Is the Texas law requiring courts to appoint ad litem attorneys from a rotation list constitutional?

Plain-English summary

When a Texas court needs to appoint an attorney ad litem, a guardian ad litem, a mediator, or a guardian, who gets the job? Senate Bill 1876, passed in 2015, tightened the rules. Under amended section 37.004 of the Government Code, a court using a rotation system must appoint the person whose name appears first on the applicable list it keeps under section 37.003, with only a narrow set of exemptions. A court can pick someone who is not first, or someone not on the list at all, in two situations: when the parties agree and the court approves, or on a complex matter where the court finds good cause based on special expertise, prior involvement, or geographic location. The bill repealed a broad earlier exemption that had let many appointments skip the rotation list. A Harris County probate judge, through a state legislator, asked the AG whether the bill was unconstitutional, arguing it strips judges of discretion.

On the separation-of-powers question (article II, section 1 of the Texas Constitution), the AG explained that the Legislature has authority over judicial administration but may not infringe the judiciary's substantive, core powers under the guise of "rules of court." The core judicial functions are things like hearing evidence, deciding fact and law, entering judgment, and executing it. The AG found no case law treating the act of appointing ad litems, guardians, or mediators as a core judicial power, and noted that the bill itself let local administrative judges establish and maintain the lists, which signals these are administrative functions for the efficient administration of justice rather than core judicial ones. So the AG concluded a court is unlikely to find section 37.004 violates the separation of powers.

On the vagueness question, the judge argued the bill failed to define "qualified." The AG pointed to the Texas Supreme Court's decision in Proctor v. Andrews, which held that statutory standards may be broad or general as long as they are reasonably clear and capable of reasonable application, and that "qualified" has a commonly understood meaning. If a private entity exercising delegated legislative power can reasonably apply "qualified," the AG reasoned, so can the judiciary. The AG therefore concluded a court is unlikely to find the bill unconstitutionally vague.

Currency note

This opinion was issued in 2016. 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. The Government Code appointment provisions discussed here may have been amended since 2016, so confirm the current law before relying on these specifics.

What the opinion meant for those who asked

The probate judge and requesting legislator (as the opinion described it): The opinion told them that a court is unlikely to hold Senate Bill 1876 unconstitutional under article II, section 1, or as unconstitutionally vague, so the AG did not endorse the argument that the bill improperly strips judicial discretion.

Trial courts using rotation appointment systems (as the opinion described it): The opinion described the bill as requiring appointment of the first qualified person on the list, with exceptions for party agreement and for good cause on complex matters, and characterized the appointment-list function as administrative rather than a core judicial power the statute infringes.

Attorneys, guardians, and mediators seeking appointments (as the opinion described it): The opinion described "qualified" as a term with a commonly understood meaning that a court can reasonably apply, so the list-qualification scheme is likely not unconstitutionally vague.

Common questions

Does Senate Bill 1876 take away a judge's discretion to choose an ad litem?
The AG noted the bill requires appointing the first person on the rotation list, but preserves discretion in two situations: when the parties agree and the court approves, and when the court finds good cause on a complex matter.

When can a judge appoint someone who is not first on the list?
The AG explained a court may appoint a person not listed first, or not on the list, if the parties agree and the court approves, or on a complex matter for good cause based on special expertise, prior involvement, or geographic location.

Is forcing courts to use a rotation list a separation-of-powers violation?
The AG concluded it likely is not. Making these appointments was not shown to be a core judicial power, and the bill's allowance for local administrative judges to maintain the lists supported treating it as an administrative function.

Is the word "qualified" too vague in the appointment law?
The AG concluded it likely is not, relying on Proctor v. Andrews that statutory standards may be general if reasonably clear, and that "qualified" has a commonly understood meaning courts can apply.

What is an attorney ad litem or a guardian ad litem?
These are people a court appoints to represent or protect the interests of a party (such as a child or an incapacitated person) in a case; the bill governs how courts choose them from a rotation list.

Background and statutory framework

Under section 37.004 of the Government Code as amended by Senate Bill 1876, a court using a rotation system must appoint the first person on its list when an attorney ad litem, guardian ad litem, mediator, or guardian is needed, subject to a narrow set of exemptions and to two discretionary exceptions (party agreement with court approval, and good cause on a complex matter) (Tex. Gov't Code §§ 37.002, 37.003, 37.004(a), 37.004(b), 37.004(c), 37.004(d)). The bill also let a local administrative judge establish and maintain the appointment lists and let courts adopt local rules addressing qualifications (Tex. Gov't Code §§ 74.092(11), 74.093(c-1)).

For the separation-of-powers analysis, the AG applied the rule that the Legislature controls judicial administration but may not infringe core judicial powers under the guise of rules of court, and found that appointing ad litems and guardians was not shown to be a core judicial function (Tex. Const. arts. II, § 1, V, § 1, V, § 31(a); Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157 (Tex. Crim. App. 2008); In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005); State v. Williams, 938 S.W.2d 456 (Tex. Crim. App. 1997); Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990); Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987); Davis v. Tarrant Cty., 565 F.3d 214 (5th Cir. 2009); Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015)). For vagueness, the AG relied on the standard that statutory standards may be general if reasonably clear and capable of reasonable application, and that "qualified" has a commonly understood meaning (Proctor v. Andrews, 972 S.W.2d 729 (Tex. 1998)).

Citations

Statutory and constitutional provisions:

• Tex. Gov't Code § 37.002 (narrow exemptions)
• Tex. Gov't Code § 37.003 (appointment lists)
• Tex. Gov't Code § 37.004(a) (appoint first person on list)
• Tex. Gov't Code § 37.004(b) (mediator list)
• Tex. Gov't Code § 37.004(c) (party-agreement exception)
• Tex. Gov't Code § 37.004(d) (good-cause exception on complex matters)
• Tex. Gov't Code § 74.092(11) (local administrative judge may maintain lists)
• Tex. Gov't Code § 74.093(c-1) (local rules on qualifications)
• Tex. Const. art. II, § 1 (separation of powers)
• Tex. Const. art. V, § 1 (judicial power vested in courts)
• Tex. Const. art. V, § 31(a) (rules of administration)

Cases:

• Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157 (Tex. Crim. App. 2008)
• In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005)
• State v. Williams, 938 S.W.2d 456 (Tex. Crim. App. 1997)
• Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990)
• Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987)
• Davis v. Tarrant Cty., 565 F.3d 214 (5th Cir. 2009)
• Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015)
• Proctor v. Andrews, 972 S.W.2d 729 (Tex. 1998)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0071
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0071.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 17, 2016

The Honorable Harold V. Dutton, Jr. Opinion No. KP-0071
Chair, Committee on Juvenile Justice
and Family Issues Re: Constitutionality of Senate Bill 1876,
Texas House of Representatives relating to the appointment of attorneys
Post Office Box 2910 ad litem, guardians ad litem, mediators, and
Austin, Texas 78768-2910 guardians (RQ-0060-KP)

Dear Representative Dutton:

On behalf of Honorable Rory Olsen, Judge of Probate Court No. 3 in Harris County, you ask whether Senate Bill 1876 (the "Bill") from the Eighty-fourth Legislative Session is unconstitutional. [1] The Bill amended the law regarding the court appointment of attorneys ad litem, guardians ad litem, mediators, and guardians. [2] Pursuant to the Bill, subsection 37.004(a) of the Government Code now requires, "in each case in which the appointment of an attorney ad litem, guardian ad litem, or guardian is necessary," that a court using a rotation system "appoint the person whose name appears first on the applicable list maintained by the court as required by Section 37.003." [3] TEX. GOV'T CODE § 37.004(a); see also id. § 37.003 (requiring a court to establish and maintain lists). Only a narrow set of appointments are exempt from this requirement. [4] In addition, a court may appoint a person on the applicable list whose name does not appear first, or a person qualified to serve but whose name is not on the list, in two instances:

The first is "if the appointment of that person as attorney ad litem, guardian ad litem, or guardian is agreed on by the parties and approved by the court." Id. § 37.004(c). The second instance is when required on a complex matter if the court finds good cause because of a person's special expertise, prior involvement with the parties or the case, or geographic location. Id. § 37.004(d). [5] You assert that the Bill "deprives judges of discretion in the appointment process." Request Letter at 1.

Your first concern is whether the Bill violates article II, section 1 of the Texas Constitution. Id. at 1. This provision divides the powers of state government into the legislative, executive, and judicial branches, none of which "shall exercise any power properly attached" to either of the other branches, except as permitted by the constitution. TEX. CONST. art. II, § 1. The Court of Criminal Appeals has held that this provision may be violated either "when one branch of government assumes, or is delegated, to whatever degree, a power that is more 'properly attached' to another branch" or when "one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers." Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 162 (Tex. Crim. App. 2008).

In analyzing the constitutionality of the statute, we begin "with a presumption of validity." In re Commitment of Fisher, 164 S.W.3d 637, 645 (Tex. 2005). The judicial power of the state is vested in the courts. TEX. CONST. art. V, § 1. This judicial power encompasses certain "core" functions, namely, the power to (1) hear evidence; (2) decide the issues of fact raised by the pleadings; (3) decide the relevant questions of law; (4) enter a final judgment on the facts and the law; and (5) execute the final judgment or sentence. Safety Nat'l Cas. Corp., 273 S.W.3d at 159, 162. At the same time, the constitution provides that rules of administration in the various courts must be "not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice." TEX. CONST. art. V, § 31(a). The Court of Criminal Appeals has explained that "this express grant exempts legislative enactments regarding judicial administration from the proscriptions" of the separation of powers clause. State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App. 1997); see also Armadillo Bail Bonds v. State, 802 S.W.2d 237, 240 (Tex. Crim. App. 1990) (acknowledging the Legislature's "ultimate authority over judicial administration"). But although the Legislature has authority over judicial administration, the Legislature may not "infringe upon the substantive power" of the judiciary "under the guise of establishing 'rules of court.'" Armadillo Bail Bonds, 802 S.W.2d at 240 (quoting Meshell v. State, 739 S.W.2d 246, 255 (Tex. Crim. App. 1987)). Thus, the dispositive inquiry is whether judicial appointments of attorneys ad litem, guardians ad litem, mediators, and guardians constitute an exercise of a substantive, core judicial power and, if so, whether section 37.004 of the Government Code infringes on that power.

Briefing received by this office claims that these appointments constitute a "zone of judicial power" that may not be infringed upon because, in criminal cases, judges are entitled to judicial immunity for the act of including attorneys on a rotation list and for appointing counsel on particular cases. [6] See Davis v. Tarrant Cty., 565 F.3d 214, 225-26 (5th Cir. 2009). However, defining a judicial act for purposes of immunity is not the same as identifying substantive core judicial powers under the constitution. [7] We find no other case law, nor do you bring any to our attention, that suggests that making court appointments of attorneys ad litem, guardians ad litem, mediators, and guardians is an exercise of a core judicial power. See Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015) (noting that "[t]he burden rests upon the individual who challenges a statute to establish its unconstitutionality"). We note that the Bill amended section 74.092(11) of the Government Code to authorize a local administrative judge to "establish and maintain" the appointment lists required by section 37.003 if requested by a court he or she serves, adding to the list of administrative functions performed by the local administrative judge. TEX. GOV'T CODE § 74.092(11). That these functions can be delegated in such a manner suggests that they are more properly characterized as administrative functions "necessary for the efficient and uniform administration of justice" and not core judicial functions. TEX. CONST. art. V, § 31(a); see also SEN. COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. S.B. 1876, 84th Leg., R.S. (2015) at 1 (stating that the prior broad rotation list exemptions resulted in abuse or the appearance of abuse of the appointment system and that the Bill "would ensure a more fair, efficient, and equitable system for the appointment of attorneys and guardians ad litem, guardians, and mediators"). Thus, a court is unlikely to conclude that making court appointments of attorneys ad litem, guardians ad litem, mediators, and guardians is a core judicial power or that section 37.004 of the Government Code violates article II, section 1 of the Texas Constitution.

You also ask whether the Bill "is unconstitutionally vague." Request Letter at 1. As previously mentioned, prior law required local administrative judges to maintain a list of those qualified to serve as attorneys ad litem. The Bill added certain other positions to the group of persons whose names a court must maintain on lists for appointment. See generally TEX. GOV'T CODE § 37.003. In addition, in adopting local rules of administration, district and statutory county court judges may adopt rules for the establishment of the lists required by section 37.003 that "provide for ... the person's qualifications." Id. § 74.093(c-1). You maintain that the Bill is unconstitutionally vague because it "fails to define what attributes are necessary to be considered 'qualified'" for inclusion on the various lists. Request Letter at 1, 4.

You draw our attention to Proctor v. Andrews, in which the Texas Supreme Court reviewed a delegation of legislative power whereby a private entity and a federal agency would provide the names of qualified, neutral arbitrators who could serve as hearing examiners. Proctor v. Andrews, 972 S.W.2d 729 (Tex. 1998). At issue was whether the terms "qualified" and "neutral" in the delegating statute provided sufficient standards to guide the entities in selecting potential hearing examiners. See id. at 734. The court's analysis centered on the application of an eight-factor test used to determine whether a private entity has been impermissibly granted legislative power. See id. at 735. The judiciary is not a private entity, and thus the specific analysis is likely not applicable to the situation posed here. See id. (noting that legislative delegations to private entities are "subject to more searching scrutiny than delegations to their public counterparts"). However, the court stated that the policy and standards declared in a statute "may be broad or general, so long as the idea embodied is reasonably clear and the standards are capable of reasonable application." Id. at 738. The court observed that the term "qualified" had a commonly understood meaning referring to someone "competent to understand the issues and render decisions," which provided the entities with sufficient guidance in selecting arbitrators. Id. at 737. If the term "qualified" can be reasonably applied by a private entity delegated legislative power without running afoul of the constitution, we are not persuaded that the term cannot also be reasonably applied by the judiciary. Thus, a court is unlikely to conclude that the Bill is unconstitutionally vague.

SUMMARY

A court is unlikely to conclude that Senate Bill 1876 from the Eighty-fourth Legislature is unconstitutional under article II, section 1 of the Texas Constitution or is unconstitutionally vague.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Harold V. Dutton, Chair, House Comm. on Juv. Justice & Fam. Issues, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 21, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Prior law required local administrative judges to maintain a list of those qualified to serve as attorneys ad litem. When such an appointment was required, the court had to appoint the attorney whose name appeared first on the list. However, appointments made under the Family Code, Health and Safety Code, Human Resources Code, Texas Trust Code (Subtitle B, Title 9, Property Code), and the former Texas Probate Code were exempt from this requirement. The Bill repealed this broad exemption.

[3] Subsection 37.004(b) similarly requires a court to appoint the first person on the mediator list when the appointment of a mediator is necessary. TEX. GOV'T CODE § 37.004(b).

[4] See id. § 37.002 (exempting appointments only under specific provisions of the Civil Practice and Remedies Code, the Family Code, and the Estates Code).

[5] Subsection 37.004(d) is also applicable to the appointment of a mediator. Id. § 37.004(d).

[6] See Letter from Honorable Carl Ginsberg, 193d Jud. Dist. Ct. (Nov. 4, 2015) and attached 193d Dist. Ct. Standing Order 000017, In re: Appointment of Att'ys & Guardians Ad Litem and Mediators - TEX. GOV'T CODE ch. 37 (Aug. 31, 2015) at 3 (on file with the Op. Comm.).

[7] In any event, the Court in Davis acknowledged that "judges have very limited discretion in deciding which attorney to appoint in a specific case" because "they may only deviate from the rotation system for good cause." Davis, 565 F.3d at 226.