ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

December 4,2006 

The Honorable Bruce Isaacks 

Denton County Criminal District Attorney 

Post Office Box 2344 

Denton, Texas 76209 

Opinion No. GA-0489 

Re: Amendments made in 2003 to Family Code 

chapter 107 and the circumstances related to those 

changes in which a county may pay’for the services 

of an amicus attorney, attorney ad litem, or guardian 

ad litem appointed in a private suit affecting the 

parent-child relationship (RQ-0493-GA) 

Dear Mr. Isaacks: 

You ask about amendments made in 2003 to Family Code chapter 107 and the circumstances 

related to those changes in which a county may pay for the services of an amicus attorney, attorney 

ad litem, or guardian ad litem appointed in a private suit affecting the parent-child relationship.’ 

Family Code chapter 107, subchapter B, part 2 establishes guidelines for appointing and 

compensating amicus attorneys,’ attorneys ad litem,’ and guardians ad litem in suits affecting the 

parent-child relationship (“SAPCR”), other than suits tiled by a governmental entity. See TEX. FAM. 

CODEANN. $5 107.021-,023 (VemonSupp. 2006). Relevant here, section 107.021 currentlypermits 

a court to appoint such attorneys and guardians in “a suit in which the best interests of a child are 

at issue, other than a suit filed by a governmental entity.” Id. $ 107.021(a). Or in the case of “a suit 

requesting termination ofthe parent-child relationship that is not filed by a governmental entity,” the 

court shall appoint an amicus attorney or an attorney ad litem, “unless the court finds that the 

‘See Letter from Honorable Bruce Isaacks, Denton County Criminal District Attorney, to Honorable Greg 

Abbott, Attorney General of Texas, at 2 (May 11, 2006) (on tile with the Opinion Committee, also available af 

http://www.oag.state.tx.us) [hereinafter Request Letter]. 

‘An amicus attorney is “an attorney appointed by the court in a suit, other than a suit filed by a governmental 

entity, whose role is to provide legal services necessary to assist the court in protecting a child’s best interests rather than 

to provide legal services to the child.” TEX. FAM. CODE ANN. 5 107.001(l) (Vernon Supp. 2006). 

‘An attorney ad litem is “an attorney who provides legal services to a person, including a child, and who owes 

to the person the duties ofundivided loyalty, confidentiality, and competent representation.” Id. 5 107.001(2). 

“A guardian ad litem is “a person appointed to represent the best interests ofa child”; this term includes certain 

non-attorney professionals. Id. 5 107.001(5). 
The ,Honorable Bruce Isaacks - Page 2 (GA-0489) 

interests of the child will be represented adequately by a party to the suit whose interests are not in 

conflict with the child’s interests.” Id. 5 107.021(a-1). In this opinion, we will refer to a Family 

Code chapter 107 SAPCR that is not filed by a governmental body as a “private SAPCR.” 

Your questions relate to the compensation ‘of an amicus attorney, attorney ad litem, or 

guardian ad litem appointed in a private SAPCR. Regarding such compensation, section 107.021 

requires a court-presiding over a private SAPCRyto “give due consideration to the ability of the 

parties to pay reasonable fees to the appointee” and to “balance the child’s interests against the cost 

to the parties that would result from an appointment by taking into consideration the cost of available 

alternatives for resolving issues without making an appointment.” Id. 5 107.021(b)(l). A court 

“may not require a person appointed under this section to serve without reasonable compensation 

for the services rendered by the person.” Id. 5 107,021(b)(3). And where a court has ordered an 

appointment, section 107.023 requires the court to “determine the fees and expenses of an amicus 

attorney, an attorney ad litem, or a guardian ad litem[;] order a reasonable cost deposit to be 

made at the time the court makes the appointment; and . before the final hearing, order an 

additional amount to be paid to the credit of a trust account for the use and benefit of the amicus 

attorney, attorney ad litem, or guardian ad litem.” Id. 5 107.023(b). But a “court may not award 

costs, fees, or expenses to an amicus attorney, attorney ad litem, or guardian ad litem, against the 

state, a state agency, or a political subdivision of the state under this part.” Id. §’ 107.023(c). That 

is, sections 107.021 and 107.023 work in conjunction to impose costs of attorney and guardian 

appointments on the parties to a private SAPCR in all cases, but require a court to minimize those 

costs to the extent possible by ordering alternatives to attorney and guardian services. Finally, 

though, where an appointment is made for a child, section 107.023(d) grants a court discretion 

to determine that such attorney or guardian’s fees “are necessaries for the benefit of the child.” Id 

§ 107.023(d). 

Sections 107.021 and 107.023, however, were added to chapter 107 in 2003 as a part of a 

comprehensive reform of that chapter.’ They became effective September 1 of that year and applied 

only to suits filed on or after that date.6 Before the 2003 changes in law, chapter 107 contained a 

provision that specifically provided for a county to pay the expenses of certain appointees in a private 

SAPCR involving indigent parents7 Indeed, prior to the 2003 changes, former section 107.015(c) 

provided that, where an attorney was appointed to represent a child or parent in a suit to terminate 

%‘ee Act of May 27,2003,78th Leg., R.S., ch. 262,2003 Tex. Gen. Laws 1173, II73 (House Bill 1815); see 

generally HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. H.B. 1815, 78th Leg., R.S. (2005) at 6, mailable at 

http://www.hro.house.state.tx,n%’PDFiba78R%Blt315.PDF (commenting on the need for legislation that would clarify 

the roles ofattorneys and volunteer advocates appointed by a court in private custody cases) (last visited Nov. 27,2006); 

HOUSE COMM. ON JUVENILE JUSTICE AND FAMILY ISSUES, INTERIM REPORT TO THE 78~~ LEGISLATURE 3-12 (2002), 

available athap://www.lrl.state.tx.usiscanned/interi~77/j987.pdf(commenting on the need for comprehensive reform 

of Family Code chapter 107) (last visited Nov. 27, 2006). 

%‘ee Act of May 27,2003,78th Leg., RX, ch. 262, $5 2-3,2003 Tex. Gen. Laws 1173, 1183 

‘See Act ofMay 30, 1999,76th Leg., R.S., ch. 1390, 5 6, sec. 107.015(c), 1999 Tex. Gen. Laws 4696,469s. 
The Honorable Bruce Isaacks - Page 3 (GA-0489) 

the parent-child relationship, and the parents were shown to be indigent, such attorneys “shall be 

paid from the general funds of the county.“* The court could not award attorney ad litem fees under 

former chapter 107 against the state, a state agency, or a political subdivision, except as provided by 

former section 107.015(~).~ It is the change in law from this former statutory scheme, which allowed 

a county to compensate certain appointees in a private SAPCR, that forms the basis of your 

questions. See Request Letter, supra note 1, at 2-4. 

You ask three questions premised on the following hypothetical scenario: 

[Where] the government is not a party, but a Court has found 

it necessary to appoint an amicus attorney/ attorney ad litem/ guardian 

ad litem: 

1. When is it permissible for the County to pay for the 

services of an amicus attorney, attorney ad litem, or guardian ad litem 

for cases filed prior to September 1, 2003 and cases filed after 

September 1,2003? 

2. When is it mandatory for the County to pay for the 

services of an amicus attorney, attorney ad litem, or guardian ad litem 

for cases tiled prior to September 1, 2003 and cases riled after 

September 1,2003? 

3. When is the County prohibited to pay for the services 

of an amicus attorney, attorney ad litem, or guardian ad litem for 

cases filed prior to September 1,2003 and cases filed after September 

1,2003? 

Id. at 4. For conceptual ease, we answer your questions relative to each type of appointee. 

Amicus Attorneys 

Before September 1,2003, Family Code chapter 107 did not provide for the appointment of 

an “amicus attorney.“” Thus, in a case filed before September 1,2003, a county would have had 

no basis to pay any costs of an amicus attorney because no such attorney existed in Family Code 

chapter 107. For aprivate SAPCRfiledafter September 1,2003, section 107.023 expresslyprohibits 

awarding “costs, fees, or expenses to an amicus attorney . against the state, a state agency, or a 

political subdivision ofthe state.” TEX.FAM. CODE ANN. 5 107.023(c) (Vernon Supp. 2006). Thus, 

‘Act of May 30, 1999, 76th Leg., R.S., ch. 1390, 5 6, sec. 107.015(c), 1999 Tex. Gen. Laws, 4696,469s. 

?%e id. 

%‘ee Act of May 27,2003, 78th Leg., R.S., ch. 262, 9 I, sec. 107.001(l), 2003 Tex. Gen. Laws 1173, 1174 

(adding “amicus attorney” as a type of appointment that may be made in a SAPCR and describing the attorney’s duties). 
The Honorable Bruce Isaacks - Page 4 (GA-0489) 

a county may not pay the costs of an amicus attorney in a private SAPCR filed on or after September 

1,2003. 

Attorneys Ad Litem 

As we have already stated, before the 2003 amendments, chapter 107 required that an 

attorney-appointed to represent a child or parent in a suit to terminate the parent-child relationship 

involving indigent parents-be paid from the general funds of the county.” The former law did not 

permit a court in any other private SAPCR to award attorney ad litem fees under former chapter 107 

~against the state, a state agency or a political subdivision. ” The 2003 amendments, moreover, 

applied only to suits tiled on or after the amendments’ effective date.‘! Therefore, a county is 

required to pay the costs of an attorney appointed to represent a child or parent in a private suit to 

terminate the parent-child relationship filed before September 1, 2003, and involving indigent 

parents. But a county is prohibited from paying for such services in any other private SAPCR filed 

before September 1,2003. And under current law, a court may not award costs, fees, or expenses 

to an attorney ad litem against the state, a state agency, or a political subdivision of the state in any 

private SAPCR. See id. Thus, a county is prohibited from paying for such services in a private 

SAPCR tiled on or after September 1,2003, regardless of the parties’ indigence. 

Guardians Ad Litem 

Former Family Code section 107.001 defined “guardian ad litem” as “an a(torney, a 

volunteer advocate appointed under [former] Section 107.031, or another adult ‘having the 

competence, training, and expertise determined by the court to be sufficient to represent the best 

interests of the child.“14 In certain circumstances, then, a guardian ad litem could be an attorney 

appointed to represent a child’s best interests in a SAPCR. As we have already stated, before the 

2003 amendments, chapter 107 required that anattorney appointed to represent a child or parent in 

a suit to terminate the parent-child relationship involving indigent parents be paid from the general 

funds of the c~unty.‘~ The former law did not permit a court in any other private SAPCR to award 

attorney ad litem fees under former chapter 107 against the state, a state agency or a political 

subdivision.16 There was, moreover, no provision permitting a county to compensate a guardian ad 

“Act of May 30, 1999,76th Leg., RX, ch. 1390, $ 6, sec. 107.015(c), 1999,Tex. Gen. Laws, 4696,4698. 

‘%e id. sec. 107.015(at(c), at 4697-98 (applying only to compensation of an attorney appointed in suit 

involving the termination of parental rights). 

A’Act of May 27,2003,78th Leg., R.S., ch. 262, $5 Z-3,2003 Tex. Gen. Laws 1173, 1183 

14Act of May 28, 1997, 75th Leg., R.S., ch. 1294, 4 1, sec. 107.001(d), 1997 Tex. Gen. Laws 4930,493l 

(emphasis added). 

ISAct ofMay 30, 1999,76th Leg., R.S., ch. 1390, $ 6, sec. 107.015(c), 1999 Tex. Gen. Laws 4696,469s. 

?See id. sec. 107.015(a)-(c), at 4697-98 (applying only to compensation of an attorney appointed in suit 

involving the termination ofparental rights). 
The Honorable Bruce Isaacks - Page 5 (GA-0489) 

litem who was not also an attomey.17 And these laws applied only to suits filed before the 2003 

amendments’ effective dates. Accordingly, a county is required to pay the costs of a guardian ad 

litem-who is also an attorney-appointed to represent a child’s best interests in a private suit to 

terminate the parent-child relationship filed before September 1, 2003, and involving indigent 

parents. A county is prohibited from paying for such services in any other private SAPCR filed 

before September 1,2003, And under current law, a court “may not award costs, fees, or expenses 

to [a] guardian ad litem against the state, a state agency, or a political subdivision of the state” 

in any private SAPCR. TEx. Fm. CODE-. § 107.023(c) (Vernon Supp. 2006). Thus, a county 

is prohibited from paying for such services in a private SAPCR filed on or after September 1,2003, 

regardless of the parties’ indigence.‘* 

“SeegenerallyAct ofMay26,1995,74thLeg., RX, ch. 751,199s Tex. Gen. Laws 388X,3888; Act ofMay 

28, 1997,75thLeg., R.S., ch. 1294, 1997 Tex. Gen. Laws4930,4930; Act ofMay30,1999,~76thLeg.,R.S., ch. 1390, 

1999 Tex. Gem Laws 4696,4696. 

“In the brief accompanying your request, you suggest that changes to Family Code chapter 107 made by the 

Seventy-ninth Legislature during its 2005 regular session may be relevant to whether a county may pay for the services 

of an amicus attorney, attorney ad litem or guardian ad litem in a private SAPCR. See Request Letter, supra note I, at 

2 (% 2005 the legislature passed revisions to 5 107.021 and 3 107.023 which appear of their face to conflict with 

previously passed provisions.“). We have reviewed these changes, and they do not affect OUT conclusion. 
The Honorable Bruce Isaacks - Page 6 (GA-0489) 

SUMMARY 

Certain former provisions in Family Code chapter 107 apply 

to suits affecting the parent-child relationship tiled before September 

1,2003. Under those former provisions, a county is required to pay 

the costs of an attorney--including a guardian ad litem who is also an 

attorney-appointed to represent a child in a private suit to terminate 

the parent-child relationship filed before September l’, 2003, and 

involving indigent parents. A county may not pay for an attorney ad 

litem’s or guardian ad litem’s fees in any other private suit affecting 

a parent-child relationship filed before September 1, ,2003. And a 

county may not pay for an amicus attorney’s fees in any private suit 

affecting the parent-child relationship filed before September 1,2003, 

Under the current provisions of Family Code chapter 107, a 

county may not pay for the services of an amicus attorney, attorney ad 

litem, or guardian ad litem in a private suit affecting the parent-child 

relationship tiled on or after September 1, 2003, regardless of the 

parties’ indigence. 

KENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Daniel C. Bradford 

Assistant Attorney General, Opinion Committee