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November 9, 2017
A Trial Judge’s Perspective on Chapters 36 and 37 of the Texas Government Code: Court Appointments and Related Fees
by Judge Amy Clark Meachum, 201st Travis County Civil District Court
In 2015, The Texas Legislature passed two statutes that changed the way in which judges make court appointments, as well as who they can appoint in a particular case. Since September 1, 2015, judges have been required to establish rotating appointment list(s) for Attorneys Ad Litem, Guardians Ad Litem, Mediators and Guardians. Tex. Gov’t Code § 37.004. All appointments made under Chapter 37 – whether public-paid or paid for by the private parties – then have to be reported, as required by Texas Government Code Chapter 36. Chapter 36 also requires the reporting of fees. See § 36.004.
This new one-size-fits-all procedure has created a great deal of confusion and inconvenience for judges and lawyers around the state. Many have expressed concern about the negative effects of this law on efficiency and collaboration in the justice system. Attorneys have complained about what they perceive as needless red tape that increases the costs of litigation and interferes with their attempts to reach agreements on appointments. The statutes also have served as deterrents for certain pro bono legal services.
Unfortunately, judges have limited ability to adequately address these concerns because if they fail to enforce the statutes, they risk being referred to the State Commission on Judicial Conduct or losing grant money for their courts. Tex. Gov’t Code § 36.005.
Here in Travis County, the judges have made a concerted effort to comply with the statutes, even as we recognize the numerous substantive and practical problems these statutes have created.
The following is a summary of the ongoing issues with the two statutes and our continued attempts to address those issues.
As an initial matter, there is question about whether Chapter 37, the appointments statute, is an unconstitutional violation of the separation of powers doctrine. Because Chapter 37 instructs judges on who, when and how they can appoint ad litems and mediators, some judges across the state have concluded that the statute is unconstitutional on its face. An appeal in one of those cases is now pending at the Fourteenth Court of Appeals. See, e.g., In the Interest of K.L., Child, 14-16-01022-cv, Fourteenth Court of Appeals.
As of now, the judges in Travis County have been attempting to comply with the statute and follow its arcane, detailed requirements. However, for now the constitutional issues also muddy the waters for courts and counsel alike. The Texas Constitution of course takes precedence over statutory law. Therefore, if faced with a statute that purports to require unconstitutional action, a judge must follow the Constitution, not the statute—or risk a violation of the Canon 2A obligation to follow the law. Cf. Texas Code of Judicial Conduct, Canon 3B(2) (“A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.”). The pending constitutional uncertainty, therefore, poses a constitutional Catch-22 for trial judges around the state.
Confusion with Differing Interpretations by Different Courts:
Depending on the county and judge, there are wildly different interpretations and implementations of these statutes. In Travis County, the judges on our central docket have taken a plain language approach to interpreting the statute, as we believe that is required by law.
One example of these different interpretations is the decision by a judge and clerk whether to report non-discretionary appointments. In August 2016, the Office of Court Administration published FAQ, intended in part to lessen the burden of these statutes on the judges around the state. These FAQ stated that judges need not report appointments and other related information under Chapter 36 – nor follow the strictures of Chapter 37 for appointments – if the process did not involve the exercise of judicial “discretion.” See FAQ on OCA Website, dated August 26, 2016. http://www.txcourts.gov/reporting-to-oca/appointments-and-fees/district-county/. But neither Chapter 36 nor Chapter 37 uses that language or expressly states that type of limitation. To the contrary, the statutory language uses mandatory language. See, e.g., § 36.004(a): (“[T]he clerk of each court in this state shall prepare a report on court appointments for . . . mediator . . . ).
It is also not entirely under what circumstances a court makes an “appointment” without exercising “discretion.” As the Texas Supreme Court has so often emphasized, courts normally must interpret and apply statutes as they are written, rather than impose unwritten exceptions. See Leland v. Brandal, S.W3d 204, 206 (Tex. 2008). Moreover, words not included in a statute should be interpreted to be purposefully omitted. See In re M.N., 262 S.W3d 799, 802 (Tex. 2008).
Because the statutes do not appear to provide any written support for the OCA’s interpretation, Travis County courts are attempting to follow the plain language of the statute. That means we report almost all appointments—except for a few narrow exemptions specified in § 36.003. In many counties around the state, however, judges and clerks are following the FAQ from the OCA. Regardless of the lack of statutory language supporting this approach, this process is certainly less burdensome. Without this sort of discretionary caveat, the statutes operate as an unfunded mandate for every court in the state.
A New Bureaucracy for Judges, Lawyers and Litigants:
There are massive logistical burdens imposed on judges, their staffs, and clerks from the tracking and reporting obligations under Chapters 36 and 37. In Travis County, we currently maintain 18 rotating appointment list(s) for various Attorneys Ad Litem, Guardians Ad Litem, Mediators and Guardians appointed in many different types of cases. This has been a complex system to create and maintain. But mediators, GALs and AALs are appointed in all different types of cases, ranging from Child Protective Services, to personal injury cases involving minors, to general family-law custody disputes. Thus, different wheels are necessary and evolving to address the variety of cases and appointments.
In Travis County, the Local Administrative Judge and the civil district judges collectively determine whether an attorney has met the requirements for different types of appointments. All would-be appointees must fill out an application to be placed on one or more of the wheels. These lists are maintained by the District Judges’ Office in a software system called IDA. The lists are posted annually at the courthouse and on the Travis County District Court website, as required by Tex. Gov’t Code 37.005.
The starting point under § 37.004(a) is that “a court using a rotation system shall appoint the person whose name appears first on the applicable list.” That general principle has two exceptions. First, under § 37.004(c), a court may appoint a person as attorney ad litem, guardian ad litem, or guardian, whose name is not next on the list if the parties agree and the court approves the appointment. (Note that that exception for appointment by agreement does not appear to apply to mediators. Under the plain language of § 37.004(b), if an appointment of a mediator is necessary because the parties are unable to agree on a mediator, the court must appoint the person who is next on the list, unless an exception applies under § 37.004(d).)
Second, under § 37.004(d) a court may appoint a person whose name is not next on the list if (1) the appointment is on a “complex” matter, and (2) the court finds “good cause.” The statute sets out only three types of good cause: (i) the person possesses “relevant specialized education, training, certification, skill, language proficiency, or knowledge of the subject matter of the case”; (ii) the person has “relevant prior involvement” with the parties or the case; or (iii) the person is “in a relevant geographic limit.”
The district judges have requested the Local Administrative Judge to maintain the appointment lists for Travis County in accordance with 37.003(c). The judges believe that this works best for Travis County because of our central docket. However, most judges in the state have their own individual lists that they post on their own court websites and in their own courtrooms.
Travis County judges have presented CLEs for the bar and staff, created new forms, and an entirely new technological infrastructure. We will continue those efforts. We estimate that over a thousand hours have been dedicated to implementing this new statutory system by our judges, staff attorneys, accounting and information services personnel in 2016 and 2017. The child support IV-D judges have been burdened with a whole new appointment system, as well. Logistical problems remain with all of these appointment processes that we continue to address.
Even after all of the time and effort spent creating the appointment-and-reporting systems and infrastructure, there are still at least seven people involved every time an appointment is made:
- the judge making the appointment, with the various required determinations (and sometimes required findings) concerning the appointment is a wheel appointment, whether an agreed-appointment or good-cause exception exists or is appropriate, etc.;
- the judge’s staff, who must check to make sure that the appointee is on the appropriate wheel, or, if not, who is next on the wheel;
- the deputy district clerk who receives the filing of an appointment order and flags the appointment for reporting purposes;
- the responsible employee in the District Judges’ Office who handles the appointments in the system to make sure the appointee is moved to the bottom of the rotating list as required by Chapter 37;
- the accounting employee who handles the appointment internally and payment of fees, if any;
- the information-technology officer who prepares the monthly written reports for the Texas Office of Court Administration;
- the deputy district clerk who is in charge of posting on the website, maintaining the monthly reports and posting them physically around at the courthouse – as required by the statute.
By any measure, this is a substantial amount of work that was not required before 2015.
The Collateral Burden on Pro-Bono Legal Services:
Unfortunately, the statutory scheme has no exceptions for pro-bono appointments. So even if a lawyer is volunteering his or her time as an attorney ad litem to attempt to locate a husband served by publication in a divorce proceeding, this still must be done within the confines of Chapter 37. Chapter 36 subsequently requires that this volunteer appointment for no-fee be reported by the clerk to OCA.
Note that the “good cause” exception under § 37.004(d) does not make any allowance for pro bono appointments. In practical terms, that means that pro bono lawyers must expend the additional time and effort to complete appointment applications. Further, that pro bono lawyer may then be subject to additional appointments. Not surprisingly, these additional obligations have deterred some good-hearted lawyers from participating in pro bono appointments.
In Travis County, Volunteer Legal Services of Central Texas has created new forms, procedures manuals and institute multiple CLEs to address how its volunteers need to proceed under these new appointment processes.
An Increase in Unsuitable Appointments:
The interference with the court’s authority to appoint the “best” person, or at least a “suitable” person, as mediator or ad litem for a case to some extent undermines the effectiveness of judges as we attempt to perform our appointment responsibilities. Like it or not, we are burdened with a rotating system of bureaucratic lists—which sometimes results in appointments of persons who may be generally qualified but are unsuitable for the particular case. That unfortunate result sometimes makes our adjudicatory processes and alternative-dispute-resolution systems less effective than they were before these restrictions were imposed. Even with the ongoing burden of creating and maintaining 18 different and distinct lists, the next person on a list is sometimes just not the right appointee for a particular case. But our hands are tied. At this point, the constitutional problem becomes a practical one.
As judges, we believe that we have the judgment and acumen to make a proper court appointment for a particular case for a particular purpose: to protect a child, to give voice to a child’s wishes, to effectuate prompt and fair settlements, etc. This is a large measure of what a judge does, but Chapter 37 has taken away that discretion – to the detriment of lawyers and litigants.
Moreover, trial judges face the reality that they are political candidates who sit for election every four years. They are now required to make public reports on a monthly basis for many of their appointments. Given the restrictions on judicial discretion, the appointment results are sometimes not ideal. Use (or misuse) of that type of information for political purposes in a political campaign is likely—and the answer may be difficult to explain, or even impossible to provide, given the Code of Judicial Conduct restrictions on a judge commenting on a pending case. Thus, there can be political risk and exposure with even “agreed” appointees who may charge (and merit) substantial fees that then may be misconstrued or used against that particular judge in a political campaign or in the public domain. It is unrealistic to think this will not have an effect on some judges’ decisions on whether to sign off on agreed or good-cause appointments or simply appoint a person exempted from reports. (See §§ 36.003 and 37.002 for a list of exempted appointments and reports). Thus, it may be much less time-consuming and less perilous politically to appoint exempt persons or make another type of appointment that is not required to be reported at all under Chapter 36 and 37.
The reality is most judges will scrutinize even agreed appointments more closely – and some judges may not even sign off on these agreements – if the judge believes there are equally qualified appointees that do not have to be reported. For these reasons as well, Chapter 36 and 37 interfere with attorney and litigant agreements and, thus often interfere with settlement or disposition; too often these statutes can interfere with judicial efficiency and the Texas public policy of encouraging mediation and settlement.
Finally, as the statute has been implemented and appointees are returning to court to seek approval of fees, inevitable disputes have arisen regarding the amounts of those attorney-fees bills. Many experienced ad litems have been declining appointments and seeking removal from the wheels because of all the red tape.
In sum, the statutory scheme in Chapters 36 and 37 of the Texas Government Code remains problematic, logistically difficult, sometimes ambiguous—and will continue to pose significant burdens for judges, lawyers and litigants.