74(R) SB 103 House Committee Report

BILL ANALYSIS

S.B. 103
By: Moncrief (Naishtat)
May 19, 1995
Committee Report (Unamended)

BACKGROUND

Currently, no state agency has statutory responsibility for
coordinating guardianship in the state. The Department of
Protective and Regulatory Services, through the Adult Protective
Services program, provides some guardianship and a few private
programs exist. No specific authority exists to coordinate,
educate, or provide resources for these programs. The Senate
Interim Committee on Health and Human Services included in its
report on guardianship a recommendation that an Guardianship
Resource Board be established. The goal is to develop a statewide,
coordinated system of guardianship programs at the county and
regional levels.

PURPOSE

As proposed, S.B. 103 creates the Guardianship Resource Board as an
agency of the state.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the board of the Guardianship Resource Board in SECTION 1
(Sections 161.021 and 161.023(a), Human Resources Code) of this
bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends the Human Resources Code, by adding Title 11, as
follows:

TITLE 11. PUBLIC GUARDIANS

CHAPTER 161. GUARDIANSHIP RESOURCE BOARD

SUBCHAPTER A. ADMINISTRATIVE PROVISIONS

Sec. 161.001. BOARD. (a) Provides that the Guardianship
Resource Board (board) is created and is authorized to create
a nonprofit corporation organized pursuant to Article 1396-1.01 et seq., V.T.C.S. (Texas Non-Profit Corporation Act).
Provides that on creation of the nonprofit corporation, the
board becomes the board of the nonprofit corporation.

Sec. 161.002. SUNSET PROVISION. Subjects the board to the
Texas Sunset Act (Chapter 325, Government Code) and on
September 1, 2007, abolishes the board unless continued in
existence as provided by that chapter.

Sec. 161.003. DEFINITIONS. Defines "board," "commissioner,"
"center," "guardianship program," and "incapacitated person."

Sec. 161.004. COMPOSITION OF BOARD. (a) Establishes the
criteria for the composition of the board.

(b) Requires the commissioner of health and human services
(commissioner) to appoint the board members and designates
the required qualifications.

(c) Requires the presiding judge of the statutory probate
courts to appoint two persons who are judges of statutory
probate courts in the state.

(d) Establishes the composition of the nonvoting ex officio
membership.

(e) Requires appointments to the board to be made without
regard to certain personal characteristics.

(f) Prohibits a person from being appointed to the board if
the person or person's spouse uses or receives a substantial
amount of tangible goods, services, or funds from the board.
Sec. 161.005. COMPENSATION OF BOARD MEMBERS. (a) Provides
that an appointed member of the board is entitled to per diem
as set by the General Appropriations Act for each day that the
member engages in board business.

(b) Prohibits a board member from receiving compensation
for service on the board. Provides that a board member may
be reimbursed for actual and necessary expenses not
exceeding the amount authorized to be paid to a member of
the legislature for similar expenses.
Sec. 161.006. OFFICERS. Requires the board to elect
officers.

Sec. 161.007. TERMS OF BOARD MEMBERS. Sets forth the terms
board members are to serve.

Sec. 161.008. MEETINGS. Requires the board to hold and
make available to the public quarterly meetings.

Sec. 161.009. REMOVAL OF BOARD MEMBER. Establishes the
circumstances under which a board member may be removed from
the board.

Sec. 161.010. RESTRICTIONS ON BOARD MEMBERSHIP AND
EMPLOYMENT. (a) Prohibits persons who have a conflict of
interest from being a member or employee of the board.

(b) Prohibits a person required to register as a lobbyist
under Chapter 305, Government Code, from serving as a board
member or general counsel to the board.

Sec. 161.011. EXECUTIVE DIRECTOR. (a) Requires the board to
appoint an executive director.

(b) Provides that salaries and other expenses are paid with
funds appropriated to the board for those purposes or with
funds from other sources.

Sec. 161.012. PERSONNEL MATTERS. (a) Authorizes the
executive director to employ no more than seven employees for
the administration of the center's duties.

(b) Requires the executive director or the director's
designee to develop an intraoffice career ladder program.

(c) Requires the executive director or designee to develop
a system of annual performance evaluations which merit pay
must be based.

(d) Requires the board to provide to its members and center
employees information regarding qualifications under
applicable laws relating to standards of conduct for state
officers and employees.

(e) Requires the board to develop policies that clearly
separate the respective responsibilities of the board and
the executive director.

(f) Requires the executive director or designee to prepare
and maintain a written policy ensuring a program of equal
employment opportunity under which all personnel
transactions are made without regard to certain personal
characteristics. Sets forth the required contents of the
policy statement.

(g) Requires the annual policy statement under Subsection
(f) to be filed and updated annually with the governor's
office. Requires the governor's office to develop a
biennial report to the legislature based on the information
submitted.

Sec. 161.013. MERIT SYSTEM. Authorizes the board to
establish a merit system for its employees that may be
maintained in conjunction with other state agencies required
by federal law to operate under a merit system.

Sec. 161.014. FINANCES. (a) Requires the executive director
to prepare and submit to the board for approval a biennial
budget necessary to carry out the duties of the center.
Requires the budget to include an estimate of all the funds
the board will receive and all federal funds to be allocated
to the state for the center's purposes.

(b) Requires the executive director to submit to the board
a request for an appropriation by the legislature if the
estimate of total funding from all sources is determined by
the executive director to be insufficient for the center to
carry out its duties.

(c) Authorizes the executive director to submit a request
for such an appropriation to the board if the executive
director determines that federal matching funds will be made
available to the center if and only if a legislative
appropriation is made.

(d) Requires the board to submit the request to the
Legislative Budget Board and the governor in the manner
prescribed by law if the board approves a request made under
Subsection (b) or (c).

(e) Requires the board to file annually with the governor
and the presiding officer of each house of the legislature,
a complete and detailed written report accounting for all
funds. Requires the form of the annual report and reporting
time to be provided in the General Appropriations Act.

(f) Provides that the financial transactions of the board
are subject to audit by the state auditor under Chapter 321,
Government Code.

SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND CENTER

Sec. 161.021. RULES. (a) Requires the board to adopt rules
governing the function of the center.

(b) Authorizes the board, by rule, to delegate its rights,
powers, and duties to the executive director.

Sec. 161.022. GENERAL FUNCTIONS OF CENTER. Sets forth the
requirements of the center regarding its functions and
services.

Sec. 161.023. STANDARDS. (a) Requires the center, by rule,
to adopt minimum standards for the provision of guardianship
and related services for certain entities.

(b) Requires the standards adopted by the center under this
section to be designed to protect the interests of an
incapacitated person or other person who needs assistance
making decisions concerning the person's own welfare or
financial affairs.

Sec. 161.024. CONTRACTS. Authorizes the board to contract
with another person or entity to file an application to be
appointed as a guardian, or provide assistance to a person to
make a decision concerning the person's own welfare for
financial affairs, if no guardianship program to provide
assistance exists.

Sec. 161.025. FUNDING AND DONATIONS. (a) Authorizes the
board or the center to accept and solicit gifts or grants of
money or property from public or private sources for the
purposes of this chapter.

(b) Authorizes the center to collect and receive funds from
personal representatives of estates of deceased persons in
administration in courts of this state and manage, hold and
administer such funds pursuant to Sections 427 through 433,
Texas Probate Code, through the board.

(c) Authorizes the center, through the board, to collect
and receive funds from county clerks who have received and
managed such funds pursuant to Section 887, Texas Probate
Code, and to use such funds in performance of the general
functions assigned to the center under this chapter.
Sec. 161.026. COMMUNITY TRUST. (a) Defines "beneficiary,"
"follow along services," and "surplus trust funds."

(b) Authorizes the center to establish a community trust.
Sets forth the required provisions of the trust.

(d) Sets forth the authorized actions of the center
regarding the management of the community trust.

(e) Requires the trustor to receive a written statement of
the services to be provided to the beneficiary at the time
a contribution, bequest, or assignment of insurance proceeds
is made. Requires the statement to include a starting date
for the delivery of services or a condition precedent, such
as the death of the trustor, which shall determine the
starting date. Requires the statement to describe the
frequency with which services shall be provided and their
duration, and the criteria or procedures for modifying the
program of services from time to time in the best interests
of the beneficiary.

(f) Authorizes the center to accept gifts and use surplus
trust funds for the purpose of qualifying as a beneficiary
any indigent person whose family members lack the resources
to make a full contribution on the person's behalf.
Provides that the extent and character of the services and
selection of a beneficiary under this subsection are at the
discretion of the center.

(g) Authorizes the center to accept gifts to meet start-up
costs, reduce the charges to the trust of the cost of
administration, and for any other purpose that is consistent
with this chapter. Requires gifts made to the trust for an
unspecified purpose to be used by the center either to
qualify indigent persons under Subsection (f) or to meet any
start-up costs that the trust incurs.

(h) Authorizes the center to agree to fulfill any special
requests made on behalf of a beneficiary as long as the
requests are consistent with this chapter, and provided that
an adequate contribution has been made for this purpose on
behalf of a beneficiary. Authorizes the center to agree to
serve as trustee for any individual trust created on behalf
of a beneficiary, regardless of whether the trust is
revocable or irrevocable, has one or more remaindermen or
contingent beneficiaries, or any other condition, as long as
the individual trust is consistent with the purposes of this
chapter.

(i) Authorizes the center in its sole discretion to provide
compensation for any contribution to the trust to any
trustor who withdraws a beneficiary designated by the
trustor from the trust, or if it becomes impossible to
fulfill the conditions of the trust with regard to an
individual beneficiary for reasons other than the death of
a beneficiary.

(j) Prohibits the center from expanding trust funds for any
goods or services of quality comparable to those available
to any particular beneficiary through any governmental or
charitable program, insurance, or other sources.

(k) Prohibits the center from using surplus trust funds to
make any charitable contribution on behalf of any
beneficiary or any group or class of beneficiaries.

(l) Prohibits the beneficiary's interest in the community
trust from being deemed to be an asset for the purpose of
determining income eligibility for any publicly operated
program, nor shall that interest be reached in satisfaction
of a claim for support and maintenance of the beneficiary.
Provides that no agency shall reduce the benefits of
services available to any individual because that person is
the beneficiary of the community trust.

(m) Prohibits the community trust from being subject to or
held to be in violation of any principle of law against
perpetuities or restraints on alienation or perpetual
accumulations of trust.

(n) Requires the community trust to be settled by filing a
final accounting in a district or statutory probate court.
Authorizes the attorney general to bring an action for the
dissolution of the center in the district court for the
purpose of terminating the trust or merging it with another
charitable trust.

(o) Provides that no trustee or any private individual
shall be entitled to share in the distribution of any of the
trust assets on dissolution, merger, or settlement of the
community trust. Requires a district or statutory probate
court of Travis County to distribute all of the remaining
net assets of the community trust in a manner that is
consistent with the purposes this chapter.
Sec. 161.027. REPORT. Requires the board to submit to the
legislature a biennial report by February 1 of each odd-numbered year.

SECTION 2. Amends Section 3, Texas Probate Code, to redefine
"person."

SECTION 3. Amends Chapter X, Texas Probate Code, as follows:

CHAPTER X. PAYMENT OF ESTATES TO THE GUARDIANSHIP RESOURCE BOARD

Sec. 427. New heading: WHEN ESTATES TO BE PAID TO THE
GUARDIANSHIP RESOURCE BOARD. Replaces the duties of the state
treasurer with the Guardianship Resource Board.

Sec. 428. New heading: INDISPENSABILITY OF GUARDIANSHIP
RESOURCE BOARD AS PARTY. Makes conforming changes.

Sec. 429. New heading: PENALTY FOR NEGLECT TO NOTIFY
GUARDIANSHIP RESOURCE BOARD. Makes conforming changes.

Sec. 430. New heading: RECEIPT OF GUARDIANSHIP RESOURCE
BOARD. Makes conforming changes.

Sec. 431. New heading: PENALTY FOR FAILURE TO MAKE PAYMENTS
TO GUARDIANSHIP RESOURCE BOARD. Makes conforming changes.

Sec. 432. New heading: GUARDIANSHIP RESOURCE BOARD MAY
ENFORCE PAYMENT AND COLLECT DAMAGES. Makes conforming
changes.

Sec. 433. New heading: SUIT FOR THE RECOVERY OF FUNDS PAID TO
THE GUARDIANSHIP RESOURCE BOARD. Makes conforming changes.

SECTION 4. Amends Section 887, Probate Code, by amending
Subsections (b) and (f) and adding Subsections (h) and (i), as
follows:

(b) Requires the clerk of the court to make a written report
to the court of the status of all investments held by the
clerk under this section. Sets forth the required contents of
the report regarding each investment held by the clerk.

(f) Authorizes the creditor or the subsequent personal
representative of the creditor or the creditor's heirs to
withdraw the money from the clerk as provided for in
Subsection (c), if a person who is authorized fails to do so.
Authorizes the withdrawal to be made at any time before the
clerk has delivered the money to the Guardianship Resource
Board under Subsection (h) of this section without special
bond for the purpose by the person entitled to the withdrawal
under certain conditions.

(h) Sets forth the actions required by the clerk of the court
regarding a person who does not withdraw the money from the
clerk as authorized by Subsection (f) or (g).

(i) Prohibits the board from being required to give bond or
security for receiving the money from the clerk, and the
receipt from the board for the payment or the canceled check
or warrant by which the payment was made shall be sufficient
evidence of the disposition of the payment. Provides that
after compliance with the notice provisions of Subsection (h)
of this section and payment to the board, the clerk of the
court is relieved of further responsibility to the creditor,
the personal representative of the creditor, the heirs of the
creditor, or the board for the disposition and management of
the money, and on receipt the board shall have full title to
the money received from the clerk as against any further claim
to the money by such persons, their successors, or those
claiming by or through any of those persons or successors.
SECTION 5. (a) Requires the commissioner to appoint seven of the
initial board members of the board so that three members' terms
expire February 1, 1997, three expire February 1, 1999, and three
terms expire February 1, 2001.

(b) Requires the presiding judge of the statutory probate
courts to appoint three of the initial members of the board
created by this Act so that one member's term expires February
1, 1999, and one member's term expires February 1, 2001.
SECTION 6. Requires the executive director of the board to file
the first policy statement before September 1, 1996.

SECTION 7. Effective date: September 1, 1995, and the Guardianship
Resource Board is created on that date.

SECTION 8. Emergency clause.

SUMMARY OF COMMITTEE ACTION

SB 103 was considered by the Committee on State Affairs in a formal
meeting on May 10, 1995. The Chair laid out SB 103. The committee
considered a complete substitute for the bill. The substitute was
adopted without objection. The motion to report the bill favorably
as substituted failed by a record vote of: 6 ayes, 5 nay, 0 pnv,
and 4 absent. The committee reconsidered the motion by which the
complete committee substitute was adopted. The substitute was
withdrawn without objection. SB 103 was left pending. SB 103 was
considered by the Committee on State Affairs in a formal meeting on
May 15, 1995. The Chair laid out SB 103. The bill was reported
favorably without amendment, with the recommendation that it do
pass and be printed, by a record vote of: 15 ayes; 0 nays; 0 pnv;
and 0 absent.