By: Moncrief S.B. No. 103
A BILL TO BE ENTITLED
AN ACT
1-1 relating to creation of the Office of Public Guardian.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. The Human Resources Code is amended by adding
1-4 Title 11 to read as follows:
1-5 TITLE 11. PUBLIC GUARDIANS
1-6 CHAPTER 161. OFFICE OF PUBLIC GUARDIAN
1-7 SUBCHAPTER A. ADMINISTRATIVE PROVISIONS
1-8 Sec. 161.001. OFFICE AND BOARD. (a) The Office of Public
1-9 Guardian is an agency of the state.
1-10 (b) The board of the Office of Public Guardian is the
1-11 governing body of the Office of Public Guardian.
1-12 Sec. 161.002. APPLICATION OF SUNSET ACT. The Office of
1-13 Public Guardian is subject to Chapter 325, Government Code (Texas
1-14 Sunset Act). Unless continued in existence as provided by that
1-15 chapter, the office is abolished and this chapter expires September
1-16 1, 2007.
1-17 Sec. 161.003. DEFINITIONS. In this chapter:
1-18 (1) "Board" means the board of the Office of Public
1-19 Guardian.
1-20 (2) "Guardianship program" means a local, county, or
1-21 regional program that provides guardianship and related services to
1-22 an incapacitated person or other person who needs assistance in
1-23 making decisions concerning the person's own welfare or financial
2-1 affairs.
2-2 (3) "Incapacitated person" means:
2-3 (A) a minor;
2-4 (B) an adult individual who, because of a
2-5 physical or mental condition, is substantially unable to provide
2-6 food, clothing, or shelter for himself or herself, to care for the
2-7 individual's own physical health, or to manage the individual's own
2-8 financial affairs;
2-9 (C) a missing person; or
2-10 (D) a person who must have a guardian appointed
2-11 to receive funds due the person from any governmental source.
2-12 (4) "Office" means the Office of Public Guardian.
2-13 Sec. 161.004. COMPOSITION OF BOARD. (a) The board is
2-14 composed of nine members appointed by the governor with the advice
2-15 and consent of the senate and of five nonvoting ex officio members.
2-16 (b) The governor shall appoint:
2-17 (1) three members of a guardianship program;
2-18 (2) three members of private associations of persons
2-19 who advocate on the behalf of or in the interest of the elderly or
2-20 persons with mental illness or mental retardation;
2-21 (3) two persons each of whom is a judge or justice of
2-22 a court of this state or another person licensed to practice law in
2-23 this state; and
2-24 (4) one parent of an incapacitated person other than a
2-25 minor.
3-1 (c) The nonvoting ex officio membership is composed of the
3-2 presiding officer of the governing body of the following agencies
3-3 or each officer's designated representative:
3-4 (1) Texas Department of Human Services;
3-5 (2) Texas Department on Aging;
3-6 (3) Texas Department of Health;
3-7 (4) Department of Protective and Regulatory Services;
3-8 and
3-9 (5) Texas Department of Mental Health and Mental
3-10 Retardation.
3-11 (d) Appointments to the board shall be made without regard
3-12 to the race, color, disability, sex, religion, age, or national
3-13 origin of an appointee.
3-14 (e) A person is not eligible for appointment to the board if
3-15 the person or the person's spouse uses or receives a substantial
3-16 amount of tangible goods, services, or funds from the office.
3-17 Sec. 161.005. COMPENSATION OF BOARD MEMBERS. (a) An
3-18 appointed member of the board is entitled to per diem as set by
3-19 legislative appropriation for each day that the member engages in
3-20 office business.
3-21 (b) A member of the board may not otherwise receive
3-22 compensation for service on the board but is entitled to
3-23 reimbursement for actual and necessary expenses in the performance
3-24 of office business in an amount not exceeding the amount authorized
3-25 to be paid to a member of the legislature for similar expenses.
4-1 Sec. 161.006. OFFICERS. The board shall elect from its
4-2 members a presiding officer and any other officers considered
4-3 necessary.
4-4 Sec. 161.007. TERMS OF BOARD MEMBERS. Appointed members of
4-5 the board serve for staggered terms of six years with the terms of
4-6 three members expiring on February 1 of each odd-numbered year. A
4-7 member may be reappointed to the board.
4-8 Sec. 161.008. MEETINGS. The board shall hold meetings
4-9 quarterly and may hold other meetings called by the presiding
4-10 officer. The board shall develop and implement policies that will
4-11 provide the public with a reasonable opportunity to appear before
4-12 the board and to speak on any issue under the jurisdiction of the
4-13 board.
4-14 Sec. 161.009. REMOVAL OF BOARD MEMBER. It is a ground for
4-15 removal from the board that an appointed member:
4-16 (1) does not have at the time of appointment the
4-17 qualifications required by Section 161.004 for appointment to the
4-18 board;
4-19 (2) does not maintain during the service on the board
4-20 the qualifications required by Section 161.004 for appointment to
4-21 the board;
4-22 (3) violates a prohibition established by Section
4-23 161.010;
4-24 (4) is unable to discharge the member's duties for a
4-25 substantial portion of the term for which the member was appointed
5-1 because of illness or disability; or
5-2 (5) is absent from more than half of the regularly
5-3 scheduled board meetings that the member is eligible to attend
5-4 during each calendar year, except when the absence is excused by
5-5 majority vote of the board.
5-6 Sec. 161.010. RESTRICTIONS ON BOARD MEMBERSHIP AND
5-7 EMPLOYMENT. (a) An officer, employee, or paid consultant of an
5-8 association, other than a guardianship program or a nonprofit
5-9 association, that has as its primary interest the provision of
5-10 guardianship services may not be a member or employee of the board,
5-11 nor may a person who cohabits with or is the spouse of an officer,
5-12 managerial employee, or paid consultant of such an association be a
5-13 member of the board or an employee of the board, including an
5-14 employee exempt from the state's position classification plan, who
5-15 is compensated at or above the amount prescribed by the General
5-16 Appropriations Act for step 1, salary group 17, of the position
5-17 classification salary schedule.
5-18 (b) A person who is required to register as a lobbyist under
5-19 Chapter 305, Government Code, by virtue of the person's activities
5-20 on behalf of a provider of guardianship services may not serve as a
5-21 member of the board or act as the general counsel to the board.
5-22 Sec. 161.011. EXECUTIVE DIRECTOR. (a) The board shall
5-23 appoint an executive director who shall discharge all executive and
5-24 administrative functions of the office. The executive director
5-25 serves at the pleasure of the board.
6-1 (b) Salaries and other office expenses are paid with funds
6-2 appropriated to the office for those purposes.
6-3 Sec. 161.012. PERSONNEL MATTERS. (a) The executive
6-4 director may employ not more than seven employees for the
6-5 administration of the office's duties.
6-6 (b) The executive director or the director's designee shall
6-7 develop an intraoffice career ladder program, one part of which
6-8 shall require the intraoffice posting of all non-entry-level
6-9 positions concurrently with any public posting.
6-10 (c) The executive director or the director's designee shall
6-11 develop a system of annual performance evaluations based on
6-12 measurable job tasks. All merit pay for office employees must be
6-13 based on the system established under this subsection.
6-14 (d) The board shall provide to its members and to the office
6-15 employees as often as is necessary information regarding their
6-16 qualifications under this chapter and their responsibilities under
6-17 applicable laws relating to standards of conduct for state officers
6-18 and employees.
6-19 (e) The board shall develop and implement policies that
6-20 clearly separate the respective responsibilities of the board and
6-21 the executive director.
6-22 (f) The executive director or the director's designee shall
6-23 prepare and maintain a written policy statement to ensure
6-24 implementation of a program of equal employment opportunity under
6-25 which all personnel transactions are made without regard to race,
7-1 color, disability, sex, religion, age, or national origin. The
7-2 policy statement must include:
7-3 (1) personnel policies, including policies relating to
7-4 recruitment, evaluation, selection, appointment, training, and
7-5 promotion of personnel;
7-6 (2) a comprehensive analysis of the office work force
7-7 that meets federal and state guidelines;
7-8 (3) procedures by which a determination can be made of
7-9 significant underuse in the office work force of all persons for
7-10 whom federal or state guidelines encourage a more equitable
7-11 balance; and
7-12 (4) reasonable methods to appropriately address areas
7-13 of significant underuse in the office work force of all persons for
7-14 whom federal or state guidelines encourage a more equitable
7-15 balance.
7-16 (g) The policy statement required under Subsection (f) shall
7-17 be filed with the governor's office, cover an annual period, and be
7-18 updated at least annually. The governor's office shall develop a
7-19 biennial report to the legislature based on the information
7-20 submitted. The report may be made separately or as a part of other
7-21 biennial reports made to the legislature.
7-22 Sec. 161.013. MERIT SYSTEM. The office may establish a
7-23 merit system for its employees. The merit system may be maintained
7-24 in conjunction with other state agencies that are required by
7-25 federal law to operate under a merit system.
8-1 Sec. 161.014. FINANCES. (a) The executive director shall
8-2 prepare and submit to the board for approval a biennial budget and
8-3 request for an appropriation by the legislature of funds necessary
8-4 to carry out the duties of the office. The budget and request must
8-5 include an estimate of all federal funds to be allocated to the
8-6 state for the office's purposes.
8-7 (b) The board shall submit the budget and request to the
8-8 Legislative Budget Board and the governor in the manner prescribed
8-9 by law.
8-10 (c) The board shall file annually with the governor and the
8-11 presiding officer of each house of the legislature a complete and
8-12 detailed written report accounting for all funds received and
8-13 disbursed by the board during the preceding year. The form of the
8-14 annual report and the reporting time shall be those provided in the
8-15 General Appropriations Act.
8-16 (d) The financial transactions of the board are subject to
8-17 audit by the state auditor in accordance with Chapter 321,
8-18 Government Code.
8-19 (Sections 161.015 to 161.020 reserved for expansion
8-20 SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND OFFICE
8-21 Sec. 161.021. RULES. (a) The board shall adopt rules
8-22 governing the functions of the office, including rules that
8-23 prescribe the policies and procedures followed by the board and the
8-24 office in the administration of this chapter.
8-25 (b) The board by rule or order may delegate its rights,
9-1 powers, and duties to the executive director.
9-2 Sec. 161.022. GENERAL FUNCTIONS OF OFFICE. The office
9-3 shall:
9-4 (1) develop a state plan to ensure that each person
9-5 who needs a guardianship or another less restrictive type of
9-6 assistance to make decisions concerning the person's own welfare or
9-7 financial affairs receives that assistance;
9-8 (2) consult and cooperate with the governing body of
9-9 one or more municipalities or counties concerning the development
9-10 of a guardianship program;
9-11 (3) provide to a guardian, a proposed guardian, or a
9-12 member of a guardianship program education, training, and technical
9-13 assistance on guardianship and alternatives to guardianship that
9-14 may be used in lieu of a guardianship to represent the interests of
9-15 an incapacitated person or other person who needs assistance in
9-16 making decisions concerning the person's own welfare or financial
9-17 affairs; and
9-18 (4) provide information and referral services on
9-19 guardianship and related services.
9-20 Sec. 161.023. STANDARDS. (a) The office by rule shall
9-21 adopt minimum standards for the provision of guardianship and
9-22 related services for a:
9-23 (1) guardianship program;
9-24 (2) person who provides guardianship and related
9-25 services on behalf of a guardianship program, including a person
10-1 who serves as a volunteer guardian; and
10-2 (3) person or entity who serves as a private
10-3 professional guardian.
10-4 (b) The standards the office adopts under this section must
10-5 be designed to protect the interests of an incapacitated person or
10-6 other person who needs assistance making decisions concerning the
10-7 person's own welfare or financial affairs.
10-8 (c) In this section, "private professional guardian" means a
10-9 person who is engaged in the business of providing guardianship
10-10 services.
10-11 Sec. 161.024. CONTRACTS. If there is no guardianship
10-12 program to provide assistance, the office may contract with another
10-13 person or entity to:
10-14 (1) file an application under Chapter XIII, Texas
10-15 Probate Code, to be appointed as a guardian of the estate or
10-16 person, or both, of an incapacitated person if there is no eligible
10-17 person interested in filing an application to be appointed guardian
10-18 of the incapacitated person; or
10-19 (2) provide assistance to a person who needs
10-20 assistance other than a guardianship to make a decision concerning
10-21 the person's own welfare or financial affairs.
10-22 Sec. 161.025. DONATIONS. The office may accept and solicit
10-23 gifts or grants of money or property from public or private sources
10-24 for the purposes of this chapter.
10-25 Sec. 161.026. REPORT. Not later than February 1 of each
11-1 odd-numbered year, the board shall submit to the legislature a
11-2 biennial report that includes recommendations to improve
11-3 guardianship and related services provided to a person by a
11-4 guardianship program or a person or entity who contracts with the
11-5 office under Section 161.024.
11-6 SECTION 2. Section 3, Texas Probate Code, is amended to read
11-7 as follows:
11-8 Sec. 3. DEFINITIONS AND USE OF TERMS. Except as otherwise
11-9 provided by Chapter XIII of this Code, when used in this Code,
11-10 unless otherwise apparent from the context:
11-11 (a) "Authorized corporate surety" means a domestic or
11-12 foreign corporation authorized to do business in the State of Texas
11-13 for the purpose of issuing surety, guaranty or indemnity bonds
11-14 guaranteeing the fidelity of executors and administrators.
11-15 (b) "Child" includes an adopted child, whether adopted by
11-16 any existing or former statutory procedure or by acts of estoppel,
11-17 but, unless expressly so stated herein, does not include a child
11-18 who has no presumed father.
11-19 (c) "Claims" include liabilities of a decedent which
11-20 survive, including taxes, whether arising in contract or in tort or
11-21 otherwise, funeral expenses, the expense of a tombstone, expenses
11-22 of administration, estate and inheritance taxes, and debts due such
11-23 estates.
11-24 (d) "Corporate fiduciary" means a trust company or bank
11-25 having trust powers, existing or doing business under the laws of
12-1 this state or of the United States, which is authorized by law to
12-2 act under the order or appointment of any court of record, without
12-3 giving bond, as receiver, trustee, executor, administrator, or,
12-4 although without general depository powers, depository for any
12-5 moneys paid into court, or to become sole guarantor or surety in or
12-6 upon any bond required to be given under the laws of this state.
12-7 (e) "County Court" and "Probate Court" are synonymous terms
12-8 and denote county courts in the exercise of their probate
12-9 jurisdiction, courts created by statute and authorized to exercise
12-10 original probate jurisdiction, and district courts exercising
12-11 probate jurisdiction in contested matters.
12-12 (f) "County Judge," "Probate Judge," and "Judge" denote the
12-13 presiding judge of any court having original jurisdiction over
12-14 probate proceedings, whether it be a county court in the exercise
12-15 of its probate jurisdiction, a court created by statute and
12-16 authorized to exercise probate jurisdiction, or a district court
12-17 exercising probate jurisdiction in contested matters.
12-18 (g) "Court" denotes and includes both a county court in the
12-19 exercise of its probate jurisdiction, a court created by statute
12-20 and authorized to exercise original probate jurisdiction, or a
12-21 district court exercising original probate jurisdiction in
12-22 contested matters.
12-23 (h) "Devise," when used as a noun, includes a testamentary
12-24 disposition of real or personal property, or of both. When used as
12-25 a verb, "devise" means to dispose of real or personal property, or
13-1 of both, by will.
13-2 (i) "Devisee" includes legatee.
13-3 (j) "Distributee" denotes a person entitled to the estate of
13-4 a decedent under a lawful will, or under the statutes of descent
13-5 and distribution.
13-6 (k) "Docket" means the probate docket.
13-7 (l) "Estate" denotes the real and personal property of a
13-8 decedent, both as such property originally existed and as from time
13-9 to time changed in form by sale, reinvestment, or otherwise, and as
13-10 augmented by any accretions and additions thereto (including any
13-11 property to be distributed to the representative of the decedent by
13-12 the trustee of a trust which terminates upon the decedent's death)
13-13 and substitutions therefor, and as diminished by any decreases
13-14 therein and distributions therefrom.
13-15 (m) "Exempt property" refers to that property of a
13-16 decedent's estate which is exempt from execution or forced sale by
13-17 the Constitution or laws of this State, and to the allowance in
13-18 lieu thereof.
13-19 (n) "Habitual drunkard" and "common drunkard" are synonymous
13-20 and denote one who, by reason of the habitual use of intoxicating
13-21 liquor, drugs, or a toxic inhalant as defined by Section 462.001,
13-22 Health and Safety Code, is incapable of taking care of himself or
13-23 managing his property and financial affairs.
13-24 (o) "Heirs" denote those persons, including the surviving
13-25 spouse, who are entitled under the statutes of descent and
14-1 distribution to the estate of a decedent who dies intestate.
14-2 (p) "Incompetents" or "Incompetent persons" are persons non
14-3 compos mentis, mentally disabled persons, insane persons, common or
14-4 habitual drunkards, and other persons who are mentally incompetent
14-5 to care for themselves or to manage their property and financial
14-6 affairs.
14-7 (q) "Independent executor" means the personal representative
14-8 of an estate under independent administration as provided in
14-9 Section 145 of this Code. The term "independent executor" includes
14-10 the term "independent administrator."
14-11 (r) "Interested persons" or "persons interested" means
14-12 heirs, devisees, spouses, creditors, or any others having a
14-13 property right in, or claim against, the estate being administered;
14-14 and anyone interested in the welfare of a minor or incompetent
14-15 ward.
14-16 (s) "Legacy" includes any gift or devise by will, whether of
14-17 personalty or realty. "Legatee" includes any person entitled to a
14-18 legacy under a will.
14-19 (t) "Minors" are all persons under eighteen years of age who
14-20 have never been married or who have not had disabilities of
14-21 minority removed for general purposes.
14-22 (u) "Minutes" means the probate minutes.
14-23 (v) "Mortgage" or "Lien" includes deed of trust, vendor's
14-24 lien, chattel mortgage, mechanic's, materialman's or laborer's
14-25 lien, judgment, attachment or garnishment lien, pledge by
15-1 hypothecation, and Federal or State tax liens.
15-2 (w) "Net estate" means the real and personal property of a
15-3 decedent, exclusive of homestead rights, exempt property, the
15-4 family allowance and enforceable claims against the estate.
15-5 (x) "Person" includes natural persons, <and> corporations,
15-6 and guardianship programs as defined by Section 161.003, Human
15-7 Resources Code.
15-8 (y) "Persons of unsound mind" are persons non compos mentis,
15-9 mentally disabled persons, insane persons, and other persons who
15-10 are mentally incompetent to care for themselves or to manage their
15-11 property and financial affairs.
15-12 (z) "Personal property" includes interests in goods, money,
15-13 choses in action, evidence of debts, and chattels real.
15-14 (aa) "Personal representative" or "Representative" includes
15-15 executor, independent executor, administrator, independent
15-16 administrator, temporary administrator, together with their
15-17 successors. The inclusion of independent executors herein shall
15-18 not be held to subject such representatives to control of the
15-19 courts in probate matters with respect to settlement of estates
15-20 except as expressly provided by law.
15-21 (bb) "Probate matter," "Probate proceedings," "Proceeding in
15-22 probate," and "Proceedings for probate" are synonymous and include
15-23 a matter or proceeding relating to the estate of a decedent.
15-24 (cc) "Property" includes both real and personal property.
15-25 (dd) "Real property" includes estates and interests in
16-1 lands, corporeal or incorporeal, legal or equitable, other than
16-2 chattels real.
16-3 (ee) "Surety" includes both personal and corporate sureties.
16-4 (ff) "Will" includes codicil; it also includes a
16-5 testamentary instrument which merely:
16-6 (1) appoints an executor or guardian;
16-7 (2) directs how property may not be disposed of; or
16-8 (3) revokes another will.
16-9 (gg) The singular number includes the plural; the plural
16-10 number includes the singular.
16-11 (hh) The masculine gender includes the feminine and neuter.
16-12 (ii) "Statutory probate court" refers to any statutory court
16-13 presently in existence or created after the passage of this Act,
16-14 the jurisdiction of which is limited by statute to the general
16-15 jurisdiction of a probate court, and such courts whose statutorily
16-16 designated name contains the word "probate." County courts at law
16-17 exercising probate jurisdiction are not statutory probate courts
16-18 under this Code unless their statutorily designated name includes
16-19 the word "probate."
16-20 (jj) "Next of kin" includes an adopted child or his or her
16-21 descendents and the adoptive parent of the adopted child.
16-22 (kk) "Charitable organization" means:
16-23 (1) a nonprofit corporation, trust, community chest,
16-24 fund, foundation, or other entity that is exempt from federal
16-25 income tax under Section 501(c)(3) of the Internal Revenue Code of
17-1 1986 because the entity is organized and operated exclusively for
17-2 religious, charitable, scientific, educational, or literary
17-3 purposes, testing for public safety, prevention of cruelty to
17-4 children or animals, or promotion of amateur sports competition; or
17-5 (2) any other entity or organization that is organized
17-6 and operated exclusively for the purposes listed in Section
17-7 501(c)(3) of the Internal Revenue Code of 1986.
17-8 (ll) "Governmental agency of the state" means:
17-9 (1) an incorporated city or town, a county, a public
17-10 school district, a special-purpose district or authority, or a
17-11 district, county, or justice of the peace court;
17-12 (2) a board, commission, department, office, or other
17-13 agency in the executive branch of state government, including an
17-14 institution of higher education as defined by Section 61.003,
17-15 Education Code;
17-16 (3) the legislature or a legislative agency; and
17-17 (4) the supreme court, the court of criminal appeals,
17-18 a court of appeals, or the State Bar of Texas or another judicial
17-19 agency having statewide jurisdiction.
17-20 SECTION 3. (a) The governor shall appoint the initial
17-21 members of the board of the Office of Public Guardian created by
17-22 this Act so that three members' terms expire February 1, 1997,
17-23 three members' terms expire February 1, 1999, and three members'
17-24 terms expire February 1, 2001.
17-25 (b) The executive director of the Office of Public Guardian
18-1 shall file the first policy statement required to be filed under
18-2 Subsection (g), Section 161.012, Human Resources Code, as added by
18-3 this Act, before September 1, 1996.
18-4 SECTION 4. This Act takes effect September 1, 1995, and the
18-5 Office of Public Guardian is created on that date.
18-6 SECTION 5. The importance of this legislation and the
18-7 crowded condition of the calendars in both houses create an
18-8 emergency and an imperative public necessity that the
18-9 constitutional rule requiring bills to be read on three several
18-10 days in each house be suspended, and this rule is hereby suspended.