Texas 2021 - 87th Regular

Texas House Bill HB852 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	By: Cook H.B. No. 852
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the powers, duties, and qualifications of an amicus
7	7	attorney in a suit affecting the parent-child relationship.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. The heading to Section 107.003, Family Code, is
10	10	amended to read as follows:
11	11	Sec. 107.003. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
12	12	CHILD [AND AMICUS ATTORNEY].
13	13	SECTION 2. Section 107.003(a), Family Code, is amended to
14	14	read as follows:
15	15	(a) An attorney ad litem appointed to represent a child [or
16	16	an amicus attorney appointed to assist the court]:
17	17	(1) shall:
18	18	(A) subject to Rules 4.02, 4.03, and 4.04, Texas
19	19	Disciplinary Rules of Professional Conduct, and within a reasonable
20	20	time after the appointment, interview:
21	21	(i) the child in a developmentally
22	22	appropriate manner, if the child is four years of age or older;
23	23	(ii) each person who has significant
24	24	knowledge of the child's history and condition, including any
25	25	foster parent of the child; and
26	26	(iii) the parties to the suit;
27	27	(B) seek to elicit in a developmentally
28	28	appropriate manner the child's expressed objectives of
29	29	representation;
30	30	(C) consider the impact on the child in
31	31	formulating the attorney's presentation of the child's expressed
32	32	objectives of representation to the court;
33	33	(D) investigate the facts of the case to the
34	34	extent the attorney considers appropriate;
35	35	(E) obtain and review copies of relevant records
36	36	relating to the child as provided by Section 107.006;
37	37	(F) participate in the conduct of the litigation
38	38	to the same extent as an attorney for a party;
39	39	(G) take any action consistent with the child's
40	40	interests that the attorney considers necessary to expedite the
41	41	proceedings;
42	42	(H) encourage settlement and the use of
43	43	alternative forms of dispute resolution; and
44	44	(I) review and sign, or decline to sign, a
45	45	proposed or agreed order affecting the child;
46	46	(2) must be trained in child advocacy or have
47	47	experience determined by the court to be equivalent to that
48	48	training; and
49	49	(3) is entitled to:
50	50	(A) request clarification from the court if the
51	51	role of the attorney is ambiguous;
52	52	(B) request a hearing or trial on the merits;
53	53	(C) consent or refuse to consent to an interview
54	54	of the child by another attorney;
55	55	(D) receive a copy of each pleading or other
56	56	paper filed with the court;
57	57	(E) receive notice of each hearing in the suit;
58	58	(F) participate in any case staffing concerning
59	59	the child conducted by the Department of Family and Protective
60	60	Services; and
61	61	(G) attend all legal proceedings in the suit.
62	62	SECTION 3. Section 107.005, Family Code, is amended to read
63	63	as follows:
64	64	Sec. 107.005. POWERS AND [ADDITIONAL] DUTIES OF AMICUS
65	65	ATTORNEY. (a) An attorney appointed as an amicus attorney:
66	66	(1) shall:
67	67	(A) perform the duties described by Sections
68	68	107.003(a)(1)(A) and (D)-(I);
69	69	(B) conduct a home visit of:
70	70	(i) any person who has the right of
71	71	possession of or access to the child; and
72	72	(ii) any party who is seeking possession of
73	73	or access to the child;
74	74	(C) on request by a party or the court:
75	75	(i) provide a copy of the amicus attorney's
76	76	entire case file to each party not later than the fifth business day
77	77	after the date of the request; and
78	78	(ii) prepare and file a written report
79	79	certifying the amicus attorney's compliance with the order
80	80	appointing the amicus attorney and this chapter not later than the
81	81	fifth business day after the date of the request;
82	82	(2) must certify to the court that the attorney:
83	83	(A) has completed at least four hours of
84	84	continuing legal education in the previous year specifically
85	85	related to domestic violence, developmentally appropriate
86	86	techniques to interview a child, and alternative dispute
87	87	resolution; or
88	88	(B) is certified in family law by the Texas Board
89	89	of Legal Specialization; and
90	90	(3) is entitled to perform the actions described by
91	91	Sections 107.003(a)(3)(B)-(G).
92	92	(a-1) Subject to any specific limitation in the order of
93	93	appointment, an amicus attorney shall advocate the best interests
94	94	of the child after reviewing the facts and circumstances of the
95	95	case. Notwithstanding Subsection (b), in determining the best
96	96	interests of the child, an amicus attorney is not bound by the
97	97	child's expressed objectives of representation.
98	98	(b) An amicus attorney shall, in a developmentally
99	99	appropriate manner:
100	100	(1) with the consent of the child, ensure that the
101	101	child's expressed objectives of representation are made known to
102	102	the court;
103	103	(2) explain the role of the amicus attorney to the
104	104	child; and
105	105	(3) inform the child that the amicus attorney may use
106	106	information that the child provides in providing assistance to the
107	107	court[; and
108	108	[(4) become familiar with the American Bar
109	109	Association's standards of practice for attorneys who represent
110	110	children in custody cases].
111	111	(c) The order appointing an [An] amicus attorney must
112	112	include:
113	113	(1) a list of any additional duties, other than the
114	114	duties under this chapter, required by the court to be completed by
115	115	the amicus attorney; and
116	116	(2) specific orders regarding the payment of the fees
117	117	and expenses of the amicus attorney.
118	118	(d) An amicus attorney may not at any hearing or trial
119	119	express an opinion or relate a recommendation to the court or to a
120	120	jury regarding the conservatorship of or the possession of or
121	121	access to the child who is the subject of the suit, or any issue
122	122	regarding a geographic restriction applicable to the child.
123	123	(e) Except as otherwise provided by Subsection (f), an
124	124	amicus attorney is subject to discovery in accordance with the
125	125	Texas Rules of Civil Procedure.
126	126	(f) The provision of services by an amicus attorney under
127	127	this chapter does not create an attorney-client relationship
128	128	between the attorney and any other party, and the amicus attorney
129	129	may be required to [not] disclose [confidential] communications
130	130	between the amicus attorney and the child and any work product
131	131	related to the case [unless the amicus attorney determines that
132	132	disclosure is necessary to assist the court regarding the best
133	133	interests of the child].
134	134	SECTION 4. Subchapter A, Chapter 107, Family Code, is
135	135	amended by adding Section 107.0051 to read as follows:
136	136	Sec. 107.0051. AMICUS ATTORNEY: CONFLICTS OF INTEREST AND
137	137	BIAS. (a) Before a person accepts appointment as an amicus
138	138	attorney in a suit, the person must disclose to the court, each
139	139	attorney for a party to the suit, and any party to the suit who does
140	140	not have an attorney:
141	141	(1) any conflict of interest that the person believes
142	142	the person has with the court, any party to the suit, or a child who
143	143	is the subject of the suit;
144	144	(2) any previous knowledge that the person has of a
145	145	party to the suit or a child who is the subject of the suit, other
146	146	than knowledge obtained in a court-ordered evaluation;
147	147	(3) any pecuniary relationship that the person
148	148	believes the person has with an attorney in the suit or the court;
149	149	(4) any fiduciary relationship that the person
150	150	believes the person has with an attorney in the suit or the court;
151	151	and
152	152	(5) any other information relating to the person's
153	153	relationship with an attorney in the suit or the court that a
154	154	reasonable, prudent person would believe would affect the ability
155	155	of the person to act impartially as an amicus attorney.
156	156	(b) The court may not appoint a person as an amicus attorney
157	157	in a suit if the person makes any of the disclosures in Subsection
158	158	(a) unless:
159	159	(1) the court finds that:
160	160	(A) the person has no conflict of interest with a
161	161	party to the suit, the court, or a child who is the subject of the
162	162	suit;
163	163	(B) the person's previous knowledge of a party to
164	164	the suit, the court, or a child who is the subject of the suit is not
165	165	relevant;
166	166	(C) the person does not have a pecuniary
167	167	relationship with an attorney in the suit or the court; and
168	168	(D) the person does not have a fiduciary
169	169	relationship with an attorney in the suit or the court; or
170	170	(2) the parties agree in writing to the person's
171	171	appointment as an amicus attorney.
172	172	(c) After being appointed as an amicus attorney in a suit, a
173	173	person shall immediately disclose to the court, each attorney for a
174	174	party to the suit, and any party to the suit who does not have an
175	175	attorney any discovery of the following unless previously
176	176	disclosed:
177	177	(1) a conflict of interest that the person believes
178	178	the person has with a party to the suit, the court, or a child who is
179	179	the subject of the suit;
180	180	(2) previous knowledge the person has of a party to the
181	181	suit, the court, or a child who is the subject of the suit, other
182	182	than knowledge obtained in a court-ordered evaluation; and
183	183	(3) a relationship that the person has with an
184	184	attorney in the suit who was hired or appointed after the person's
185	185	appointment as amicus attorney that would have been subject to
186	186	disclosure under Subsection (a).
187	187	(d) The court shall remove a person as amicus attorney in a
188	188	suit if the person makes any of the disclosures in Subsection (c)
189	189	unless:
190	190	(1) the court finds that:
191	191	(A) the person has no conflict of interest with a
192	192	party to the suit, the court, or a child who is the subject of the
193	193	suit;
194	194	(B) the person's previous knowledge of a party to
195	195	the suit, the court, or a child who is the subject of the suit is not
196	196	relevant; and
197	197	(C) the person has no pecuniary or fiduciary
198	198	relationship with an attorney in the suit who was hired or appointed
199	199	after the person's appointment as amicus attorney; or
200	200	(2) the parties agree in writing to the person's
201	201	continued appointment as an amicus attorney.
202	202	(e) A person who has a preexisting relationship with an
203	203	attorney of a party to the suit is not disqualified from being an
204	204	amicus attorney if the relationship was formed in a professional
205	205	setting such as service to the community or a bar association,
206	206	unless the relationship is prohibited under the Texas Rules of
207	207	Professional Conduct.
208	208	SECTION 5. Section 107.007(a), Family Code, is amended to
209	209	read as follows:
210	210	(a) An attorney ad litem or[,] an attorney serving in the
211	211	dual role[, or an amicus attorney] may not:
212	212	(1) be compelled to produce attorney work product
213	213	developed during the appointment as an attorney;
214	214	(2) be required to disclose the source of any
215	215	information;
216	216	(3) submit a report into evidence; or
217	217	(4) testify in court except as authorized by Rule
218	218	3.08, Texas Disciplinary Rules of Professional Conduct.
219	219	SECTION 6. The changes in law made by this Act apply only to
220	220	an amicus attorney appointed in a suit that is filed on or after the
221	221	effective date of this Act. An amicus attorney appointed in a suit
222	222	filed before the effective date of this Act is governed by the law
223	223	in effect on the date the suit was filed, and the former law is
224	224	continued in effect for that purpose.
225	225	SECTION 7. This Act takes effect September 1, 2021.