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 acounty may pay’for the services ofan 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 acounty may pay for the services of an amicus attorney, attorney ad litem, or guardian ad litem appointed in aprivate 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 byagovernmental 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 isnot filed by agovernmental entity,” the court shall appoint an amicus attorney or an attorney ad litem, “unless the court finds that the

‘SeeLetterfromHonorableBruceIsaacks,DentonCountyCriminalDistrict 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

RequestLetter].

‘An amicus attorney is “an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role istoprovide legal services necessary to assist the court inprotecting a child’s best interests rather than to provide legal services to the child.” TEX.FAM.CODEANN. 5 107.001(l) (Vernon Supp. 2006).

‘An attorney ad litem is “an attorney who provides legal services to aperson, including a child, and who owes to the person the duties ofundivided loyalty, confidentiality, and competent representation.” Id. 5 107.001(2).

“Aguardian 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 ofthe child will be represented adequately by aparty 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 aprivate SAPCR. Regarding such compensation, section 107.021 requires acourt-presiding over aprivate SAPCRyto “give due consideration to the ability ofthe 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 bytaking into consideration the cost ofavailable alternatives for resolving issues without making an appointment.” Id. 5 107.021(b)(l). A court “may not require aperson 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 apolitical subdivision ofthe 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 aprivate 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 ofthe 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 ofthat chapter.’ They became effective September 1ofthat 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 acounty topay the expenses ofcertain appointees in aprivate SAPCR involving indigent parents7 Indeed, prior to the 2003 changes, former section 107.015(c) provided that, where an attorney was appointed to represent achild or parent in a suit to terminate

%‘eeAct of May 27,2003,78th Leg., R.S., ch. 262,2003 Tex. Gen. Laws 1173, II73 (House Bill 1815); see generally HOUSE RESEARCHORG., 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); HOUSECOMM.ONJUVENILE JUSTICEANDFAMILYISSUES,INTERIMREPORTTOTHE78~~ 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).

%‘eeAct 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, 56, 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 ofthe county.“* The court could not award attorney ad litem fees under former chapter 107 against the state, astate agency, or apolitical subdivision, except asprovided by former section 107.015(~).~ Itisthe change inlaw 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 isnot aparty, but a Court has found itnecessary to appoint an amicus attorney/ attorney adlitem/ guardian ad litem: 1. When is it permissible for the County to pay for the services ofan amicus attorney, attorney adlitem, 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 ofan amicus attorney, attorney ad litem, orguardian adlitem for cases tiled prior to September 1, 2003 and cases riled after September 1,2003?

3. When isthe 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 107did not provide for the appointment of an “amicus attorney.“” Thus, in a case filed before September 1,2003, acounty 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.CODEANN.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 atype of appointment that may be made in a SAPCR and describing the attorney’s duties).The Honorable Bruce Isaacks - Page 4 (GA-0489)

acounty may not pay the costs ofan amicus attorney in aprivate 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 achild orparent in a suit to terminate the parent-child relationship involving indigent parents-be paid from the general funds ofthe county.” The former law did not permit acourt 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 aprivate suit to terminate the parent-child relationship filed before September 1, 2003, and involving indigent parents. But acounty isprohibited 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 apolitical subdivision ofthe 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 ofthe 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 achild or parent in a suit to terminate the parent-child relationship involving indigent parents be paid from the general funds ofthe c~unty.‘~ The former law did not permit acourt 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 acounty 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 (applyingonlyto compensationofan attorneyappointedin suit involving theterminationofparentalrights).

A’Actof May 27,2003,78th Leg., R.S., ch. 262, $5 Z-3,2003 Tex. Gen. Laws 1173, 1183 14Actof May 28, 1997, 75th Leg., R.S., ch. 1294, 4 1, sec. 107.001(d), 1997 Tex. Gen. Laws 4930,493l (emphasisadded).

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 (applyingonlyto compensationofanattorneyappointedin 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 aprivate 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, acourt “may not award costs, fees, or expenses to [a] guardian ad litem against the state, a state agency, or apolitical subdivision ofthe state” in any private SAPCR. TEx. Fm. CODE-. § 107.023(c) (Vernon Supp. 2006). Thus, acounty is prohibited from paying for such services in aprivate 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 aprivate 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 ofan attorney--including aguardian ad litem who is also an attorney-appointed to represent achild in aprivate 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 theparent-child relationship filed before September 1,2003, Under the current provisions of Family Code chapter 107, a county may not pay for the services ofan amicus attorney, attorney ad litem, or guardian ad litem in aprivate 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