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                               * * * * *