By: Zaffirini S.B. No. 1457

(In the Senate - Filed March 2, 2023; March 16, 2023, read first time and referred to Committee on Jurisprudence; April 4, 2023, reported adversely, with favorable Committee Substitute by the following vote: Yeas 4, Nays 0; April 4, 2023, sent to printer.) Click here to see the committee vote

COMMITTEE SUBSTITUTE FOR S.B. No. 1457 By: Hinojosa

A BILL TO BE ENTITLED

AN ACT

relating to guardianships and the delivery of certain notices or other communications in connection with guardianship proceedings.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 1002, Estates Code, is amended by adding Section 1002.0265 to read as follows:

Sec. 1002.0265. QUALIFIED DELIVERY METHOD. "Qualified delivery method" means delivery by:

(1) hand delivery by courier, with courier's proof of delivery receipt;

(2) certified or registered mail, return receipt requested, with return receipt; or

(3) a private delivery service designated as a designated delivery service by the United States Secretary of the Treasury under Section 7502(f)(2), Internal Revenue Code of 1986, with proof of delivery receipt.

SECTION 2. Section 1023.004(c), Estates Code, is amended to read as follows:

(c) If a court made a motion to transfer a guardianship, the guardian shall be given notice by a qualified delivery method [certified mail] to appear and show cause why the guardianship should not be transferred.

SECTION 3. The heading to Section 1051.052, Estates Code, is amended to read as follows:

Sec. 1051.052. SERVICE BY MAIL OR QUALIFIED DELIVERY METHOD.

SECTION 4. Section 1051.052, Estates Code, is amended by amending Subsections (b), (c), (d), (e), and (f) and adding Subsection (h) to read as follows:

(b) Except as provided by Subsection (c), the county clerk shall issue a citation or notice required or permitted to be served by a qualified delivery method [registered or certified mail] and shall serve the citation or notice by sending [mailing] the original citation or notice by a qualified delivery method [registered or certified mail].

(c) A guardian shall issue a notice required to be given by the guardian by a qualified delivery method [registered or certified mail] and shall serve the notice by sending [mailing] the original notice by a qualified delivery method [registered or certified mail].

(d) The county clerk or guardian, as applicable, shall send [mail] a citation or notice under Subsection (b) or (c) with an instruction to deliver the citation or notice to the addressee only and with return receipt or other proof of delivery requiring recipient signature requested. The clerk or guardian, as applicable, shall address the envelope containing the citation or notice to:

(1) the attorney of record in the proceeding for the person to be cited or notified; or

(2) the person to be cited or notified, if the citation or notice to the attorney is returned undelivered or the person to be cited or notified has no attorney of record in the proceeding.

(e) Service by a qualified delivery method [mail] must be made at least 20 days before the return day of the citation or notice, excluding the date of service. The date of service [by mail] is the date of mailing, the date of deposit with the private delivery service, or the date of delivery by courier, as applicable.

(f) A copy of a citation or notice served under Subsection (a), (b), or (c) and a certificate of the person serving the citation or notice showing that the citation or notice was sent [mailed] and the date of the mailing, the date of deposit with a private delivery service, or the date of delivery by courier, as applicable, shall be filed and recorded. A returned receipt or other proof of delivery receipt for a citation or notice served under Subsection (b) or (c) shall be attached to the certificate.

(h) The applicant or movant in a guardianship proceeding shall pay the cost of delivery of a citation or notice under this section.

SECTION 5. Sections 1051.055(a) and (b), Estates Code, are amended to read as follows:

(a) If a party is represented by an attorney of record in a guardianship proceeding, including a proposed ward who has been personally served with notice of the proceeding and is represented by an attorney ad litem, a citation or notice required to be served on the party shall be served instead on that attorney.

(b) A notice served on an attorney under this section may be served by[:

[(1)] delivery to the attorney in person or by a qualified delivery method[;

[(2) registered or certified mail, return receipt requested; or

[(3) any other form of mail that requires proof of delivery].

SECTION 6. Section 1051.056, Estates Code, is amended to read as follows:

Sec. 1051.056. SERVICE ON GUARDIAN OR RECEIVER. Unless this title expressly provides for another method of service, the county clerk who issues a citation or notice required to be served on a guardian or receiver shall serve the citation or notice by sending [mailing] the original citation or notice by a qualified delivery method [registered or certified mail] to:

(1) the guardian's or receiver's attorney of record; or

(2) the guardian or receiver, if the guardian or receiver does not have an attorney of record.

SECTION 7. Sections 1051.104(a) and (b), Estates Code, are amended to read as follows:

(a) The person filing an application for guardianship shall send [mail] a copy of the application and a notice containing the information required in the citation issued under Section 1051.102 by a qualified delivery method [registered or certified mail, return receipt requested, or by any other form of mail that provides proof of delivery,] to the following persons, if their whereabouts are known or can be reasonably ascertained:

(1) each adult child of the proposed ward;

(2) each adult sibling of the proposed ward;

(3) the administrator of a nursing home facility or similar facility in which the proposed ward resides;

(4) the operator of a residential facility in which the proposed ward resides;

(5) a person whom the applicant knows to hold a power of attorney signed by the proposed ward;

(6) a person designated to serve as guardian of the proposed ward by a written declaration under Subchapter E, Chapter 1104, if the applicant knows of the existence of the declaration;

(7) a person designated to serve as guardian of the proposed ward in the probated will of the last surviving parent of the proposed ward;

(8) a person designated to serve as guardian of the proposed ward by a written declaration of the proposed ward's last surviving parent, if the declarant is deceased and the applicant knows of the existence of the declaration; and

(9) each adult named in the application as an "other living relative" of the proposed ward within the third degree by consanguinity, as required by Section 1101.001(b)(11) or (13), if the proposed ward's spouse and each of the proposed ward's parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.

(b) The applicant shall file with the court:

(1) a copy of any notice required by Subsection (a) and the return receipts or other proofs of delivery of the notice; and

(2) an affidavit sworn to by the applicant or the applicant's attorney stating:

(A) that the notice was sent [mailed] as required by Subsection (a); and

(B) the name of each person to whom the notice was sent [mailed], if the person's name is not shown on the return receipt or other proof of delivery.

SECTION 8. Section 1051.153(b), Estates Code, is amended to read as follows:

(b) Proof of service consists of:

(1) if the service is made by a sheriff or constable, the return of service;

(2) if the service is made by a private person, the person's affidavit;

(3) if the service is made by mail or by a qualified delivery method:

(A) the certificate of the county clerk making the service, or the affidavit of the guardian or other person making the service that states that the citation or notice was mailed or sent by a qualified delivery method and the date of the mailing, the date of deposit with the private delivery service, or the date of delivery by courier, as applicable; and

(B) the return receipt or other proof of delivery receipt attached to the certificate or affidavit, as applicable, if the service [mailing] was made by a qualified delivery method [registered or certified mail and a receipt has been returned]; and

(4) if the service is made by publication:

(A) a statement that:

(i) is made by the Office of Court Administration of the Texas Judicial System or an employee of the office;

(ii) contains or to which is attached a copy of the published citation or notice; and

(iii) states the date of publication on the public information Internet website maintained as required by Section 72.034, Government Code [, as added by Chapter 606 (S.B. 891), Acts of the 86th Legislature, Regular Session, 2019]; and

(B) an affidavit that:

(i) is made by the publisher of the newspaper in which the citation or notice was published or an employee of the publisher;

(ii) contains or to which is attached a copy of the published citation or notice; and

(iii) states the date of publication printed on the newspaper in which the citation or notice was published.

SECTION 9. Section 1057.002(b), Estates Code, is amended to read as follows:

(b) The resident agent shall send, by a qualified delivery method [certified mail, return receipt requested], a copy of a resignation statement filed under Subsection (a) to:

(1) the guardian at the address most recently known by the resident agent; and

(2) each party in the case or the party's attorney or other designated representative of record.

SECTION 10. Section 1104.103, Estates Code, is amended by amending Subsections (a) and (b) and adding Subsection (a-1) to read as follows:

(a) The surviving parent of an adult individual who is an incapacitated person may, if the parent is the guardian of the person or estate of the adult individual, by will or written declaration appoint an eligible person to serve as guardian of the person or estate, as applicable, of the adult individual:

(1) after the parent dies;

(2) in the event the parent resigns as guardian of the person or estate; or

(3) in the event of the parent's incapacity.

(a-1) If the surviving parent is both the guardian of the person and estate of the adult individual, the surviving parent may by will or written declaration appoint different eligible persons to serve as guardian of the person and guardian of the estate.

(b) After the surviving parent dies or resigns as guardian, or if the court finds the surviving parent has become an incapacitated person after being appointed the adult individual's guardian, the court shall appoint the person or persons designated in the will or declaration to serve as guardian of the person, guardian of the estate, or both, in preference to any other person otherwise entitled to serve as guardian under this title, unless the court finds that the person designated to serve as guardian:

(1) is disqualified;

(2) is deceased;

(3) refuses to serve; or

(4) would not serve the adult individual's best interests.

SECTION 11. Section 1105.002(a), Estates Code, is amended to read as follows:

(a) Except as provided by Subsection (b), a guardian is considered to have qualified when the guardian has:

(1) taken and filed the oath, or made and filed the declaration, required under Section 1105.051;

(2) given the required bond;

(3) [filed the bond with the clerk; and

[(4)] obtained the judge's approval of the bond; and

(4) filed the bond with the clerk.

SECTION 12. Section 1106.001(a), Estates Code, is amended to read as follows:

(a) When a person who is appointed guardian has qualified under Section 1105.002, the clerk shall issue to the guardian a certificate under the court's seal stating:

(1) the fact of the appointment and of the qualification;

(2) the date of the appointment and of the qualification; and

(3) the date the letters of guardianship expire.

SECTION 13. Section 1106.005, Estates Code, is amended to read as follows:

Sec. 1106.005. EFFECT OF LETTERS [OR CERTIFICATE]. (a) Letters of guardianship [or a certificate] issued as prescribed by [under] Section 1106.001 under the court's seal by [of] the clerk of the court that granted the letters are [is] sufficient evidence of:

(1) the appointment and qualification of the guardian; and

(2) the date of qualification.

(b) The court order that appoints the guardian is evidence of the authority granted to the guardian and of the scope of the powers and duties that the guardian may exercise only after the date letters of guardianship [or a certificate has] have been issued under Section 1106.001.

SECTION 14. Subchapter B, Chapter 1151, Estates Code, is amended by adding Section 1151.0525 to read as follows:

Sec. 1151.0525. ACCESS AND MANAGEMENT OF WARD'S FUNDS BY GUARDIAN OF PERSON. (a) This section applies only to the guardian of the person of a ward for whom the court has not appointed a guardian of the estate.

(b) On application to and order from the court, the guardian of the person of a ward may access, manage, and spend the ward's funds in an amount not to exceed $20,000 per year for the ward's benefit. The court shall require the guardian to file a new bond or a rider to an existing bond that meets the surety requirements for a guardian of the estate's bond under Section 1105.160.

(c) A guardian of the person shall include any expenditures made for the benefit of the ward if authorized by court order under Subsection (b) in the annual report required by Section 1163.101.

(d) When there is no longer a need for the guardian of the person to access, manage, or spend the ward's funds, the guardian of the person shall file a sworn affidavit of fulfillment with the court. After the filing of the affidavit, the court, on motion filed with the court, may authorize the guardian to file a new bond or a rider to an existing bond that meets the requirements for a guardian of the person's bond under Section 1105.102, and may discharge the guardian of the person and the guardian's sureties on a bond required by Subsection (b).

SECTION 15. Section 1153.001(a), Estates Code, is amended to read as follows:

(a) Within one month after receiving letters of guardianship, a guardian of an estate shall provide notice requiring each person who has a claim against the estate to present the claim within the period prescribed by law. The notice must be:

(1) published in a newspaper of general circulation in the county in which the letters were issued; and

(2) sent to the comptroller by a qualified delivery method [certified or registered mail], if the ward remitted or should have remitted taxes administered by the comptroller.

SECTION 16. Sections 1153.003(b) and (c), Estates Code, are amended to read as follows:

(b) Notice provided under this section must be:

(1) sent by a qualified delivery method [certified or registered mail, return receipt requested]; and

(2) addressed to the record holder of the claim at the record holder's last known post office address.

(c) The following shall be filed in the court from which the letters of guardianship were issued:

(1) a copy of each notice required by Subsection (a)(1) with the return receipt or other proof of delivery, if available; and

(2) the guardian's affidavit stating:

(A) that the notice was sent [mailed] as required by law; and

(B) the name of the person to whom the notice was sent [mailed], if that name is not shown on the notice or receipt.

SECTION 17. Section 1153.005(a), Estates Code, is amended to read as follows:

(a) A guardian of an estate is not required to give a notice required by Section 1153.001 or 1153.003 if another person also appointed as guardian or a former guardian has given that notice.

SECTION 18. Section 1155.002(a), Estates Code, is amended to read as follows:

(a) The court may authorize compensation for a guardian serving as a guardian of the person alone from available funds of the ward's estate or other funds available for that purpose. The court may set the compensation in an amount not to exceed the greater of $3,000 per year or five percent of the ward's gross income.

SECTION 19. Section 1156.052(c), Estates Code, is amended to read as follows:

(c) A person who makes an application to the court under this section shall send [mail] notice of the application by a qualified delivery method [certified mail] to all interested persons.

SECTION 20. Section 1162.003, Estates Code, is amended to read as follows:

Sec. 1162.003. NOTICE OF APPLICATION FOR ESTABLISHMENT OF ESTATE OR OTHER TRANSFER PLAN. A person who makes an application to the court under Section 1162.001 shall send [mail] notice of the application by a qualified delivery method [certified mail] to:

(1) all devisees under a will, trust, or other beneficial instrument relating to the ward's estate;

(2) the ward's spouse;

(3) the ward's dependents; and

(4) any other person as directed by the court.

SECTION 21. Section 1162.006(b), Estates Code, is amended to read as follows:

(b) Notice required by Subsection (a) must be sent [delivered] by a qualified delivery method[:

[(1) registered or certified mail to a person described by Subsection (a)(1); and

[(2) certified mail to a person described by Subsection (a)(2), (3), (4), or (5)].

SECTION 22. Section 1202.054(b-2), Estates Code, is amended to read as follows:

(b-2) Not later than the 30th day after the date the court receives an informal letter from a ward under Subsection (a), the court shall send the ward a letter by a qualified delivery method [certified mail]:

(1) acknowledging receipt of the informal letter; and

(2) advising the ward of the date on which the court appointed the court investigator or guardian ad litem as required under Subsection (b) and the contact information for the court investigator or guardian ad litem.

SECTION 23. Sections 1203.052(a-1) and (b), Estates Code, are amended to read as follows:

(a-1) The court may remove a guardian for a reason listed in Subsection (a) on the:

(1) court's own motion, after the guardian has been notified[,] by a qualified delivery method [certified mail, return receipt requested,] to answer at a time and place set in the notice; or

(2) complaint of an interested person, after the guardian has been cited by personal service to answer at a time and place set in the notice.

(b) In addition to the authority granted to the court under Subsection (a), the court may, on the complaint of the guardianship certification program of the Judicial Branch Certification Commission, remove a guardian who would be ineligible for appointment under Subchapter H, Chapter 1104, because of the guardian's failure to maintain the certification required under Subchapter F, Chapter 1104. The guardian shall be given notice[,] by a qualified delivery method [certified mail, return receipt requested,] to appear and contest the request for removal under this subsection at a time and place set in the notice.

SECTION 24. Section 1351.001(a), Estates Code, is amended to read as follows:

(a) A parent or managing conservator of a minor who is not a ward may apply to the court under this subchapter for an order to sell an interest of the minor in property without being appointed guardian if the net value of the interest does not exceed $250,000 [$100,000].

SECTION 25. Section 1351.052, Estates Code, is amended to read as follows:

Sec. 1351.052. AUTHORITY TO SELL WARD'S INTEREST IN PROPERTY WITHOUT APPOINTMENT AS GUARDIAN OF THE ESTATE IN THIS STATE. A guardian of the person of a ward or a guardian of the person or estate of a ward appointed by a foreign court may apply to the court under this subchapter for an order to sell an interest in property in the ward's estate without being appointed guardian of the ward's estate in this state if the net value of the interest does not exceed $250,000 [$100,000].

SECTION 26. Section 1352.052(a), Estates Code, is amended to read as follows:

(a) If the net value of a minor's interest in a residence homestead does not exceed $250,000 [$100,000], a parent, subject to Subsection (b), or managing conservator of the minor may apply to the court under this subchapter for an order authorizing the parent or managing conservator to receive on the minor's behalf, without being appointed guardian, an extension of credit that is secured wholly or partly by a lien on the homestead.

SECTION 27. Section 1352.102, Estates Code, is amended to read as follows:

Sec. 1352.102. AUTHORITY TO MORTGAGE MINOR WARD'S INTEREST WITHOUT GUARDIANSHIP OF THE ESTATE. If the net value of a minor ward's interest in a residence homestead does not exceed $250,000 [$100,000], the guardian of the person of the ward may apply to the court under this subchapter for an order authorizing the guardian to receive on the ward's behalf an extension of credit that is secured wholly or partly by a lien on the homestead.

SECTION 28. Section 1353.004, Estates Code, is amended by adding Subsection (c-1) to read as follows:

(c-1) If the court finds that the ward's spouse fails to comply with an order described by Subsection (c), the court may, after notice and a hearing, order any third party or entity in possession to deliver to the incapacitated spouse's guardian of the estate the community property described by Subsection (c).

SECTION 29. Section 1355.001(a), Estates Code, is amended to read as follows:

(a) In this section, "resident creditor" means a person who:

(1) is a resident of this state; and

(2) is entitled to money in an amount that is $250,000 [$100,000] or less, the right to which is liquidated and is uncontested in any pending lawsuit.

SECTION 30. Sections 1355.002(a) and (b), Estates Code, are amended to read as follows:

(a) In this section, "creditor" means a person who is entitled to money in an amount that is not more than $250,000 [$100,000] owing as a result of transactions in this state, the right to which is liquidated and is uncontested in any pending lawsuit in this state.

(b) This section applies only to a nonresident creditor who is:

(1) a nonresident minor [and has a nonresident guardian of the estate appointed by a foreign court];

(2) a nonresident person who is adjudged by a foreign court to be incapacitated [and has a nonresident guardian of the estate appointed by that court]; or

(3) the nonresident former ward of a guardianship terminated under Chapter 1204 who has no legal guardian qualified in this state.

SECTION 31. Section 1104.103(c), Estates Code, is repealed.

SECTION 32. (a) The changes in law made by this Act to the following provisions of the Estates Code apply only to an action filed or a guardianship proceeding commenced on or after the effective date of this Act:

(1) Sections 1023.004(c), 1051.153(b), 1057.002(b), 1153.001(a), 1153.005(a), 1156.052(c), 1162.006(b), 1202.054(b-2), and 1353.004;

(2) Sections 1051.052(b), (c), (d), (e), (f), and (h);

(3) Sections 1051.055(a) and (b);

(4) Sections 1051.056 and 1162.003;

(5) Sections 1051.104(a) and (b);

(6) Sections 1153.003(b) and (c); and

(7) Sections 1203.052(a-1) and (b).

(b) Sections 1105.002(a), 1106.001(a), 1106.005, and 1155.002(a), Estates Code, as amended by this Act, and Section 1151.0525, Estates Code, as added by this Act, apply to a guardianship created before, on, or after the effective date of this Act.

(c) Sections 1351.001(a), 1351.052, 1352.052(a), and 1352.102, Estates Code, as amended by this Act, apply only to an application for a court order filed on or after the effective date of this Act. An application for a court order filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

(d) Sections 1355.001(a) and 1355.002(a) and (b), Estates Code, as amended by this Act, apply only to a payment made by a debtor on or after the effective date of this Act. A payment made by a debtor before the effective date of this Act is governed by the law in effect on the date the payment was made, and the former law is continued in effect for that purpose.

SECTION 33. This Act takes effect September 1, 2023.

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