By: Hunter, Todd H.B. No. 2425
73R614 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the appointment of public guardians to serve as
1-3 guardians for certain incapacitated persons.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Part 3, Chapter V, Texas Probate Code, is amended
1-6 by adding Sections 127B-127F to read as follows:
1-7 Sec. 127B. OFFICE OF PUBLIC GUARDIAN. (a) The
1-8 commissioners court of a county by order may create the office of
1-9 public guardian.
1-10 (b) The commissioners court shall appoint a qualified person
1-11 to serve as public guardian and may employ necessary personnel for
1-12 the administration of the office's duties.
1-13 (c) The public guardian serves at the pleasure of the
1-14 commissioners court.
1-15 Sec. 127C. DUTIES. (a) The office of public guardian of a
1-16 county shall:
1-17 (1) provide to a guardian, a proposed guardian, or a
1-18 member of a guardianship program assistance on guardianship and
1-19 related services;
1-20 (2) provide information and referral services on
1-21 guardianship and related services; and
1-22 (3) perform other duties required under this code.
1-23 (b) In this section, "guardianship program" means a local,
1-24 county, or regional program that provides guardianship and related
2-1 services to a person who needs assistance in making decisions
2-2 concerning the person's own welfare or financial affairs.
2-3 Sec. 127D. APPOINTMENT OF PUBLIC GUARDIAN. (a) A court
2-4 shall appoint the public guardian of the county to serve as a
2-5 guardian or limited guardian of the person or estate, or both, of a
2-6 person who is 60 years of age or older and who is domiciled or
2-7 found in the county in which the court is located if:
2-8 (1) the court has probable cause to believe that the
2-9 person is an incapacitated person; and
2-10 (2) the person:
2-11 (A) does not have a guardian in this state; and
2-12 (B) has no known living relative.
2-13 (b) A public guardian appointed under Subsection (a) of this
2-14 section serves until a guardian is appointed under Section 111 or
2-15 130H of this code.
2-16 (c) Not later than 24 hours after the time the court
2-17 appoints a public guardian under this section, the public guardian
2-18 shall file a written application under Section 111 or a petition
2-19 under Section 130C of this code to be appointed guardian of the
2-20 person or estate, or both, of the person believed to be an
2-21 incapacitated person.
2-22 (d) At the time of the appointment of the public guardian,
2-23 the court shall also appoint an attorney ad litem to represent the
2-24 interests of the person believed to be an incapacitated person.
2-25 (e) In this section, "incapacitated person" means an adult
2-26 individual who, because of a physical or mental condition, is
2-27 substantially unable to provide for the individual's own food,
3-1 clothing, or shelter, to care for the individual's own physical
3-2 health, or to manage the individual's own financial affairs.
3-3 Sec. 127E. BOND OF PUBLIC GUARDIAN. (a) The commissioners
3-4 court of a county may require the public guardian of the county to
3-5 give a surety bond in an amount determined by the commissioners
3-6 court. The bond is conditioned on the public guardian's faithful
3-7 execution of the duties of office.
3-8 (b) A surety bond required under this section must be:
3-9 (1) made with a commercially sound and solvent surety
3-10 company that is authorized to do business in this state;
3-11 (2) made payable to the commissioners court; and
3-12 (3) approved by the commissioners court and the
3-13 attorney general.
3-14 (c) The commissioners court shall pay all expenses,
3-15 including premiums, for the execution of a bond under this section.
3-16 Sec. 127F. LIABILITY OF PUBLIC GUARDIAN. A public guardian
3-17 is liable for damages based on an act or omission by the public
3-18 guardian in the course and scope of the guardian's duties under
3-19 this code if:
3-20 (1) the damages arise out of an intentional or knowing
3-21 act or an act of gross negligence; or
3-22 (2) the damages arise out of a cause of action for
3-23 deprivation of a right, privilege, or immunity secured by the
3-24 constitution or laws of this state or the United States.
3-25 SECTION 2. Section 112, Texas Probate Code, is amended to
3-26 read as follows:
3-27 Sec. 112. JUDGE MAY CAUSE APPLICATION TO BE FILED. Except
4-1 as provided by Section 127D of this code, whenever <Whenever> it
4-2 comes to the knowledge of the county judge that any person whose
4-3 legal domicile is in his county, or who is found therein, is a
4-4 minor, a person of unsound mind, or an habitual drunkard, and is
4-5 without a guardian of his person or of his estate within this
4-6 State, and that there is probable cause for the exercise of his
4-7 jurisdiction, he may cause proper proceedings to be commenced and
4-8 application to be made as provided in the preceding Section for the
4-9 appointment of a guardian of the person and of the estate of such
4-10 person, or of either. Upon the filing of such application, process
4-11 shall be issued and served as hereinafter provided.
4-12 SECTION 3. Section 130I(a), Texas Probate Code, is amended
4-13 to read as follows:
4-14 (a) Only a person, institution, public guardian, or
4-15 corporation found by the court to be suitable may be appointed
4-16 limited guardian. The court shall not customarily or ordinarily
4-17 appoint the Texas Department of Mental Health and Mental
4-18 Retardation or a community mental health and mental retardation
4-19 center, or any other agency, public or private, that is directly
4-20 providing services to the incapacitated person, except as a last
4-21 resort.
4-22 SECTION 4. Section 131(a), Texas Probate Code, is amended to
4-23 read as follows:
4-24 (a) Necessity of Appointment. Except as provided by Section
4-25 127D of this code, whenever <Whenever> it appears to the county
4-26 judge that the interest of any minor, incapacitated person as
4-27 defined in Section 130A of this code, or common or habitual
5-1 drunkard, and his or her estate, or either of them, requires
5-2 immediate appointment of a personal representative, he shall, by
5-3 written order, appoint a suitable temporary representative, with
5-4 such limited powers as the circumstances of the case require, and
5-5 such appointment may be made permanent, as herein provided.
5-6 SECTION 5. Section 193, Texas Probate Code, is amended to
5-7 read as follows:
5-8 Sec. 193. BOND OF GUARDIAN OF PERSON. Except as provided by
5-9 Section 127E of this code, the <The> bond of a guardian of the
5-10 person shall be in an amount to be fixed by the Court granting such
5-11 guardianship, payable to and to be approved by the judge and his or
5-12 her successors in a sum that is found by the judge to be adequate
5-13 under all circumstances, or a bond with one surety in a sum that is
5-14 found by the judge to be adequate under all circumstances, if the
5-15 surety is an authorized corporate surety. The bond shall be
5-16 conditioned that the guardian will faithfully discharge the duties
5-17 of guardian of the person of his ward.
5-18 SECTION 6. This Act takes effect September 1, 1993.
5-19 SECTION 7. The importance of this legislation and the
5-20 crowded condition of the calendars in both houses create an
5-21 emergency and an imperative public necessity that the
5-22 constitutional rule requiring bills to be read on three several
5-23 days in each house be suspended, and this rule is hereby suspended.