By: Moncrief S.B. No. 103
A BILL TO BE ENTITLED
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) three members of private associations of persons
3-2 who 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) one parent of an incapacitated person other than a
3-5 minor.
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 adding Subsections (h) and (i)
29-10 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.