                                  ATTORNEY              GENERAL            OF TEXAS
                                                GREG         ABBOTT




                                                   December 4,2006



The Honorable Bruce Isaacks                                  Opinion No. GA-0489
Denton County Criminal District Attorney
Post Office Box 2344                                         Re: Amendments made in 2003 to Family Code
Denton, Texas 76209                                          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)[hereinafterRequest 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 JUVENILEJUSTICE AND FAMILY ISSUES, INTERIM REPORT TO THE 78~~ LEGISLATURE3-12 (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. 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 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
 (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   (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 OUTconclusion.
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
