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.
    1-4        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
    1-9        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
   8-22        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.