By Naishtat H.B. No. 1317
75R9730 BEM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the guardianship of missing persons and receiverships
1-3 for the estate of certain missing persons.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 601(17), Texas Probate Code, is amended
1-6 to read as follows:
1-7 (17) "Missing person" has the meaning assigned by
1-8 Section 79.001, Human Resources Code [means:]
1-9 [(A) a person reported by an executive
1-10 department of the United States to be a prisoner of war or missing
1-11 in the course of public service to the United States; or]
1-12 [(B) a person reported missing and there is good
1-13 cause, as shown by a police or other law enforcement agency report
1-14 or a peace officer's testimony in court, to believe that the person
1-15 is missing].
1-16 SECTION 2. Section 682, Texas Probate Code, is amended to
1-17 read as follows:
1-18 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
1-19 proceeding for the appointment of a guardian by filing a written
1-20 application in a court having jurisdiction and venue. The
1-21 application must be sworn to by the applicant and state:
1-22 (1) the name, sex, date of birth, and address of the
1-23 proposed ward;
1-24 (2) the name, relationship, and address of the person
2-1 the applicant desires to have appointed as guardian;
2-2 (3) the social security number of the proposed ward
2-3 and of the person the applicant desires to have appointed as
2-4 guardian;
2-5 (4) whether guardianship of the person or estate, or
2-6 both, is sought;
2-7 (5) the nature and degree of the alleged incapacity,
2-8 the specific areas of protection and assistance requested, and the
2-9 limitation of rights requested to be included in the court's order
2-10 of appointment;
2-11 (6) the facts requiring that a guardian be appointed
2-12 and the interest of the applicant in the appointment;
2-13 (7) the nature and description of any guardianship of
2-14 any kind existing for the proposed ward in this or any other state;
2-15 (8) the name and address of any person or institution
2-16 having the care and custody of the proposed ward;
2-17 (9) the approximate value and description of the
2-18 proposed ward's property, including any compensation, pension,
2-19 insurance, or allowance to which the proposed ward may be entitled;
2-20 (10) the requested term, if known, of the
2-21 guardianship;
2-22 (11) the name and address of any person whom the
2-23 applicant knows to hold a power of attorney signed by the proposed
2-24 ward and a description of the type of power of attorney;
2-25 (12) if the proposed ward is a minor, the names of the
2-26 parents and next of kin of the proposed ward and whether either or
2-27 both of the parents are deceased;
3-1 (13) if the proposed ward is a minor, whether the
3-2 minor was the subject of a legal or conservatorship proceeding
3-3 within the preceding two-year period and, if so, the court
3-4 involved, the nature of the proceeding, and the final disposition,
3-5 if any, of the proceeding;
3-6 (14) if the proposed ward is 60 years of age or older,
3-7 the names and addresses, to the best of the applicant's knowledge,
3-8 of the proposed ward's spouse, siblings, and children, or, if there
3-9 is no spouse, sibling, or child, the names and addresses of the
3-10 proposed ward's next of kin;
3-11 (15) [if the proposed ward is a missing person:]
3-12 [(A) the last known residence of the missing
3-13 person;]
3-14 [(B) the name of the executive department of the
3-15 United States reporting the proposed ward as a missing person, the
3-16 date of the report, and the last known whereabouts of the missing
3-17 person; and]
3-18 [(C) the names and addresses of the missing
3-19 person's spouse, children, and parents, or, if there is no spouse,
3-20 child, or parent, the names and addresses of the missing person's
3-21 next of kin;]
3-22 [(16)] facts showing that the court has venue over the
3-23 proceeding; and
3-24 (16) [(17)] if applicable, that the person whom the
3-25 applicant desires to have appointed as a guardian is a private
3-26 professional guardian who has complied with the requirements of
3-27 Section 697 of this code.
4-1 SECTION 3. Section 684(b), Texas Probate Code, is amended to
4-2 read as follows:
4-3 (b) Before appointing a guardian, the court must find by a
4-4 preponderance of the evidence that:
4-5 (1) the court has venue of the case;
4-6 (2) the person to be appointed guardian is eligible to
4-7 act as guardian and is entitled to appointment, or, if no eligible
4-8 person entitled to appointment applies, the person appointed is a
4-9 proper person to act as guardian;
4-10 (3) if a guardian is appointed for a minor, the
4-11 guardianship is not created for the primary purpose of enabling the
4-12 minor to establish residency for enrollment in a school or school
4-13 district for which the minor is not otherwise eligible for
4-14 enrollment; and
4-15 (4) [if the guardian is appointed for a missing
4-16 person, the person was reported missing by an executive department
4-17 of the United States at least six months earlier than the date of
4-18 the filing of the application and currently is missing; and]
4-19 [(5)] the proposed ward is totally without capacity as
4-20 provided by this code to care for himself or herself and to manage
4-21 the individual's property, or the proposed ward lacks the capacity
4-22 to do some, but not all, of the tasks necessary to care for himself
4-23 or herself or to manage the individual's property.
4-24 SECTION 4. Section 64.001(a), Civil Practice and Remedies
4-25 Code, is amended to read as follows:
4-26 (a) A court of competent jurisdiction may appoint a
4-27 receiver:
5-1 (1) in an action by a vendor to vacate a fraudulent
5-2 purchase of property;
5-3 (2) in an action by a creditor to subject any property
5-4 or fund to his claim;
5-5 (3) in an action between partners or others jointly
5-6 owning or interested in any property or fund;
5-7 (4) in an action by a mortgagee for the foreclosure of
5-8 the mortgage and sale of the mortgaged property;
5-9 (5) for a corporation that is insolvent, is in
5-10 imminent danger of insolvency, has been dissolved, or has forfeited
5-11 its corporate rights; [or]
5-12 (6) for a missing person as prescribed by Chapter 79,
5-13 Human Resources Code; or
5-14 (7) in any other case in which a receiver may be
5-15 appointed under the rules of equity.
5-16 SECTION 5. Chapter 79, Human Resources Code, is amended by
5-17 adding Sections 79.017 and 79.018 to read as follows:
5-18 Sec. 79.017. RECEIVERSHIP FOR CERTAIN MISSING PERSONS. (a)
5-19 Pursuant to Chapter 64, Civil Practice and Remedies Code, and on
5-20 application filed with the court, a court of competent
5-21 jurisdiction, after notice and hearing, may appoint a receiver for
5-22 a missing person if the court determines the missing person's
5-23 estate is in danger of being lost, removed, or materially harmed.
5-24 (b) A proceeding instituted under this section must be
5-25 brought in the county in which the missing person resides, or, if
5-26 the missing person is not a resident of this state, the county in
5-27 which the majority of the property of the missing person's estate
6-1 is located.
6-2 (c) Notice of a proceeding shall be issued and served as
6-3 provided by Section 79.018.
6-4 (d) The court shall appoint an attorney ad litem to
6-5 represent the interests of the missing person. To be eligible for
6-6 appointment as an attorney ad litem under this section, a person
6-7 must be certified in the same manner and to the same extent as a
6-8 person who is appointed as an attorney ad litem for a proposed ward
6-9 under Section 646, Texas Probate Code.
6-10 (e) The court may appoint a guardian ad litem for the
6-11 missing person if the court determines that the appointment would
6-12 be in the best interests of the missing person. A guardian ad
6-13 litem appointed under this section is an officer of the court. The
6-14 guardian ad litem shall protect the missing person in a manner that
6-15 will enable the court to determine the appropriate action to take
6-16 in relation to the best interests of the missing person.
6-17 (f) An attorney ad litem or a guardian ad litem appointed
6-18 under this section is entitled to reasonable compensation for
6-19 services in an amount set by the court to be charged as costs in
6-20 the proceeding.
6-21 (g) The cost of a proceeding instituted under this section
6-22 shall be paid from the receivership, if a receivership is created.
6-23 If the court denies an application for appointment of a receiver,
6-24 the applicant shall pay the costs of the proceeding.
6-25 (h) The term of a receivership granted under this section
6-26 may not exceed six months, unless, before the expiration of the
6-27 term and for good cause shown, the court extends the receivership
7-1 for another term not to exceed six months.
7-2 Sec. 79.018. NOTICE AND CITATION FOR RECEIVERSHIP FOR
7-3 CERTAIN MISSING PERSONS. (a) On the filing of an application
7-4 under Section 79.017, the court clerk shall issue a citation that
7-5 states that the application for receivership was filed and
7-6 includes:
7-7 (1) the name of the missing person; and
7-8 (2) the name of the applicant.
7-9 (b) The citation must cite all persons interested in the
7-10 welfare of the missing person to appear at the time and place
7-11 stated in the notice for purposes of contesting the application.
7-12 The citation shall be posted.
7-13 (c) The citation shall be published in a newspaper of
7-14 general circulation:
7-15 (1) once in the county in which the missing person
7-16 resides; and
7-17 (2) once in each county in which property of the
7-18 missing person's estate is located.
7-19 SECTION 6. This Act takes effect September 1, 1997, and
7-20 applies only to a proceeding for receivership of the estate of a
7-21 missing person that is instituted on or after that date. A
7-22 proceeding for receivership of the estate of a missing person that
7-23 is instituted before the effective date of this Act is governed by
7-24 the law in effect on the date on which the proceeding was
7-25 instituted, and the former law is continued in effect for that
7-26 purpose.
7-27 SECTION 7. The importance of this legislation and the
8-1 crowded condition of the calendars in both houses create an
8-2 emergency and an imperative public necessity that the
8-3 constitutional rule requiring bills to be read on three several
8-4 days in each house be suspended, and this rule is hereby suspended.