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.

         _______________________________     _______________________________

             President of the Senate              Speaker of the House

               I certify that H.B. No. 1317 was passed by the House on May

         10, 1997, by a non-record vote.

                                             _______________________________

                                                 Chief Clerk of the House

               I certify that H.B. No. 1317 was passed by the Senate on May

         26, 1997, by the following vote:  Yeas 31, Nays 0.

                                             _______________________________

                                                 Secretary of the Senate

         APPROVED:  _____________________

                            Date

                    _____________________

                          Governor