Texas 2023 - 88th Regular

Texas House Bill HB1544 Compare Versions

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1	1	88R6478 MLH-F
2	2	By: Cook H.B. No. 1544
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to special appointments in suits affecting the
8	8	parent-child relationship.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 107.001(1), Family Code, is amended to
11	11	read as follows:
12	12	(1) "Amicus attorney" means an attorney appointed by
13	13	the court in a suit, other than a suit filed by a governmental
14	14	entity, whose role is to provide legal services necessary to assist
15	15	the court in protecting a child's best interests rather than to
16	16	provide legal services to the child, including by acting as a
17	17	witness or making recommendations to the court.
18	18	SECTION 2. The heading to Section 107.003, Family Code, is
19	19	amended to read as follows:
20	20	Sec. 107.003. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
21	21	CHILD [AND AMICUS ATTORNEY].
22	22	SECTION 3. Section 107.003(a), Family Code, is amended to
23	23	read as follows:
24	24	(a) An attorney ad litem appointed to represent a child [or
25	25	an amicus attorney appointed to assist the court]:
26	26	(1) shall:
27	27	(A) subject to Rules 4.02, 4.03, and 4.04, Texas
28	28	Disciplinary Rules of Professional Conduct, and within a reasonable
29	29	time after the appointment, interview:
30	30	(i) the child in a developmentally
31	31	appropriate manner, if the child is four years of age or older;
32	32	(ii) each person who has significant
33	33	knowledge of the child's history and condition, including any
34	34	foster parent of the child; and
35	35	(iii) the parties to the suit;
36	36	(B) seek to elicit in a developmentally
37	37	appropriate manner the child's expressed objectives of
38	38	representation;
39	39	(C) consider the impact on the child in
40	40	formulating the attorney's presentation of the child's expressed
41	41	objectives of representation to the court;
42	42	(D) investigate the facts of the case to the
43	43	extent the attorney considers appropriate;
44	44	(E) obtain and review copies of relevant records
45	45	relating to the child as provided by Section 107.006;
46	46	(F) participate in the conduct of the litigation
47	47	to the same extent as an attorney for a party;
48	48	(G) take any action consistent with the child's
49	49	interests that the attorney considers necessary to expedite the
50	50	proceedings;
51	51	(H) encourage settlement and the use of
52	52	alternative forms of dispute resolution; and
53	53	(I) review and sign, or decline to sign, a
54	54	proposed or agreed order affecting the child;
55	55	(2) must be trained in child advocacy or have
56	56	experience determined by the court to be equivalent to that
57	57	training; and
58	58	(3) is entitled to:
59	59	(A) request clarification from the court if the
60	60	role of the attorney is ambiguous;
61	61	(B) request a hearing or trial on the merits;
62	62	(C) consent or refuse to consent to an interview
63	63	of the child by another attorney;
64	64	(D) receive a copy of each pleading or other
65	65	paper filed with the court;
66	66	(E) receive notice of each hearing in the suit;
67	67	(F) participate in any case staffing concerning
68	68	the child conducted by the Department of Family and Protective
69	69	Services; and
70	70	(G) attend all legal proceedings in the suit.
71	71	SECTION 4. Section 107.007(a), Family Code, is amended to
72	72	read as follows:
73	73	(a) An attorney ad litem or [,] an attorney serving in the
74	74	dual role[, or an amicus attorney] may not:
75	75	(1) be compelled to produce attorney work product
76	76	developed during the appointment as an attorney;
77	77	(2) be required to disclose the source of any
78	78	information;
79	79	(3) submit a report into evidence; or
80	80	(4) testify in court except as authorized by Rule
81	81	3.08, Texas Disciplinary Rules of Professional Conduct.
82	82	SECTION 5. Section 107.009, Family Code, is amended to read
83	83	as follows:
84	84	Sec. 107.009. IMMUNITY. (a) A guardian ad litem, [an
85	85	attorney ad litem,] a child custody evaluator, or an adoption
86	86	evaluator [amicus attorney] appointed under this chapter is not
87	87	liable for civil damages arising from an action taken, a
88	88	recommendation made, or an opinion given in the capacity of
89	89	guardian ad litem, [attorney ad litem,] child custody evaluator, or
90	90	adoption evaluator [amicus attorney].
91	91	(a-1) An attorney ad litem or amicus attorney appointed
92	92	under this chapter is not liable for civil damages arising from an
93	93	action taken in the capacity of attorney ad litem or amicus
94	94	attorney.
95	95	(b) Subsections [Subsection] (a) and (a-1) do [does] not
96	96	apply to an action taken, a recommendation made, or an opinion
97	97	given:
98	98	(1) with conscious indifference or reckless disregard
99	99	to the safety of another;
100	100	(2) in bad faith or with malice; or
101	101	(3) that is grossly negligent or wilfully wrongful.
102	102	SECTION 6. Sections 107.021(a) and (a-1), Family Code, are
103	103	amended to read as follows:
104	104	(a) In a suit in which the best interests of a child are at
105	105	issue, other than a suit filed by a governmental entity requesting
106	106	termination of the parent-child relationship or appointment of the
107	107	entity as conservator of the child, the court may appoint [one of
108	108	the following:
109	109	[(1) an amicus attorney;
110	110	[(2)] an attorney ad litem[;] or
111	111	[(3) a] guardian ad litem.
112	112	(a-1) In a suit requesting termination of the parent-child
113	113	relationship that is not filed by a governmental entity, the court
114	114	shall, unless the court finds that the interests of the child will
115	115	be represented adequately by a party to the suit whose interests are
116	116	not in conflict with the child's interests, appoint [one of the
117	117	following:
118	118	[(1) an amicus attorney; or
119	119	[(2)] an attorney ad litem.
120	120	SECTION 7. Part 2, Subchapter B, Chapter 107, Family Code,
121	121	is amended by adding Sections 107.024, 107.0245, 107.025, 107.0255,
122	122	107.026, 107.0265, 107.027, and 107.0275 to read as follows:
123	123	Sec. 107.024. APPOINTMENT OF AMICUS ATTORNEY. (a) The
124	124	court, after notice and hearing or on agreement of the parties, may
125	125	appoint an amicus attorney in a suit.
126	126	(b) In determining whether to make an appointment under this
127	127	section, the court:
128	128	(1) shall:
129	129	(A) give due consideration to the ability of the
130	130	parties to pay reasonable fees to the amicus attorney; and
131	131	(B) balance the child's interests against the
132	132	cost to the parties that would result from an appointment by taking
133	133	into consideration the cost of available alternatives for resolving
134	134	issues without making an appointment;
135	135	(2) may make an appointment only if the court finds
136	136	that the appointment is necessary to ensure the determination of
137	137	the best interests of the child, unless the appointment is
138	138	otherwise required by this code; and
139	139	(3) may not require an amicus attorney appointed under
140	140	this section to serve without reasonable compensation for the
141	141	services rendered by the amicus attorney.
142	142	(c) An amicus attorney appointed under this section must be
143	143	qualified under Section 107.0245 or 107.025.
144	144	(d) An order appointing an amicus attorney under this
145	145	section must include:
146	146	(1) the name, bar number, address, telephone number,
147	147	and e-mail address of the appointed amicus attorney;
148	148	(2) the scope of the amicus attorney's role;
149	149	(3) a list of the duties of an amicus attorney,
150	150	including duties under Section 107.0265(c)(1);
151	151	(4) any other specific tasks requested by the court;
152	152	and
153	153	(5) specific provisions for payment of the amicus
154	154	attorney, including a retainer or cost deposit.
155	155	(e) If a party to or child subject to a suit does not speak
156	156	English as the party's or child's primary language, the court shall
157	157	ensure that the amicus attorney:
158	158	(1) is able to effectively communicate in the party's
159	159	or child's primary language; or
160	160	(2) will be assisted by a licensed or certified
161	161	interpreter.
162	162	(f) A licensed or certified interpreter assisting an amicus
163	163	attorney under Subsection (e)(2) may accompany the amicus attorney
164	164	in person or assist through use of audio or video conferencing
165	165	technology.
166	166	(g) The court may require the parties to pay any costs
167	167	associated with obtaining assistance from a licensed or certified
168	168	interpreter under Subsection (e)(2).
169	169	Sec. 107.0245. AMICUS ATTORNEY; MINIMUM QUALIFICATIONS.
170	170	(a) To be qualified to serve as an amicus attorney, an individual
171	171	must:
172	172	(1) be an attorney:
173	173	(A) who:
174	174	(i) is licensed to practice law in this
175	175	state and in good standing with the State Bar of Texas;
176	176	(ii) has practiced law for at least two
177	177	years; and
178	178	(iii) is trained in child advocacy or found
179	179	by the court to have experience equivalent to training in child
180	180	advocacy; or
181	181	(B) who is certified by the Texas Board of Legal
182	182	Specialization in family law or child welfare law;
183	183	(2) in the four years preceding the appointment, have
184	184	completed not less than a total of four hours of continuing legal
185	185	education from one or more of the following subject areas:
186	186	(A) domestic violence;
187	187	(B) techniques for interviewing a child in a
188	188	developmentally appropriate manner; or
189	189	(C) alternative dispute resolution; and
190	190	(3) if appropriate due to the nature of the
191	191	appointment, be familiar with the American Bar Association's
192	192	standards of practice for attorneys who represent children in
193	193	custody cases.
194	194	(b) The court shall determine whether a prospective amicus
195	195	attorney meets the qualifications of this section.
196	196	(c) On the request of the court, a prospective amicus
197	197	attorney must demonstrate appropriate knowledge and competence
198	198	consistent with professional models, standards, and guidelines.
199	199	Sec. 107.025. EXCEPTION TO QUALIFICATIONS REQUIRED TO SERVE
200	200	AS AMICUS ATTORNEY IN CERTAIN COUNTIES. (a) This section applies
201	201	only to a county with a population of less than 500,000.
202	202	(b) If a court finds that an individual qualified to serve
203	203	as an amicus attorney under Section 107.0245 is not available in the
204	204	county to serve as an amicus attorney, the court may, after notice
205	205	and hearing or on agreement of the parties, appoint an amicus
206	206	attorney the court determines to be otherwise qualified to serve.
207	207	Sec. 107.0255. AMICUS ATTORNEY; CONFLICTS OF INTEREST AND
208	208	BIAS. (a) Before a person accepts appointment as an amicus
209	209	attorney in a suit, the person must disclose to the court, each
210	210	attorney for a party to the suit, and any party to the suit who does
211	211	not have an attorney:
212	212	(1) any conflict of interest that the person believes
213	213	the person has with the court, any party to the suit, or a child who
214	214	is the subject of the suit;
215	215	(2) any previous knowledge that the person has of a
216	216	party to the suit or a child who is the subject of the suit, other
217	217	than knowledge obtained in a court-ordered evaluation;
218	218	(3) any pecuniary relationship that the person
219	219	believes the person has with an attorney in the suit or the court;
220	220	(4) any fiduciary relationship that the person
221	221	believes the person has with an attorney in the suit or the court;
222	222	(5) any conflict of interest that the person believes
223	223	the person has with another person participating or expected to
224	224	participate in the suit in a professional capacity; and
225	225	(6) any other information relating to the person's
226	226	relationship with an attorney in the suit or the court that a
227	227	reasonable, prudent person would believe would affect the ability
228	228	of the person to act impartially as an amicus attorney.
229	229	(b) The court may not appoint a person as an amicus attorney
230	230	in a suit if the person makes any of the disclosures in Subsection
231	231	(a) unless:
232	232	(1) the court finds, after notice and a hearing, that:
233	233	(A) the person has no conflict of interest with a
234	234	party to the suit, the court, or a child who is the subject of the
235	235	suit;
236	236	(B) the person's previous knowledge of a party to
237	237	the suit, the court, or a child who is the subject of the suit is not
238	238	relevant;
239	239	(C) the person does not have a pecuniary
240	240	relationship with an attorney in the suit or the court; and
241	241	(D) the person does not have a fiduciary
242	242	relationship with an attorney in the suit or the court; or
243	243	(2) the parties agree in writing to the person's
244	244	appointment as an amicus attorney.
245	245	(c) After being appointed as an amicus attorney in a suit, a
246	246	person shall immediately disclose to the court, each attorney for a
247	247	party to the suit, and any party to the suit who does not have an
248	248	attorney any discovery of the following unless previously
249	249	disclosed:
250	250	(1) a conflict of interest that the person believes
251	251	the person has with a party to the suit, the court, or a child who is
252	252	the subject of the suit;
253	253	(2) previous knowledge the person has of a party to the
254	254	suit, the court, or a child who is the subject of the suit, other
255	255	than knowledge obtained in a court-ordered evaluation;
256	256	(3) a relationship that the person has with an
257	257	attorney in the suit who was hired or appointed after the person's
258	258	appointment as amicus attorney that would have been subject to
259	259	disclosure under Subsection (a); and
260	260	(4) any conflict of interest that the person believes
261	261	the person has with another person who participates in the suit in a
262	262	professional capacity.
263	263	(d) The court shall remove a person as amicus attorney in a
264	264	suit if the person makes any of the disclosures in Subsection (c)
265	265	unless:
266	266	(1) the court finds, after notice and a hearing, that,
267	267	as applicable:
268	268	(A) the person has no conflict of interest with a
269	269	party to the suit, the court, or a child who is the subject of the
270	270	suit;
271	271	(B) the person's previous knowledge of a party to
272	272	the suit, the court, or a child who is the subject of the suit is not
273	273	relevant;
274	274	(C) the person has no pecuniary or fiduciary
275	275	relationship with an attorney in the suit who was hired or appointed
276	276	after the person's appointment as amicus attorney; or
277	277	(D) the person has no conflict of interest with
278	278	another person who participates in the suit in a professional
279	279	capacity; or
280	280	(2) the parties agree in writing to the person's
281	281	continued appointment as an amicus attorney.
282	282	(e) A person who has a preexisting relationship with an
283	283	attorney for a party to the suit or a professional participating in
284	284	the suit is not disqualified from being an amicus attorney if the
285	285	relationship was formed in a professional setting such as service
286	286	to the community or a bar association.
287	287	Sec. 107.026. AMICUS ATTORNEY STANDARD OF CARE. (a) Except
288	288	as provided by this title, an amicus attorney is subject to the
289	289	professional standards of care and ethical standards necessary to
290	290	remain in good standing with the State Bar of Texas.
291	291	(b) A court may impose requirements or adopt local rules
292	292	applicable to an amicus attorney that do not conflict with this
293	293	subchapter.
294	294	Sec. 107.0265. POWERS AND DUTIES OF AMICUS ATTORNEY. (a)
295	295	Subject to specific limitations given in an order of appointment
296	296	under Section 107.024, an amicus attorney's primary duty is to:
297	297	(1) review the facts and circumstances of the case;
298	298	and
299	299	(2) advocate the best interests of a child who is the
300	300	subject of the suit.
301	301	(b) In performing the duties under Subsection (a), an amicus
302	302	attorney is not bound by the expressed objectives of a child who is
303	303	the subject of the suit.
304	304	(c) An amicus attorney appointed to assist the court:
305	305	(1) shall:
306	306	(A) subject to Rules 4.02, 4.03, and 4.04, Texas
307	307	Disciplinary Rules of Professional Conduct, and within a reasonable
308	308	time after the appointment, interview:
309	309	(i) the child in a developmentally
310	310	appropriate manner, if the child is four years of age or older;
311	311	(ii) each person who has significant
312	312	knowledge of the child's history and condition, including any
313	313	foster parent of the child; and
314	314	(iii) the parties to the suit;
315	315	(B) seek to elicit and assess the child's view in
316	316	a developmentally appropriate manner;
317	317	(C) consider the impact on the child in
318	318	formulating the attorney's presentation of the child's expressed
319	319	objectives of representation to the court;
320	320	(D) investigate the facts of the case to the
321	321	extent the attorney considers appropriate;
322	322	(E) obtain and review copies of relevant records
323	323	relating to the child as provided by Section 107.006;
324	324	(F) participate in the conduct of the litigation
325	325	to the same extent as an attorney for a party;
326	326	(G) take any action consistent with the child's
327	327	interests that the attorney considers necessary to expedite the
328	328	proceedings;
329	329	(H) encourage settlement and the use of
330	330	alternative forms of dispute resolution;
331	331	(I) review and sign, or decline to sign, a
332	332	proposed or agreed order affecting the child;
333	333	(J) on the request of any party, disclose the
334	334	name, address, and phone number of each person interviewed or
335	335	consulted; and
336	336	(K) on the request of any party, make available
337	337	documents obtained by the amicus attorney for copying;
338	338	(2) may be required by the court to perform additional
339	339	tasks, including:
340	340	(A) conducting additional interviews with each
341	341	child who is the subject of the suit to:
342	342	(i) ensure balanced and impartial
343	343	representation by the amicus attorney; and
344	344	(ii) observe each child while in the care of
345	345	each party to the suit;
346	346	(B) interviewing other individuals, including,
347	347	at the discretion of the amicus attorney, a child who:
348	348	(i) is not less than four years of age; and
349	349	(ii) resides part-time or full-time in a
350	350	residence where a child who is the subject of the suit resides
351	351	part-time or full-time;
352	352	(C) visiting the residence of each party seeking
353	353	conservatorship or possession of or access to a child who is the
354	354	subject of the suit; or
355	355	(D) reviewing any information the court
356	356	determines is relevant; and
357	357	(3) is entitled to:
358	358	(A) request clarification from the court if the
359	359	role of the amicus attorney is ambiguous;
360	360	(B) request a hearing or trial on the merits;
361	361	(C) consent or refuse to consent to an interview
362	362	of the child by another attorney;
363	363	(D) receive a copy of each pleading or other
364	364	paper filed with the court;
365	365	(E) receive notice of each hearing in the suit;
366	366	(F) participate in any case staffing concerning
367	367	the child conducted by the Department of Family and Protective
368	368	Services;
369	369	(G) attend all legal proceedings in the suit; and
370	370	(H) make arguments during legal proceedings,
371	371	including:
372	372	(i) summarizing evidence; and
373	373	(ii) suggesting reasonable inferences and
374	374	deductions drawn from the evidence.
375	375	(d) In preparing for and conducting an interview with a
376	376	child, an amicus attorney shall:
377	377	(1) explain the role of an amicus attorney to the child
378	378	in a developmentally appropriate manner;
379	379	(2) inform the child in a developmentally appropriate
380	380	manner that the amicus attorney may use information the child
381	381	provides in assisting the court; and
382	382	(3) become familiar with the American Bar
383	383	Association's standards of practice for attorneys who represent
384	384	children in custody cases.
385	385	(e) The disclosure required by Subsections (c)(1)(J) and
386	386	(K):
387	387	(1) shall not be construed to require disclosure of an
388	388	amicus attorney's notes or attorney work product; and
389	389	(2) is subject to supplementation under Rule 193.5,
390	390	Texas Rules of Civil Procedure.
391	391	Sec. 107.027. LIMITATIONS ON AMICUS ATTORNEY POWERS. (a)
392	392	An amicus attorney may not:
393	393	(1) offer an opinion regarding conservatorship or
394	394	possession of or access to a child subject to a suit;
395	395	(2) engage in ex parte communications with the court;
396	396	(3) be compelled to produce attorney work product
397	397	developed during the appointment as an amicus attorney;
398	398	(4) except as required under Section
399	399	107.0265(c)(1)(J) or (K), be required to disclose the source of any
400	400	information;
401	401	(5) submit a report into evidence; or
402	402	(6) testify in court, except:
403	403	(A) as authorized under Rule 3.08, Texas
404	404	Disciplinary Rules of Professional Conduct; or
405	405	(B) as necessary for the court to make a
406	406	determination relating to the qualifications, conflicts of
407	407	interest, bias, or removal of the amicus attorney.
408	408	(b) Subsection (a) does not apply to the duty of an attorney
409	409	to report child abuse or neglect under Section 261.101.
410	410	Sec. 107.0275. REMOVAL OF AMICUS ATTORNEY. The court:
411	411	(1) may remove an amicus attorney if the parties agree
412	412	to the removal; and
413	413	(2) shall remove an amicus attorney if, after notice
414	414	and hearing, the court finds that the amicus attorney:
415	415	(A) does not have the minimum qualifications to
416	416	serve as an amicus attorney under Section 107.0245 or 107.025;
417	417	(B) has a conflict of interest or bias under
418	418	Section 107.0255(a) that is not exempted under that section;
419	419	(C) fails to perform duties under Section
420	420	107.0265 or ordered by the court;
421	421	(D) violates a standard of care under Section
422	422	107.026; or
423	423	(E) requests to be removed because a party to the
424	424	suit has prevented the amicus attorney from fulfilling the duties
425	425	of the amicus attorney.
426	426	SECTION 8. Section 107.005, Family Code, is repealed.
427	427	SECTION 9. The changes in law made by this Act apply only to
428	428	a suit affecting the parent-child relationship that is filed on or
429	429	after the effective date of this Act. A suit affecting the
430	430	parent-child relationship filed before the effective date of this
431	431	Act is governed by the law in effect on the date the suit was filed,
432	432	and the former law is continued in effect for that purpose.
433	433	SECTION 10. This Act takes effect September 1, 2023.