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23

their name is moved to the end of the applicable list.

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New Government Code Sec. 37.003 requires courts to establish and maintain lists of: 1) “all attorneys who

are qualified to serve as an attorney ad litem and are registered with the court,” 2) “all attorneys and other

persons who are qualified to serve as a guardian ad litem and are registered with the court,” 3) “all persons

who are registered with the court to serve as a mediator,” and 4) “all attorneys and private professional

guardians who are qualified to serve as a guardian as defined by Sec. 1002.012, Estates Code, and are

registered with the court.” A court may establish and maintain more than one list that is categorized by the

type of case and a person’s qualifications.

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“Qualified to Serve”

To be placed on the list to serve as an attorney ad litem, guardian ad litem and guardian, Sec. 37.003

requires that the person be “qualified to serve” in that capacity and register with the court.

9

The new law

provides no guidance on how to determine if a person is “qualified to serve.” At a minimum, persons placed

on lists for positions that have statutory requirements to serve in that capacity should meet those minimum

requirements before being “registered” with the court and placed on the list. The following is a list of court

appointed positions that have specific statutory requirements and a description of the requirements.

Attorney ad litem for child or parent in a child protection case

- must complete three hours of continuing

legal education relating to representing children or parents in child protection cases, depending on the

type of appointment, as soon as practicable after the appointment. However, the attorney is not required to

comply with this requirement if the court finds that the attorney ad litem has experience equivalent to the

education. If a person is required to complete the CLE, the attorney must receive an additional three hours

of CLE annually by the anniversary of the day the person was added to the court’s list in order to remain on

the list of attorneys who are eligible to represent children and parents in child protection cases.

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Attorneys who serve as guardians or attorneys ad litem in guardianship proceedings

– to be appointed in a

guardianship established before September 1, 2015, must be certified by the State Bar as having successfully

completed a three-hour course of study in guardianship law and procedure sponsored by the State Bar or

its designee.

11

This provision was amended by the 84

th

Legislature in House Bill 39.

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For guardianships

established after September 1, 2015, the attorney must have completed a four-hour course of study that

includes an hour on alternatives to guardianships and the support and services available to proposed wards.

The certification issued by the State Bar expires two years from the date it is issued.

Professional guardians

- persons who are in the business of providing guardianship services are required

to be certified by the Judicial Branch Certification Commission and would need this certification in order to

be “qualified to serve” as a private professional guardian and be registered with the court and placed on the

list.

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Other than the few court appointed positions that have specific statutory requirements, there is no guidance

for a judge to determine whether a person is qualified for purposes of being placed on the list. Arguably, the

judge or judges in a county could adopt additional objective standards, but this exercise could be subject to

challenge if the standards are not truly objective. If judges are interested in setting up additional standards,

they may find it helpful to review the standards established by the judges for the qualifications needed to be

placed on the public appointment list to represent indigent defendants and by local selection committees

for the qualification of attorneys who can represent indigent defendants in capital cases in which the death

penalty is sought.

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Establishing and Maintaining the Lists

A court may request that the court’s local administrative judge (LAJ) establish and maintain the required

lists for the court. An LAJ is required to maintain these lists for any court that requests the LAJ to do so, even

if it is just one court. The LAJ may establish and maintain one list for all of the requesting courts and may

maintain separate lists categorized by the type of case and the person’s qualifications.

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