Can a Texas county pay the court-appointed attorney's fees in a private child custody case?

TX AG Opinion GA-0489: When may a Texas county pay for an ad litem in a private custody suit?

Plain-English summary

Denton County Criminal District Attorney Bruce Isaacks asked the Attorney General about a 2003 overhaul of Family Code chapter 107 and how it changed the rules for who pays the court-appointed attorneys and advocates in private custody and termination cases. The cast of appointees includes an amicus attorney (an attorney who helps the court protect a child's best interests rather than represent the child), an attorney ad litem (an attorney who actually represents a person, including a child), and a guardian ad litem (a person, sometimes an attorney, appointed to represent a child's best interests). The question was limited to a "private" suit affecting the parent-child relationship, meaning one not filed by a governmental entity.

The opinion split the analysis at September 1, 2003, the date the 2003 amendments took effect. The amendments applied only to suits filed on or after that date, so the old law still governs older cases.

Under the current law, the statute says a court may not award costs, fees, or expenses for any of these appointees against the state, a state agency, or a political subdivision. The opinion read that as a flat bar: for a private suit filed on or after September 1, 2003, a county may not pay for an amicus attorney, an attorney ad litem, or a guardian ad litem, even when the parties are indigent.

Under the former law, the picture was narrower but not empty. A county was required to pay an attorney (including a guardian ad litem who happened to be an attorney) appointed to represent a child or parent in a private suit to terminate the parent-child relationship when the parents were indigent. A county could not pay for those services in any other private suit. And because the "amicus attorney" role did not exist before 2003, a county had no basis to pay an amicus attorney in any pre-2003 case.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Family Code chapter 107 has been amended repeatedly since 2006. The section numbers and rules described here reflect the statute as it stood at the time. Anyone dealing with payment of an appointee's fees today should check the current Family Code and recent case law rather than relying on this opinion.

Who this opinion affected (as of 2006)

Counties and county auditors: The opinion told counties that, for private parent-child suits filed on or after September 1, 2003, they could not pay any of the three types of appointees, and that for older suits the only mandatory county payment was for an attorney representing a child or parent in an indigent termination case.

Family-court judges: The opinion clarified that under current chapter 107 the cost of these appointments falls on the parties to a private suit, with the court directed to weigh the parties' ability to pay and to consider lower-cost alternatives before appointing.

Parents and children in private custody and termination cases: The opinion meant that, for newer cases, the parties themselves bear the cost of an appointed amicus attorney, attorney ad litem, or guardian ad litem, rather than the county, regardless of indigence.

Common questions

What is the difference between an amicus attorney, an attorney ad litem, and a guardian ad litem?
An amicus attorney is appointed to help the court protect a child's best interests, not to represent the child. An attorney ad litem provides legal services directly to a person (including a child) and owes that person undivided loyalty. A guardian ad litem is appointed to represent a child's best interests and can be an attorney, a volunteer advocate, or another qualified adult.

Why does the filing date matter so much?
The 2003 amendments to chapter 107 applied only to suits filed on or after September 1, 2003. Suits filed before that date are still governed by the older provisions, which had different rules about county payment.

Could a county pay an ad litem before the 2003 changes?
Yes, in a limited situation. A county was required to pay an attorney appointed to represent a child or parent in a private suit to terminate the parent-child relationship when the parents were indigent. A county could not pay for those services in any other private suit filed before September 1, 2003.

Can a county ever pay for these appointees in a newer case?
Under the law as the opinion described it, no. For a private suit filed on or after September 1, 2003, the statute barred awarding the costs, fees, or expenses of any of these appointees against the state or a political subdivision, regardless of the parties' indigence.

Background and statutory framework

Family Code chapter 107, subchapter B, part 2 sets the rules for appointing and compensating amicus attorneys, attorneys ad litem, and guardians ad litem in suits affecting the parent-child relationship other than suits filed by a governmental entity (Tex. Fam. Code Ann. §§ 107.021-.023 (Vernon Supp. 2006)). Section 107.021(a) lets a court appoint such attorneys and guardians in a suit in which the best interests of a child are at issue, and section 107.021(a-1) addresses appointments in a private termination suit. Section 107.021(b)(1) directs the court to weigh the parties' ability to pay and the cost of alternatives, and section 107.021(b)(3) bars requiring an appointee to serve without reasonable compensation. Section 107.023(b) requires the court to set fees and expenses and order deposits, while section 107.023(c) bars awarding those costs against the state, a state agency, or a political subdivision. Section 107.023(d) lets a court treat such fees as necessaries for the benefit of the child. The definitions of the three appointee roles appear in section 107.001(1), (2), and (5).

These sections were added in 2003 as part of a comprehensive reform of chapter 107 (Act of May 27, 2003, 78th Leg., R.S., ch. 262, 2003 Tex. Gen. Laws 1173 (House Bill 1815)), effective September 1, 2003, and applied only to suits filed on or after that date. Before the 2003 changes, former section 107.015(c) required that an attorney appointed to represent a child or parent in an indigent termination suit be paid from the general funds of the county (Act of May 30, 1999, 76th Leg., R.S., ch. 1390, § 6, sec. 107.015(c), 1999 Tex. Gen. Laws 4696). Earlier enactments shaped the former definitions and scheme (Act of May 28, 1997, 75th Leg., R.S., ch. 1294, § 1, sec. 107.001(d), 1997 Tex. Gen. Laws 4930; Act of May 26, 1995, 74th Leg., R.S., ch. 751, 1995 Tex. Gen. Laws 3885). The opinion also noted that 2005 revisions to sections 107.021 and 107.023 did not change its conclusion.

Citations

Statutes and session laws:

• Tex. Fam. Code Ann. §§ 107.001(1), 107.001(2), 107.001(5), 107.021, 107.021(a), 107.021(a-1), 107.021(b)(1), 107.021(b)(3), 107.023(b), 107.023(c), 107.023(d) (Vernon Supp. 2006)
• Act of May 27, 2003, 78th Leg., R.S., ch. 262, 2003 Tex. Gen. Laws 1173 (House Bill 1815)
• Act of May 30, 1999, 76th Leg., R.S., ch. 1390, § 6, sec. 107.015(c), 1999 Tex. Gen. Laws 4696
• Act of May 28, 1997, 75th Leg., R.S., ch. 1294, § 1, sec. 107.001(d), 1997 Tex. Gen. Laws 4930
• Act of May 26, 1995, 74th Leg., R.S., ch. 751, 1995 Tex. Gen. Laws 3885

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0489
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0489.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

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 filed by a governmental entity. See Tex. Fam. Code Ann. §§ 107.021-.023 (Vernon Supp. 2006). Relevant here, section 107.021 currently permits 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 of the 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 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. § 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 SAPCR to "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. § 107.021(b)(1). A court "may not require a person appointed under this section to serve without reasonable compensation for the services rendered by the person." Id. § 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. § 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. 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 parents. 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 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(c). 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 filed prior to September 1, 2003 and cases filed 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 a private SAPCR filed after September 1, 2003, section 107.023 expressly prohibits awarding "costs, fees, or expenses to an amicus attorney . . . against the state, a state agency, or a political subdivision of the state." Tex. Fam. Code Ann. § 107.023(c) (Vernon Supp. 2006). Thus, 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 filed 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 filed 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 attorney, 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." 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 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. There was, moreover, no provision permitting a county to compensate a guardian ad litem who was not also an attorney. 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. Fam. Code Ann. § 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.

SUMMARY

Certain former provisions in Family Code chapter 107 apply to suits affecting the parent-child relationship filed 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 1, 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 filed 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

Footnotes

1. 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 file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. 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. § 107.001(1) (Vernon Supp. 2006).

3. 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 of undivided loyalty, confidentiality, and competent representation." Id. § 107.001(2).

4. A guardian ad litem is "a person appointed to represent the best interests of a child"; this term includes certain non-attorney professionals. Id. § 107.001(5).

5. See Act of May 27, 2003, 78th Leg., R.S., ch. 262, 2003 Tex. Gen. Laws 1173, 1173 (House Bill 1815); see generally House Research Org., Bill Analysis, Tex. H.B. 1815, 78th Leg., R.S. (2003) at 6 (commenting on the need for legislation that would clarify the roles of attorneys and volunteer advocates appointed by a court in private custody cases); House Comm. on Juvenile Justice and Family Issues, Interim Report to the 78th Legislature 3-12 (2002) (commenting on the need for comprehensive reform of Family Code chapter 107).

6. See Act of May 27, 2003, 78th Leg., R.S., ch. 262, §§ 2-3, 2003 Tex. Gen. Laws 1173, 1183.

7. See Act of May 30, 1999, 76th Leg., R.S., ch. 1390, § 6, sec. 107.015(c), 1999 Tex. Gen. Laws 4696, 4698.

8. Act of May 30, 1999, 76th Leg., R.S., ch. 1390, § 6, sec. 107.015(c), 1999 Tex. Gen. Laws 4696, 4698.

9. See id.

10. See Act of May 27, 2003, 78th Leg., R.S., ch. 262, § 1, sec. 107.001(1), 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).

11. Act of May 30, 1999, 76th Leg., R.S., ch. 1390, § 6, sec. 107.015(c), 1999 Tex. Gen. Laws 4696, 4698.

12. See id. sec. 107.015(a)-(c), at 4697-98 (applying only to compensation of an attorney appointed in suit involving the termination of parental rights).

13. Act of May 27, 2003, 78th Leg., R.S., ch. 262, §§ 2-3, 2003 Tex. Gen. Laws 1173, 1183.

14. Act of May 28, 1997, 75th Leg., R.S., ch. 1294, § 1, sec. 107.001(d), 1997 Tex. Gen. Laws 4930, 4931 (emphasis added).

15. Act of May 30, 1999, 76th Leg., R.S., ch. 1390, § 6, sec. 107.015(c), 1999 Tex. Gen. Laws 4696, 4698.

16. See id. sec. 107.015(a)-(c), at 4697-98 (applying only to compensation of an attorney appointed in suit involving the termination of parental rights).

17. See generally Act of May 26, 1995, 74th Leg., R.S., ch. 751, 1995 Tex. Gen. Laws 3885, 3888; Act of May 28, 1997, 75th Leg., R.S., ch. 1294, 1997 Tex. Gen. Laws 4930, 4930; Act of May 30, 1999, 76th Leg., R.S., ch. 1390, 1999 Tex. Gen. Laws 4696, 4696.

18. 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 1, at 2 ("In 2005 the legislature passed revisions to § 107.021 and § 107.023 which appear on their face to conflict with previously passed provisions."). We have reviewed these changes, and they do not affect our conclusion.