PMWJ C.S.H.B. 1317 75(R)BILL ANALYSIS JUDICIAL AFFAIRS H.B. 1317 By: Naishtat C.S.H.B. 1317 By: Hartnett 4-28-97 Committee Report (Substituted) BACKGROUND In 1993, the Texas Legislature passed a temporary guardianship procedure to enable a family of a person missing as a result of violence to have a temporary guardianship of the estate created to manage the economic affairs of the victim of violence. During the same legislative session, another bill created some emergency intervention procedures for deceased persons. These types of procedures were only to be used in those situations where the circumstances required court intervention before an estate administration was opened. Emergency intervention procedures allow access, under court supervision, to funds for funeral services in addition to creating a method of securing a deceased person's property in an apartment or storage facility. There is also a decedent's administration provision wherein a person whose death can only be shown by circumstantial evidence to address the situation where a person is believed to be deceased. Whether by violence or otherwise. In 1995, the temporary guardianship for persons missing as a result of violence was moved to the guardianship provisions of the Texas Probate Code. This transfer was unartfully made, as the new provisions left out the language concerning "violence" as the reason for the person to be missing. The new provision also mandated service of process on the "missing person" to be made before such a guardianship could be created and the temporary nature of such guardianships was deleted. The new provisions also conflicted with the mandatory attorney ad litem requirement of the guardianship code and had conflicting provisions regarding findings by the probate court. PURPOSE The purpose of this bill is to reconfigure the approach to guardianships for persons missing, whether by violence or other means. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1 amends Section 601(17), Texas Probate Code, to delete the current definition of "missing person" and to substitute a new definition by reference to Human Resources Code Sec. 79.001. SECTION 2 amends Section 682 of the Probate Code to remove references to the missing person guardianship by deleting the subsection providing for the contents of the application of a missing person guardianship in current Subdivision (15) and renumbering subsequent subdivisions. SECTION 3 amends Section 684(b) of the Probate Code to remove references to the missing person guardianship by deleting the subsection providing for the findings required before a court appoints a guardian for a missing person. SECTION 4 amends Section 64.001(a) of the Civil Practice and Remedies Code to allow a court to appoint a receiver for a missing person and makes conforming changes. SECTION 5 adds new Sections 79.017 and 79.018 to the Human Resources Code. New Sec. 79.017, Receivership for Certain Missing Persons, provides a detailed procedure for the apppointment of a receivership for a missing person. New Sec. 79.018, Notice and Citation for Receivership for Certain Missing Persons, provides for notice of a receivership application to parties. SECTION 6. Effective date. Application of act. SECTION 7. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE Section 1 in the original bill redefined "missing person" in Sec. 601(17) of the Probate Code; Section 1 in the substitute deletes the definition of "missing person" and substitutes a definition found in Human Resources Code Sec. 79.001. Section 2 in the original bill added Section 676A to the Texas Probate Code, allowing the court to appoint a guardian of the estate of a missing person if the court finds the appointment will be beneficial to the missing person; this does not appear in the substitute. Section 2 in the substitute amends Section 682 of the Probate Code to remove references to the missing person guardianship by deleting the subsection providing for the contents of the application of a missing person guardianship; this did not appear in the original bill. Section 3 in the original bill amended Section 684(b), Texas Probate Code, by adding to the findings required by the judge before appointing a guardian of the estate of a missing person the finding that the person being appointed guardian has not been under investigation in connection with the missing person's disappearance. Section 3 in the substitute amends the same section, but removes references to the missing person guardianship. Section 4 in the substitute amends Section 64.001(a) of the Civil Practice and Remedies Code to allow a court to appoint a receiver for a missing person; this was not in the original bill. Section 5 in the substitute adds new Sections 79.017 and 79.018 to the Human Resources Code; this was not in the original bill. Section 4 in the original bill becomes Section 6 in the substitute and was changed to refer to "a proceeding for receivership of the estate of a missing person" instead of "a guardianship proceeding." Section 5 in the original bill becomes Section 7 in the substitute.