Texas 2023 - 88th Regular

Texas Senate Bill SB2277 Compare Versions

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Version 2 (New)

Old	New	Differences
1	1	S.B. No. 2277
2	2
3	3
4	4	AN ACT
5	5	relating to special appointments in suits affecting the
6	6	parent-child relationship.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Section 107.001(1), Family Code, is amended to
9	9	read as follows:
10	10	(1) "Amicus attorney" means an attorney appointed by
11	11	the court in a suit, other than a suit filed by a governmental
12	12	entity, whose role is to provide legal services necessary to assist
13	13	the court in protecting a child's best interests rather than to
14	14	provide legal services to the child, including by acting as a
15	15	witness or making recommendations to the court.
16	16	SECTION 2. The heading to Section 107.003, Family Code, is
17	17	amended to read as follows:
18	18	Sec. 107.003. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
19	19	CHILD [AND AMICUS ATTORNEY].
20	20	SECTION 3. Section 107.003(a), Family Code, is amended to
21	21	read as follows:
22	22	(a) An attorney ad litem appointed to represent a child [or
23	23	an amicus attorney appointed to assist the court]:
24	24	(1) shall:
25	25	(A) subject to Rules 4.02, 4.03, and 4.04, Texas
26	26	Disciplinary Rules of Professional Conduct, and within a reasonable
27	27	time after the appointment, interview:
28	28	(i) the child in a developmentally
29	29	appropriate manner, if the child is four years of age or older;
30	30	(ii) each person who has significant
31	31	knowledge of the child's history and condition, including any
32	32	foster parent of the child; and
33	33	(iii) the parties to the suit;
34	34	(B) seek to elicit in a developmentally
35	35	appropriate manner the child's expressed objectives of
36	36	representation;
37	37	(C) consider the impact on the child in
38	38	formulating the attorney's presentation of the child's expressed
39	39	objectives of representation to the court;
40	40	(D) investigate the facts of the case to the
41	41	extent the attorney considers appropriate;
42	42	(E) obtain and review copies of relevant records
43	43	relating to the child as provided by Section 107.006;
44	44	(F) participate in the conduct of the litigation
45	45	to the same extent as an attorney for a party;
46	46	(G) take any action consistent with the child's
47	47	interests that the attorney considers necessary to expedite the
48	48	proceedings;
49	49	(H) encourage settlement and the use of
50	50	alternative forms of dispute resolution; and
51	51	(I) review and sign, or decline to sign, a
52	52	proposed or agreed order affecting the child;
53	53	(2) must be trained in child advocacy or have
54	54	experience determined by the court to be equivalent to that
55	55	training; and
56	56	(3) is entitled to:
57	57	(A) request clarification from the court if the
58	58	role of the attorney is ambiguous;
59	59	(B) request a hearing or trial on the merits;
60	60	(C) consent or refuse to consent to an interview
61	61	of the child by another attorney;
62	62	(D) receive a copy of each pleading or other
63	63	paper filed with the court;
64	64	(E) receive notice of each hearing in the suit;
65	65	(F) participate in any case staffing concerning
66	66	the child conducted by the Department of Family and Protective
67	67	Services; and
68	68	(G) attend all legal proceedings in the suit.
69	69	SECTION 4. Section 107.007(a), Family Code, is amended to
70	70	read as follows:
71	71	(a) An attorney ad litem or[,] an attorney serving in the
72	72	dual role[, or an amicus attorney] may not:
73	73	(1) be compelled to produce attorney work product
74	74	developed during the appointment as an attorney;
75	75	(2) be required to disclose the source of any
76	76	information;
77	77	(3) submit a report into evidence; or
78	78	(4) testify in court except as authorized by Rule
79	79	3.08, Texas Disciplinary Rules of Professional Conduct.
80	80	SECTION 5. Section 107.009, Family Code, is amended to read
81	81	as follows:
82	82	Sec. 107.009. IMMUNITY. (a) A guardian ad litem, [an
83	83	attorney ad litem,] a child custody evaluator, or an adoption
84	84	evaluator [amicus attorney] appointed under this chapter is not
85	85	liable for civil damages arising from an action taken, a
86	86	recommendation made, or an opinion given in the capacity of
87	87	guardian ad litem, [attorney ad litem,] child custody evaluator, or
88	88	adoption evaluator [amicus attorney].
89	89	(a-1) An attorney ad litem or amicus attorney appointed
90	90	under this chapter is not liable for civil damages arising from an
91	91	action taken in the capacity of attorney ad litem or amicus
92	92	attorney.
93	93	(b) Subsections [Subsection] (a) and (a-1) do [does] not
94	94	apply to an action taken, a recommendation made, or an opinion
95	95	given:
96	96	(1) with conscious indifference or reckless disregard
97	97	to the safety of another;
98	98	(2) in bad faith or with malice; or
99	99	(3) that is grossly negligent or wilfully wrongful.
100	100	SECTION 6. Sections 107.021(a) and (a-1), Family Code, are
101	101	amended to read as follows:
102	102	(a) In a suit in which the best interests of a child are at
103	103	issue, other than a suit filed by a governmental entity requesting
104	104	termination of the parent-child relationship or appointment of the
105	105	entity as conservator of the child, the court may appoint [one of
106	106	the following:
107	107	[(1) an amicus attorney;
108	108	[(2)] an attorney ad litem[;] or
109	109	[(3) a] guardian ad litem.
110	110	(a-1) In a suit requesting termination of the parent-child
111	111	relationship that is not filed by a governmental entity, the court
112	112	shall, unless the court finds that the interests of the child will
113	113	be represented adequately by a party to the suit whose interests are
114	114	not in conflict with the child's interests, appoint [one of the
115	115	following:
116	116	[(1) an amicus attorney; or
117	117	[(2)] an attorney ad litem.
118	118	SECTION 7. Part 2, Subchapter B, Chapter 107, Family Code,
119	119	is amended by adding Sections 107.024, 107.0245, 107.025, 107.0255,
120	120	107.026, 107.0265, 107.027, and 107.0275 to read as follows:
121	121	Sec. 107.024. APPOINTMENT OF AMICUS ATTORNEY. (a) The
122	122	court, after notice and hearing or on agreement of the parties, may
123	123	appoint an amicus attorney in a suit.
124	124	(b) In determining whether to make an appointment under this
125	125	section, the court:
126	126	(1) shall:
127	127	(A) give due consideration to the ability of the
128	128	parties to pay reasonable fees to the amicus attorney; and
129	129	(B) balance the child's interests against the
130	130	cost to the parties that would result from an appointment by taking
131	131	into consideration the cost of available alternatives for resolving
132	132	issues without making an appointment;
133	133	(2) may make an appointment only if the court finds
134	134	that the appointment is necessary to ensure the determination of
135	135	the best interests of the child, unless the appointment is
136	136	otherwise required by this code; and
137	137	(3) may not require an amicus attorney appointed under
138	138	this section to serve without reasonable compensation for the
139	139	services rendered by the amicus attorney.
140	140	(c) An amicus attorney appointed under this section must be
141	141	qualified under Section 107.0245 or 107.025.
142	142	(d) An order appointing an amicus attorney under this
143	143	section must include:
144	144	(1) the name, bar number, address, telephone number,
145	145	and e-mail address of the appointed amicus attorney;
146	146	(2) the scope of the amicus attorney's role;
147	147	(3) a list of the duties of an amicus attorney,
148	148	including duties under Section 107.0265(c)(1);
149	149	(4) any other specific tasks requested by the court;
150	150	and
151	151	(5) specific provisions for payment of the amicus
152	152	attorney, including a retainer or cost deposit.
153	153	(e) If a party to or child subject to a suit does not speak
154	154	English as the party's or child's primary language, the court shall
155	155	ensure that the amicus attorney:
156	156	(1) is able to effectively communicate in the party's
157	157	or child's primary language; or
158	158	(2) will be assisted by a licensed or certified
159	159	interpreter.
160	160	(f) A licensed or certified interpreter assisting an amicus
161	161	attorney under Subsection (e)(2) may accompany the amicus attorney
162	162	in person or assist through use of audio or video conferencing
163	163	technology.
164	164	(g) The court may require the parties to pay any costs
165	165	associated with obtaining assistance from a licensed or certified
166	166	interpreter under Subsection (e)(2).
167	167	Sec. 107.0245. AMICUS ATTORNEY; MINIMUM QUALIFICATIONS.
168	168	(a) To be qualified to serve as an amicus attorney, an individual
169	169	must:
170	170	(1) be an attorney:
171	171	(A) who:
172	172	(i) is licensed to practice law in this
173	173	state and in good standing with the State Bar of Texas;
174	174	(ii) has practiced law for at least two
175	175	years; and
176	176	(iii) is trained in child advocacy or found
177	177	by the court to have experience equivalent to training in child
178	178	advocacy; or
179	179	(B) who is certified by the Texas Board of Legal
180	180	Specialization in family law or child welfare law;
181	181	(2) in the four years preceding the appointment, have
182	182	completed not less than a total of four hours of continuing legal
183	183	education from one or more of the following subject areas:
184	184	(A) domestic violence;
185	185	(B) techniques for interviewing a child in a
186	186	developmentally appropriate manner; or
187	187	(C) alternative dispute resolution; and
188	188	(3) if appropriate due to the nature of the
189	189	appointment, be familiar with the American Bar Association's
190	190	standards of practice for attorneys who represent children in
191	191	custody cases.
192	192	(b) The court shall determine whether a prospective amicus
193	193	attorney meets the qualifications of this section.
194	194	(c) On the request of the court, a prospective amicus
195	195	attorney must demonstrate appropriate knowledge and competence
196	196	consistent with professional models, standards, and guidelines.
197	197	Sec. 107.025. EXCEPTION TO QUALIFICATIONS REQUIRED TO SERVE
198	198	AS AMICUS ATTORNEY IN CERTAIN COUNTIES. (a) This section applies
199	199	only to a county with a population of less than 500,000.
200	200	(b) If a court finds that an individual qualified to serve
201	201	as an amicus attorney under Section 107.0245 is not available in the
202	202	county to serve as an amicus attorney, the court may, after notice
203	203	and hearing or on agreement of the parties, appoint an amicus
204	204	attorney the court determines to be otherwise qualified to serve.
205	205	Sec. 107.0255. AMICUS ATTORNEY; CONFLICTS OF INTEREST AND
206	206	BIAS. (a) Before a person accepts appointment as an amicus
207	207	attorney in a suit, the person must disclose to the court, each
208	208	attorney for a party to the suit, and any party to the suit who does
209	209	not have an attorney:
210	210	(1) any conflict of interest that the person believes
211	211	the person has with the court, any party to the suit, or a child who
212	212	is the subject of the suit;
213	213	(2) any previous knowledge that the person has of a
214	214	party to the suit or a child who is the subject of the suit, other
215	215	than knowledge obtained in a court-ordered evaluation;
216	216	(3) any pecuniary relationship that the person
217	217	believes the person has with an attorney in the suit or the court;
218	218	(4) any fiduciary relationship that the person
219	219	believes the person has with an attorney in the suit or the court;
220	220	(5) any conflict of interest that the person believes
221	221	the person has with another person participating or expected to
222	222	participate in the suit in a professional capacity; and
223	223	(6) any other information relating to the person's
224	224	relationship with an attorney in the suit or the court that a
225	225	reasonable, prudent person would believe would affect the ability
226	226	of the person to act impartially as an amicus attorney.
227	227	(b) The court may not appoint a person as an amicus attorney
228	228	in a suit if the person makes any of the disclosures in Subsection
229	229	(a) unless:
230	230	(1) the court finds, after notice and a hearing, that:
231	231	(A) the person has no conflict of interest with a
232	232	party to the suit, the court, or a child who is the subject of the
233	233	suit;
234	234	(B) the person's previous knowledge of a party to
235	235	the suit, the court, or a child who is the subject of the suit is not
236	236	relevant;
237	237	(C) the person does not have a pecuniary
238	238	relationship with an attorney in the suit or the court; and
239	239	(D) the person does not have a fiduciary
240	240	relationship with an attorney in the suit or the court; or
241	241	(2) the parties agree in writing to the person's
242	242	appointment as an amicus attorney.
243	243	(c) After being appointed as an amicus attorney in a suit, a
244	244	person shall immediately disclose to the court, each attorney for a
245	245	party to the suit, and any party to the suit who does not have an
246	246	attorney any discovery of the following unless previously
247	247	disclosed:
248	248	(1) a conflict of interest that the person believes
249	249	the person has with a party to the suit, the court, or a child who is
250	250	the subject of the suit;
251	251	(2) previous knowledge the person has of a party to the
252	252	suit, the court, or a child who is the subject of the suit, other
253	253	than knowledge obtained in a court-ordered evaluation;
254	254	(3) a relationship that the person has with an
255	255	attorney in the suit who was hired or appointed after the person's
256	256	appointment as amicus attorney that would have been subject to
257	257	disclosure under Subsection (a); and
258	258	(4) any conflict of interest that the person believes
259	259	the person has with another person who participates in the suit in a
260	260	professional capacity.
261	261	(d) The court shall remove a person as amicus attorney in a
262	262	suit if the person makes any of the disclosures in Subsection (c)
263	263	unless:
264	264	(1) the court finds, after notice and a hearing, that,
265	265	as applicable:
266	266	(A) the person has no conflict of interest with a
267	267	party to the suit, the court, or a child who is the subject of the
268	268	suit;
269	269	(B) the person's previous knowledge of a party to
270	270	the suit, the court, or a child who is the subject of the suit is not
271	271	relevant;
272	272	(C) the person has no pecuniary or fiduciary
273	273	relationship with an attorney in the suit who was hired or appointed
274	274	after the person's appointment as amicus attorney; or
275	275	(D) the person has no conflict of interest with
276	276	another person who participates in the suit in a professional
277	277	capacity; or
278	278	(2) the parties agree in writing to the person's
279	279	continued appointment as an amicus attorney.
280	280	(e) A person who has a preexisting relationship with an
281	281	attorney for a party to the suit or a professional participating in
282	282	the suit is not disqualified from being an amicus attorney if the
283	283	relationship was formed in a professional setting such as service
284	284	to the community or a bar association.
285	285	Sec. 107.026. AMICUS ATTORNEY STANDARD OF CARE. (a) Except
286	286	as provided by this title, an amicus attorney is subject to the
287	287	professional standards of care and ethical standards necessary to
288	288	remain in good standing with the State Bar of Texas.
289	289	(b) A court may impose requirements or adopt local rules
290	290	applicable to an amicus attorney that do not conflict with this
291	291	subchapter.
292	292	Sec. 107.0265. POWERS AND DUTIES OF AMICUS ATTORNEY. (a)
293	293	Subject to specific limitations given in an order of appointment
294	294	under Section 107.024, an amicus attorney's primary duty is to:
295	295	(1) review the facts and circumstances of the case;
296	296	and
297	297	(2) advocate the best interests of a child who is the
298	298	subject of the suit.
299	299	(b) In performing the duties under Subsection (a), an amicus
300	300	attorney is not bound by the expressed objectives of a child who is
301	301	the subject of the suit.
302	302	(c) An amicus attorney appointed to assist the court:
303	303	(1) shall:
304	304	(A) subject to Rules 4.02, 4.03, and 4.04, Texas
305	305	Disciplinary Rules of Professional Conduct, and within a reasonable
306	306	time after the appointment, interview:
307	307	(i) the child in a developmentally
308	308	appropriate manner, if the child is four years of age or older;
309	309	(ii) each person who has significant
310	310	knowledge of the child's history and condition, including any
311	311	foster parent of the child; and
312	312	(iii) the parties to the suit;
313	313	(B) seek to elicit and assess the child's view in
314	314	a developmentally appropriate manner;
315	315	(C) consider the impact on the child in
316	316	formulating the attorney's presentation of the child's expressed
317	317	objectives of representation to the court;
318	318	(D) investigate the facts of the case to the
319	319	extent the attorney considers appropriate;
320	320	(E) obtain and review copies of relevant records
321	321	relating to the child as provided by Section 107.006;
322	322	(F) participate in the conduct of the litigation
323	323	to the same extent as an attorney for a party;
324	324	(G) take any action consistent with the child's
325	325	interests that the attorney considers necessary to expedite the
326	326	proceedings;
327	327	(H) encourage settlement and the use of
328	328	alternative forms of dispute resolution;
329	329	(I) review and sign, or decline to sign, a
330	330	proposed or agreed order affecting the child;
331	331	(J) on the request of any party, disclose the
332	332	name, address, and phone number of each person interviewed or
333	333	consulted; and
334	334	(K) on the request of any party, make available
335	335	documents obtained by the amicus attorney for copying;
336	336	(2) may be required by the court to perform additional
337	337	tasks, including:
338	338	(A) conducting additional interviews with each
339	339	child who is the subject of the suit to:
340	340	(i) ensure balanced and impartial
341	341	representation by the amicus attorney; and
342	342	(ii) observe each child while in the care of
343	343	each party to the suit;
344	344	(B) interviewing other individuals, including,
345	345	at the discretion of the amicus attorney, a child who:
346	346	(i) is not less than four years of age; and
347	347	(ii) resides part-time or full-time in a
348	348	residence where a child who is the subject of the suit resides
349	349	part-time or full-time;
350	350	(C) visiting the residence of each party seeking
351	351	conservatorship or possession of or access to a child who is the
352	352	subject of the suit; or
353	353	(D) reviewing any information the court
354	354	determines is relevant; and
355	355	(3) is entitled to:
356	356	(A) request clarification from the court if the
357	357	role of the amicus attorney is ambiguous;
358	358	(B) request a hearing or trial on the merits;
359	359	(C) consent or refuse to consent to an interview
360	360	of the child by another attorney;
361	361	(D) receive a copy of each pleading or other
362	362	paper filed with the court;
363	363	(E) receive notice of each hearing in the suit;
364	364	(F) participate in any case staffing concerning
365	365	the child conducted by the Department of Family and Protective
366	366	Services;
367	367	(G) attend all legal proceedings in the suit; and
368	368	(H) make arguments during legal proceedings,
369	369	including:
370	370	(i) summarizing evidence; and
371	371	(ii) suggesting reasonable inferences and
372	372	deductions drawn from the evidence.
373	373	(d) In preparing for and conducting an interview with a
374	374	child, an amicus attorney shall:
375	375	(1) explain the role of an amicus attorney to the child
376	376	in a developmentally appropriate manner;
377	377	(2) inform the child in a developmentally appropriate
378	378	manner that the amicus attorney may use information the child
379	379	provides in assisting the court; and
380	380	(3) become familiar with the American Bar
381	381	Association's standards of practice for attorneys who represent
382	382	children in custody cases.
383	383	(e) The disclosure required by Subsections (c)(1)(J) and
384	384	(K):
385	385	(1) shall not be construed to require disclosure of an
386	386	amicus attorney's notes or attorney work product; and
387	387	(2) is subject to supplementation under Rule 193.5,
388	388	Texas Rules of Civil Procedure.
389	389	Sec. 107.027. LIMITATIONS ON AMICUS ATTORNEY POWERS. (a)
390	390	An amicus attorney may not:
391	391	(1) offer an opinion regarding conservatorship or
392	392	possession of or access to a child subject to a suit;
393	393	(2) engage in ex parte communications with the court;
394	394	(3) be compelled to produce attorney work product
395	395	developed during the appointment as an amicus attorney;
396	396	(4) except as required under Section
397	397	107.0265(c)(1)(J) or (K), be required to disclose the source of any
398	398	information;
399	399	(5) submit a report into evidence; or
400	400	(6) testify in court, except:
401	401	(A) as authorized under Rule 3.08, Texas
402	402	Disciplinary Rules of Professional Conduct; or
403	403	(B) as necessary for the court to make a
404	404	determination relating to the qualifications, conflicts of
405	405	interest, bias, or removal of the amicus attorney.
406	406	(b) Subsection (a) does not apply to the duty of an attorney
407	407	to report child abuse or neglect under Section 261.101.
408	408	Sec. 107.0275. REMOVAL OF AMICUS ATTORNEY. The court:
409	409	(1) may remove an amicus attorney if the parties agree
410	410	to the removal; and
411	411	(2) shall remove an amicus attorney if, after notice
412	412	and hearing, the court finds that the amicus attorney:
413	413	(A) does not have the minimum qualifications to
414	414	serve as an amicus attorney under Section 107.0245 or 107.025;
415	415	(B) has a conflict of interest or bias under
416	416	Section 107.0255(a) that is not exempted under that section;
417	417	(C) fails to perform duties under Section
418	418	107.0265 or ordered by the court;
419	419	(D) violates a standard of care under Section
420	420	107.026; or
421	421	(E) requests to be removed because a party to the
422	422	suit has prevented the amicus attorney from fulfilling the duties
423	423	of the amicus attorney.
424	424	SECTION 8. Section 107.005, Family Code, is repealed.
425	425	SECTION 9. The changes in law made by this Act apply only to
426	426	a suit affecting the parent-child relationship that is filed on or
427	427	after the effective date of this Act. A suit affecting the
428	428	parent-child relationship filed before the effective date of this
429	429	Act is governed by the law in effect on the date the suit was filed,
430	430	and the former law is continued in effect for that purpose.
431	431	SECTION 10. This Act takes effect September 1, 2023.
432	432	______________________________ ______________________________
433	433	President of the Senate Speaker of the House
434	434	I hereby certify that S.B. No. 2277 passed the Senate on
435	435	April 27, 2023, by the following vote: Yeas 31, Nays 0.
436	436	______________________________
437	437	Secretary of the Senate
438	438	I hereby certify that S.B. No. 2277 passed the House on
439	439	May 24, 2023, by the following vote: Yeas 119, Nays 19, one
440	440	present not voting.
441	441	______________________________
442	442	Chief Clerk of the House
443	443	Approved:
444	444	______________________________
445	445	Date
446	446	______________________________
447	447	Governor