BILL ANALYSIS

C.S.H.B. 2530

By: Cook

Judiciary & Civil Jurisprudence

Committee Report (Substituted)

BACKGROUND AND PURPOSE

State law sets out provisions governing amicus attorneys, attorneys ad litem, guardians ad litem, and custody evaluators. However, the bill author has informed the committee that significant confusion and inconsistency has arisen regarding the qualifications, appointment procedures, and the appropriate roles of amicus attorneys, particularly in family law cases not involving the Department of Family and Protective Services. C.S.H.B. 2530 seeks to address these issues by clarifying and standardizing the appointment process for amicus attorneys.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 2530 amends the Family Code to revise certain provisions relating to the appointment of an amicus attorney by a court in a suit affecting the parent-child relationship, establish the powers and duties of an amicus attorney in such a suit by a nongovernmental entity, and set out provisions relating to the required disclosure of conflicts of interest by such an attorney and to the qualifications and removal of such an attorney.

Appointment of Amicus Attorney

C.S.H.B. 2530 limits the circumstances under which a court may appoint an amicus attorney to after the applicable notice and hearing or on agreement of the parties and to a suit affecting the parent-child relationship by a nongovernmental entity. With regard to the court determining whether to make an appointment, the bill does the following:

·requires the court to give due consideration to the ability of the parties to pay reasonable fees to the amicus attorney and to balance the child's interests against the cost to the parties that would result from the appointment by taking into consideration the cost of available alternatives for resolving issues without making the appointment;

·authorizes the court to make the appointment only if the court finds that the appointment is necessary to ensure the determination of the child's best interests, unless the appointment is otherwise statutorily required; and

·prohibits the court from requiring the appointed attorney to serve without reasonable compensation for the services rendered by the attorney.

C.S.H.B. 2530 requires an order appointing an amicus attorney to include the following:

·the name, bar number, address, telephone number, and email address of the appointed attorney;

·the scope of the attorney's role;

·a list of the duties of an amicus attorney, including certain duties established by the bill;

·any other specific tasks requested by the court; and

·specific provisions for payment of the attorney, including a retainer or cost deposit.

C.S.H.B. 2530 requires the court, if a party to or child subject to a suit does not speak English as their primary language, to ensure that the amicus attorney is able to effectively communicate in the party's or child's primary language or will be assisted by a licensed or certified interpreter. The bill authorizes such an interpreter to accompany the amicus attorney in person or assist through use of audio or video conferencing technology and authorizes the court to require the parties to pay any costs associated with obtaining assistance from the interpreter.

Qualifications of Amicus Attorney

C.S.H.B. 2530 requires an appointed amicus attorney, in order to qualify to serve as such an attorney, to meet the following criteria:

·the individual must be an attorney who, as follows:

ois licensed to practice law in Texas and is in good standing with the State Bar of Texas;

ohas practiced law for at least two years; and

ois trained in child advocacy or found by the court to have experience equivalent to such training;

·in the four years preceding the appointment, the individual must have completed not less than a total of four hours of continuing legal education from one or more of the following subject areas:

odomestic violence;

otechniques for interviewing a child in a developmentally appropriate manner; or

oalternative dispute resolution; and

·if appropriate due to the nature of the appointment, the individual must be familiar with the American Bar Association's standards of practice for attorneys who represent children in custody cases.

The bill requires the court to determine whether a prospective amicus attorney meets these qualifications and requires a prospective attorney, on the request of the court, to demonstrate appropriate knowledge and competence consistent with professional models, standards, and guidelines. The bill authorizes a court that finds that an individual qualified to serve as an amicus attorney is not available in a county with a population of less than 500,000 to appoint, after notice and hearing or on agreement of the parties, an amicus attorney the court determines to be otherwise qualified to serve.

Conflicts of Interest and Bias

C.S.H.B. 2530 requires a person, before accepting an appointment as an amicus attorney in a suit, to disclose the following to the court, each attorney for a party to the suit, and any party to the suit who does not have an attorney:

·any conflict of interest that the person believes they have with the court, any party to the suit, or a child who is the subject of the suit;

·any previous knowledge that the person has of a party to the suit or a child who is the subject of the suit, other than knowledge obtained in a court-ordered evaluation;

·any pecuniary relationship that the person believes they have with an attorney in the suit or the court;

·any fiduciary relationship that the person believes they have with an attorney in the suit or the court;

·any conflict of interest that the person believes they have with another person participating or expected to participate in the suit in a professional capacity; and

·any other information relating to the person's relationship with an attorney in the suit or the court that a reasonable, prudent person would believe would affect the ability of the person to act impartially as an amicus attorney.

The bill prohibits a court from appointing as an amicus attorney a person who makes any of those disclosures, unless the parties agree in writing to the person's appointment as an amicus attorney or the court finds the following after notice and a hearing:

·the person has no conflict of interest with a party to the suit, the court, or a child who is the subject of the suit;

·the person's previous knowledge of a party to the suit, the court, or a child who is the subject of the suit is not relevant;

·the person does not have a pecuniary relationship with an attorney in the suit or the court; and

·the person does not have a fiduciary relationship with an attorney in the suit or the court.

C.S.H.B. 2530 requires a person, after appointment as an amicus attorney in a suit, to immediately disclose to the court, each attorney for a party to the suit, and any party to the suit who does not have an attorney any discovery of the following unless previously disclosed:

·a conflict of interest that the person believes they have with a party to the suit, the court, or a child who is the subject of the suit;

·previous knowledge the person has of a party to the suit, the court, or a child who is the subject of the suit, other than knowledge obtained in a court-ordered evaluation;

·a relationship that the person has with an attorney in the suit who was hired or appointed after the person's appointment as an amicus attorney that would have been subject to disclosure before the person's appointment; and

·any conflict of interest that the person believes they have with another person who participates in the suit in a professional capacity.

The bill requires a court to remove a person as an amicus attorney in a suit if the person makes any of those disclosures, unless the parties agree in writing to the person's continued appointment as an amicus attorney or the court finds the following, as applicable, after notice and a hearing:

·the person has no conflict of interest with a party to the suit, the court, or a child who is the subject of the suit;

·the person's previous knowledge of a party to the suit, the court, or a child who is the subject of the suit is not relevant;

·the person has no pecuniary or fiduciary relationship with an attorney in the suit who was hired or appointed after the person's appointment as an amicus attorney; or

·the person has no conflict of interest with another person who participates in the suit in a professional capacity.

C.S.H.B. 2530 establishes that a person who has a preexisting relationship with an attorney for a party to the suit or a professional participating in the suit is not disqualified from being an amicus attorney if the relationship was formed in a professional setting such as service to the community or a bar association.

Standard of Care

C.S.H.B. 2530 establishes that an amicus attorney is subject to the professional standards of care and ethical standards necessary to remain in good standing with the State Bar of Texas. The bill authorizes a court to impose requirements or adopt local rules applicable to an amicus attorney that do not conflict with applicable provisions relating to appointments in certain suits.

Powers and Duties

C.S.H.B. 2530 establishes that, subject to the limitations given in an order of appointment, an amicus attorney's primary duty is to review the facts and circumstances of a case and advocate the best interests of a child who is the subject of the suit, but that in performing those duties, the attorney is not bound by the expressed objectives of that child. For purposes of statutory provisions relating to special appointments, child custody evaluations, and adoption evaluations, the bill specifies that the role of an amicus attorney includes acting as a witness or making recommendations to the court.

C.S.H.B. 2530 provides for the required duties of an amicus attorney in a similar manner to the duties of an attorney ad litem appointed to represent a child under provisions relating to court-ordered representation in suits affecting the parent-child relationship. In addition to those duties, the bill requires an appointed amicus attorney to do the following:

·seek to elicit and assess the child's view in a developmentally appropriate manner; and

·on the request of any party, to disclose the name, address, and phone number of each person interviewed or consulted and to make available documents obtained by the amicus attorney for copying.

The bill establishes that such requested disclosures may not be construed to require disclosure of an amicus attorney's notes or attorney work product and are subject to supplementation under the Texas Rules of Civil Procedure.

C.S.H.B. 2530 establishes that an amicus attorney appointed to assist the court is entitled to the same powers as an attorney ad litem under provisions relating to court-ordered representation in suits affecting the parent-child relationship. The bill additionally entitles the amicus attorney to make arguments during legal proceedings, including summarizing evidence and suggesting reasonable inferences and deductions drawn from the evidence. The bill requires an amicus attorney, in preparing for and conducting an interview with a child, to do the following:

·explain the role of an amicus attorney to the child in a developmentally appropriate manner;

·inform the child in a developmentally appropriate manner that the attorney may use information the child provides in assisting the court; and

·become familiar with the American Bar Association's standards of practice for attorneys who represent children in custody cases.

C.S.H.B. 2530 repeals statutory provisions relating to the additional duties of an amicus attorney serving as court-ordered representation in a suit affecting the parent-child relationship and instead establishes that an amicus attorney appointed to assist the court may be required by the court to perform additional tasks, including the following actions:

·conducting additional interviews with each child who is the subject of the suit to ensure balanced and impartial representation by the attorney and to observe each child while in the care of each party to the suit;

·interviewing other individuals, including, at the discretion of the attorney, another child who is not less than four years of age and who resides part-time or full-time in a residence where a child who is the subject of the suit resides part-time or full-time;

·visiting the residence of each party seeking conservatorship or possession of or access to a child who is the subject of the suit; or

·reviewing any information the court determines is relevant.

Limitations

C.S.H.B. 2530 prohibits an amicus attorney from doing the following:

·offering an opinion regarding conservatorship or possession of or access to a child subject to a suit;

·engaging in ex parte communications with the court;

·being compelled to produce attorney work product developed during the appointment as an amicus attorney;

·except as required under the bill's provisions regarding required disclosures, being required to disclose the source of any information;

·submitting a report into evidence; or

·testifying in court, except as authorized under the Texas Disciplinary Rules of Professional Conduct or as necessary for the court to make a determination relating to the qualifications, conflicts of interest, bias, or removal of the attorney.

These provisions expressly do not apply to the duty of an attorney to report child abuse or neglect.

Removal of Amicus Attorney

C.S.H.B. 2530 authorizes a court to remove an amicus attorney if the parties agree to the removal and requires a court to remove the attorney if, after notice and hearing, the court finds that the attorney:

·does not have the minimum qualifications to serve as an amicus attorney under the bill's provisions;

·has a conflict of interest or bias specified under the bill's provisions that is not exempted;

·fails to perform duties specified under the bill's provisions or ordered by the court;

·violates a standard of care under the bill's provisions; or

·requests to be removed because a party to the suit has prevented the attorney from fulfilling the attorney's duties.

Immunity

C.S.H.B. 2530 removes the immunity granted to an attorney ad litem or amicus attorney appointed under statutory provisions governing special appointments, child custody evaluations, and adoption evaluations from liability for civil damages arising from a recommendation made or an opinion given in their capacity as such an attorney. The bill grants an adoption evaluator appointed under those provisions from liability for civil damages arising from an action taken, a recommendation made, or an opinion given in the capacity of adoption evaluator for purposes of court-ordered representation in a suit affecting the parent-child relationship.

Repealed Provision

C.S.H.B. 2530 repeals Section 107.005, Family Code.

Procedural Provision

C.S.H.B. 2530 applies only to a suit affecting the parent-child relationship that is filed on or after the bill's effective date. A suit filed before that date is governed by the law in effect on the date the suit was filed, and the former law is continued in effect for that purpose.

EFFECTIVE DATE

September 1, 2025.

COMPARISON OF INTRODUCED AND SUBSTITUTE

While C.S.H.B. 2530 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

While both the introduced and the substitute set out the minimum qualifications to serve as an amicus attorney, the introduced required an attorney to be either certified by the Texas Board of Legal Specialization (TBLS) in family law or child welfare law or to meet certain other qualifications, whereas the substitute removes the option for the attorney to be certified by TBLS.