S.B. No. 103
                                        AN ACT
    1-1  relating to providing guardianship services and a pooled income
    1-2  trust for incapacitated persons.
    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.  GUARDIANSHIP RESOURCE BOARD
    1-8               SUBCHAPTER A.  ADMINISTRATIVE PROVISIONS
    1-9        Sec. 161.001.  BOARD.  The Guardianship Resource Board is
   1-10  created and is authorized to create a nonprofit corporation
   1-11  organized pursuant to the Texas Non-Profit Corporation Act (Article
   1-12  1396-1.01 et seq., Vernon's Texas Civil Statutes).  On creation of
   1-13  the nonprofit corporation, the Guardianship Resource Board becomes
   1-14  the board of the nonprofit corporation.
   1-15        Sec. 161.002.  SUNSET PROVISION.  The Guardianship Resource
   1-16  Board is subject to Chapter 325, Government Code (Texas Sunset
   1-17  Act).  Unless continued in existence as provided by that chapter,
   1-18  the Guardianship Resource Board is abolished and this chapter
   1-19  expires September 1, 2007.
   1-20        Sec. 161.003.  DEFINITIONS.  In this chapter:
   1-21              (1)  "Board" means the body which is both the
   1-22  Guardianship Resource Board and the board of the nonprofit
   1-23  corporation that is created by the Guardianship Resource Board.
    2-1              (2)  "Commissioner" means the commissioner of health
    2-2  and human services.
    2-3              (3)  "Center" means the nonprofit corporation created
    2-4  by the Guardianship Resource Board.
    2-5              (4)  "Guardianship program" means a local, county, or
    2-6  regional program that provides guardianship and related services to
    2-7  an incapacitated person or other person who needs assistance in
    2-8  making decisions concerning the person's own welfare or financial
    2-9  affairs.
   2-10              (5)  "Incapacitated person" means:
   2-11                    (A)  a minor;
   2-12                    (B)  an adult individual who, because of a
   2-13  physical or mental condition, is substantially unable to provide
   2-14  food, clothing, or shelter for himself or herself, to care for the
   2-15  individual's own physical health, or to manage the individual's own
   2-16  financial affairs;
   2-17                    (C)  a missing person; or
   2-18                    (D)  a person who must have a guardian appointed
   2-19  to receive funds due the person from any governmental source.
   2-20        Sec. 161.004.  COMPOSITION OF BOARD.  (a)  The board is
   2-21  composed of seven members appointed by the governor, two members
   2-22  appointed by the presiding judge of the statutory probate courts,
   2-23  and five nonvoting ex officio members.
   2-24        (b)  The governor shall appoint:
   2-25              (1)  three members of a guardianship program;
    3-1              (2)  two members of private associations of persons who
    3-2  advocate on the behalf of or in the interest of the elderly or
    3-3  persons with mental illness or mental retardation; and
    3-4              (3)  two parents of incapacitated persons other than
    3-5  minors.
    3-6        (c)  The presiding judge of the statutory probate courts
    3-7  shall appoint two persons who are judges of statutory probate
    3-8  courts in this state.
    3-9        (d)  The nonvoting ex officio membership is composed of the
   3-10  presiding officer of the governing body of the following agencies
   3-11  or each officer's designated representative:
   3-12              (1)  Texas Department of Human Services;
   3-13              (2)  Texas Department on Aging;
   3-14              (3)  Texas Department of Health;
   3-15              (4)  Department of Protective and Regulatory Services;
   3-16  and
   3-17              (5)  Texas Department of Mental Health and Mental
   3-18  Retardation.
   3-19        (e)  Appointments to the board shall be made without regard
   3-20  to the race, color, disability, sex, religion, age, or national
   3-21  origin of an appointee.
   3-22        (f)  A person is not eligible for appointment to the board if
   3-23  the person or the person's spouse uses or receives a substantial
   3-24  amount of tangible goods, services, or funds from the board.
   3-25        Sec. 161.005.  COMPENSATION OF BOARD MEMBERS.  (a)  An
    4-1  appointed member of the board is entitled to the per diem for a
    4-2  member of a state board set in the General Appropriations Act for
    4-3  each day that the member engages in board business.
    4-4        (b)  A member of the board may not otherwise receive
    4-5  compensation for service on the board but is entitled to
    4-6  reimbursement for actual and necessary expenses in the performance
    4-7  of board business in an amount not exceeding the amount authorized
    4-8  to be paid to a member of the legislature for similar expenses.
    4-9        Sec. 161.006.  OFFICERS.  The board shall elect from its
   4-10  members a presiding officer and any other officers considered
   4-11  necessary.
   4-12        Sec. 161.007.  TERMS OF BOARD MEMBERS.  Appointed members of
   4-13  the board serve for staggered terms of six years with the terms of
   4-14  three members expiring on February 1 of each odd-numbered year.  A
   4-15  member may be reappointed to the board.
   4-16        Sec. 161.008.  MEETINGS.  The board shall hold meetings
   4-17  quarterly and may hold other meetings called by the presiding
   4-18  officer.  The board shall develop and implement policies that will
   4-19  provide the public with a reasonable opportunity to appear before
   4-20  the board and to speak on any issue under the jurisdiction of the
   4-21  board.
   4-22        Sec. 161.009.  REMOVAL OF BOARD MEMBER.  It is a ground for
   4-23  removal from the board that an appointed member:
   4-24              (1)  does not have at the time of appointment the
   4-25  qualifications required by Section 161.004 for appointment to the
    5-1  board;
    5-2              (2)  does not maintain during the service on the board
    5-3  the qualifications required by Section 161.004 for appointment to
    5-4  the board;
    5-5              (3)  violates a prohibition established by Section
    5-6  161.010;
    5-7              (4)  is unable to discharge the member's duties for a
    5-8  substantial portion of the term for which the member was appointed
    5-9  because of illness or disability; or
   5-10              (5)  is absent from more than half of the regularly
   5-11  scheduled board meetings that the member is eligible to attend
   5-12  during each calendar year, except when the absence is excused by
   5-13  majority vote of the board.
   5-14        Sec. 161.010.  RESTRICTIONS ON BOARD MEMBERSHIP AND
   5-15  EMPLOYMENT.  (a)  An officer, employee, or paid consultant of an
   5-16  association, other than a guardianship program or a nonprofit
   5-17  association, that has as its primary interest the provision of
   5-18  guardianship services may not be a member or employee of the board,
   5-19  nor may a person who cohabits with or is the spouse of an officer,
   5-20  managerial employee, or paid consultant of such an association be a
   5-21  member of the board or an employee of the board, including an
   5-22  employee exempt from the state's position classification plan who
   5-23  is compensated at or above the amount prescribed by the General
   5-24  Appropriations Act for step 1, salary group 17, of the position
   5-25  classification salary schedule.
    6-1        (b)  A person who is required to register as a lobbyist under
    6-2  Chapter 305, Government Code, by virtue of the person's activities
    6-3  on behalf of a provider of guardianship services may not serve as a
    6-4  member of the board or act as the general counsel to the board.
    6-5        Sec. 161.011.  EXECUTIVE DIRECTOR.  (a)  The board shall
    6-6  appoint an executive director who shall discharge all executive and
    6-7  administrative functions of the center.  The executive director
    6-8  serves at the pleasure of the board.
    6-9        (b)  Salaries and other expenses may be paid with funds
   6-10  appropriated to the board for those purposes or with funds from
   6-11  other sources.
   6-12        Sec. 161.012.  PERSONNEL MATTERS.  (a)  The executive
   6-13  director may employ not more than seven employees for the
   6-14  administration of the center's duties.
   6-15        (b)  The executive director or the director's designee shall
   6-16  develop an intraoffice career ladder program, one part of which
   6-17  shall require the intraoffice posting of all non-entry-level
   6-18  positions concurrently with any public posting.
   6-19        (c)  The executive director or the director's designee shall
   6-20  develop a system of annual performance evaluations based on
   6-21  measurable job tasks.  All merit pay for center employees must be
   6-22  based on the system established under this subsection.
   6-23        (d)  The board shall provide to its members and to the center
   6-24  employees as often as is necessary information regarding their
   6-25  qualifications under this chapter and their responsibilities under
    7-1  applicable laws relating to standards of conduct for state officers
    7-2  and employees.
    7-3        (e)  The board shall develop and implement policies that
    7-4  clearly separate the respective responsibilities of the board and
    7-5  the executive director.
    7-6        (f)  The executive director or the director's designee shall
    7-7  prepare and maintain a written policy statement to ensure
    7-8  implementation of a program of equal employment opportunity under
    7-9  which all personnel transactions are made without regard to race,
   7-10  color, disability, sex, religion, age, or national origin.  The
   7-11  policy statement must include:
   7-12              (1)  personnel policies, including policies relating to
   7-13  recruitment, evaluation, selection, appointment, training, and
   7-14  promotion of personnel;
   7-15              (2)  a comprehensive analysis of the center workforce
   7-16  that meets federal and state guidelines;
   7-17              (3)  procedures by which a determination can be made of
   7-18  significant underuse in the board workforce of all persons for whom
   7-19  federal or state guidelines encourage a more equitable balance; and
   7-20              (4)  reasonable methods to address appropriately areas
   7-21  of significant underuse in the center workforce of all persons for
   7-22  whom federal or state guidelines encourage a more equitable
   7-23  balance.
   7-24        (g)  The policy statement required under Subsection (f) shall
   7-25  be filed with the governor's office, cover an annual period, and be
    8-1  updated at least annually.  The governor's office shall develop a
    8-2  biennial report to the legislature based on the information
    8-3  submitted.  The report may be made separately or as a part of other
    8-4  biennial reports made to the legislature.
    8-5        Sec. 161.013.  MERIT SYSTEM.  The center may establish a
    8-6  merit system for its employees.  The merit system may be maintained
    8-7  in conjunction with state agencies that are required by federal law
    8-8  to operate under a merit system.
    8-9        Sec. 161.014.  FINANCES.  (a)  The executive director shall
   8-10  prepare and submit to the board for approval a biennial budget
   8-11  necessary to carry out the duties of the center.  The budget must
   8-12  include an estimate of all the funds the board will receive and all
   8-13  federal funds to be allocated to the state for the center's
   8-14  purposes.
   8-15        (b)  If the estimate of the total funding from all sources is
   8-16  determined by the executive director to be insufficient for the
   8-17  center to carry out its duties, the executive director shall submit
   8-18  to the board a request for an appropriation by the legislature.
   8-19        (c)  If the executive director determines that federal
   8-20  matching funds will be made available to the center if and only if
   8-21  a legislative appropriation is made, the executive director may
   8-22  submit a request for such an appropriation to the board.
   8-23        (d)  If the board approves a request made under Subsection
   8-24  (b) or (c), the board shall submit such request to the Legislative
   8-25  Budget Board and the governor in the manner prescribed by law.
    9-1        (e)  The board shall file annually with the governor and the
    9-2  presiding officer of each house of the legislature a complete and
    9-3  detailed written report accounting for all funds received and
    9-4  disbursed by the board during the preceding year.  The form of the
    9-5  annual report and the reporting time shall be those provided in the
    9-6  General Appropriations Act.
    9-7        (f)  The financial transactions of the board are subject to
    9-8  audit by the state auditor in accordance with Chapter 321,
    9-9  Government Code.
   9-10         (Sections 161.015 to 161.020 reserved for expansion
   9-11         SUBCHAPTER B.  POWERS AND DUTIES OF BOARD AND CENTER
   9-12        Sec. 161.021.  RULES.  (a)  The board shall adopt rules
   9-13  governing the functions of the center, including rules that
   9-14  prescribe the policies and procedures followed by the board and the
   9-15  center in the administration of this chapter.
   9-16        (b)  The board by rule or order may delegate its rights,
   9-17  powers, and duties to the executive director.
   9-18        Sec. 161.022.  GENERAL FUNCTIONS OF CENTER.  The center
   9-19  shall:
   9-20              (1)  develop a state plan to ensure that each person
   9-21  who needs a guardianship or another less restrictive type of
   9-22  assistance to make decisions concerning the person's own welfare or
   9-23  financial affairs receives that assistance;
   9-24              (2)  consult and cooperate with the governing body or
   9-25  its designee of one or more municipalities, counties, or nonprofit
   10-1  organizations concerning the development of or support for a
   10-2  guardianship program;
   10-3              (3)  provide to a guardian, a proposed guardian, or a
   10-4  member of a guardianship program education, training, and technical
   10-5  assistance on guardianship and alternatives to guardianship that
   10-6  may be used in lieu of a guardianship to represent the interests of
   10-7  an incapacitated person or other person who needs assistance in
   10-8  making decisions concerning the person's own welfare or financial
   10-9  affairs; and
  10-10              (4)  provide information on, referral services for, and
  10-11  matching or other funding as available for guardianship and related
  10-12  services.
  10-13        Sec. 161.023.  STANDARDS.  (a)  The center by rule shall
  10-14  adopt minimum standards for the provision of guardianship and
  10-15  related services for a:
  10-16              (1)  guardianship program;
  10-17              (2)  person who provides guardianship and related
  10-18  services on behalf of a guardianship program, including a person
  10-19  who serves as a volunteer guardian; and
  10-20              (3)  person or entity who serves as a private
  10-21  professional guardian.
  10-22        (b)  The standards the center adopts under this section must
  10-23  be designed to protect the interests of an incapacitated person or
  10-24  other person who needs assistance making decisions concerning the
  10-25  person's own welfare or financial affairs.
   11-1        (c)  In this section, "private professional guardian" means a
   11-2  person who is engaged in the business of providing guardianship
   11-3  services.
   11-4        Sec. 161.024.  CONTRACTS.  If there is no guardianship
   11-5  program to provide assistance, the center may contract with another
   11-6  person or entity to:
   11-7              (1)  file an application under Chapter XIII, Texas
   11-8  Probate Code, to be appointed as a guardian of the estate or
   11-9  person, or both, of an incapacitated person if there is no eligible
  11-10  person interested in filing an application to be appointed guardian
  11-11  of the incapacitated person; or
  11-12              (2)  provide assistance to a person who needs
  11-13  assistance other than a guardianship to make a decision concerning
  11-14  the person's own welfare or financial affairs.
  11-15        Sec. 161.025.  FUNDING AND DONATIONS.  (a)  The board or the
  11-16  center may accept and solicit gifts or grants of money or property
  11-17  from public or private sources for the purposes of this chapter.
  11-18        (b)  Through the board, the center may collect and receive
  11-19  funds from personal representatives of estates of deceased persons
  11-20  in administration in courts of this state and manage, hold, and
  11-21  administer such funds pursuant to Sections 427 through 433, Texas
  11-22  Probate Code.
  11-23        (c)  Through the board, the center may collect and receive
  11-24  funds from county clerks who have received and managed such funds
  11-25  pursuant to Section 887, Texas Probate Code, and may use such funds
   12-1  in performance of the general functions assigned to the center
   12-2  under this chapter.
   12-3        Sec. 161.026.  COMMUNITY TRUST.  (a)  In this section:
   12-4              (1)  "Beneficiary" means any person with a disability,
   12-5  as defined in Section 1614(a)(3) of the federal Social Security
   12-6  Act, as amended (42 U.S.C. Section 1382c(a)(3)), which would, under
   12-7  the Texas Probate Code, permit the establishment of a full
   12-8  guardianship of his or her estate, who has qualified as a member of
   12-9  the community trust program and who has the right to receive those
  12-10  services and benefits vested with the management of the business
  12-11  and affairs of the center.
  12-12              (2)  "Follow along services" means those services
  12-13  offered by community trusts that are designed to ensure that the
  12-14  needs of each beneficiary are being met for as long as may be
  12-15  required and may include periodic visits to the beneficiary and to
  12-16  the places where the beneficiary receives services, participation
  12-17  in the development of individualized plans being made by service
  12-18  providers for the beneficiary, and other similar services
  12-19  consistent with the purposes of this chapter.
  12-20              (3)  "Surplus trust funds" means funds accumulated in
  12-21  the trust from contributions made on behalf of an individual
  12-22  beneficiary which, after the death of the beneficiary, are
  12-23  determined by the board to be in excess of the actual cost of
  12-24  providing services during the beneficiary's lifetime, including the
  12-25  beneficiary's share of administrative costs.
   13-1        (b)  The center may establish a community trust.  A community
   13-2  trust established by the center shall:
   13-3              (1)  be a pooled income trust designed to meet the
   13-4  qualifications of Section 917 of the federal Social Security Act,
   13-5  as amended (42 U.S.C. Section 1396p(d)(4)(C));
   13-6              (2)  be managed by the center; and
   13-7              (3)  establish that:
   13-8                    (A)  the center is a secondary beneficiary of
   13-9  each trust account; and
  13-10                    (B)  the center may receive from the trust any
  13-11  surplus funds for the purpose of providing funding for the
  13-12  performance of the general functions assigned to the center under
  13-13  this chapter.
  13-14        (c)  In managing the community trust, the center shall:
  13-15              (1)  provide follow along services;
  13-16              (2)  provide guardianship if necessary for
  13-17  beneficiaries, when no other family member or immediate friend is
  13-18  available for this purpose;
  13-19              (3)  supply advice and counsel to persons who have been
  13-20  appointed as individual guardians of beneficiaries or estates of
  13-21  beneficiaries;
  13-22              (4)  encourage the availability of private resources to
  13-23  purchase for beneficiaries goods and services that are not
  13-24  available through any governmental or charitable program and to
  13-25  conserve these resources by limiting purchases to those which are
   14-1  not available from other sources;
   14-2              (5)  encourage the inclusion as beneficiaries of
   14-3  community trusts of persons who lack resources and whose families
   14-4  are indigent, in a way that does not diminish the resources
   14-5  available to other beneficiaries whose families have contributed to
   14-6  the trust; and
   14-7              (6)  remove the disincentives that discourage parents
   14-8  and others from setting aside funds for the future protection of
   14-9  potential beneficiaries by ensuring that the interest of
  14-10  beneficiaries in the community trust are not considered assets or
  14-11  income that would disqualify them from any governmental or
  14-12  charitable entitlement program with an economic means test.
  14-13        (d)  The center, in managing the community trust, may:
  14-14              (1)  authorize the expenditure of funds for any goods
  14-15  or services which, in its sole discretion, it determines will
  14-16  promote the well-being of any beneficiary, including recreational
  14-17  services;
  14-18              (2)  pay for the burial of any beneficiary;
  14-19              (3)  expend funds to meet the reasonable costs of
  14-20  administering the community trust; and
  14-21              (4)  accept contributions, bequests, and designations
  14-22  under life insurance policies to the community trust on behalf of
  14-23  individuals with severe chronic disabilities for the purpose of
  14-24  qualifying them as beneficiaries.
  14-25        (e)  At the time a contribution, bequest, or assignment of
   15-1  insurance proceeds is made, the trustor shall receive a written
   15-2  statement of the services to be provided to the beneficiary.  The
   15-3  statement shall include a starting date for the delivery of
   15-4  services or a condition precedent, such as the death of the
   15-5  trustor, which shall determine the starting date.  The statement
   15-6  shall describe the frequency with which services shall be provided
   15-7  and their duration, and the criteria or procedures for modifying
   15-8  the program of services from time to time in the best interests of
   15-9  the beneficiary.
  15-10        (f)  The center may accept gifts and use surplus trust funds
  15-11  for the purpose of qualifying as a beneficiary any indigent person
  15-12  whose family members lack the resources to make a full contribution
  15-13  on that person's behalf.  The extent and character of the services
  15-14  and selection of a beneficiary under this subsection are at the
  15-15  discretion of the center.
  15-16        (g)  The center may accept gifts to meet start-up costs,
  15-17  reduce the charges to the trust for the cost of administration, and
  15-18  for any other purpose that is consistent with this chapter.  Gifts
  15-19  made to the trust for an unspecified purpose shall be used by the
  15-20  center either to qualify indigent persons under Subsection (f) or
  15-21  to meet any start-up costs that the trust incurs.
  15-22        (h)  The center may agree to fulfill any special requests
  15-23  made on behalf of a beneficiary as long as the requests are
  15-24  consistent with this chapter, and provided that an adequate
  15-25  contribution has been made for this purpose on behalf of a
   16-1  beneficiary.  The center may agree to serve as trustee for any
   16-2  individual trust created on behalf of a beneficiary, regardless of
   16-3  whether the trust is revocable or irrevocable, has one or more
   16-4  remaindermen or contingent beneficiaries, or any other condition,
   16-5  as long as the individual trust is consistent with the purposes of
   16-6  this chapter.
   16-7        (i)  A trust account for a beneficiary is irrevocable, but
   16-8  the center in its sole discretion may provide compensation for any
   16-9  contribution to the trust to any trustor who, for good cause,
  16-10  withdraws a beneficiary designated by the trustor from the trust,
  16-11  or if it becomes impossible to fulfill the conditions of the trust
  16-12  with regard to an individual beneficiary for reasons other than the
  16-13  death of the beneficiary.
  16-14        (j)  The center may not expend trust funds for any goods or
  16-15  services of quality comparable to those available to any particular
  16-16  beneficiary through any governmental or charitable program,
  16-17  insurance, or other sources.
  16-18        (k)  The center may not use surplus trust funds to make any
  16-19  charitable contribution on behalf of any beneficiary or any group
  16-20  or class of beneficiaries.
  16-21        (l)  Notwithstanding other law, the beneficiary's interest in
  16-22  the community trust shall not be deemed to be an asset for the
  16-23  purpose of determining income eligibility for any publicly operated
  16-24  program, nor shall that interest be reached in satisfaction of a
  16-25  claim for support and maintenance of the beneficiary.  No agency
   17-1  shall reduce the benefits of services available to any individual
   17-2  because that person is the beneficiary of the community trust.
   17-3        (m)  The community trust shall not be subject to or held to
   17-4  be in violation of any principle of law against perpetuities or
   17-5  restraints on alienation or perpetual accumulations of trusts.
   17-6        (n)  The community trust shall be settled by filing a final
   17-7  accounting in a district or statutory probate court.  In addition,
   17-8  at any time prior to the settlement of the final account of the
   17-9  community trust, the attorney general may bring an action for the
  17-10  dissolution of the center in the district court for the purpose of
  17-11  terminating  the trust or  merging it with another charitable
  17-12  trust.
  17-13        (o)  No trustee or any private individual shall be entitled
  17-14  to share in the distribution of any of the trust assets on
  17-15  dissolution, merger, or settlement of the community trust.  On
  17-16  dissolution, merger, or settlement, a district or statutory probate
  17-17  court of Travis County shall distribute all of the remaining net
  17-18  assets of the community trust in a manner that is consistent with
  17-19  the purposes of this chapter.
  17-20        Sec. 161.027.  REPORT.  Not later than February 1 of each
  17-21  odd-numbered year, the board shall submit to the legislature a
  17-22  biennial report that includes recommendations to improve
  17-23  guardianship and related services provided to a person by a
  17-24  guardianship program, a community trust established by the center,
  17-25  or a person or entity who contracts with the center under Section
   18-1  161.024.
   18-2        SECTION 2.  Section 3, Texas Probate Code, is amended to read
   18-3  as follows:
   18-4        Sec. 3.  Definitions and Use of Terms.  Except as otherwise
   18-5  provided by Chapter XIII of this Code, when used in this Code,
   18-6  unless otherwise apparent from the context:
   18-7        (a)  "Authorized corporate surety" means a domestic or
   18-8  foreign corporation authorized to do business in the State of Texas
   18-9  for the purpose of issuing surety, guaranty or indemnity bonds
  18-10  guaranteeing the fidelity of executors and administrators.
  18-11        (b)  "Child" includes an adopted child, whether adopted by
  18-12  any existing or former statutory procedure or by acts of estoppel,
  18-13  but, unless expressly so stated herein, does not include a child
  18-14  who has no presumed father.
  18-15        (c)  "Claims" include liabilities of a decedent which
  18-16  survive, including taxes, whether arising in contract or in tort or
  18-17  otherwise, funeral expenses, the expense of a tombstone, expenses
  18-18  of administration, estate and inheritance taxes, and debts due such
  18-19  estates.
  18-20        (d)  "Corporate fiduciary" means a trust company or bank
  18-21  having trust powers, existing or doing business under the laws of
  18-22  this state or of the United States, which is authorized by law to
  18-23  act under the order or appointment of any court of record, without
  18-24  giving bond, as receiver, trustee, executor, administrator, or,
  18-25  although without general depository powers, depository for any
   19-1  moneys paid into court, or to become sole guarantor or surety in or
   19-2  upon any bond required to be given under the laws of this state.
   19-3        (e)  "County Court" and "Probate Court" are synonymous terms
   19-4  and denote county courts in the exercise of their probate
   19-5  jurisdiction, courts created by statute and authorized to exercise
   19-6  original probate jurisdiction, and district courts exercising
   19-7  probate jurisdiction in contested matters.
   19-8        (f)  "County Judge," "Probate Judge," and "Judge" denote the
   19-9  presiding judge of any court having original jurisdiction over
  19-10  probate proceedings, whether it be a county court in the exercise
  19-11  of its probate jurisdiction, a court created by statute and
  19-12  authorized to exercise probate jurisdiction, or a district court
  19-13  exercising probate jurisdiction in contested matters.
  19-14        (g)  "Court" denotes and includes both a county court in the
  19-15  exercise of its probate jurisdiction, a court created by statute
  19-16  and authorized to exercise original probate jurisdiction, or a
  19-17  district court exercising original probate jurisdiction in
  19-18  contested matters.
  19-19        (h)  "Devise," when used as a noun, includes a testamentary
  19-20  disposition of real or personal property, or of both.  When used as
  19-21  a verb, "devise" means to dispose of real or personal property, or
  19-22  of both, by will.
  19-23        (i)  "Devisee" includes legatee.
  19-24        (j)  "Distributee" denotes a person entitled to the estate of
  19-25  a decedent under a lawful will, or under the statutes of descent
   20-1  and distribution.
   20-2        (k)  "Docket" means the probate docket.
   20-3        (l)  "Estate" denotes the real and personal property of a
   20-4  decedent, both as such property originally existed and as from time
   20-5  to time changed in form by sale, reinvestment, or otherwise, and as
   20-6  augmented by any accretions and additions thereto (including any
   20-7  property to be distributed to the representative of the decedent by
   20-8  the trustee of a trust which terminates upon the decedent's death)
   20-9  and substitutions therefor, and as diminished by any decreases
  20-10  therein and distributions therefrom.
  20-11        (m)  "Exempt property" refers to that property of a
  20-12  decedent's estate which is exempt from execution or forced sale by
  20-13  the Constitution or laws of this State, and to the allowance in
  20-14  lieu thereof.
  20-15        (n)  "Habitual drunkard" and "common drunkard" are synonymous
  20-16  and denote one who, by reason of the habitual use of intoxicating
  20-17  liquor, drugs, or a toxic inhalant as defined by Section 462.001,
  20-18  Health and Safety Code, is incapable of taking care of himself or
  20-19  managing his property and financial affairs.
  20-20        (o)  "Heirs" denote those persons, including the surviving
  20-21  spouse, who are entitled under the statutes of descent and
  20-22  distribution to the estate of a decedent who dies intestate.
  20-23        (p)  "Incompetents" or "Incompetent persons" are persons non
  20-24  compos mentis, mentally disabled persons, insane persons, common or
  20-25  habitual drunkards, and other persons who are mentally incompetent
   21-1  to care for themselves or to manage their property and financial
   21-2  affairs.
   21-3        (q)  "Independent executor" means the personal representative
   21-4  of an estate under independent administration as provided in
   21-5  Section 145 of this Code.  The term "independent executor" includes
   21-6  the term "independent administrator."
   21-7        (r)  "Interested persons" or "persons interested" means
   21-8  heirs, devisees, spouses, creditors, or any others having a
   21-9  property right in, or claim against, the estate being administered;
  21-10  and anyone interested in the welfare of a minor or incompetent
  21-11  ward.
  21-12        (s)  "Legacy" includes any gift or devise by will, whether of
  21-13  personalty or realty.  "Legatee" includes any person entitled to a
  21-14  legacy under a will.
  21-15        (t)  "Minors" are all persons under eighteen years of age who
  21-16  have never been married or who have not had disabilities of
  21-17  minority removed for general purposes.
  21-18        (u)  "Minutes" means the probate minutes.
  21-19        (v)  "Mortgage" or "Lien" includes deed of trust, vendor's
  21-20  lien, chattel mortgage, mechanic's, materialman's or laborer's
  21-21  lien, judgment, attachment or garnishment lien, pledge by
  21-22  hypothecation, and Federal or State tax liens.
  21-23        (w)  "Net estate" means the real and personal property of a
  21-24  decedent, exclusive of homestead rights, exempt property, the
  21-25  family allowance and enforceable claims against the estate.
   22-1        (x)  "Person" includes natural persons, <and> corporations,
   22-2  and guardianship programs as defined by Section 161.003, Human
   22-3  Resources Code.
   22-4        (y)  "Persons of unsound mind" are persons non compos mentis,
   22-5  mentally disabled persons, insane persons, and other persons who
   22-6  are mentally incompetent to care for themselves or to manage their
   22-7  property and financial affairs.
   22-8        (z)  "Personal property" includes interests in goods, money,
   22-9  choses in action, evidence of debts, and chattels real.
  22-10        (aa)  "Personal representative" or "Representative" includes
  22-11  executor, independent executor, administrator, independent
  22-12  administrator, temporary administrator, together with their
  22-13  successors.  The inclusion of independent executors herein shall
  22-14  not be held to subject such representatives to control of the
  22-15  courts in probate matters with respect to settlement of estates
  22-16  except as expressly provided by law.
  22-17        (bb)  "Probate matter," "Probate proceedings," "Proceeding in
  22-18  probate," and "Proceedings for probate" are synonymous and include
  22-19  a matter or proceeding relating to the estate of a decedent.
  22-20        (cc)  "Property" includes both real and personal property.
  22-21        (dd)  "Real property" includes estates and interests in
  22-22  lands, corporeal or incorporeal, legal or equitable, other than
  22-23  chattels real.
  22-24        (ee)  "Surety" includes both personal and corporate sureties.
  22-25        (ff)  "Will" includes codicil; it also includes a
   23-1  testamentary instrument which merely:
   23-2              (1)  appoints an executor or guardian;
   23-3              (2)  directs how property may not be disposed of; or
   23-4              (3)  revokes another will.
   23-5        (gg)  The singular number includes the plural; the plural
   23-6  number includes the singular.
   23-7        (hh)  The masculine gender includes the feminine and neuter.
   23-8        (ii)  "Statutory probate court" refers to any statutory court
   23-9  presently in existence or created after the passage of this Act,
  23-10  the jurisdiction of which is limited by statute to the general
  23-11  jurisdiction of a probate court, and such courts whose statutorily
  23-12  designated name contains the word "probate."  County courts at law
  23-13  exercising probate jurisdiction are not statutory probate courts
  23-14  under this Code unless their statutorily designated name includes
  23-15  the word "probate."
  23-16        (jj)  "Next of kin" includes an adopted child or his or her
  23-17  descendents and the adoptive parent of the adopted child.
  23-18        (kk)  "Charitable organization" means:
  23-19              (1)  a nonprofit corporation, trust, community chest,
  23-20  fund, foundation, or other entity that is exempt from federal
  23-21  income tax under Section 501(c)(3) of the Internal Revenue Code of
  23-22  1986  because the entity is organized and operated exclusively for
  23-23  religious, charitable, scientific, educational, or literary
  23-24  purposes, testing for public safety, prevention of cruelty to
  23-25  children or animals, or promotion of amateur sports competition; or
   24-1              (2)  any other entity or organization that is organized
   24-2  and operated exclusively for the purposes listed in Section
   24-3  501(c)(3) of the Internal Revenue Code of 1986.
   24-4        (ll)  "Governmental agency of the state" means:
   24-5              (1)  an incorporated city or town, a county, a public
   24-6  school district, a special-purpose district or authority, or a
   24-7  district, county, or justice of the peace court;
   24-8              (2)  a board, commission, department, office, or other
   24-9  agency in the executive branch of state government, including an
  24-10  institution of higher education as defined by Section 61.003,
  24-11  Education Code;
  24-12              (3)  the legislature or a legislative agency; and
  24-13              (4)  the supreme court, the court of criminal appeals,
  24-14  a court of appeals, or the State Bar of Texas or another judicial
  24-15  agency having statewide jurisdiction.
  24-16        SECTION 3.  Chapter X, Texas Probate Code, is amended to read
  24-17  as follows:
  24-18             CHAPTER X.  PAYMENT OF ESTATES TO THE GUARDIANSHIP
  24-19                 RESOURCE BOARD <INTO STATE TREASURY>
  24-20        Sec. 427.  WHEN ESTATES TO BE PAID TO THE GUARDIANSHIP
  24-21  RESOURCE BOARD <INTO STATE TREASURY>.  If any person entitled to a
  24-22  portion of an estate, except a resident minor without a guardian,
  24-23  shall not demand his portion from the executor or administrator
  24-24  within six months after an order of court approving the report of
  24-25  commissioners of partition, or within six months after the
   25-1  settlement of the final account of an executor or administrator, as
   25-2  the case may be, the court by written order shall require the
   25-3  executor or administrator to pay so much of said portion as is in
   25-4  money to the Guardianship Resource Board <State Treasurer>; and
   25-5  such portion as is in other property he shall order the executor or
   25-6  administrator to sell on such terms as the court thinks best, and,
   25-7  when the proceeds of such sale are collected, the court shall order
   25-8  the same to be paid to the Guardianship Resource Board <State
   25-9  Treasurer>, in all such cases allowing the executor or
  25-10  administrator reasonable compensation for his services.  A suit to
  25-11  recover proceeds of the sale is governed by Section 433 of this
  25-12  Code.
  25-13        Sec. 428.  INDISPENSABILITY OF GUARDIANSHIP RESOURCE BOARD
  25-14  <STATE TREASURER> AS PARTY.  The Guardianship Resource Board <State
  25-15  Treasurer> is an indispensable party to any judicial or
  25-16  administrative proceeding concerning the disposition and handling
  25-17  of any portion of an estate that is or may be payable to the
  25-18  Guardianship Resource Board <State Treasurer> under Section 427 of
  25-19  this Code.  Whenever an order shall be made by the court for an
  25-20  executor or administrator to pay any funds to the Guardianship
  25-21  Resource Board <State Treasurer> under Section 427 of this Code,
  25-22  the clerk of the court in which such order is made shall serve on
  25-23  the Guardianship Resource Board <State Treasurer> by personal
  25-24  service of citation a certified copy of such order within five days
  25-25  after the same has been made.
   26-1        Sec. 429.  PENALTY FOR NEGLECT TO NOTIFY GUARDIANSHIP
   26-2  RESOURCE BOARD <STATE TREASURER>.  Any clerk who shall neglect to
   26-3  have served on the Guardianship Resource Board <State Treasurer> by
   26-4  personal citation a certified copy of any such order within the
   26-5  time prescribed by Section 428 of this Code shall be liable in a
   26-6  penalty of One Hundred Dollars, to be recovered in an action in the
   26-7  name of the state, after personal service of citation, on the
   26-8  information of any citizen, one-half of which penalty shall be paid
   26-9  to the informer and the other one-half to the state.
  26-10        Sec. 430.  RECEIPT OF GUARDIANSHIP RESOURCE BOARD <STATE
  26-11  TREASURER>.  Whenever an executor or administrator pays the
  26-12  Guardianship Resource Board <State Treasurer> any funds of the
  26-13  estate he represents, under the preceding provisions of this Code,
  26-14  he shall take from the Guardianship Resource Board <State
  26-15  Treasurer> a receipt for such payment, with official seal attached,
  26-16  and shall file the same with the clerk of the court ordering such
  26-17  payment; and such receipt shall be recorded in the minutes of the
  26-18  court.
  26-19        Sec. 431.  PENALTY FOR FAILURE TO MAKE PAYMENTS TO
  26-20  GUARDIANSHIP RESOURCE BOARD <STATE TREASURER>.  When an executor or
  26-21  administrator fails to pay to the Guardianship Resource Board
  26-22  <State Treasurer> any funds of an estate which he has been ordered
  26-23  by the court so to pay, within 30 days after such order has been
  26-24  made, such executor or administrator shall, after personal service
  26-25  of citation charging such failure and after proof thereof, be
   27-1  liable to pay out of his own estate to the Guardianship Resource
   27-2  Board <State Treasurer> damages thereon at the rate of five per
   27-3  cent per month for each month, or fraction thereof, that he fails
   27-4  to make such payment after 30 days from such order, which damages
   27-5  may be recovered in any court of competent jurisdiction.
   27-6        Sec. 432.  GUARDIANSHIP RESOURCE BOARD <STATE TREASURER> MAY
   27-7  ENFORCE PAYMENT AND COLLECT DAMAGES.  The Guardianship Resource
   27-8  Board <State Treasurer> shall have the right in the name of the
   27-9  state to apply to the court in which the order for payment was made
  27-10  to enforce the payment of funds which the executor or administrator
  27-11  has failed to pay to him pursuant to order of court, together with
  27-12  the payment of any damages that shall have accrued under the
  27-13  provisions of the preceding Section of this Code, and the court
  27-14  shall enforce such payment in like manner as other orders of
  27-15  payment are required to be enforced.  The Guardianship Resource
  27-16  Board <State Treasurer> shall also have the right to institute suit
  27-17  in the name of the state against such executor or administrator,
  27-18  and the sureties on his bond, for the recovery of the funds so
  27-19  ordered to be paid and such damages as have accrued.  The county
  27-20  attorney or criminal district attorney of the county, the district
  27-21  attorney of the district, or the attorney general, at the election
  27-22  of the Guardianship Resource Board <State Treasurer> and with the
  27-23  approval of the attorney general, shall represent the Guardianship
  27-24  Resource Board <State Treasurer> in all such proceedings, and shall
  27-25  also represent the interests of the state in all other matters
   28-1  arising under any provisions of this Code.
   28-2        Sec. 433.  SUIT FOR THE RECOVERY OF FUNDS PAID TO THE
   28-3  GUARDIANSHIP RESOURCE BOARD <STATE TREASURER>.  (a)  Mode of
   28-4  Recovery.  When funds of an estate have been paid to the
   28-5  Guardianship Resource Board <State Treasurer>, any heir, devisee,
   28-6  or legatee of the estate, or their assigns, or any of them, may
   28-7  recover the portion of such funds to which he, she, or they are
   28-8  entitled.  The person claiming such funds shall institute suit on
   28-9  or before the fourth anniversary of the date of the order requiring
  28-10  payment to the Guardianship Resource Board <State Treasurer>, by
  28-11  petition filed in the district court of Travis County, against the
  28-12  Guardianship Resource Board <State Treasurer>, setting forth the
  28-13  plaintiff's right to such funds, and the amount claimed by him.
  28-14        (b)  Citation.  Upon the filing of such petition, the clerk
  28-15  shall issue a citation for the Guardianship Resource Board <State
  28-16  Treasurer>, to be served by personal service, to appear and
  28-17  represent the interest of the state in such suit.  As the
  28-18  Guardianship Resource Board <State Treasurer> elects and with the
  28-19  approval of the attorney general, the attorney general, the county
  28-20  attorney or criminal district attorney for the county, or the
  28-21  district attorney for the district shall represent the Guardianship
  28-22  Resource Board <State Treasurer>.
  28-23        (c)  Procedure.  The proceedings in such suit shall be
  28-24  governed by the rules for other civil suits; and, should the
  28-25  plaintiff establish his right to the funds claimed, he shall have a
   29-1  judgment therefor, which shall specify the amount to which he is
   29-2  entitled; and a certified copy of such judgment shall be sufficient
   29-3  authority for the Guardianship Resource Board <State Treasurer> to
   29-4  pay the same.
   29-5        (d)  Costs.  The costs of any such suit shall in all cases be
   29-6  adjudged against the plaintiff, and he may be required to secure
   29-7  the costs.
   29-8        SECTION 4.  Section 887, Texas Probate Code, is amended by
   29-9  amending Subsections (b) and (f) and by adding Subsections (h) and
  29-10  (i) to read as follows:
  29-11        (b)  Not later than March 1 of each calendar year, the clerk
  29-12  of the court shall make a written report to the court of the status
  29-13  of all investments held <an investment made> by the clerk under
  29-14  this section.  As to each investment held by the clerk, the <The>
  29-15  report must contain:
  29-16              (1)  the name of the creditor for whom any payment
  29-17  under this section has been made by any person to the clerk or for
  29-18  whom any investment has been made by the clerk under this section;
  29-19              (2)  the date of the original payment to the clerk by
  29-20  the debtor for the benefit of the creditor;
  29-21              (3)  the current age of any creditor for whom any
  29-22  payment has been made under this section or for whom any investment
  29-23  has been made by the clerk under this section, which shall be
  29-24  determined by the information concerning the age, if any, received
  29-25  by the clerk from the debtor under Subsection (a) of this section;
   30-1              (4)  the original date of the deposit by the debtor;
   30-2              (5)  the amount of the original investment or the
   30-3  amount of the investment at the last annual report, whichever is
   30-4  later;
   30-5              (6) <(2)>  any increase, dividend, or income from such
   30-6  investment since the last annual report;
   30-7              (7) <(3)>  the total amount of the investment and all
   30-8  increases, dividends, or income at the date of the report; and
   30-9              (8) <(4)>  the name of the depository or the type of
  30-10  investment.
  30-11        (f)  If a person who is authorized to withdraw the money does
  30-12  not withdraw the money from the clerk as provided for in Subsection
  30-13  (c) of this section, the creditor, after termination of the
  30-14  creditor's disability, or the subsequent personal representative of
  30-15  the creditor or the creditor's heirs may withdraw the money.  The
  30-16  withdrawal may be made<,> at any time before the clerk has
  30-17  delivered the money to the Guardianship Resource Board under
  30-18  Subsection (h) of this section <and> without special bond for the
  30-19  purpose by the person entitled to the withdrawal when the person
  30-20  has exhibited<, the money on simply exhibiting> to the clerk an
  30-21  order of the county or probate court of the county where the money
  30-22  is held by the clerk that directs the clerk to deliver the money to
  30-23  the creditor, to the creditor's personal representative, or to the
  30-24  creditor's heirs named in the order.  Before the court issues an
  30-25  order under this subsection, the person's identity and the person's
   31-1  credentials must be proved to the court's satisfaction.
   31-2        (h)  If a creditor or other person who is authorized to
   31-3  withdraw the money does not withdraw the money from the clerk as
   31-4  authorized by Subsection (f) or (g) of this section, either before
   31-5  notice is mailed by the clerk under this subsection or within the
   31-6  calendar year following the date on which notice is mailed by the
   31-7  clerk to the creditor in accordance with this subsection, the clerk
   31-8  shall deliver the money to the Guardianship Resource Board,
   31-9  together with any increase, dividend, or income from such
  31-10  investment.  The clerk shall not deliver any money held for the
  31-11  benefit of a creditor under this section to the Guardianship
  31-12  Resource Board until a date after May 1 of the year immediately
  31-13  following the year in which notice of that intent is given.  The
  31-14  notice shall be sent by the clerk through the means of regular
  31-15  United States mail to the creditor at the address last provided to
  31-16  the clerk by the creditor or any person authorized to make
  31-17  application to withdraw funds for the benefit of the creditor under
  31-18  Subsection (c) or (g) of this section, whichever was the address
  31-19  last received.  The notice shall state the information concerning
  31-20  the creditor that the clerk has or should have reported to the
  31-21  court in the last report required under Subsection (b) of this
  31-22  section.  The clerk shall mail all notices required by this
  31-23  subsection on or before May 1 of each year.  To each creditor who
  31-24  was stated to be a minor at the time the money was delivered to the
  31-25  clerk by the debtor, the clerk shall give the notice on or before
   32-1  May 1 of the year in which the report of the clerk required by
   32-2  Subsection (b)(3) of this section concerning such creditor states
   32-3  the creditor's current age as 23 years.  To all other creditors,
   32-4  the clerk shall give such notice on or before May 1 of the year in
   32-5  which the report of the clerk required by Subsection (b) of this
   32-6  section concerning such creditor states that the original date of
   32-7  the deposit by the debtor was a date prior to March 1 of the 10th
   32-8  calendar year immediately preceding the due date of the report.
   32-9        (i)  The Guardianship Resource Board shall not be required to
  32-10  give bond or security for receiving the money from the clerk and
  32-11  the receipt from the Guardianship Resource Board for the payment or
  32-12  the canceled check or warrant by which the payment was made shall
  32-13  be sufficient evidence of the disposition of the payment.  After
  32-14  compliance with the notice provisions of Subsection (h) of this
  32-15  section and payment to the Guardianship Resource Board, the clerk
  32-16  of the court is relieved of further responsibility to the creditor,
  32-17  the personal representative of the creditor, the heirs of the
  32-18  creditor, or the Guardianship Resource Board for the disposition
  32-19  and management of the money, and on receipt the Guardianship
  32-20  Resource Board shall have full title to the money received from the
  32-21  clerk as against any further claim to the money by such persons,
  32-22  their successors, or those claiming by or through any of those
  32-23  persons or successors.
  32-24        SECTION 5.  (a)  The governor shall appoint seven of the
  32-25  initial members of the board of the Guardianship Resource Board
   33-1  created by this Act so that three members' terms expire February 1,
   33-2  1997, two members' terms expire February 1, 1999, and two members'
   33-3  terms expire February 1, 2001.
   33-4        (b)  The presiding judge of the statutory probate courts
   33-5  shall appoint two of the initial members of the board of the
   33-6  Guardianship Resource Board created by this Act so that one
   33-7  member's term expires February 1, 1999, and one member's term
   33-8  expires February 1, 2001.
   33-9        SECTION 6.  The executive director of the Guardianship
  33-10  Resource Board shall file the first policy statement required to be
  33-11  filed under Subsection (g), Section 161.012, Human Resources Code,
  33-12  as added by this Act, before September 1, 1996.
  33-13        SECTION 7.  This Act takes effect September 1, 1995, and the
  33-14  Guardianship Resource Board is created on that date.
  33-15        SECTION 8.  The importance of this legislation and the
  33-16  crowded condition of the calendars in both houses create an
  33-17  emergency and an imperative public necessity that the
  33-18  constitutional rule requiring bills to be read on three several
  33-19  days in each house be suspended, and this rule is hereby suspended.