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).