
demonstrates that the office will provide adequate quality
representation for children for whom appointed counsel is required
under Section 107.012 or for parents for whom appointed counsel is
required under Section 107.013, as applicable.
(c) The total cost of the proposal may not be the sole
consideration in selecting a proposal.
Sec. 107.068. PLAN OF OPERATION FOR OFFICE. The applicable
commissioners court or commissioners courts shall require a written
plan of operation from an entity serving as an office of child
representation or office of parent representation. The plan must
include:
(1) a budget for the office, including salaries;
(2) a description of each personnel position,
including the chief counsel position;
(3) the maximum allowable caseloads for each attorney
employed by the office;
(4) provisions for training personnel and attorneys
employed by the office;
(5) a description of anticipated overhead costs for
the office;
(6) policies regarding the use of licensed
investigators and expert witnesses by the office; and
(7) a policy to ensure that the chief of the office and
other attorneys employed by the office do not provide
representation to a child, a parent, or an alleged father, as
applicable, if doing so would create a conflict of interest.
Sec. 107.069. OFFICE PERSONNEL. (a) An office of child
representation or office of parent representation must be directed
by a chief counsel who:
(1) is a member of the State Bar of Texas;
(2) has practiced law for at least three years; and
(3) has substantial experience in the practice of
child welfare law.
(b) An office of child representation or office of parent
representation may employ attorneys, licensed investigators,
licensed social workers, and other personnel necessary to perform
the duties of the office as specified by the commissioners court or
commissioners courts.
(c) An attorney for the office of child representation or
office of parent representation must comply with any applicable
continuing education and training requirements of Sections 107.004
and 107.0131 before accepting representation.
(d) Except as authorized by this chapter, the chief counsel
and other attorneys employed by an office of child representation
or office of parent representation may not:
(1) engage in the private practice of child welfare
law; or
(2) accept anything of value not authorized by this
chapter for services rendered under this chapter.
(e) A judge may remove from a case a person who violates
Subsection (d).
Sec. 107.070. APPOINTMENTS IN COUNTY IN WHICH OFFICE
CREATED. (a) If there is an office of child representation or
office of parent representation serving a county, a court in that
county shall appoint for a child or parent, as applicable, an
attorney from the office in a suit filed in the county by a
governmental entity seeking termination of the parent-child
relationship or the appointment of a conservator for the child,
unless there is a conflict of interest or other reason to appoint a
different attorney from the list maintained by the court of
attorneys qualified for appointment under Section 107.012 or
107.013.
(b) An office of child representation or office of parent
representation may not accept an appointment if:
(1) a conflict of interest exists;
(2) the office has insufficient resources to provide
adequate representation;
(3) the office is incapable of providing
representation in accordance with the rules of professional
conduct;
(4) the appointment would require one or more
attorneys at the office to have a caseload that exceeds the maximum
allowable caseload; or
(5) the office shows other good cause for not
accepting the appointment.
(c) An office of parent representation may investigate the
financial condition of any person the office is appointed to
represent under Section 107.013. The office shall report the
results of the investigation to the appointing judge. The judge may
hold a hearing to determine if the person is indigent and entitled
to appointment of representation under Section 107.013.
(d) If it is necessary to appoint an attorney who is not
employed by an office of child representation or office of parent
representation for one or more parties, the attorney is entitled to
the compensation provided by Section 107.015.
Sec. 107.071. FUNDING OF OFFICE. An office of child
representation or office of parent representation is entitled to
receive money for personnel costs and expenses incurred in
operating as an office in amounts set by the commissioners court and
paid out of the appropriate county fund, or jointly fixed by the
commissioners courts and proportionately paid out of each
appropriate county fund if the office serves more than one county.
Sec. 107.072. OVERSIGHT BOARD. (a) The commissioners court
of a county or the commissioners courts of two or more counties may
establish an oversight board for an office of child representation
or office of parent representation created in accordance with this
subchapter.
(b) A commissioners court that establishes an oversight
board under this section shall appoint members of the board.
Members may include one or more of the following:
(1) an attorney with substantial experience in child
welfare law;
(2) the judge of a trial court having family law
jurisdiction in the county or counties for which the office was
created;
(3) a county commissioner; and
(4) a county judge.
(c) A commissioners court may delegate to the oversight
board any power or duty of the commissioners court to provide
oversight of an office of child representation or office of parent
representation under this subchapter, including:
(1) recommending selection and removal of a chief
counsel of the office;
(2) setting policy for the office; and
(3) developing a budget proposal for the office.
(d) An oversight board established under this section may
not access privileged or confidential information.
(e) A judge who serves on an oversight board under this
section has judicial immunity in a suit arising from the
performance of a power or duty described by Subsection (c).
SUBCHAPTER F. MANAGED ASSIGNED COUNSEL PROGRAM FOR THE
REPRESENTATION OF CERTAIN CHILDREN AND PARENTS
Sec. 107.101. DEFINITIONS. In this subchapter:
(1) "Governmental entity" includes a county, a group
of counties, a department of a county, an administrative judicial
region created by Section 74.042, Government Code, and any entity
created under the Interlocal Cooperation Act as permitted by
Chapter 791, Government Code.
(2) "Program" means a managed assigned counsel program
created under this subchapter.
Sec. 107.102. MANAGED ASSIGNED COUNSEL PROGRAM. (a) A
managed assigned counsel program may be operated with public money
for the purpose of appointing counsel to provide legal
representation and services for a child or parent in a suit filed by
a governmental entity seeking termination of the parent-child
relationship or the appointment of a conservator for the child in
which appointment is mandatory for a child under Section 107.012 or
for a parent under Section 107.013.
(b) The program may be operated by a governmental entity,
nonprofit corporation, or local bar association under a written
agreement with a governmental entity, other than an individual
judge or court.
Sec. 107.103. CREATION OF MANAGED ASSIGNED COUNSEL PROGRAM.
(a) The commissioners court of a county, on written approval of a
judge of a statutory county court or a district court having family
law jurisdiction in the county, may appoint a governmental entity,
nonprofit corporation, or local bar association to operate a
managed assigned counsel program for the legal representation of:
(1) a child in a suit in which appointment is mandatory
under Section 107.012; or
(2) a parent in a suit in which appointment is
mandatory under Section 107.013.
(b) The commissioners courts of two or more counties may
enter into a written agreement to jointly appoint and fund a
governmental entity, nonprofit corporation, or bar association to
operate a program that provides legal representation for children,
parents, or both children and parents.
(c) In appointing an entity to operate a program under this
subchapter, the commissioners court shall specify or the
commissioners courts shall jointly specify:
(1) the types of cases in which the program may appoint
counsel under this section, and the courts in which the counsel
appointed by the program may be required to appear; and
(2) the term of any agreement establishing a program
and how the agreement may be terminated or renewed.
Sec. 107.104. PLAN FOR PROGRAM REQUIRED. The commissioners
court or commissioners courts shall require a written plan of
operation from an entity operating a program under this subchapter.
The plan of operation must include:
(1) a budget for the program, including salaries;
(2) a description of each personnel position,
including the program's director;
(3) the maximum allowable caseload for each attorney
appointed under the program;
(4) provisions for training personnel of the program
and attorneys appointed under the program;
(5) a description of anticipated overhead costs for
the program;
(6) a policy regarding licensed investigators and
expert witnesses used by attorneys appointed under the program;
(7) a policy to ensure that appointments are
reasonably and impartially allocated among qualified attorneys;
and
(8) a policy to ensure that an attorney appointed
under the program does not accept appointment in a case that
involves a conflict of interest for the attorney.
Sec. 107.105. PROGRAM DIRECTOR; PERSONNEL. (a) Unless a
program uses a review committee appointed under Section 107.106, a
program under this subchapter must be directed by a person who:
(1) is a member of the State Bar of Texas;
(2) has practiced law for at least three years; and
(3) has substantial experience in the practice of
child welfare law.
(b) A program may employ personnel necessary to perform the
duties of the program and enter into contracts necessary to perform
the program's duties as specified by the commissioners court or
commissioners courts under this subchapter.
Sec. 107.106. REVIEW COMMITTEE. (a) The governmental
entity, nonprofit corporation, or local bar association operating a
program may appoint a review committee of three or more individuals
to approve attorneys for inclusion on the program's public
appointment list.
(b) Each member of the committee:
(1) must meet the requirements described by Section
107.105(a) for the program director;
(2) may not be employed as a prosecutor; and
(3) may not be included on or apply for inclusion on
the public appointment list.
Sec. 107.107. APPOINTMENT FROM PROGRAM'S PUBLIC APPOINTMENT
LIST. (a) The judge of a county served by a program shall make any
appointment required under Section 107.012 or 107.013 in a suit
filed in the county by a governmental entity seeking termination of
the parent-child relationship or the appointment of a conservator
for the child from the program's public appointment list, unless
there is a conflict of interest or other reason to appoint a
different attorney from the list maintained by the court of
attorneys qualified for appointment under Section 107.012 or
107.013.
(b) The program's public appointment list from which an
attorney is appointed under this section must contain the names of
qualified attorneys, each of whom:
(1) applies to be included on the list;
(2) meets any applicable requirements, including any
education and training programs required under Sections 107.004 and
107.0131; and
(3) is approved by the program director or review
committee, as applicable.
Sec. 107.108. FUNDING OF PROGRAM. (a) A program is entitled
to receive money for personnel costs and expenses incurred in
amounts set by the commissioners court and paid out of the
appropriate county fund or jointly fixed by the commissioners
courts and proportionately paid out of each appropriate county fund
if the program serves more than one county.
(b) An attorney appointed under the program is entitled to
reasonable fees as provided by Section 107.015.
SECTION 2. This Act takes effect September 1, 2015.
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