ATTORNEYGENERALOF TEXAS 

GREG ABBOTT 

February 27,2006 

The Honorable Jane Nelson 

Chair, Committee on Health and Human 

Services 

Texas State Senate 

Post Office Box 12068 

Austin, Texas 7871 l-2068 

The Honorable Suzanna Hupp 

Chair, Committee on Human Services 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Opinion No. GA-0406 

Re: Whether a telephone interview satisfies an 

attorney ad litem’s duty under Texas Family Code 

section 107.004(d) to meet with the child before 

each court hearing or, if the child is under four 

years of age, with the individual with whom the 

child ordinarily resides; whether a court has 

meaningful discretion to determine that the 

attorney ad litem has shown good cause for not 

complying with this section (RQ-0387-GA) 

Dear Senator Nelson and Representative Hupp: 

You ask whether a telephone interview satisfies an attorney ad litem’s duty under Texas 

Family Code section 107.004(d) to meet with the child before each court hearing or, if the child is 

under four years of age, with the individual with whom the child ordinarily resides.’ You also ask 

whether, given the language of section 107.004(e), a court has “meaningful discretion” to determine 

that the attorney ad litem has shown good cause for not complying with section 107.004(d). See 

Request Letter, supra note 1. 

During its last regular session the legislature made a number of changes concerning the 

state’s child and adult protective services. See Act of May 29, 2005, 79th Leg., R.S., ch. 268, 

5 1.04(a), 2005 Tex. Gen. Laws 621, 622. The legislature added the following requirement to the 

duties of an attorney ad litem appointed for a child in a proceeding under chapter 262 (,‘ Procedures 

in Suit by Governmental Entity to Protect Health and Safety of Child”) or chapter 263 (“Review of 

Placement of Children under Care of Department of Protective and Regulatory Services”): 

(d) Except as provided by Subsection (e), an attorney ad litem 

appointed for a child in a proceeding under Chapter 262 or 263 shall 

meet before each court hearing with: 

‘See Letter fkom Honorable Jane Nelson, Chair, Senate Committee on Health and Human Services, and 

Honorable Suzanna Hupp, Chair, House Committee on Human Services, to Honorable Greg Abbott, Attorney General 

of Texas (Aug. 24,2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter 

Request Letter]. 
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(1) the child, if the child is at least four years of age; or 

(2) the individual with whom the child ordinarily resides, 

including the child’s parent, conservator, guardian, caretaker, or 

custodian, if the child is younger than four years of age. 

(e) An attorney ad litem appointed for a child in a proceeding under 

Chapter 262 or 263 is not required to comply with Subsection (d) 

before a hearing if the court finds at that hearing that the attorney ad 

litem has shown good cause why the attorney ad litem’s compliance 

with that subsection is not feasible or in the best interest of the child. 

Id. (codified at TEX. FAM. CODE ANN. 0 107.004(d)-(e) (Vernon Supp. 2005)). You ask first 

whether an interview over the telephone would satisfy the new requirement to “meet” with the child 

or the individual with whom the child ordinarily resides. See Request Letter, supra note 1; TEX. 

FAM. CODE ANN. 6 107.004(d) (Vernon Supp. 2005). 

The primary goal of statutory construction is to ascertain and give effect to the legislature’s 

intent. See Tex. Natural Rex Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368,378 

(Tex. 2005). To achieve that goal, the language of a statute must be construed in context and the 

statute should be construed as a whole rather than as isolated provisions. See TEX. GOV’T CODE 

ANN. 5 311 .Oll (Vernon 2005); City of San Antonio v. City of Boerne, 111 S.W.3d 22,25 (Tex. 

2003). One provision should not be given “a meaning out of harmony or inconsistent with other 

provisions, although it might be susceptible to such a construction standing alone.” See Helena 

Ckem. Co. v. Wilkins, 47 S.W.3d 486,493 (Tex. 2001). 

An attorney ad litem is an attorney appointed to provide legal services to a child and who 

owes the child “duties of undivided loyalty, confidentiality, and competent representation.” TEX. 

FAM. CODE ANN. 9 107.001(2) (Vernon Supp. 2005). An attorney ad litem’s duties are set out 

principally in sections 107.003 and 107.004. See id. 96 107.003-.004. An attorney ad litem who 

fails to perform duties required by either section is subject to professional disciplinary action. See 

id. $ 107.pO45. 

Section 107.004(d) does not specifically state what it means to “meet” with the child or 

person with whom the child resides. See id. 0 107.004(d). When words do not have a technical or 

particular meaning by definition or otherwise, we are to give them their ordinary meanings. See TEX. 

GOV’T CODE ANN. $ 3 11 .Ol 1 (Vernon 2005). In the context of a person meeting with another 

person, the word commonly means “to come into the presence of,” “to come together with 

[especially] at a particular time or place,” or “to come face-to-face.” MERRIAM WEBSTER’S 

COLLEGIATE DICTIONARY 723 (10th ed. 1993); see also Pitts v. State, 16 S. W. 189, 190 (Tex. Ct. 

App. 1891, no pet.) (noting dictionary definition of the word “meet” as to “come together by mutual 

approach, ” “to fall in with another,” “to come face to face,” “ to converge”). In this sense, to “meet” 

is to encounter in person. 
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To “meet” may also mean “to enter into conference, argument, or personal dealings with.” 

MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 723 (10th ed. 1993). That sense of the word would 

not necessarily exclude a telephonic conference. For example, in another context the Family Code 

defines the related word “meeting” to mean “an in-person meeting or a meeting held by telephone 

or other electronic medium.” See TEX. FAM. CODE ANN. 0 264.50 l(7) (Vernon 2002) (concerning 

meetings of a child fatality review team committee). Thus, the common meaning of the word 

“meet,” in isolation, does not resolve the question. 

However, we are to read statutes as a whole and in light of related provisions. See Helena 

Ckem. Co., 47 S.W.3d at 493. Accordingly, we review the duty to meet with the child in the context 

of the attorney ad litem’s other statutory duties. Under section 107.003(a), an attorney ad litem has 

the duty within a reasonable time after the appointment to “interview” (1) the child if the child is four 

years of age or older, (2) persons with significant knowledge of the child’s history and condition, and 

(3) the parties to the suit. See TEX. FAM. CODE ANN. $ 107.003(1)(A)(i)-(iii) (Vernon Supp. 2005). 

The attorney must “seek to elicit in a developmentally appropriate manner the child’s expressed 

objectives of representation.” Id. 5 107.003(1)(B). 

Section 107.004 not only requires the attorney to meet with a child four years of age or older 

before hearings, but also generally to “represent the child’s expressed objectives of representation 

and follow the child’s expressed objectives of representation during the course of litigation if the 

attorney ad litem determines that the child is competent to understand the nature of an attorney-client 

relationship and has formed that relationship with the attorney ad litem.” Id. 5 107.004(a)(2). 

Additionally, section 107.004 requires an attorney ad litem, “as appropriate, considering the nature 

of the appointment,” to “become familiar with the American Bar Association’s standards ofpractice 

for attorneys who represent children in abuse and neglect cases, the suggested amendments to those 

standards adopted by the National Association of Counsel for Children, and the American Bar 

Association’s standards of practice for attorneys who represent children in custody cases.” Id. 0 

107.004(a)(3). 

The standards and amendments referenced in the statute stress the importance of meeting 

with a child in person. For example, standard C-l of the standard concerning abuse and neglect 

cases states: 

C-l. Meet With Child. Establishing and maintaining a relationship 

with a child is the foundation of representation. Therefore, 

irrespective of the child’s age, the child’s attorney should visit with 

the child prior to court hearings and when apprised of emergencies or 

significant events impacting on the child. 

Commentary 

Meeting with the child is important before court hearings and 

case reviews. In addition, changes inplacement, school suspensions, 

in-patient hospitalizations, and other similar changes warrant 
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meeting again with the child. Such in-person meetings allow the 

lawyer to explain to the child what is happening, what alternatives 

might be available, and what will happen next. This also allows the 

lawyer to assess the child’s circumstances, often leading to a greater 

understanding of the case, which may lead to more creative solutions 

in the child’s interest. A lawyer can learn a great dealfrom meeting 

with child clients, including a preverbal child. See, e.g., JAMES 

GARBARINO, ET ALL], WHAT CHILDREN CAN TELL US: 

ELICITING, INTERPRETING, AND EVALUATING CRITICAL 

INFORM TION FROM CHILDREN (1992). 

AMERICAN BAR ASSOCIATION, STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN 

IN ABUSE AND NEGLECT CASES C- 1 (1996) at 7, available at http://www.abanet.org/child/ 

repstandwhole.pdf.2 To “[mleet with the child” under these standards requires an attorney to meet 

in person with the child in order to facilitate communication and assess the child’s circumstances 

to achieve a “greater understanding of the case.” Id. The statute appears to contemplate that an 

attorney ad litem appointed for chapter 262 or chapter 263 purposes will meet in person with the 

child, or if the child is under four years bf age, with the adult with whom the child ordinarily resides. 

Consequently, a telephone interview would not satisfy the duty under section 107.004(d). 

Section 107.004(e) relieves an attorney ad litem of the duty to comply with section 

107.004(d) before a hearing if “the court finds at that hearing that the attorney ad litem has shown 

good cause why the attorney ad litem’s compliance with that subsection is not feasible or in the best 

interest of the child.” TEX. FAM. CODE ANN. 5 107.004(e) (Vernon Supp. 2005). You ask whether 

the phrase “not feasible” in section 107.004(e) gives a court “meaningful discretion” to find that an 

attorney showed good cause for not complying with section 107.004(d). See Request Letter, supra 

note 1. The word “feasible” is not statutorily defined, but commonly means “capable ofbeing done.” 

Am. Textile Mfis. Inst. v. Donovan, 452 U.S. 490, 508 (1981) (noting dictionary definitions of 

“feasible” as “‘capable of being done, executed, or effected,“’ “‘[clapable of being done, 

accomplished or carried out,“’ and “‘ [t]hat may be done, performed or effected”‘) (citations omitted); 

accord Harris County v. Smith, 96 S.W.3d 230, 235 (Tex. 2002) (equating “feasible” with 

“practicable”); Tex. Dep ‘t of Human Servs. v. E. B., 802 S. W.2d 647,649 (Tex. 1990) (determining 

that “whenever feasible” means “in any or every instance in which it is capable of being 

accomplished”). As we are to apply the common meaning of words, see TEX. GOV’T CODE ANN. 

6 311.011(a) (Vemon2005), we conclude that under section 107.004(e), a trial court’s discretion to 

find good cause based on feasibility requires the court to find that compliance was not practicable 

or capable of being done. 

‘See also AMERICAN BAR ASSOCIATION, STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN 

m ABUSE AND NEGLECT CASES (Nat’1 Ass’n of Counsel for Children, Revised Version, amended Apr. 2 1, 1999) at 13, 

available at http:l/www.naccchildlaw.orgidocumentslabastandardsnaccrevised.doc; AMERICAN BAR ASSOCMION, 

SECTION OF FMILY LAW STANDARDS OF PRACTICE FOR LAWYERS REPRESENTING CHILDREN riv CUSTODY CASES III-E 

(2003) at 4, available at http:/iwww.abanet.org/familyiApproved%2Ostandards%20practice.pdf: 
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The Honorable Suzanna Hupp 

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We note, however, that section 107.004(e) also permits a finding of good cause because 

compliance would not be in the best interest of the child. See TEX. FAM. CODE ANN. 6 107.004(e) 

(Vernon Supp. 2005). And under that standard we believe a trial court could consider other duties 

of the attorney ad litem, such as the duty to take actions necessary to expedite proceedings. See id 

$ 107.003(1)(G). Consequently, we conclude that a court has discretion under 107.004(e) to 

determine that an attorney has established good cause for noncompliance if it finds that compliance 

was impracticable, not capable of being done or was not in the best interest of the child. Of course, 

whether an attorney has demonstrated good cause will depend on the facts of the particular case. See 

Furr’s Supermarkets, Inc., v. Bethune, 53 S.W.3d 375,376-77 (Tex. 2001) (observing in another 

context that “‘[glood cause’ is an elusive concept that varies from case to case”). 
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The Honorable Suzanna Hupp 

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SUMMARY 

Texas Family Code section 107.004(d) requires an attorney 

ad litem appointed for chapter 262 or chapter 263 purposes to meet 

in person with a child before each court hearing or, if the child is 

under four years of age, with the adult with whom the child ordinarily 

resides. This statutory duty may not be satisfied by conducting 

a telephone interview. A court has discretion to determine that an 

attorney ad litem has established good cause for noncompliance with 

that section if the court finds that compliance was impracticable, not 

capable of being done or was not in the best interest of the child. 

BARRY R. MCBEE 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

William A. Hill 

Assistant Attorney General, Opinion Committee