By: Zaffirini S.B. No. 2248

(In the Senate - Filed March 10, 2023; March 22, 2023, read first time and referred to Committee on Jurisprudence; April 24, 2023, reported favorably by the following vote: Yeas 5, Nays 0; April 24, 2023, sent to printer.) Click here to see the committee vote

A BILL TO BE ENTITLED

AN ACT

relating to guardianships for persons who are incapacitated; changing a fee.

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

SECTION 1. Section 1023.002(c), Estates Code, is amended to read as follows:

(c) If it appears to the court at any time before the guardianship is closed that the proceeding was commenced in a court that did not have venue over the proceeding, the court shall, on the application of any interested person, transfer the proceeding to the proper county in the manner prescribed by Section 1023.006.

SECTION 2. Sections 1023.004(a) and (c), Estates Code, are amended to read as follows:

(a) On filing an application or on motion of a court to transfer a guardianship to another county under Section 1023.002 or 1023.003, the sureties on the bond of the guardian shall be cited by certified mail, return receipt requested, [personal service] to appear and show cause why the guardianship should not be transferred.

(c) If a court made a motion to transfer a guardianship, the guardian shall be given notice by certified mail, return receipt requested, to appear and show cause why the guardianship should not be transferred.

SECTION 3. Section 1023.005(c), Estates Code, is amended to read as follows:

(c) On receipt of an order described by Subsection (a), the clerk of the court to which the guardianship is transferred [county] shall accept the transfer of the guardianship.

SECTION 4. Section 1023.006, Estates Code, is amended to read as follows:

Sec. 1023.006. TRANSFER OF RECORD. (a) When an order of transfer is made under Section 1023.002 or 1023.005, the clerk of the court transferring a proceeding shall, using the electronic filing system established under Section 72.031, Government Code, send to the proper court in the county to which the transfer is made:

(1) a transfer certificate and certified index of transferred documents;

(2) a copy of each order, including a copy of the order of transfer signed by the transferring court;

(3) a copy of the original papers filed in the transferring court, including any papers previously received on transfer from a court in another county;

(4) a copy of the transfer certificate and certified index of transferred documents from each previous transfer, if applicable; and

(5) a bill of any costs that have accrued in the transferring court.

(b) The clerk of the transferring court shall use the standardized transfer certificate and index of transferred documents form created by the Office of Court Administration of the Texas Judicial System under Section 72.037, Government Code, when transferring a proceeding under this section.

(c) The clerk of the transferring court shall keep a copy of transferred pleadings, orders, and all other papers filed into the case record.

(d) The clerk of the transferee court shall, subject to Section 1023.005, accept the documents transferred under Subsection (a) and docket the case.

(e) The clerk of the transferee court shall physically or electronically mark or stamp the transfer certificate and index of transferred documents to evidence the date and time of acceptance under Subsection (c) but may not physically or electronically mark or stamp any other document transferred under Subsection (a).

(f) Sections 80.001 and 80.002, Government Code, do not apply to the transfer of documents under this section [shall record any unrecorded papers of the guardianship required to be recorded. On payment of the clerk's fee, the clerk shall transmit in electronic or paper form to the county clerk of the county to which the guardianship was ordered transferred:

[(1) the case file of the guardianship proceedings; and

[(2) a certified copy of the index of the guardianship records].

SECTION 5. Section 1023.007, Estates Code, is amended to read as follows:

Sec. 1023.007. TRANSFER EFFECTIVE. The order transferring a guardianship does not take effect until:

(1) the case file and a certified copy of the index required by Section 1023.006 are filed in electronic or paper form in the office of the county clerk of the county to which the guardianship was ordered transferred; and

(2) a certificate under the court's [clerk's] official seal and reporting the filing of the case file and a certified copy of the index is filed using the electronic filing system established under Section 72.031, Government Code, [in electronic or paper form] in the court ordering the transfer by the county clerk of the county to which the guardianship was ordered transferred.

SECTION 6. Chapter 1023, Estates Code, is amended by adding Section 1023.0071 to read as follows:

Sec. 1023.0071. TRANSFER FEE. (a) The fee for filing a guardianship case transferred from another county under this chapter in which the guardian has previously been appointed and qualified in accordance with this title is $45 payable to the clerk of the court to which the case is transferred. No portion of this fee may be sent to the state.

(b) A party may not be assessed any other filing fee by the clerk of the court to which the guardianship is transferred in connection with the filing and docketing of the transferred case.

(c) To the extent that this section conflicts with another state statute, the Texas Rules of Civil Procedure, or other rules, this section prevails.

SECTION 7. Subchapter I, Chapter 1104, Estates Code, is amended by adding Section 1104.4015 to read as follows:

Sec. 1104.4015. CRIMINAL HISTORY RECORD INFORMATION REQUIRED. A court may not appoint an individual to serve as guardian or temporary guardian under this title unless the criminal history record information relating to the proposed guardian has been:

(1) provided to the court by the Judicial Branch Certification Commission in accordance with Subchapter E, Chapter 155, Government Code; and

(2) considered by the court as required by Section 1104.409.

SECTION 8. Section 1104.405, Estates Code, is amended to read as follows:

Sec. 1104.405. INFORMATION FOR EXCLUSIVE USE OF COURT. (a) Criminal history record information [obtained or] provided to the court as specified under Section 1104.4015 [1104.402, 1104.403, or 1104.404] is privileged and confidential and is for the exclusive use of the court. The criminal history record information may not be released or otherwise disclosed to any person or agency except on court order or consent of the person being investigated.

(b) The county clerk shall [may] destroy the criminal history record information after the information is used for the purposes authorized by this subchapter.

SECTION 9. Section 1104.408(a), Estates Code, is amended to read as follows:

(a) Criminal history record information obtained under Section 1104.407 is privileged and confidential and is for the exclusive use of the court or guardianship certification program of the Judicial Branch Certification Commission, as appropriate. The information may not be released or otherwise disclosed to any person or agency except:

(1) on court order;

(2) with the consent of the person being investigated; or

(3) as authorized by [Section 1104.404 of this code or] Section 411.1386(a-6), Government Code.

SECTION 10. 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 11. Section 1105.157, Estates Code, is amended by amending Subsections (a) and (d) and adding Subsection (d-1) to read as follows:

(a) Instead of giving a surety or sureties on a bond, or to reduce the amount of a bond, the guardian of an estate may deposit the guardian's own cash or securities acceptable to the court with:

(1) a financial institution as defined by Section 201.101, Finance Code, that has its main office or a branch office in this state; or

(2) the registry of the court, for which the clerk of the court shall issue a receipt.

(d) A receipt issued by a depository under Subsection (c) or a record of deposit to the registry of the court must be attached to the guardian's bond and must be in substantially the following form:

The State of Texas

County of ________ (insert name of county)

Know all persons by these presents that I/we, ___________ (name of each principal), as principal, have deposited cash or securities as evidenced by the attached receipt or record of deposit issued by _____ (name of depository where cash or securities are deposited or the name of the court) on _____ (date of deposit), are held and firmly bound to the judge of ______ (insert reference to appropriate judge), and that judge's successors in office, in the sum of $______, having been so deposited; conditioned that the above bound principal or principals, appointed by the judge as guardian or temporary guardian of the person or of the estate, or both, of _________(name of ward and whether the person is a minor or is an incapacitated person other than a minor), shall well and truly perform all of the duties required of the guardian or temporary guardian by law under appointment.

(d-1) The guardian's bond and depository receipt, if applicable, shall [and] be delivered to and filed by the county clerk after the bond [receipt] is approved by the judge.

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. Section 1151.051(c), Estates Code, is amended to read as follows:

(c) A guardian of the person has:

(1) the right to have physical possession of the ward and to establish the ward's legal domicile;

(2) the duty to provide care, supervision, and protection for the ward;

(3) the duty to provide the ward with clothing, food, medical care, and shelter;

(4) the power to consent to medical, psychiatric, and surgical treatment other than the inpatient psychiatric commitment of the ward;

(5) on application to and order of the court, the power to establish a trust in accordance with 42 U.S.C. Section 1396p(d)(4)(B) and direct that the income of the ward as defined by that section be paid directly to the trust, solely for the purpose of the ward's eligibility for medical assistance under Chapter 32, Human Resources Code; [and]

(6) the duty to notify the court, as soon as practicable, if the ward has died or is admitted to a medical facility for acute care for a period of three or more days;

(7) the duty to notify the court not later than the 30th day after the date the ward's residence or address has changed;

(8) the duty to notify the court not later than the 30th day after the date of a change in the guardian's residence, address, phone number, or any other information used by the court to contact the guardian; and

(9) the power to sign documents necessary or appropriate to facilitate employment of the ward if:

(A) the guardian was appointed with full authority over the person of the ward under Section 1101.151; or

(B) the power is specified in the court order appointing the guardian with limited powers over the person of the ward under Section 1101.152.

SECTION 15. Section 1155.151(a), Estates Code, is amended to read as follows:

(a) In a guardianship proceeding, the court costs of the proceeding, including the costs described by Subsection (a-1), shall, except as provided by Subsection (c), be paid as follows, and the court shall issue the judgment accordingly:

(1) out of the guardianship estate, if a guardian of the estate has been created for the benefit of the ward and the court determines it is in the ward's best interest;

(2) out of the management trust, if a management trust has been created for the benefit of the ward under Chapter 1301 and the court determines it is in the ward's best interest;

(3) by the party to the proceeding who incurred the costs, unless that party filed, on the party's own behalf, an affidavit of inability to pay the costs under Rule 145, Texas Rules of Civil Procedure, that shows the party is unable to afford the costs, if:

(A) there is no guardianship estate or [no] management trust that has been created for the ward's benefit; or

(B) the assets of the guardianship estate or management trust, as appropriate, are insufficient to pay the costs; or

(4) out of the county treasury if:

(A) there is no guardianship estate or management trust or the assets of the guardianship estate or management trust, as appropriate, are insufficient to pay the costs; and

(B) the party to the proceeding who incurred the costs filed, on the party's own behalf, an affidavit of inability to pay the costs under Rule 145, Texas Rules of Civil Procedure, that shows the party is unable to afford the costs.

SECTION 16. Section 1156.052, Estates Code, is amended to read as follows:

Sec. 1156.052. ALLOWANCE FOR WARD'S SPOUSE, MINOR CHILDREN, OR INCAPACITATED ADULT CHILDREN [DEPENDENT]. (a) Subject to Section 1156.051 and on application to the court, the court may order the guardian of the estate of a ward to spend money from the ward's estate for the education and maintenance of the ward's spouse, minor children, or incapacitated adult children [dependent].

(b) In determining whether to order the expenditure of money from a ward's estate for the ward's spouse, minor children, or incapacitated adult children [dependent], as appropriate, under this section, the court shall consider:

(1) the circumstances of the ward, the ward's spouse, and the ward's minor children and incapacitated adult children [dependents];

(2) the ability and duty of the ward's spouse to support himself or herself and the ward's minor children or incapacitated adult children [dependent];

(3) the size of the ward's estate;

(4) a beneficial interest the ward or the ward's spouse, minor children, or incapacitated adult children have [or dependent has] in a trust; and

(5) an existing estate plan, including a trust or will, that provides a benefit to the ward's spouse, minor children, or incapacitated adult children [dependent].

(c) A person who makes an application to the court under this section shall mail notice of the application by certified mail, return receipt requested, to all interested persons.

(d) Copies of the notices mailed under Subsection (c) must be filed with the court with a copy of the certified mail return receipt for each notice mailed.

SECTION 17. Section 1203.006, Estates Code, is amended to read as follows:

Sec. 1203.006. REQUIREMENTS FOR DISCHARGE. (a) A guardian applying to resign may not be discharged until:

(1) the resignation application has been heard;

(2) the exhibit and final account or report required under Section 1203.001 has been examined, settled, and approved; and

(3) the guardian [applicant] has satisfied the court that the guardian [applicant] has:

(A) delivered any estate property remaining in the guardian's [applicant's] possession; or

(B) complied with all court orders relating to the guardian's [applicant's] trust as guardian.

(b) When a guardian applying to resign has fully complied with the court orders, the court shall enter an order:

(1) accepting the resignation; [and]

(2) discharging the guardian;

(3) canceling the letters issued to the guardian; and

(4) [applicant and,] if the guardian [applicant] is under bond, discharging and releasing the [applicant's] sureties on the guardian's bond.

SECTION 18. Section 1204.105, Estates Code, is amended by adding Subsection (h) to read as follows:

(h) The guardian of the estate shall file an affidavit sworn to by the guardian or a certificate signed by the guardian's attorney stating:

(1) the name of each person to whom citation was served under this section, indicating the method of service;

(2) the name of each person executing a waiver of citation under Subsection (d); and

(3) that each person whose whereabouts are known or can be reasonably ascertained who is entitled to citation under this section was provided a copy of the account for final settlement, indicating the method of delivery for each person to whom a copy was provided.

SECTION 19. Section 1204.151, Estates Code, is amended to read as follows:

Sec. 1204.151. DISCHARGE OF GUARDIAN WHEN NO ESTATE PROPERTY REMAINS. The court shall enter an order discharging a guardian from the guardian's trust, canceling the letters issued to the guardian of the estate, and closing the guardianship estate if, on final settlement of the estate, none of the estate remains in the guardian's possession.

SECTION 20. Section 1204.152, Estates Code, is amended to read as follows:

Sec. 1204.152. DISCHARGE OF GUARDIAN WHEN ESTATE FULLY ADMINISTERED. The court shall enter an order discharging a guardian of the estate from the guardian's trust, canceling the letters issued to the guardian of the estate, and declaring the estate closed when:

(1) the guardian has fully administered the estate in accordance with this title and the court's orders;

(2) the guardian's account for final settlement has been approved; and

(3) the guardian has delivered all of the estate remaining in the guardian's possession to any person entitled to receive the estate.

SECTION 21. Section 1251.005(a), Estates Code, is amended to read as follows:

(a) On the filing of an application for temporary guardianship, the court clerk shall issue:

(1) citation to be personally served on:

(A) the proposed ward; and

(B) the proposed temporary guardian named in the application, if that person is not the applicant; and

(2) notice to be served in the manner provided under Rule 21a, Texas Rules of Civil Procedure, on the proposed ward's appointed attorney.

SECTION 22. Section 411.1386(d), Government Code, is amended to read as follows:

(d) The criminal history record information obtained under Subsection (a-4) is for the exclusive use of the court or guardianship certification program of the Judicial Branch Certification Commission, as appropriate, and is privileged and confidential. The information may not be released or otherwise disclosed to any person or agency except on court order, with the consent of the person being investigated, or as authorized by Subsection (a-6) [or Section 1104.404, Estates Code]. The county clerk or guardianship certification program of the Judicial Branch Certification Commission may destroy the criminal history record information after the information is used for the purposes authorized by this section.

SECTION 23. Section 411.1408(c), Government Code, is amended to read as follows:

(c) Criminal history record information obtained by the commission under Subsection (b):

(1) may be used by the commission for any purpose related to the issuance, denial, suspension, revocation, or renewal of a certificate, registration, or license issued by the commission or otherwise under Subtitle L, Title 2;

(2) may not be released or disclosed to any person except:

(A) on court order;

(B) with the consent of the person who is the subject of the information; or

(C) as authorized by Section 411.1386(a-6) [of this code or Section 1104.404, Estates Code], if applicable; and

(3) shall be destroyed by the commission after the information is used for the authorized purposes.

SECTION 24. The following provisions of the Estates Code are repealed:

(1) Section 1023.008;

(2) Section 1104.402;

(3) Section 1104.403; and

(4) Section 1104.404.

SECTION 25. (a) Except as otherwise provided by this section, the changes in law made by this Act apply to a guardianship created before, on, or after the effective date of this Act.

(b) Sections 1023.002(c), 1023.004(a) and (c), 1023.005(c), 1023.006, and 1023.007, Estates Code, as amended by this Act, and Section 1023.0071, Estates Code, as added by this Act, apply only to an application filed or motion made to transfer a guardianship on or after the effective date of this Act.

(c) Sections 1023.006, 1156.052, and 1251.005(a), Estates Code, as amended by this Act, apply only to an application filed on or after the effective date of this Act. An application 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.

SECTION 26. This Act takes effect September 1, 2023.

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