Rosscer Craig Tucker, II v. Lizabeth Thomas ( 2011 )

_Affirmed in Part, Reversed and Remanded in Part, and En Banc Majority,
Concurring, and Dissenting Opinions filed December 20, 2011.
In The
Fourteenth Court of Appeals
NO. 14-09-01081-CV
ROSSCER CRAIG TUCKER, II, Appellant
V.
LIZABETH THOMAS, Appellee
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 2003-55104
EN BANC CONCURRING OPINION
I join the majority’s holding that the trial court did not abuse its discretion in
awarding attorney’s fees as child support under the facts of this case. I write separately
to emphasize and distinguish the propriety of the trial court’s award of fees to the amicus
attorney.
The amicus attorney is a relatively new statutory position.1 The Family Code
1
See Act of June 18, 2003, 78th Leg., R.S., ch. 262, 2003 Gen. Laws 1173, 1173–83 (current
version at Tex. Fam. Code §§ 107.001–.056).
defines an ―amicus attorney‖ as ―an attorney appointed by the 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 § 107.001(1)
(emphasis added).2 Although often considered a lawyer for the child, the amicus is
appointed to assist the court.3 The court may appoint an amicus only if it finds the
appointment necessary to determine the child’s best interests and may not require an
appointed amicus to serve without reasonable compensation. See id. § 107.021(b)(2)–(3);
see also In Re Collins, 242 S.W.3d 837, 844 & n.16 (Tex. App.—Houston [14th Dist.]
2007, no pet.).
Here, the trial court found that ―all amicus attorney’s fees in this case are
reasonable and necessary, as necessaries for the benefit and best interest of the children,‖
and ordered appellant to pay half of the amicus attorney’s fees ―as additional child
support.‖ The majority correctly points out that Family Code section 107.023 explicitly
authorized the trial court’s finding that the amicus attorney’s fees are ―necessaries.‖ See
Tex. Fam. Code § 107.023(d). An order to pay amicus attorney’s fees in the nature of
child support thus should be interpreted as an order to pay such fees as ―necessaries‖ for
the children’s benefit, consistent with the statute. See id.
In this case, the trial court made specific findings; however, even without such
findings, the appointment of the amicus attorney can only be made if the court finds her
services ―necessary‖ to assist in protecting the child’s best interests. See id.
§§ 107.001(1), 107.021(b)(2). The trial court should be given broad discretion in making
this determination. Since the court is not permitted to require an amicus to serve without
reasonable compensation, the court must use all available tools to ensure that the amicus
attorney is paid, including, when permitted by the statute, ordering such fees to be paid in
2
Our paramount goal in suits that determine the needs of a child is also to protect the child’s best
interests. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex. 1993); see also Tex. Fam. Code
§ 153.002.
3
Tex. Fam. Code §107.001(1); see also In Re Collins, 242 S.W.3d 837, 843–44 (Tex. App.—
Houston [14th Dist.] 2007, no pet.).
2
the nature of child support. See id. § 107.023(d). This policy encourages competent
attorneys to accept amicus attorney assignments and fulfill the vital role ―to assist the
court in protecting a child’s best interests.‖ Id. §§ 107.001(1); see also id. § 153.002.
With these comments, I concur in the court’s holding that the trial court did not
abuse its discretion in determining the amicus and attorney’s fees to be ―necessaries‖ for
the children’s benefit and ordering them to be paid as child support.
/s/ Martha Hill Jamison
Justice
The en banc court consists of Chief Justice Hedges and Justices Frost, Seymore, Brown,
Boyce, Christopher, Jamison, and McCally. Justice Anderson is not participating.
Justices Seymore, Brown, Boyce, and Jamison join the En Banc Majority Opinion
authored by Justice Frost. Justice Frost issues a separate En Banc Concurring Opinion in
which Justices Seymore and Brown join. Justice Jamison issues an En Banc Concurring
Opinion. Justice Christopher issues an En Banc Dissenting Opinion in which Chief
Justice Hedges and Justice McCally join.
3