HBA-LJP C.S.H.B. 847 77(R)    BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 847
By: Goodman
Juvenile Justice & Family Issues
4/24/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

In some suits affecting the parent-child relationship, either a guardian ad
litem or an attorney ad litem or both are required to be appointed by the
court for the child.  While a guardian ad litem makes decisions and
recommendations to the court according to the best interest of the child,
an attorney ad litem is an advocate for the wishes of the child.  However,
the separate roles and duties of a guardian ad litem and an attorney ad
litem may be confusing.  C.S.H.B. 847 provides guidelines for the separate
roles of an attorney ad litem, a guardian ad litem, and an attorney in the
dual role of an attorney ad litem and a guardian ad litem. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

C.S.H.B. 847 amends the Family Code to set forth provisions regarding the
mandatory and discretionary appointment of a guardian ad litem for a child
in certain suits affecting the parent-child relationship (Secs. 107.001 and
107.0015) 

The bill provides that in every order of appointment of an attorney as
guardian ad litem for a child, the court must specifically designate
whether the attorney serves solely as a guardian ad litem or in the dual
role of guardian ad litem and attorney ad litem.  If the court fails to
specify the role of the attorney and the appointment is discretionary, the
bill provides that the attorney is considered to be appointed as guardian
ad litem and is required to act on that basis.  If the court fails to
specify the role of the attorney and the appointment as guardian ad litem
and attorney ad litem is mandatory, the attorney is considered to be
appointed in the dual role of guardian ad litem and attorney ad litem and
is required to act on that basis (Sec. 107.0016). 

The bill provides that the primary duty of a guardian ad litem appointed
for a child is to represent the best interests of the child.  The bill
provides that a guardian ad litem appointed with the discretionary power of
the court or an associate judge that is not a party to the suit is entitled
to refuse to disclose, except under certain conditions, communications made
by the child to the guardian ad litem and not intended to be disclosed to
third persons if the appointment is discretionary.  The bill deletes
certain authorizations and entitlements of the general powers and duties of
an appointed guardian ad litem relating to the examination of witnesses and
testifying in proceedings regarding the child (Sec. 107.002).  The bill
sets forth the additional powers and duties of a nonattorney guardian ad
litem and an attorney appointed as guardian ad litem (Secs 107.0021 and
107.0022). 

The bill provides that an appointed guardian ad litem who is not an
attorney or who is an attorney appointed solely as guardian ad litem is not
liable for civil damages arising from a recommendation made or an opinion
given in the capacity of guardian ad litem (Sec. 107.003).  The bill sets
forth provisions relating to the fees, expenses, and payment of certain
guardians ad litem (Sec. 107.007). 
 
The bill provides that in each order appointing an attorney ad litem for a
child, the court must specifically designate whether the attorney is
required to serve solely as attorney ad litem for the child or in the dual
role of guardian ad litem for the child and attorney ad litem.  If the
court fails to specify the role of the attorney, the bill provides that the
attorney is considered to be appointed as attorney ad litem unless a later
court order provides otherwise (Sec. 107.0125).  The bill provides that a
court is not required to appoint and an associate judge is not required to
recommend the appointment of an attorney ad litem in certain proceedings,
including a proceeding involving the discretionary appointment of an
attorney ad litem if the court or associate judge finds that the child will
be represented adequately by a party to the suit (Sec. 107.0135). 

The bill requires an appointed attorney ad litem that represents a child to
perform legal services on behalf of the child and, in circumstances in
which the child is capable of providing direction to the attorney, form an
attorney-client relationship with the child.  The bill requires an
appointed attorney ad litem that represents a child to comply with the
Texas Disciplinary Rules of Professional Conduct (Secs. 107.014). 

The bill provides that an attorney in the dual role of an attorney ad litem
and guardian ad litem is required to fulfill the guardian ad litem's duty
to represent the best interest of the child and to exercise the rights to
comply with the duties of a guardian ad litem.  The bill sets forth
procedures for an attorney in the dual role of an attorney ad litem and
guardian ad litem who determines that performing both roles creates a
conflict (Secs. 107.0022 and 107.014). 

The bill specifies that the requirement that an attorney appointed to
represent a child or a parent in a suit to terminate the parent-child
relationship be paid from the general funds of the county when the
indigence of the parents is shown in a suit brought by a governmental
entity (Sec. 107.015). 

EFFECTIVE DATE

September 1, 2001.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 847 amends the original to remove the presumption that in a suit
affecting the parent-child relationship, an attorney appointed as guardian
ad litem, attorney ad litem, or an attorney appointed in both roles perform
certain separate duties.  The substitute removes provisions relating to an
order of appointment that must specifically state the intent of a court for
an attorney to serve solely as guardian ad litem without providing legal
services on behalf of a child. 

C.S.H.B. 847 sets forth provisions relating to the mandatory and
discretionary appointment of a guardian ad litem in certain suits affecting
the parent-child relationship, and the designation of the role of the
attorney appointed guardian ad litem by the court (Secs. 107.001, 107.0015,
and 107.0016). 

The substitute provides that the primary duty of a guardian ad litem
appointed for a child is to represent the best interests of the child.  The
substitute provides that a guardian ad litem appointed with the
discretionary power of the court or an associate judge that is not a party
to the suit is entitled to refuse to disclose, except under certain
conditions, communications made by the child to the guardian ad litem and
not intended to be disclosed to third persons if the appointment.  The
substitute deletes the authorization to interview certain individuals and
the entitlement to testify in court regarding the child from the general
powers and duties of an appointed guardian ad litem (Sec. 107.002).  The
substitute also sets forth the additional powers and duties of a
nonattorney guardian ad litem (Sec. 107.0021). 

The substitute sets forth the additional powers and duties of an attorney
appointed as guardian ad litem. The substitute provides that an attorney
appointed solely as guardian ad litem is prohibited from testifying unless
authorized by the Texas Disciplinary Rules of Conduct, rather than
providing the right to testify (Sec. 107.0022).  The substitute removes
from the original the prohibition of an attorney appointed as guardian ad
litem from examining witnesses and sets forth the additional powers and
duties of an attorney appointed  guardian ad litem.  The substitute also
removes provisions relating to the powers and duties of an attorney
appointed as guardian ad litem that is providing legal services. 

C.S.H.B. 847 removes provisions relating to the authorization of the court
to allow the guardian ad litem a reasonable fee to be assessed as costs
unless the guardian ad litem is a volunteer advocate or an attorney
providing legal services and provides that an appointed guardian ad litem
is entitled to a reasonable fee and expenses in an amount set by the court
unless the guardian ad litem is a volunteer advocate.  The substitute
removes the requirement that an attorney who is appointed as guardian ad
litem and is providing legal services on behalf of a child be paid and
requires that an attorney appointed solely as guardian ad litem or in the
dual role of attorney ad litem and guardian ad litem be paid.  The
substitute also removes provisions regarding the compensation of an
attorney appointed solely as guardian ad litem and a person who is not an
attorney that provides the same or similar services (Sec. 107.007). 

The substitute sets forth provisions relating to whether a court is
required to appoint, and an associate judge is not required to recommend,
the appointment of an attorney ad litem in certain proceedings (Sec.
107.0135).  The substitute removes provisions relating to the determination
of the role of an attorney ad litem, and sets forth provisions regarding
the designation by the court of the role of an appointed attorney ad litem. 

If the court fails to specify the role of the attorney, the substitute
provides that the attorney is considered to be appointed as attorney ad
litem unless a later court order provides otherwise, rather than require
the attorney to assist the court in protecting the child's best interest
(Sec. 107.0125). 

C.S.H.B. 847 provides that an appointed guardian ad litem who is not an
attorney or who is an attorney appointed solely as guardian ad litem,
rather than an attorney appointed as guardian ad litem who is providing
legal services on behalf of the child or an attorney ad litem, is not
liable for civil damages arising from a recommendation made or an opinion
given in fulfilling duties of a guardian ad litem or an attorney ad litem
(Sec. 107.003). 

The substitute requires an appointed attorney ad litem that represents a
child to perform legal services on behalf of the child and, in
circumstances in which the child is capable of providing direction to the
attorney, form an attorney-client relationship with the child.  The
substitute requires an appointed attorney ad litem that represents a child
to comply with the Texas Disciplinary Rules of Professional Conduct (Secs.
107.014). 

The substitute provides that an attorney in the dual role of an attorney ad
litem and guardian ad litem is required to fulfill the guardian ad litem's
duty to represent the best interest of the child and to exercise the rights
to comply with the duties of a guardian ad litem.  The bill sets forth
procedures for when an attorney in the dual role of an attorney ad litem
and guardian ad litem determines that performing both roles creates a
conflict (Secs. 107.0022 and 107.014). 

The substitute specifies that the requirement that an attorney appointed to
represent a child or a parent in a suit to terminate the parent-child
relationship be paid from the general funds of the county when the
indigence of the parents is shown in a suit brought by a governmental
entity (Sec. 107.015).