By Naishtat H.B. No. 2705
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to creation of the Office of Public Guardian.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. The Human Resources Code is amended by adding
1-5 Title 11 to read as follows:
1-6 TITLE 11. PUBLIC GUARDIANS
1-7 CHAPTER 161. OFFICE OF PUBLIC GUARDIAN
1-8 SUBCHAPTER A. ADMINISTRATIVE PROVISIONS
1-9 Sec. 161.001. OFFICE AND BOARD. (a) The Office of Public
1-10 Guardian is an agency of the state.
1-11 (b) The board of the Office of Public Guardian is the
1-12 governing body of the Office of Public Guardian.
1-13 Sec. 161.002. APPLICATION OF SUNSET ACT. The Office of
1-14 Public Guardian is subject to Chapter 325, Government Code (Texas
1-15 Sunset Act). Unless continued in existence as provided by that
1-16 chapter, the office is abolished and this chapter expires September
1-17 1, 2007.
1-18 Sec. 161.003. DEFINITIONS. In this chapter:
1-19 (1) "Board" means the board of the Office of Public
1-20 Guardian.
1-21 (2) "Guardianship program" means a local, county, or
1-22 regional program that provides guardianship and related services to
1-23 an incapacitated person or other person who needs assistance in
2-1 making decisions concerning the person's own welfare or financial
2-2 affairs.
2-3 (3) "Incapacitated person" means:
2-4 (A) a minor;
2-5 (B) an adult individual who, because of a
2-6 physical or mental condition, is substantially unable to provide
2-7 food, clothing, or shelter for himself or herself, to care for the
2-8 individual's own physical health, or to manage the individual's own
2-9 financial affairs;
2-10 (C) a missing person; or
2-11 (D) a person who must have a guardian appointed
2-12 to receive funds due the person from any governmental source.
2-13 (4) "Office" means the Office of Public Guardian.
2-14 Sec. 161.004. COMPOSITION OF BOARD. (a) The board is
2-15 composed of nine members appointed by the governor with the advice
2-16 and consent of the senate and of five nonvoting ex officio members.
2-17 (b) The governor shall appoint:
2-18 (1) three members of a guardianship program;
2-19 (2) three members of private associations of persons
2-20 who advocate on the behalf of or in the interest of the elderly or
2-21 persons with mental illness or mental retardation;
2-22 (3) two persons each of whom is a judge or justice of
2-23 a court of this state or another person licensed to practice law in
2-24 this state; and
2-25 (4) one parent of an incapacitated person other than a
3-1 minor.
3-2 (c) The nonvoting ex officio membership is composed of the
3-3 presiding officer of the governing body of the following agencies
3-4 or each officer's designated representative:
3-5 (1) Texas Department of Human Services;
3-6 (2) Texas Department on Aging;
3-7 (3) Texas Department of Health;
3-8 (4) Department of Protective and Regulatory Services;
3-9 and
3-10 (5) Texas Department of Mental Health and Mental
3-11 Retardation.
3-12 (d) Appointments to the board shall be made without regard
3-13 to the race, color, disability, sex, religion, age, or national
3-14 origin of an appointee.
3-15 (e) A person is not eligible for appointment to the board if
3-16 the person or the person's spouse uses or receives a substantial
3-17 amount of tangible goods, services, or funds from the office.
3-18 Sec. 161.005. COMPENSATION OF BOARD MEMBERS. (a) An
3-19 appointed member of the board is entitled to per diem as set by
3-20 legislative appropriation for each day that the member engages in
3-21 office business.
3-22 (b) A member of the board may not otherwise receive
3-23 compensation for service on the board but is entitled to
3-24 reimbursement for actual and necessary expenses in the performance
3-25 of office business in an amount not exceeding the amount authorized
4-1 to be paid to a member of the legislature for similar expenses.
4-2 Sec. 161.006. OFFICERS. The board shall elect from its
4-3 members a presiding officer and any other officers considered
4-4 necessary.
4-5 Sec. 161.007. TERMS OF BOARD MEMBERS. Appointed members of
4-6 the board serve for staggered terms of six years with the terms of
4-7 three members expiring on February 1 of each odd-numbered year. A
4-8 member may be reappointed to the board.
4-9 Sec. 161.008. MEETINGS. The board shall hold meetings
4-10 quarterly and may hold other meetings called by the presiding
4-11 officer. The board shall develop and implement policies that will
4-12 provide the public with a reasonable opportunity to appear before
4-13 the board and to speak on any issue under the jurisdiction of the
4-14 board.
4-15 Sec. 161.009. REMOVAL OF BOARD MEMBER. It is a ground for
4-16 removal from the board that an appointed member:
4-17 (1) does not have at the time of appointment the
4-18 qualifications required by Section 161.004 for appointment to the
4-19 board;
4-20 (2) does not maintain during the service on the board
4-21 the qualifications required by Section 161.004 for appointment to
4-22 the board;
4-23 (3) violates a prohibition established by Section
4-24 161.010;
4-25 (4) is unable to discharge the member's duties for a
5-1 substantial portion of the term for which the member was appointed
5-2 because of illness or disability; or
5-3 (5) is absent from more than half of the regularly
5-4 scheduled board meetings that the member is eligible to attend
5-5 during each calendar year, except when the absence is excused by
5-6 majority vote of the board.
5-7 Sec. 161.010. RESTRICTIONS ON BOARD MEMBERSHIP AND
5-8 EMPLOYMENT. (a) An officer, employee, or paid consultant of an
5-9 association, other than a guardianship program or a nonprofit
5-10 association, that has as its primary interest the provision of
5-11 guardianship services may not be a member or employee of the board,
5-12 nor may a person who cohabits with or is the spouse of an officer,
5-13 managerial employee, or paid consultant of such an association be a
5-14 member of the board or an employee of the board, including an
5-15 employee exempt from the state's position classification plan, who
5-16 is compensated at or above the amount prescribed by the General
5-17 Appropriations Act for step 1, salary group 17, of the position
5-18 classification salary schedule.
5-19 (b) A person who is required to register as a lobbyist under
5-20 Chapter 305, Government Code, by virtue of the person's activities
5-21 on behalf of a provider of guardianship services may not serve as a
5-22 member of the board or act as the general counsel to the board.
5-23 Sec. 161.011. EXECUTIVE DIRECTOR. (a) The board shall
5-24 appoint an executive director who shall discharge all executive and
5-25 administrative functions of the office. The executive director
6-1 serves at the pleasure of the board.
6-2 (b) Salaries and other office expenses are paid with funds
6-3 appropriated to the office for those purposes.
6-4 Sec. 161.012. PERSONNEL MATTERS. (a) The executive
6-5 director may employ not more than seven employees for the
6-6 administration of the office's duties.
6-7 (b) The executive director or the director's designee shall
6-8 develop an intraoffice career ladder program, one part of which
6-9 shall require the intraoffice posting of all non-entry-level
6-10 positions concurrently with any public posting.
6-11 (c) The executive director or the director's designee shall
6-12 develop a system of annual performance evaluations based on
6-13 measurable job tasks. All merit pay for office employees must be
6-14 based on the system established under this subsection.
6-15 (d) The board shall provide to its members and to the office
6-16 employees as often as is necessary information regarding their
6-17 qualifications under this chapter and their responsibilities under
6-18 applicable laws relating to standards of conduct for state officers
6-19 and employees.
6-20 (e) The board shall develop and implement policies that
6-21 clearly separate the respective responsibilities of the board and
6-22 the executive director.
6-23 (f) The executive director or the director's designee shall
6-24 prepare and maintain a written policy statement to ensure
6-25 implementation of a program of equal employment opportunity under
7-1 which all personnel transactions are made without regard to race,
7-2 color, disability, sex, religion, age, or national origin. The
7-3 policy statement must include:
7-4 (1) personnel policies, including policies relating to
7-5 recruitment, evaluation, selection, appointment, training, and
7-6 promotion of personnel;
7-7 (2) a comprehensive analysis of the office work force
7-8 that meets federal and state guidelines;
7-9 (3) procedures by which a determination can be made of
7-10 significant underuse in the office work force of all persons for
7-11 whom federal or state guidelines encourage a more equitable
7-12 balance; and
7-13 (4) reasonable methods to appropriately address areas
7-14 of significant underuse in the office work force of all persons for
7-15 whom federal or state guidelines encourage a more equitable
7-16 balance.
7-17 (g) The policy statement required under Subsection (f) shall
7-18 be filed with the governor's office, cover an annual period, and be
7-19 updated at least annually. The governor's office shall develop a
7-20 biennial report to the legislature based on the information
7-21 submitted. The report may be made separately or as a part of other
7-22 biennial reports made to the legislature.
7-23 Sec. 161.013. MERIT SYSTEM. The office may establish a
7-24 merit system for its employees. The merit system may be maintained
7-25 in conjunction with other state agencies that are required by
8-1 federal law to operate under a merit system.
8-2 Sec. 161.014. FINANCES. (a) The executive director shall
8-3 prepare and submit to the board for approval a biennial budget and
8-4 request for an appropriation by the legislature of funds necessary
8-5 to carry out the duties of the office. The budget and request must
8-6 include an estimate of all federal funds to be allocated to the
8-7 state for the office's purposes.
8-8 (b) The board shall submit the budget and request to the
8-9 Legislative Budget Board and the governor in the manner prescribed
8-10 by law.
8-11 (c) The board shall file annually with the governor and the
8-12 presiding officer of each house of the legislature a complete and
8-13 detailed written report accounting for all funds received and
8-14 disbursed by the board during the preceding year. The form of the
8-15 annual report and the reporting time shall be those provided in the
8-16 General Appropriations Act.
8-17 (d) The financial transactions of the board are subject to
8-18 audit by the state auditor in accordance with Chapter 321,
8-19 Government Code.
8-20 (Sections 161.015 to 161.020 reserved for expansion
8-21 SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND OFFICE
8-22 Sec. 161.021. RULES. (a) The board shall adopt rules
8-23 governing the functions of the office, including rules that
8-24 prescribe the policies and procedures followed by the board and the
8-25 office in the administration of this chapter.
9-1 (b) The board by rule or order may delegate its rights,
9-2 powers, and duties to the executive director.
9-3 Sec. 161.022. GENERAL FUNCTIONS OF OFFICE. The office
9-4 shall:
9-5 (1) develop a state plan to ensure that each person
9-6 who needs a guardianship or another less restrictive type of
9-7 assistance to make decisions concerning the person's own welfare or
9-8 financial affairs receives that assistance;
9-9 (2) consult and cooperate with the governing body of
9-10 one or more municipalities or counties concerning the development
9-11 of a guardianship program;
9-12 (3) provide to a guardian, a proposed guardian, or a
9-13 member of a guardianship program education, training, and technical
9-14 assistance on guardianship and alternatives to guardianship that
9-15 may be used in lieu of a guardianship to represent the interests of
9-16 an incapacitated person or other person who needs assistance in
9-17 making decisions concerning the person's own welfare or financial
9-18 affairs; and
9-19 (4) provide information and referral services on
9-20 guardianship and related services.
9-21 Sec. 161.023. STANDARDS. (a) The office by rule shall
9-22 adopt minimum standards for the provision of guardianship and
9-23 related services for a:
9-24 (1) guardianship program;
9-25 (2) person who provides guardianship and related
10-1 services on behalf of a guardianship program, including a person
10-2 who serves as a volunteer guardian; and
10-3 (3) person or entity who serves as a private
10-4 professional guardian.
10-5 (b) The standards the office adopts under this section must
10-6 be designed to protect the interests of an incapacitated person or
10-7 other person who needs assistance making decisions concerning the
10-8 person's own welfare or financial affairs.
10-9 (c) In this section, "private professional guardian" means a
10-10 person who is engaged in the business of providing guardianship
10-11 services.
10-12 Sec. 161.024. CONTRACTS. If there is no guardianship
10-13 program to provide assistance, the office may contract with another
10-14 person or entity to:
10-15 (1) file an application under Chapter XIII, Texas
10-16 Probate Code, to be appointed as a guardian of the estate or
10-17 person, or both, of an incapacitated person if there is no eligible
10-18 person interested in filing an application to be appointed guardian
10-19 of the incapacitated person; or
10-20 (2) provide assistance to a person who needs
10-21 assistance other than a guardianship to make a decision concerning
10-22 the person's own welfare or financial affairs.
10-23 Sec. 161.025. DONATIONS. The office may accept and solicit
10-24 gifts or grants of money or property from public or private sources
10-25 for the purposes of this chapter.
11-1 Sec. 161.026. REPORT. Not later than February 1 of each
11-2 odd-numbered year, the board shall submit to the legislature a
11-3 biennial report that includes recommendations to improve
11-4 guardianship and related services provided to a person by a
11-5 guardianship program or a person or entity who contracts with the
11-6 office under Section 161.024.
11-7 SECTION 2. Section 3, Texas Probate Code, is amended to read
11-8 as follows:
11-9 Sec. 3. DEFINITIONS AND USE OF TERMS. Except as otherwise
11-10 provided by Chapter XIII of this Code, when used in this Code,
11-11 unless otherwise apparent from the context:
11-12 (a) "Authorized corporate surety" means a domestic or
11-13 foreign corporation authorized to do business in the State of Texas
11-14 for the purpose of issuing surety, guaranty or indemnity bonds
11-15 guaranteeing the fidelity of executors and administrators.
11-16 (b) "Child" includes an adopted child, whether adopted by
11-17 any existing or former statutory procedure or by acts of estoppel,
11-18 but, unless expressly so stated herein, does not include a child
11-19 who has no presumed father.
11-20 (c) "Claims" include liabilities of a decedent which
11-21 survive, including taxes, whether arising in contract or in tort or
11-22 otherwise, funeral expenses, the expense of a tombstone, expenses
11-23 of administration, estate and inheritance taxes, and debts due such
11-24 estates.
11-25 (d) "Corporate fiduciary" means a trust company or bank
12-1 having trust powers, existing or doing business under the laws of
12-2 this state or of the United States, which is authorized by law to
12-3 act under the order or appointment of any court of record, without
12-4 giving bond, as receiver, trustee, executor, administrator, or,
12-5 although without general depository powers, depository for any
12-6 moneys paid into court, or to become sole guarantor or surety in or
12-7 upon any bond required to be given under the laws of this state.
12-8 (e) "County Court" and "Probate Court" are synonymous terms
12-9 and denote county courts in the exercise of their probate
12-10 jurisdiction, courts created by statute and authorized to exercise
12-11 original probate jurisdiction, and district courts exercising
12-12 probate jurisdiction in contested matters.
12-13 (f) "County Judge," "Probate Judge," and "Judge" denote the
12-14 presiding judge of any court having original jurisdiction over
12-15 probate proceedings, whether it be a county court in the exercise
12-16 of its probate jurisdiction, a court created by statute and
12-17 authorized to exercise probate jurisdiction, or a district court
12-18 exercising probate jurisdiction in contested matters.
12-19 (g) "Court" denotes and includes both a county court in the
12-20 exercise of its probate jurisdiction, a court created by statute
12-21 and authorized to exercise original probate jurisdiction, or a
12-22 district court exercising original probate jurisdiction in
12-23 contested matters.
12-24 (h) "Devise," when used as a noun, includes a testamentary
12-25 disposition of real or personal property, or of both. When used as
13-1 a verb, "devise" means to dispose of real or personal property, or
13-2 of both, by will.
13-3 (i) "Devisee" includes legatee.
13-4 (j) "Distributee" denotes a person entitled to the estate of
13-5 a decedent under a lawful will, or under the statutes of descent
13-6 and distribution.
13-7 (k) "Docket" means the probate docket.
13-8 (l) "Estate" denotes the real and personal property of a
13-9 decedent, both as such property originally existed and as from time
13-10 to time changed in form by sale, reinvestment, or otherwise, and as
13-11 augmented by any accretions and additions thereto (including any
13-12 property to be distributed to the representative of the decedent by
13-13 the trustee of a trust which terminates upon the decedent's death)
13-14 and substitutions therefor, and as diminished by any decreases
13-15 therein and distributions therefrom.
13-16 (m) "Exempt property" refers to that property of a
13-17 decedent's estate which is exempt from execution or forced sale by
13-18 the Constitution or laws of this State, and to the allowance in
13-19 lieu thereof.
13-20 (n) "Habitual drunkard" and "common drunkard" are synonymous
13-21 and denote one who, by reason of the habitual use of intoxicating
13-22 liquor, drugs, or a toxic inhalant as defined by Section 462.001,
13-23 Health and Safety Code, is incapable of taking care of himself or
13-24 managing his property and financial affairs.
13-25 (o) "Heirs" denote those persons, including the surviving
14-1 spouse, who are entitled under the statutes of descent and
14-2 distribution to the estate of a decedent who dies intestate.
14-3 (p) "Incompetents" or "Incompetent persons" are persons non
14-4 compos mentis, mentally disabled persons, insane persons, common or
14-5 habitual drunkards, and other persons who are mentally incompetent
14-6 to care for themselves or to manage their property and financial
14-7 affairs.
14-8 (q) "Independent executor" means the personal representative
14-9 of an estate under independent administration as provided in
14-10 Section 145 of this Code. The term "independent executor" includes
14-11 the term "independent administrator."
14-12 (r) "Interested persons" or "persons interested" means
14-13 heirs, devisees, spouses, creditors, or any others having a
14-14 property right in, or claim against, the estate being administered;
14-15 and anyone interested in the welfare of a minor or incompetent
14-16 ward.
14-17 (s) "Legacy" includes any gift or devise by will, whether of
14-18 personalty or realty. "Legatee" includes any person entitled to a
14-19 legacy under a will.
14-20 (t) "Minors" are all persons under eighteen years of age who
14-21 have never been married or who have not had disabilities of
14-22 minority removed for general purposes.
14-23 (u) "Minutes" means the probate minutes.
14-24 (v) "Mortgage" or "Lien" includes deed of trust, vendor's
14-25 lien, chattel mortgage, mechanic's, materialman's or laborer's
15-1 lien, judgment, attachment or garnishment lien, pledge by
15-2 hypothecation, and Federal or State tax liens.
15-3 (w) "Net estate" means the real and personal property of a
15-4 decedent, exclusive of homestead rights, exempt property, the
15-5 family allowance and enforceable claims against the estate.
15-6 (x) "Person" includes natural persons, <and> corporations,
15-7 and guardianship programs as defined by Section 161.003, Human
15-8 Resources Code.
15-9 (y) "Persons of unsound mind" are persons non compos mentis,
15-10 mentally disabled persons, insane persons, and other persons who
15-11 are mentally incompetent to care for themselves or to manage their
15-12 property and financial affairs.
15-13 (z) "Personal property" includes interests in goods, money,
15-14 choses in action, evidence of debts, and chattels real.
15-15 (aa) "Personal representative" or "Representative" includes
15-16 executor, independent executor, administrator, independent
15-17 administrator, temporary administrator, together with their
15-18 successors. The inclusion of independent executors herein shall
15-19 not be held to subject such representatives to control of the
15-20 courts in probate matters with respect to settlement of estates
15-21 except as expressly provided by law.
15-22 (bb) "Probate matter," "Probate proceedings," "Proceeding in
15-23 probate," and "Proceedings for probate" are synonymous and include
15-24 a matter or proceeding relating to the estate of a decedent.
15-25 (cc) "Property" includes both real and personal property.
16-1 (dd) "Real property" includes estates and interests in
16-2 lands, corporeal or incorporeal, legal or equitable, other than
16-3 chattels real.
16-4 (ee) "Surety" includes both personal and corporate sureties.
16-5 (ff) "Will" includes codicil; it also includes a
16-6 testamentary instrument which merely:
16-7 (1) appoints an executor or guardian;
16-8 (2) directs how property may not be disposed of; or
16-9 (3) revokes another will.
16-10 (gg) The singular number includes the plural; the plural
16-11 number includes the singular.
16-12 (hh) The masculine gender includes the feminine and neuter.
16-13 (ii) "Statutory probate court" refers to any statutory court
16-14 presently in existence or created after the passage of this Act,
16-15 the jurisdiction of which is limited by statute to the general
16-16 jurisdiction of a probate court, and such courts whose statutorily
16-17 designated name contains the word "probate." County courts at law
16-18 exercising probate jurisdiction are not statutory probate courts
16-19 under this Code unless their statutorily designated name includes
16-20 the word "probate."
16-21 (jj) "Next of kin" includes an adopted child or his or her
16-22 descendents and the adoptive parent of the adopted child.
16-23 (kk) "Charitable organization" means:
16-24 (1) a nonprofit corporation, trust, community chest,
16-25 fund, foundation, or other entity that is exempt from federal
17-1 income tax under Section 501(c)(3) of the Internal Revenue Code of
17-2 1986 because the entity is organized and operated exclusively for
17-3 religious, charitable, scientific, educational, or literary
17-4 purposes, testing for public safety, prevention of cruelty to
17-5 children or animals, or promotion of amateur sports competition; or
17-6 (2) any other entity or organization that is organized
17-7 and operated exclusively for the purposes listed in Section
17-8 501(c)(3) of the Internal Revenue Code of 1986.
17-9 (ll) "Governmental agency of the state" means:
17-10 (1) an incorporated city or town, a county, a public
17-11 school district, a special-purpose district or authority, or a
17-12 district, county, or justice of the peace court;
17-13 (2) a board, commission, department, office, or other
17-14 agency in the executive branch of state government, including an
17-15 institution of higher education as defined by Section 61.003,
17-16 Education Code;
17-17 (3) the legislature or a legislative agency; and
17-18 (4) the supreme court, the court of criminal appeals,
17-19 a court of appeals, or the State Bar of Texas or another judicial
17-20 agency having statewide jurisdiction.
17-21 SECTION 3. (a) The governor shall appoint the initial
17-22 members of the board of the Office of Public Guardian created by
17-23 this Act so that three members' terms expire February 1, 1997,
17-24 three members' terms expire February 1, 1999, and three members'
17-25 terms expire February 1, 2001.
18-1 (b) The executive director of the Office of Public Guardian
18-2 shall file the first policy statement required to be filed under
18-3 Subsection (g), Section 161.012, Human Resources Code, as added by
18-4 this Act, before September 1, 1996.
18-5 SECTION 4. This Act takes effect September 1, 1995, and the
18-6 Office of Public Guardian is created on that date.
18-7 SECTION 5. The importance of this legislation and the
18-8 crowded condition of the calendars in both houses create an
18-9 emergency and an imperative public necessity that the
18-10 constitutional rule requiring bills to be read on three several
18-11 days in each house be suspended, and this rule is hereby suspended.