BILL ANALYSIS



H.B. 1136
By: Hartnett
4-3-95
Committee Report (Unamended)


BACKGROUND

Probate Code Section 676(d) allows parents of a minor child to name
a guardian for their minor children by will or by written
declaration. However, there is no form provided for the written
declaration. Furthermore, there is no provision in the Probate Code
to allow parents to name a guardian for their children who are
incapacitated adults.


PURPOSE

This bill allows parents to designate a guardian for their
incapacitated adult children by will or written declaration. This
bill also clarifies the requirements of a written declaration for
parents to appoint guardians for their minor or incapacitated adult
children and provides an optional form.


RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not delegate any
new rulemaking authority to a state officer, agency, department, or
institution.


SECTION-BY-SECTION ANALYSIS

SECTION 1.  Amends Sect. 676(d), Texas Probate Code, to provide
that the probate court shall give priority to the person designated
by a parent in a will or written declaration as guardian of minor
children after the parent's death.

SECTION 2.  Amends Sect. 677, Texas Probate Code, by adding new
subsection (b) to allow the parent of an incapacitated adult child
to designate by will or written declaration a guardian to serve
after the parent's death. The parent must have been guardian of the
adult child.  Requires the court to prefer the person named by the
parent as guardian.

SECTION 3.  Amends Subpart A, Part 3, Chapter XIII, Texas Probate
Code, by adding Section 677A, which sets forth the requirements for
written declarations of parents appointing guardians for their
children.

     Sect. 677A. WRITTEN DECLARATIONS BY CERTAIN PARENTS TO APPOINT
GUARDIANS FOR THEIR CHILDREN.

     (a)  Requires attestation by at least two credible witnesses
14 years old or older who are not named as guardian or alternate
guardian.

     (b)  Requires a self-proving affidavit as to competence of the
declarant and execution of the declaration. This is prima facie
evidence of competence and that the guardian named would serve the
best interest of the ward.

     (c)  The declaration and affidavit may be filed with the court
anytime after application for appointment of a guardian is filed
and before a guardian is appointed. If the designated guardian is
unavailable, the court must appoint qualified alternate named or
another provided by the code.

     (d) Declarant may revoke a declaration under Section 63 of
this code.

     (e) Declaration and affidavit may be in any form clearly
indicating the intention to designate a guardianship for the child. 
Provides an optional form for the written declaration of
appointment of guardian for children upon parent's death.


SECTION 4.  Effective date:  September 1, 1995.  Applies only to a
will or written declaration for the appointment of a guardian that
is executed on or after this date.

SECTION 5.  EMERGENCY CLAUSE


SUMMARY OF COMMITTEE ACTION

House Bill 1136 was considered by the Committee on Civil Practices
in a public hearing on March 8, 1995. No one testified for, against
or neutral on the bill. The bill was left pending. H.B. 1136 was
considered by the Committee on Civil Practices in a public hearing
on March 29, 1995. The bill was reported favorably without
amendment with the recommendation that it pass and be printed and
be sent to the Committee on Local and Consent Calendars, by a
record vote of six ayes, zero nays, zero present not voting, and
three absent.