Texas 2023 - 88th 4th C.S.

Texas Senate Bill SB43 Compare Versions

Version 1 (Old)

Version 2 (New)

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