in the Interest of S.A.G., a Child

403 S.W.3d 907, 2013 WL 2988783, 2013 Tex. App. LEXIS 7346
Court of Appeals of Texas·Decided June 14, 2013·No. 06-12-00105-CV·Published·Cited by 17 cases

Opinions

OPINION

Opinion by

Justice MOSELEY.

Glenna Sue Terry brought a suit affecting the parent-child relationship of her grandson, S.A.G., wherein she sought to be appointed joint managing conservator of the child. Terry’s daughter (the mother of S.A.G.), Lesli Glover, was named as a respondent. During the pendency of the case, the trial court appointed an amicus attorney, and, after a hearing on the merits, the trial court denied Terry’s petition. On appeal, Terry argues that (1) an ex parte meeting of the trial court and the amicus attorney violated the Confrontation Clause, (2) Texas Family Code “statutes §§ 107.003, 107.005, 107.006 and 107.021,” which deal with the appointment of amicus attorneys, are facially unconstitutional and unconstitutional as applied to this ease, and (3) the trial court erred by allowing the amicus attorney to violate parts of Section 107.007 of the Texas Family Code [910]*910by having an ex parte interview with the trial court after the conclusion of the hearing. Although we find that the trial court erred in permitting ex parte communications with the amicus attorney, we find the error harmless in this case and affirm the trial court’s judgment.

I. Factual Background

In 2003, as part of a general overhaul to Chapter 107 of the Texas Family Code, the Texas Legislature created the new court-appointed position of amicus attorney. See Act of June 18, 2003, 78th Leg., R.S., ch. 262, 2003 Tex. Gen. Laws 1173, 1173-83 (amended 2005) (current version at Tex. Fam.Code Ann. §§ 107.001-.010 (West 2008)). An amicus attorney “means an attorney appointed by the trial court in a suit ... 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). The powers and duties of an amicus attorney are specified by Texas Family Code Sections 107.003 and 107.005.1 This new position is something of a legal will-o’-the-wisp [911]*911whose client is not defined in the statute (and, thus, whose representative capacity is cloudy), a concept that appears to be antithetical to the adversary system of justice under which courts in this Nation have always operated. Under the authority granted to the court by Texas Family Code Section 107.021, the trial court appointed James Wendell Litzler as amicus attorney in this case. See Tex. Fam.Code Ann. § 107.021(a) (West 2008). In accord with these statutes, Litzler reviewed the pleadings, met with S.A.G. and his counsel- or, spoke with the parties and their attorneys, and attended the trial of the case on August 15, 2012.

Litzler submitted an invoice to the trial court which included a reference to a forty-five-minute “Meeting with Judge [Amy] Smith” August 16, 2012 (the day after the contested hearing). An August 27, 2012, letter from the trial judge informed counsel that “Litzler has given me his recommendation as Amicus Attorney in this matter. He believes the child should remain with the mother.” The letter further stated that “Litzler’s recommendation and the testimony of the witnesses” led the trial judge to “den[y] the request to change custody” and concluded with a request that Glover’s attorney create a proposed order for the court’s signature.

After the date of the trial court’s letter, but before the proposed order was actually signed, a motion for rehearing was filed that vigorously complained of the ex parte meeting between the amicus attorney and the trial court. This motion stated, in part,

1. On August 15, 2012, this Court heard this case and is considering whether to sign a proposed judgment ... in this case.
2. A rehearing should be granted to Movant because this Court considered evidence that was improper and prejudicial to the rights of Movant. Specifically, the Amicus Attorney met privately with the judge and fact finder of this Court in this case and argued his recommendation outside the presence of all attorneys and parties in this case.
3. This out-of-court private meeting to consider the amicus’ opinion and advice in this case violates Section 107.007(a)(4)2 of the Texas Family Code [912]*912which specifically forbids an amicus attorney from testifying in any case. Also the private meeting and consultation is in violation of Section 107.003(1)(A) of the Texas Family Code which says that an amicus can participate in the conduct of litigation to the same extent as an attorney for a party. No attorney for any party may have a private, ex parte session with the judge to argue or present their side of the case, and therefore, this is a violation of this section.
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5. Further, as alluded to already, the opinion allowed to be given by the ami-cus attorney in private was not subject to cross-examination, and this is a violation of the United States and Texas constitutional right of confrontation.

The motion also alleged that the “amicus attorney statute provisions ... are unconstitutional on the grounds that they violate [ ] due process rights,” “the right of confrontation,” “the attorney client privilege and right of privacy between the child and the attorney,” and “the right of privacy and the right of attorney client privilege of the parties in the suit.”

The trial court entered its order in conformity with the letter ruling on October 3, 2012. This order denied Terry’s petition to modify the parent-child relationship by naming her a joint managing conservator. Nevertheless, a hearing on Terry’s motion for new trial was conducted November 1, 2012, wherein Litzler (the only witness at the hearing) confirmed that he had met with the trial judge privately on the day after trial, discussed the testimony of the witnesses, and expressed his opinion on the case without the parties and their attorneys present. The trial court found that “Mr. Litzler did exactly what he was supposed to do under the statute” and denied the motion for new trial.

II. Confrontation Clause Does Not Apply to Civil Cases

Terry complains that the ex parte meeting with the trial judge violated “the Confrontation Clause of the United States and Texas Constitutions” and cites only the case of Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to support this proposition.

However, the Sixth Amendment Confrontation Clause and Article I, Section 10 of the Texas Constitution apply only “[i]n all criminal prosecutions,” and Crawford is a criminal case which does not apply to this civil proceeding. U.S. Const. amend. VI; Tex. Const. art. I, § 10; see In re Commitment of Polk, 187 S.W.3d 550, 555-56 (Tex.App.-Beaumont 2006, no pet.). In sum, “[t]here is no

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in the Interest of S.A.G., a Child, 403 S.W.3d 907, 2013 WL 2988783, 2013 Tex. App. LEXIS 7346 (Tex. Ct. App. 2013).

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