1-1 By: Moncrief S.B. No. 103
1-2 (In the Senate - Filed November 29, 1994; January 16, 1995,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 March 22, 1995, referred to Committee on Finance; April 10, 1995,
1-5 reported adversely, with favorable Committee Substitute by the
1-6 following vote: Yeas 10, Nays 0; April 10, 1995, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 103 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to providing guardianship services and a pooled income
1-11 trust for incapacitated persons.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. The Human Resources Code is amended by adding
1-14 Title 11 to read as follows:
1-15 TITLE 11. PUBLIC GUARDIANS
1-16 CHAPTER 161. GUARDIANSHIP RESOURCE BOARD
1-17 SUBCHAPTER A. ADMINISTRATIVE PROVISIONS
1-18 Sec. 161.001. BOARD. The Guardianship Resource Board is
1-19 created and is authorized to create a nonprofit corporation
1-20 organized pursuant to the Texas Non-Profit Corporation Act (Article
1-21 1396-1.01 et seq., Vernon's Texas Civil Statutes). On creation of
1-22 the nonprofit corporation, the Guardianship Resource Board becomes
1-23 the board of the nonprofit corporation.
1-24 Sec. 161.002. SUNSET PROVISION. The Guardianship Resource
1-25 Board is subject to Chapter 325, Government Code (Texas Sunset
1-26 Act). Unless continued in existence as provided by that chapter,
1-27 the Guardianship Resource Board is abolished and this chapter
1-28 expires September 1, 2007.
1-29 Sec. 161.003. DEFINITIONS. In this chapter:
1-30 (1) "Board" means the body which is both the
1-31 Guardianship Resource Board and the board of the nonprofit
1-32 corporation that is created by the Guardianship Resource Board.
1-33 (2) "Commissioner" means the commissioner of health
1-34 and human services.
1-35 (3) "Center" means the nonprofit corporation created
1-36 by the Guardianship Resource Board.
1-37 (4) "Guardianship program" means a local, county, or
1-38 regional program that provides guardianship and related services to
1-39 an incapacitated person or other person who needs assistance in
1-40 making decisions concerning the person's own welfare or financial
1-41 affairs.
1-42 (5) "Incapacitated person" means:
1-43 (A) a minor;
1-44 (B) an adult individual who, because of a
1-45 physical or mental condition, is substantially unable to provide
1-46 food, clothing, or shelter for himself or herself, to care for the
1-47 individual's own physical health, or to manage the individual's own
1-48 financial affairs;
1-49 (C) a missing person; or
1-50 (D) a person who must have a guardian appointed
1-51 to receive funds due the person from any governmental source.
1-52 Sec. 161.004. COMPOSITION OF BOARD. (a) The board is
1-53 composed of seven members appointed by the commissioner, two
1-54 members appointed by the presiding judge of the statutory probate
1-55 courts, and five nonvoting ex officio members.
1-56 (b) The commissioner shall appoint:
1-57 (1) three members of a guardianship program;
1-58 (2) three members of private associations of persons
1-59 who advocate on the behalf of or in the interest of the elderly or
1-60 persons with mental illness or mental retardation; and
1-61 (3) one parent of an incapacitated person other than a
1-62 minor.
1-63 (c) The presiding judge of the statutory probate courts
1-64 shall appoint two persons who are judges of statutory probate
1-65 courts in this state.
1-66 (d) The nonvoting ex officio membership is composed of the
1-67 presiding officer of the governing body of the following agencies
1-68 or each officer's designated representative:
2-1 (1) Texas Department of Human Services;
2-2 (2) Texas Department on Aging;
2-3 (3) Texas Department of Health;
2-4 (4) Department of Protective and Regulatory Services;
2-5 and
2-6 (5) Texas Department of Mental Health and Mental
2-7 Retardation.
2-8 (e) Appointments to the board shall be made without regard
2-9 to the race, color, disability, sex, religion, age, or national
2-10 origin of an appointee.
2-11 (f) A person is not eligible for appointment to the board if
2-12 the person or the person's spouse uses or receives a substantial
2-13 amount of tangible goods, services, or funds from the board.
2-14 Sec. 161.005. COMPENSATION OF BOARD MEMBERS. (a) An
2-15 appointed member of the board is entitled to the per diem for a
2-16 member of a state board set in the General Appropriations Act for
2-17 each day that the member engages in board business.
2-18 (b) A member of the board may not otherwise receive
2-19 compensation for service on the board but is entitled to
2-20 reimbursement for actual and necessary expenses in the performance
2-21 of board business in an amount not exceeding the amount authorized
2-22 to be paid to a member of the legislature for similar expenses.
2-23 Sec. 161.006. OFFICERS. The board shall elect from its
2-24 members a presiding officer and any other officers considered
2-25 necessary.
2-26 Sec. 161.007. TERMS OF BOARD MEMBERS. Appointed members of
2-27 the board serve for staggered terms of six years with the terms of
2-28 three members expiring on February 1 of each odd-numbered year. A
2-29 member may be reappointed to the board.
2-30 Sec. 161.008. MEETINGS. The board shall hold meetings
2-31 quarterly and may hold other meetings called by the presiding
2-32 officer. The board shall develop and implement policies that will
2-33 provide the public with a reasonable opportunity to appear before
2-34 the board and to speak on any issue under the jurisdiction of the
2-35 board.
2-36 Sec. 161.009. REMOVAL OF BOARD MEMBER. It is a ground for
2-37 removal from the board that an appointed member:
2-38 (1) does not have at the time of appointment the
2-39 qualifications required by Section 161.004 for appointment to the
2-40 board;
2-41 (2) does not maintain during the service on the board
2-42 the qualifications required by Section 161.004 for appointment to
2-43 the board;
2-44 (3) violates a prohibition established by Section
2-45 161.010;
2-46 (4) is unable to discharge the member's duties for a
2-47 substantial portion of the term for which the member was appointed
2-48 because of illness or disability; or
2-49 (5) is absent from more than half of the regularly
2-50 scheduled board meetings that the member is eligible to attend
2-51 during each calendar year, except when the absence is excused by
2-52 majority vote of the board.
2-53 Sec. 161.010. RESTRICTIONS ON BOARD MEMBERSHIP AND
2-54 EMPLOYMENT. (a) An officer, employee, or paid consultant of an
2-55 association, other than a guardianship program or a nonprofit
2-56 association, that has as its primary interest the provision of
2-57 guardianship services may not be a member or employee of the board,
2-58 nor may a person who cohabits with or is the spouse of an officer,
2-59 managerial employee, or paid consultant of such an association be a
2-60 member of the board or an employee of the board, including an
2-61 employee exempt from the state's position classification plan who
2-62 is compensated at or above the amount prescribed by the General
2-63 Appropriations Act for step 1, salary group 17, of the position
2-64 classification salary schedule.
2-65 (b) A person who is required to register as a lobbyist under
2-66 Chapter 305, Government Code, by virtue of the person's activities
2-67 on behalf of a provider of guardianship services may not serve as a
2-68 member of the board or act as the general counsel to the board.
2-69 Sec. 161.011. EXECUTIVE DIRECTOR. (a) The board shall
2-70 appoint an executive director who shall discharge all executive and
3-1 administrative functions of the center. The executive director
3-2 serves at the pleasure of the board.
3-3 (b) Salaries and other expenses may be paid with funds
3-4 appropriated to the board for those purposes or with funds from
3-5 other sources.
3-6 Sec. 161.012. PERSONNEL MATTERS. (a) The executive
3-7 director may employ not more than seven employees for the
3-8 administration of the center's duties.
3-9 (b) The executive director or the director's designee shall
3-10 develop an intraoffice career ladder program, one part of which
3-11 shall require the intraoffice posting of all non-entry-level
3-12 positions concurrently with any public posting.
3-13 (c) The executive director or the director's designee shall
3-14 develop a system of annual performance evaluations based on
3-15 measurable job tasks. All merit pay for center employees must be
3-16 based on the system established under this subsection.
3-17 (d) The board shall provide to its members and to the center
3-18 employees as often as is necessary information regarding their
3-19 qualifications under this chapter and their responsibilities under
3-20 applicable laws relating to standards of conduct for state officers
3-21 and employees.
3-22 (e) The board shall develop and implement policies that
3-23 clearly separate the respective responsibilities of the board and
3-24 the executive director.
3-25 (f) The executive director or the director's designee shall
3-26 prepare and maintain a written policy statement to ensure
3-27 implementation of a program of equal employment opportunity under
3-28 which all personnel transactions are made without regard to race,
3-29 color, disability, sex, religion, age, or national origin. The
3-30 policy statement must include:
3-31 (1) personnel policies, including policies relating to
3-32 recruitment, evaluation, selection, appointment, training, and
3-33 promotion of personnel;
3-34 (2) a comprehensive analysis of the center workforce
3-35 that meets federal and state guidelines;
3-36 (3) procedures by which a determination can be made of
3-37 significant underuse in the board workforce of all persons for whom
3-38 federal or state guidelines encourage a more equitable balance; and
3-39 (4) reasonable methods to address appropriately areas
3-40 of significant underuse in the center workforce of all persons for
3-41 whom federal or state guidelines encourage a more equitable
3-42 balance.
3-43 (g) The policy statement required under Subsection (f) shall
3-44 be filed with the governor's office, cover an annual period, and be
3-45 updated at least annually. The governor's office shall develop a
3-46 biennial report to the legislature based on the information
3-47 submitted. The report may be made separately or as a part of other
3-48 biennial reports made to the legislature.
3-49 Sec. 161.013. MERIT SYSTEM. The center may establish a
3-50 merit system for its employees. The merit system may be maintained
3-51 in conjunction with state agencies that are required by federal law
3-52 to operate under a merit system.
3-53 Sec. 161.014. FINANCES. (a) The executive director shall
3-54 prepare and submit to the board for approval a biennial budget
3-55 necessary to carry out the duties of the center. The budget must
3-56 include an estimate of all the funds the board will receive and all
3-57 federal funds to be allocated to the state for the center's
3-58 purposes.
3-59 (b) If the estimate of the total funding from all sources is
3-60 determined by the executive director to be insufficient for the
3-61 center to carry out its duties, the executive director shall submit
3-62 to the board a request for an appropriation by the legislature.
3-63 (c) If the executive director determines that federal
3-64 matching funds will be made available to the center if and only if
3-65 a legislative appropriation is made, the executive director may
3-66 submit a request for such an appropriation to the board.
3-67 (d) If the board approves a request made under Subsection
3-68 (b) or (c), the board shall submit such request to the Legislative
3-69 Budget Board and the governor in the manner prescribed by law.
3-70 (e) The board shall file annually with the governor and the
4-1 presiding officer of each house of the legislature a complete and
4-2 detailed written report accounting for all funds received and
4-3 disbursed by the board during the preceding year. The form of the
4-4 annual report and the reporting time shall be those provided in the
4-5 General Appropriations Act.
4-6 (f) The financial transactions of the board are subject to
4-7 audit by the state auditor in accordance with Chapter 321,
4-8 Government Code.
4-9 (Sections 161.015 to 161.020 reserved for expansion
4-10 SUBCHAPTER B. POWERS AND DUTIES OF BOARD AND CENTER
4-11 Sec. 161.021. RULES. (a) The board shall adopt rules
4-12 governing the functions of the center, including rules that
4-13 prescribe the policies and procedures followed by the board and the
4-14 center in the administration of this chapter.
4-15 (b) The board by rule or order may delegate its rights,
4-16 powers, and duties to the executive director.
4-17 Sec. 161.022. GENERAL FUNCTIONS OF CENTER. The center
4-18 shall:
4-19 (1) develop a state plan to ensure that each person
4-20 who needs a guardianship or another less restrictive type of
4-21 assistance to make decisions concerning the person's own welfare or
4-22 financial affairs receives that assistance;
4-23 (2) consult and cooperate with the governing body or
4-24 its designee of one or more municipalities, counties, or nonprofit
4-25 organizations concerning the development of or support for a
4-26 guardianship program;
4-27 (3) provide to a guardian, a proposed guardian, or a
4-28 member of a guardianship program education, training, and technical
4-29 assistance on guardianship and alternatives to guardianship that
4-30 may be used in lieu of a guardianship to represent the interests of
4-31 an incapacitated person or other person who needs assistance in
4-32 making decisions concerning the person's own welfare or financial
4-33 affairs; and
4-34 (4) provide information on, referral services for, and
4-35 matching or other funding as available for guardianship and related
4-36 services.
4-37 Sec. 161.023. STANDARDS. (a) The center by rule shall
4-38 adopt minimum standards for the provision of guardianship and
4-39 related services for a:
4-40 (1) guardianship program;
4-41 (2) person who provides guardianship and related
4-42 services on behalf of a guardianship program, including a person
4-43 who serves as a volunteer guardian; and
4-44 (3) person or entity who serves as a private
4-45 professional guardian.
4-46 (b) The standards the center adopts under this section must
4-47 be designed to protect the interests of an incapacitated person or
4-48 other person who needs assistance making decisions concerning the
4-49 person's own welfare or financial affairs.
4-50 (c) In this section, "private professional guardian" means a
4-51 person who is engaged in the business of providing guardianship
4-52 services.
4-53 Sec. 161.024. CONTRACTS. If there is no guardianship
4-54 program to provide assistance, the center may contract with another
4-55 person or entity to:
4-56 (1) file an application under Chapter XIII, Texas
4-57 Probate Code, to be appointed as a guardian of the estate or
4-58 person, or both, of an incapacitated person if there is no eligible
4-59 person interested in filing an application to be appointed guardian
4-60 of the incapacitated person; or
4-61 (2) provide assistance to a person who needs
4-62 assistance other than a guardianship to make a decision concerning
4-63 the person's own welfare or financial affairs.
4-64 Sec. 161.025. FUNDING AND DONATIONS. (a) The board or the
4-65 center may accept and solicit gifts or grants of money or property
4-66 from public or private sources for the purposes of this chapter.
4-67 (b) Through the board, the center may collect and receive
4-68 funds from personal representatives of estates of deceased persons
4-69 in administration in courts of this state and manage, hold, and
4-70 administer such funds pursuant to Sections 427 through 433, Texas
5-1 Probate Code.
5-2 (c) Through the board, the center may collect and receive
5-3 funds from county clerks who have received and managed such funds
5-4 pursuant to Section 887, Texas Probate Code, and may use such funds
5-5 in performance of the general functions assigned to the center
5-6 under this chapter.
5-7 Sec. 161.026. COMMUNITY TRUST. (a) In this section:
5-8 (1) "Beneficiary" means any person with a disability,
5-9 as defined in Section 1614(a)(3) of the federal Social Security
5-10 Act, as amended (42 U.S.C. Section 1382c(a)(3)), which would, under
5-11 the Texas Probate Code, permit the establishment of a full
5-12 guardianship of his or her estate, who has qualified as a member of
5-13 the community trust program and who has the right to receive those
5-14 services and benefits vested with the management of the business
5-15 and affairs of the center.
5-16 (2) "Follow along services" means those services
5-17 offered by community trusts that are designed to ensure that the
5-18 needs of each beneficiary are being met for as long as may be
5-19 required and may include periodic visits to the beneficiary and to
5-20 the places where the beneficiary receives services, participation
5-21 in the development of individualized plans being made by service
5-22 providers for the beneficiary, and other similar services
5-23 consistent with the purposes of this chapter.
5-24 (3) "Surplus trust funds" means funds accumulated in
5-25 the trust from contributions made on behalf of an individual
5-26 beneficiary which, after the death of the beneficiary, are
5-27 determined by the board to be in excess of the actual cost of
5-28 providing services during the beneficiary's lifetime, including the
5-29 beneficiary's share of administrative costs.
5-30 (b) The center may establish a community trust. A community
5-31 trust established by the center shall:
5-32 (1) be a pooled income trust designed to meet the
5-33 qualifications of Section 917 of the federal Social Security Act,
5-34 as amended (42 U.S.C. Section 1396p(d)(4)(C));
5-35 (2) be managed by the center; and
5-36 (3) establish that:
5-37 (A) the center is a secondary beneficiary of
5-38 each trust account; and
5-39 (B) the center may receive from the trust any
5-40 surplus funds for the purpose of providing funding for the
5-41 performance of the general functions assigned to the center under
5-42 this chapter.
5-43 (c) In managing the community trust, the center shall:
5-44 (1) provide follow along services;
5-45 (2) provide guardianship if necessary for
5-46 beneficiaries, when no other family member or immediate friend is
5-47 available for this purpose;
5-48 (3) supply advice and counsel to persons who have been
5-49 appointed as individual guardians of beneficiaries or estates of
5-50 beneficiaries;
5-51 (4) encourage the availability of private resources to
5-52 purchase for beneficiaries goods and services that are not
5-53 available through any governmental or charitable program and to
5-54 conserve these resources by limiting purchases to those which are
5-55 not available from other sources;
5-56 (5) encourage the inclusion as beneficiaries of
5-57 community trusts of persons who lack resources and whose families
5-58 are indigent, in a way that does not diminish the resources
5-59 available to other beneficiaries whose families have contributed to
5-60 the trust; and
5-61 (6) remove the disincentives that discourage parents
5-62 and others from setting aside funds for the future protection of
5-63 potential beneficiaries by ensuring that the interest of
5-64 beneficiaries in the community trust are not considered assets or
5-65 income that would disqualify them from any governmental or
5-66 charitable entitlement program with an economic means test.
5-67 (d) The center, in managing the community trust, may:
5-68 (1) authorize the expenditure of funds for any goods
5-69 or services which, in its sole discretion, it determines will
5-70 promote the well-being of any beneficiary, including recreational
6-1 services;
6-2 (2) pay for the burial of any beneficiary;
6-3 (3) expend funds to meet the reasonable costs of
6-4 administering the community trust; and
6-5 (4) accept contributions, bequests, and designations
6-6 under life insurance policies to the community trust on behalf of
6-7 individuals with severe chronic disabilities for the purpose of
6-8 qualifying them as beneficiaries.
6-9 (e) At the time a contribution, bequest, or assignment of
6-10 insurance proceeds is made, the trustor shall receive a written
6-11 statement of the services to be provided to the beneficiary. The
6-12 statement shall include a starting date for the delivery of
6-13 services or a condition precedent, such as the death of the
6-14 trustor, which shall determine the starting date. The statement
6-15 shall describe the frequency with which services shall be provided
6-16 and their duration, and the criteria or procedures for modifying
6-17 the program of services from time to time in the best interests of
6-18 the beneficiary.
6-19 (f) The center may accept gifts and use surplus trust funds
6-20 for the purpose of qualifying as a beneficiary any indigent person
6-21 whose family members lack the resources to make a full contribution
6-22 on that person's behalf. The extent and character of the services
6-23 and selection of a beneficiary under this subsection are at the
6-24 discretion of the center.
6-25 (g) The center may accept gifts to meet start-up costs,
6-26 reduce the charges to the trust for the cost of administration, and
6-27 for any other purpose that is consistent with this chapter. Gifts
6-28 made to the trust for an unspecified purpose shall be used by the
6-29 center either to qualify indigent persons under Subsection (f) or
6-30 to meet any start-up costs that the trust incurs.
6-31 (h) The center may agree to fulfill any special requests
6-32 made on behalf of a beneficiary as long as the requests are
6-33 consistent with this chapter, and provided that an adequate
6-34 contribution has been made for this purpose on behalf of a
6-35 beneficiary. The center may agree to serve as trustee for any
6-36 individual trust created on behalf of a beneficiary, regardless of
6-37 whether the trust is revocable or irrevocable, has one or more
6-38 remaindermen or contingent beneficiaries, or any other condition,
6-39 as long as the individual trust is consistent with the purposes of
6-40 this chapter.
6-41 (i) A trust account for a beneficiary is irrevocable, but
6-42 the center in its sole discretion may provide compensation for any
6-43 contribution to the trust to any trustor who, for good cause,
6-44 withdraws a beneficiary designated by the trustor from the trust,
6-45 or if it becomes impossible to fulfill the conditions of the trust
6-46 with regard to an individual beneficiary for reasons other than the
6-47 death of the beneficiary.
6-48 (j) The center may not expend trust funds for any goods or
6-49 services of quality comparable to those available to any particular
6-50 beneficiary through any governmental or charitable program,
6-51 insurance, or other sources.
6-52 (k) The center may not use surplus trust funds to make any
6-53 charitable contribution on behalf of any beneficiary or any group
6-54 or class of beneficiaries.
6-55 (l) Notwithstanding other law, the beneficiary's interest in
6-56 the community trust shall not be deemed to be an asset for the
6-57 purpose of determining income eligibility for any publicly operated
6-58 program, nor shall that interest be reached in satisfaction of a
6-59 claim for support and maintenance of the beneficiary. No agency
6-60 shall reduce the benefits of services available to any individual
6-61 because that person is the beneficiary of the community trust.
6-62 (m) The community trust shall not be subject to or held to
6-63 be in violation of any principle of law against perpetuities or
6-64 restraints on alienation or perpetual accumulations of trusts.
6-65 (n) The community trust shall be settled by filing a final
6-66 accounting in a district or statutory probate court. In addition,
6-67 at any time prior to the settlement of the final account of the
6-68 community trust, the attorney general may bring an action for the
6-69 dissolution of the center in the district court for the purpose of
6-70 terminating the trust or merging it with another charitable
7-1 trust.
7-2 (o) No trustee or any private individual shall be entitled
7-3 to share in the distribution of any of the trust assets on
7-4 dissolution, merger, or settlement of the community trust. On
7-5 dissolution, merger, or settlement, a district or statutory probate
7-6 court of Travis County shall distribute all of the remaining net
7-7 assets of the community trust in a manner that is consistent with
7-8 the purposes of this chapter.
7-9 Sec. 161.027. REPORT. Not later than February 1 of each
7-10 odd-numbered year, the board shall submit to the legislature a
7-11 biennial report that includes recommendations to improve
7-12 guardianship and related services provided to a person by a
7-13 guardianship program, a community trust established by the center,
7-14 or a person or entity who contracts with the center under Section
7-15 161.024.
7-16 SECTION 2. Section 3, Texas Probate Code, is amended to read
7-17 as follows:
7-18 Sec. 3. Definitions and Use of Terms. Except as otherwise
7-19 provided by Chapter XIII of this Code, when used in this Code,
7-20 unless otherwise apparent from the context:
7-21 (a) "Authorized corporate surety" means a domestic or
7-22 foreign corporation authorized to do business in the State of Texas
7-23 for the purpose of issuing surety, guaranty or indemnity bonds
7-24 guaranteeing the fidelity of executors and administrators.
7-25 (b) "Child" includes an adopted child, whether adopted by
7-26 any existing or former statutory procedure or by acts of estoppel,
7-27 but, unless expressly so stated herein, does not include a child
7-28 who has no presumed father.
7-29 (c) "Claims" include liabilities of a decedent which
7-30 survive, including taxes, whether arising in contract or in tort or
7-31 otherwise, funeral expenses, the expense of a tombstone, expenses
7-32 of administration, estate and inheritance taxes, and debts due such
7-33 estates.
7-34 (d) "Corporate fiduciary" means a trust company or bank
7-35 having trust powers, existing or doing business under the laws of
7-36 this state or of the United States, which is authorized by law to
7-37 act under the order or appointment of any court of record, without
7-38 giving bond, as receiver, trustee, executor, administrator, or,
7-39 although without general depository powers, depository for any
7-40 moneys paid into court, or to become sole guarantor or surety in or
7-41 upon any bond required to be given under the laws of this state.
7-42 (e) "County Court" and "Probate Court" are synonymous terms
7-43 and denote county courts in the exercise of their probate
7-44 jurisdiction, courts created by statute and authorized to exercise
7-45 original probate jurisdiction, and district courts exercising
7-46 probate jurisdiction in contested matters.
7-47 (f) "County Judge," "Probate Judge," and "Judge" denote the
7-48 presiding judge of any court having original jurisdiction over
7-49 probate proceedings, whether it be a county court in the exercise
7-50 of its probate jurisdiction, a court created by statute and
7-51 authorized to exercise probate jurisdiction, or a district court
7-52 exercising probate jurisdiction in contested matters.
7-53 (g) "Court" denotes and includes both a county court in the
7-54 exercise of its probate jurisdiction, a court created by statute
7-55 and authorized to exercise original probate jurisdiction, or a
7-56 district court exercising original probate jurisdiction in
7-57 contested matters.
7-58 (h) "Devise," when used as a noun, includes a testamentary
7-59 disposition of real or personal property, or of both. When used as
7-60 a verb, "devise" means to dispose of real or personal property, or
7-61 of both, by will.
7-62 (i) "Devisee" includes legatee.
7-63 (j) "Distributee" denotes a person entitled to the estate of
7-64 a decedent under a lawful will, or under the statutes of descent
7-65 and distribution.
7-66 (k) "Docket" means the probate docket.
7-67 (l) "Estate" denotes the real and personal property of a
7-68 decedent, both as such property originally existed and as from time
7-69 to time changed in form by sale, reinvestment, or otherwise, and as
7-70 augmented by any accretions and additions thereto (including any
8-1 property to be distributed to the representative of the decedent by
8-2 the trustee of a trust which terminates upon the decedent's death)
8-3 and substitutions therefor, and as diminished by any decreases
8-4 therein and distributions therefrom.
8-5 (m) "Exempt property" refers to that property of a
8-6 decedent's estate which is exempt from execution or forced sale by
8-7 the Constitution or laws of this State, and to the allowance in
8-8 lieu thereof.
8-9 (n) "Habitual drunkard" and "common drunkard" are synonymous
8-10 and denote one who, by reason of the habitual use of intoxicating
8-11 liquor, drugs, or a toxic inhalant as defined by Section 462.001,
8-12 Health and Safety Code, is incapable of taking care of himself or
8-13 managing his property and financial affairs.
8-14 (o) "Heirs" denote those persons, including the surviving
8-15 spouse, who are entitled under the statutes of descent and
8-16 distribution to the estate of a decedent who dies intestate.
8-17 (p) "Incompetents" or "Incompetent persons" are persons non
8-18 compos mentis, mentally disabled persons, insane persons, common or
8-19 habitual drunkards, and other persons who are mentally incompetent
8-20 to care for themselves or to manage their property and financial
8-21 affairs.
8-22 (q) "Independent executor" means the personal representative
8-23 of an estate under independent administration as provided in
8-24 Section 145 of this Code. The term "independent executor" includes
8-25 the term "independent administrator."
8-26 (r) "Interested persons" or "persons interested" means
8-27 heirs, devisees, spouses, creditors, or any others having a
8-28 property right in, or claim against, the estate being administered;
8-29 and anyone interested in the welfare of a minor or incompetent
8-30 ward.
8-31 (s) "Legacy" includes any gift or devise by will, whether of
8-32 personalty or realty. "Legatee" includes any person entitled to a
8-33 legacy under a will.
8-34 (t) "Minors" are all persons under eighteen years of age who
8-35 have never been married or who have not had disabilities of
8-36 minority removed for general purposes.
8-37 (u) "Minutes" means the probate minutes.
8-38 (v) "Mortgage" or "Lien" includes deed of trust, vendor's
8-39 lien, chattel mortgage, mechanic's, materialman's or laborer's
8-40 lien, judgment, attachment or garnishment lien, pledge by
8-41 hypothecation, and Federal or State tax liens.
8-42 (w) "Net estate" means the real and personal property of a
8-43 decedent, exclusive of homestead rights, exempt property, the
8-44 family allowance and enforceable claims against the estate.
8-45 (x) "Person" includes natural persons, <and> corporations,
8-46 and guardianship programs as defined by Section 161.003, Human
8-47 Resources Code.
8-48 (y) "Persons of unsound mind" are persons non compos mentis,
8-49 mentally disabled persons, insane persons, and other persons who
8-50 are mentally incompetent to care for themselves or to manage their
8-51 property and financial affairs.
8-52 (z) "Personal property" includes interests in goods, money,
8-53 choses in action, evidence of debts, and chattels real.
8-54 (aa) "Personal representative" or "Representative" includes
8-55 executor, independent executor, administrator, independent
8-56 administrator, temporary administrator, together with their
8-57 successors. The inclusion of independent executors herein shall
8-58 not be held to subject such representatives to control of the
8-59 courts in probate matters with respect to settlement of estates
8-60 except as expressly provided by law.
8-61 (bb) "Probate matter," "Probate proceedings," "Proceeding in
8-62 probate," and "Proceedings for probate" are synonymous and include
8-63 a matter or proceeding relating to the estate of a decedent.
8-64 (cc) "Property" includes both real and personal property.
8-65 (dd) "Real property" includes estates and interests in
8-66 lands, corporeal or incorporeal, legal or equitable, other than
8-67 chattels real.
8-68 (ee) "Surety" includes both personal and corporate sureties.
8-69 (ff) "Will" includes codicil; it also includes a
8-70 testamentary instrument which merely:
9-1 (1) appoints an executor or guardian;
9-2 (2) directs how property may not be disposed of; or
9-3 (3) revokes another will.
9-4 (gg) The singular number includes the plural; the plural
9-5 number includes the singular.
9-6 (hh) The masculine gender includes the feminine and neuter.
9-7 (ii) "Statutory probate court" refers to any statutory court
9-8 presently in existence or created after the passage of this Act,
9-9 the jurisdiction of which is limited by statute to the general
9-10 jurisdiction of a probate court, and such courts whose statutorily
9-11 designated name contains the word "probate." County courts at law
9-12 exercising probate jurisdiction are not statutory probate courts
9-13 under this Code unless their statutorily designated name includes
9-14 the word "probate."
9-15 (jj) "Next of kin" includes an adopted child or his or her
9-16 descendents and the adoptive parent of the adopted child.
9-17 (kk) "Charitable organization" means:
9-18 (1) a nonprofit corporation, trust, community chest,
9-19 fund, foundation, or other entity that is exempt from federal
9-20 income tax under Section 501(c)(3) of the Internal Revenue Code of
9-21 1986 because the entity is organized and operated exclusively for
9-22 religious, charitable, scientific, educational, or literary
9-23 purposes, testing for public safety, prevention of cruelty to
9-24 children or animals, or promotion of amateur sports competition; or
9-25 (2) any other entity or organization that is organized
9-26 and operated exclusively for the purposes listed in Section
9-27 501(c)(3) of the Internal Revenue Code of 1986.
9-28 (ll) "Governmental agency of the state" means:
9-29 (1) an incorporated city or town, a county, a public
9-30 school district, a special-purpose district or authority, or a
9-31 district, county, or justice of the peace court;
9-32 (2) a board, commission, department, office, or other
9-33 agency in the executive branch of state government, including an
9-34 institution of higher education as defined by Section 61.003,
9-35 Education Code;
9-36 (3) the legislature or a legislative agency; and
9-37 (4) the supreme court, the court of criminal appeals,
9-38 a court of appeals, or the State Bar of Texas or another judicial
9-39 agency having statewide jurisdiction.
9-40 SECTION 3. Chapter X, Texas Probate Code, is amended to read
9-41 as follows:
9-42 CHAPTER X. PAYMENT OF ESTATES TO THE GUARDIANSHIP
9-43 RESOURCE BOARD <INTO STATE TREASURY>
9-44 Sec. 427. WHEN ESTATES TO BE PAID TO THE GUARDIANSHIP
9-45 RESOURCE BOARD <INTO STATE TREASURY>. If any person entitled to a
9-46 portion of an estate, except a resident minor without a guardian,
9-47 shall not demand his portion from the executor or administrator
9-48 within six months after an order of court approving the report of
9-49 commissioners of partition, or within six months after the
9-50 settlement of the final account of an executor or administrator, as
9-51 the case may be, the court by written order shall require the
9-52 executor or administrator to pay so much of said portion as is in
9-53 money to the Guardianship Resource Board <State Treasurer>; and
9-54 such portion as is in other property he shall order the executor or
9-55 administrator to sell on such terms as the court thinks best, and,
9-56 when the proceeds of such sale are collected, the court shall order
9-57 the same to be paid to the Guardianship Resource Board <State
9-58 Treasurer>, in all such cases allowing the executor or
9-59 administrator reasonable compensation for his services. A suit to
9-60 recover proceeds of the sale is governed by Section 433 of this
9-61 Code.
9-62 Sec. 428. INDISPENSABILITY OF GUARDIANSHIP RESOURCE BOARD
9-63 <STATE TREASURER> AS PARTY. The Guardianship Resource Board <State
9-64 Treasurer> is an indispensable party to any judicial or
9-65 administrative proceeding concerning the disposition and handling
9-66 of any portion of an estate that is or may be payable to the
9-67 Guardianship Resource Board <State Treasurer> under Section 427 of
9-68 this Code. Whenever an order shall be made by the court for an
9-69 executor or administrator to pay any funds to the Guardianship
9-70 Resource Board <State Treasurer> under Section 427 of this Code,
10-1 the clerk of the court in which such order is made shall serve on
10-2 the Guardianship Resource Board <State Treasurer> by personal
10-3 service of citation a certified copy of such order within five days
10-4 after the same has been made.
10-5 Sec. 429. PENALTY FOR NEGLECT TO NOTIFY GUARDIANSHIP
10-6 RESOURCE BOARD <STATE TREASURER>. Any clerk who shall neglect to
10-7 have served on the Guardianship Resource Board <State Treasurer> by
10-8 personal citation a certified copy of any such order within the
10-9 time prescribed by Section 428 of this Code shall be liable in a
10-10 penalty of One Hundred Dollars, to be recovered in an action in the
10-11 name of the state, after personal service of citation, on the
10-12 information of any citizen, one-half of which penalty shall be paid
10-13 to the informer and the other one-half to the state.
10-14 Sec. 430. RECEIPT OF GUARDIANSHIP RESOURCE BOARD <STATE
10-15 TREASURER>. Whenever an executor or administrator pays the
10-16 Guardianship Resource Board <State Treasurer> any funds of the
10-17 estate he represents, under the preceding provisions of this Code,
10-18 he shall take from the Guardianship Resource Board <State
10-19 Treasurer> a receipt for such payment, with official seal attached,
10-20 and shall file the same with the clerk of the court ordering such
10-21 payment; and such receipt shall be recorded in the minutes of the
10-22 court.
10-23 Sec. 431. PENALTY FOR FAILURE TO MAKE PAYMENTS TO
10-24 GUARDIANSHIP RESOURCE BOARD <STATE TREASURER>. When an executor or
10-25 administrator fails to pay to the Guardianship Resource Board
10-26 <State Treasurer> any funds of an estate which he has been ordered
10-27 by the court so to pay, within 30 days after such order has been
10-28 made, such executor or administrator shall, after personal service
10-29 of citation charging such failure and after proof thereof, be
10-30 liable to pay out of his own estate to the Guardianship Resource
10-31 Board <State Treasurer> damages thereon at the rate of five per
10-32 cent per month for each month, or fraction thereof, that he fails
10-33 to make such payment after 30 days from such order, which damages
10-34 may be recovered in any court of competent jurisdiction.
10-35 Sec. 432. GUARDIANSHIP RESOURCE BOARD <STATE TREASURER> MAY
10-36 ENFORCE PAYMENT AND COLLECT DAMAGES. The Guardianship Resource
10-37 Board <State Treasurer> shall have the right in the name of the
10-38 state to apply to the court in which the order for payment was made
10-39 to enforce the payment of funds which the executor or administrator
10-40 has failed to pay to him pursuant to order of court, together with
10-41 the payment of any damages that shall have accrued under the
10-42 provisions of the preceding Section of this Code, and the court
10-43 shall enforce such payment in like manner as other orders of
10-44 payment are required to be enforced. The Guardianship Resource
10-45 Board <State Treasurer> shall also have the right to institute suit
10-46 in the name of the state against such executor or administrator,
10-47 and the sureties on his bond, for the recovery of the funds so
10-48 ordered to be paid and such damages as have accrued. The county
10-49 attorney or criminal district attorney of the county, the district
10-50 attorney of the district, or the attorney general, at the election
10-51 of the Guardianship Resource Board <State Treasurer> and with the
10-52 approval of the attorney general, shall represent the Guardianship
10-53 Resource Board <State Treasurer> in all such proceedings, and shall
10-54 also represent the interests of the state in all other matters
10-55 arising under any provisions of this Code.
10-56 Sec. 433. SUIT FOR THE RECOVERY OF FUNDS PAID TO THE
10-57 GUARDIANSHIP RESOURCE BOARD <STATE TREASURER>. (a) Mode of
10-58 Recovery. When funds of an estate have been paid to the
10-59 Guardianship Resource Board <State Treasurer>, any heir, devisee,
10-60 or legatee of the estate, or their assigns, or any of them, may
10-61 recover the portion of such funds to which he, she, or they are
10-62 entitled. The person claiming such funds shall institute suit on
10-63 or before the fourth anniversary of the date of the order requiring
10-64 payment to the Guardianship Resource Board <State Treasurer>, by
10-65 petition filed in the district court of Travis County, against the
10-66 Guardianship Resource Board <State Treasurer>, setting forth the
10-67 plaintiff's right to such funds, and the amount claimed by him.
10-68 (b) Citation. Upon the filing of such petition, the clerk
10-69 shall issue a citation for the Guardianship Resource Board <State
10-70 Treasurer>, to be served by personal service, to appear and
11-1 represent the interest of the state in such suit. As the
11-2 Guardianship Resource Board <State Treasurer> elects and with the
11-3 approval of the attorney general, the attorney general, the county
11-4 attorney or criminal district attorney for the county, or the
11-5 district attorney for the district shall represent the Guardianship
11-6 Resource Board <State Treasurer>.
11-7 (c) Procedure. The proceedings in such suit shall be
11-8 governed by the rules for other civil suits; and, should the
11-9 plaintiff establish his right to the funds claimed, he shall have a
11-10 judgment therefor, which shall specify the amount to which he is
11-11 entitled; and a certified copy of such judgment shall be sufficient
11-12 authority for the Guardianship Resource Board <State Treasurer> to
11-13 pay the same.
11-14 (d) Costs. The costs of any such suit shall in all cases be
11-15 adjudged against the plaintiff, and he may be required to secure
11-16 the costs.
11-17 SECTION 4. Section 887, Texas Probate Code, is amended by
11-18 amending Subsections (b) and (f) and adding Subsections (h) and (i)
11-19 to read as follows:
11-20 (b) Not later than March 1 of each calendar year, the clerk
11-21 of the court shall make a written report to the court of the status
11-22 of all investments held <an investment made> by the clerk under
11-23 this section. As to each investment held by the clerk, the <The>
11-24 report must contain:
11-25 (1) the name of the creditor for whom any payment
11-26 under this section has been made by any person to the clerk or for
11-27 whom any investment has been made by the clerk under this section;
11-28 (2) the date of the original payment to the clerk by
11-29 the debtor for the benefit of the creditor;
11-30 (3) the current age of any creditor for whom any
11-31 payment has been made under this section or for whom any investment
11-32 has been made by the clerk under this section, which shall be
11-33 determined by the information concerning the age, if any, received
11-34 by the clerk from the debtor under Subsection (a) of this section;
11-35 (4) the original date of the deposit by the debtor;
11-36 (5) the amount of the original investment or the
11-37 amount of the investment at the last annual report, whichever is
11-38 later;
11-39 (6) <(2)> any increase, dividend, or income from such
11-40 investment since the last annual report;
11-41 (7) <(3)> the total amount of the investment and all
11-42 increases, dividends, or income at the date of the report; and
11-43 (8) <(4)> the name of the depository or the type of
11-44 investment.
11-45 (f) If a person who is authorized to withdraw the money does
11-46 not withdraw the money from the clerk as provided for in Subsection
11-47 (c) of this section, the creditor, after termination of the
11-48 creditor's disability, or the subsequent personal representative of
11-49 the creditor or the creditor's heirs may withdraw the money. The
11-50 withdrawal may be made<,> at any time before the clerk has
11-51 delivered the money to the Guardianship Resource Board under
11-52 Subsection (h) of this section <and> without special bond for the
11-53 purpose by the person entitled to the withdrawal when the person
11-54 has exhibited<, the money on simply exhibiting> to the clerk an
11-55 order of the county or probate court of the county where the money
11-56 is held by the clerk that directs the clerk to deliver the money to
11-57 the creditor, to the creditor's personal representative, or to the
11-58 creditor's heirs named in the order. Before the court issues an
11-59 order under this subsection, the person's identity and the person's
11-60 credentials must be proved to the court's satisfaction.
11-61 (h) If a creditor or other person who is authorized to
11-62 withdraw the money does not withdraw the money from the clerk as
11-63 authorized by Subsection (f) or (g) of this section, either before
11-64 notice is mailed by the clerk under this subsection or within the
11-65 calendar year following the date on which notice is mailed by the
11-66 clerk to the creditor in accordance with this subsection, the clerk
11-67 shall deliver the money to the Guardianship Resource Board,
11-68 together with any increase, dividend, or income from such
11-69 investment. The clerk shall not deliver any money held for the
11-70 benefit of a creditor under this section to the Guardianship
12-1 Resource Board until a date after May 1 of the year immediately
12-2 following the year in which notice of that intent is given. The
12-3 notice shall be sent by the clerk through the means of regular
12-4 United States mail to the creditor at the address last provided to
12-5 the clerk by the creditor or any person authorized to make
12-6 application to withdraw funds for the benefit of the creditor under
12-7 Subsection (c) or (g) of this section, whichever was the address
12-8 last received. The notice shall state the information concerning
12-9 the creditor that the clerk has or should have reported to the
12-10 court in the last report required under Subsection (b) of this
12-11 section. The clerk shall mail all notices required by this
12-12 subsection on or before May 1 of each year. To each creditor who
12-13 was stated to be a minor at the time the money was delivered to the
12-14 clerk by the debtor, the clerk shall give the notice on or before
12-15 May 1 of the year in which the report of the clerk required by
12-16 Subsection (b)(3) of this section concerning such creditor states
12-17 the creditor's current age as 23 years. To all other creditors,
12-18 the clerk shall give such notice on or before May 1 of the year in
12-19 which the report of the clerk required by Subsection (b) of this
12-20 section concerning such creditor states that the original date of
12-21 the deposit by the debtor was a date prior to March 1 of the 10th
12-22 calendar year immediately preceding the due date of the report.
12-23 (i) The Guardianship Resource Board shall not be required to
12-24 give bond or security for receiving the money from the clerk and
12-25 the receipt from the Guardianship Resource Board for the payment or
12-26 the canceled check or warrant by which the payment was made shall
12-27 be sufficient evidence of the disposition of the payment. After
12-28 compliance with the notice provisions of Subsection (h) of this
12-29 section and payment to the Guardianship Resource Board, the clerk
12-30 of the court is relieved of further responsibility to the creditor,
12-31 the personal representative of the creditor, the heirs of the
12-32 creditor, or the Guardianship Resource Board for the disposition
12-33 and management of the money, and on receipt the Guardianship
12-34 Resource Board shall have full title to the money received from the
12-35 clerk as against any further claim to the money by such persons,
12-36 their successors, or those claiming by or through any of those
12-37 persons or successors.
12-38 SECTION 5. (a) The commissioner of health and human
12-39 services shall appoint seven of the initial members of the board of
12-40 the Guardianship Resource Board created by this Act so that three
12-41 members' terms expire February 1, 1997, two members' terms expire
12-42 February 1, 1999, and two members' terms expire February 1, 2001.
12-43 (b) The presiding judge of the statutory probate courts
12-44 shall appoint two of the initial members of the board of the
12-45 Guardianship Resource Board created by this Act so that one
12-46 member's term expires February 1, 1999, and one member's term
12-47 expires February 1, 2001.
12-48 SECTION 6. The executive director of the Guardianship
12-49 Resource Board shall file the first policy statement required to be
12-50 filed under Subsection (g), Section 161.012, Human Resources Code,
12-51 as added by this Act, before September 1, 1996.
12-52 SECTION 7. This Act takes effect September 1, 1995, and the
12-53 Guardianship Resource Board is created on that date.
12-54 SECTION 8. The importance of this legislation and the
12-55 crowded condition of the calendars in both houses create an
12-56 emergency and an imperative public necessity that the
12-57 constitutional rule requiring bills to be read on three several
12-58 days in each house be suspended, and this rule is hereby suspended.
12-59 * * * * *