1-1 By: Naishtat (Senate Sponsor - Wentworth) H.B. No. 1317
1-2 (In the Senate - Received from the House May 12, 1997;
1-3 May 13, 1997, read first time and referred to Committee on
1-4 Jurisprudence; May 17, 1997, reported favorably by the following
1-5 vote: Yeas 7, Nays 0; May 17, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the guardianship of missing persons and receiverships
1-9 for the estate of certain missing persons.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 601(17), Texas Probate Code, is amended
1-12 to read as follows:
1-13 (17) "Missing person" has the meaning assigned by
1-14 Section 79.001, Human Resources Code [means:]
1-15 [(A) a person reported by an executive
1-16 department of the United States to be a prisoner of war or missing
1-17 in the course of public service to the United States; or]
1-18 [(B) a person reported missing and there is good
1-19 cause, as shown by a police or other law enforcement agency report
1-20 or a peace officer's testimony in court, to believe that the person
1-21 is missing].
1-22 SECTION 2. Section 682, Texas Probate Code, is amended to
1-23 read as follows:
1-24 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
1-25 proceeding for the appointment of a guardian by filing a written
1-26 application in a court having jurisdiction and venue. The
1-27 application must be sworn to by the applicant and state:
1-28 (1) the name, sex, date of birth, and address of the
1-29 proposed ward;
1-30 (2) the name, relationship, and address of the person
1-31 the applicant desires to have appointed as guardian;
1-32 (3) the social security number of the proposed ward
1-33 and of the person the applicant desires to have appointed as
1-34 guardian;
1-35 (4) whether guardianship of the person or estate, or
1-36 both, is sought;
1-37 (5) the nature and degree of the alleged incapacity,
1-38 the specific areas of protection and assistance requested, and the
1-39 limitation of rights requested to be included in the court's order
1-40 of appointment;
1-41 (6) the facts requiring that a guardian be appointed
1-42 and the interest of the applicant in the appointment;
1-43 (7) the nature and description of any guardianship of
1-44 any kind existing for the proposed ward in this or any other state;
1-45 (8) the name and address of any person or institution
1-46 having the care and custody of the proposed ward;
1-47 (9) the approximate value and description of the
1-48 proposed ward's property, including any compensation, pension,
1-49 insurance, or allowance to which the proposed ward may be entitled;
1-50 (10) the requested term, if known, of the
1-51 guardianship;
1-52 (11) the name and address of any person whom the
1-53 applicant knows to hold a power of attorney signed by the proposed
1-54 ward and a description of the type of power of attorney;
1-55 (12) if the proposed ward is a minor, the names of the
1-56 parents and next of kin of the proposed ward and whether either or
1-57 both of the parents are deceased;
1-58 (13) if the proposed ward is a minor, whether the
1-59 minor was the subject of a legal or conservatorship proceeding
1-60 within the preceding two-year period and, if so, the court
1-61 involved, the nature of the proceeding, and the final disposition,
1-62 if any, of the proceeding;
1-63 (14) if the proposed ward is 60 years of age or older,
1-64 the names and addresses, to the best of the applicant's knowledge,
2-1 of the proposed ward's spouse, siblings, and children, or, if there
2-2 is no spouse, sibling, or child, the names and addresses of the
2-3 proposed ward's next of kin;
2-4 (15) [if the proposed ward is a missing person:]
2-5 [(A) the last known residence of the missing
2-6 person;]
2-7 [(B) the name of the executive department of the
2-8 United States reporting the proposed ward as a missing person, the
2-9 date of the report, and the last known whereabouts of the missing
2-10 person; and]
2-11 [(C) the names and addresses of the missing
2-12 person's spouse, children, and parents, or, if there is no spouse,
2-13 child, or parent, the names and addresses of the missing person's
2-14 next of kin;]
2-15 [(16)] facts showing that the court has venue over the
2-16 proceeding; and
2-17 (16) [(17)] if applicable, that the person whom the
2-18 applicant desires to have appointed as a guardian is a private
2-19 professional guardian who has complied with the requirements of
2-20 Section 697 of this code.
2-21 SECTION 3. Section 684(b), Texas Probate Code, is amended to
2-22 read as follows:
2-23 (b) Before appointing a guardian, the court must find by a
2-24 preponderance of the evidence that:
2-25 (1) the court has venue of the case;
2-26 (2) the person to be appointed guardian is eligible to
2-27 act as guardian and is entitled to appointment, or, if no eligible
2-28 person entitled to appointment applies, the person appointed is a
2-29 proper person to act as guardian;
2-30 (3) if a guardian is appointed for a minor, the
2-31 guardianship is not created for the primary purpose of enabling the
2-32 minor to establish residency for enrollment in a school or school
2-33 district for which the minor is not otherwise eligible for
2-34 enrollment; and
2-35 (4) [if the guardian is appointed for a missing
2-36 person, the person was reported missing by an executive department
2-37 of the United States at least six months earlier than the date of
2-38 the filing of the application and currently is missing; and]
2-39 [(5)] the proposed ward is totally without capacity as
2-40 provided by this code to care for himself or herself and to manage
2-41 the individual's property, or the proposed ward lacks the capacity
2-42 to do some, but not all, of the tasks necessary to care for himself
2-43 or herself or to manage the individual's property.
2-44 SECTION 4. Section 64.001(a), Civil Practice and Remedies
2-45 Code, is amended to read as follows:
2-46 (a) A court of competent jurisdiction may appoint a
2-47 receiver:
2-48 (1) in an action by a vendor to vacate a fraudulent
2-49 purchase of property;
2-50 (2) in an action by a creditor to subject any property
2-51 or fund to his claim;
2-52 (3) in an action between partners or others jointly
2-53 owning or interested in any property or fund;
2-54 (4) in an action by a mortgagee for the foreclosure of
2-55 the mortgage and sale of the mortgaged property;
2-56 (5) for a corporation that is insolvent, is in
2-57 imminent danger of insolvency, has been dissolved, or has forfeited
2-58 its corporate rights; [or]
2-59 (6) for a missing person as prescribed by Chapter 79,
2-60 Human Resources Code; or
2-61 (7) in any other case in which a receiver may be
2-62 appointed under the rules of equity.
2-63 SECTION 5. Chapter 79, Human Resources Code, is amended by
2-64 adding Sections 79.017 and 79.018 to read as follows:
2-65 Sec. 79.017. RECEIVERSHIP FOR CERTAIN MISSING PERSONS. (a)
2-66 Pursuant to Chapter 64, Civil Practice and Remedies Code, and on
2-67 application filed with the court, a court of competent
2-68 jurisdiction, after notice and hearing, may appoint a receiver for
2-69 a missing person if the court determines the missing person's
3-1 estate is in danger of being lost, removed, or materially harmed.
3-2 (b) A proceeding instituted under this section must be
3-3 brought in the county in which the missing person resides, or, if
3-4 the missing person is not a resident of this state, the county in
3-5 which the majority of the property of the missing person's estate
3-6 is located.
3-7 (c) Notice of a proceeding shall be issued and served as
3-8 provided by Section 79.018.
3-9 (d) The court shall appoint an attorney ad litem to
3-10 represent the interests of the missing person. To be eligible for
3-11 appointment as an attorney ad litem under this section, a person
3-12 must be certified in the same manner and to the same extent as a
3-13 person who is appointed as an attorney ad litem for a proposed ward
3-14 under Section 646, Texas Probate Code.
3-15 (e) The court may appoint a guardian ad litem for the
3-16 missing person if the court determines that the appointment would
3-17 be in the best interests of the missing person. A guardian ad
3-18 litem appointed under this section is an officer of the court. The
3-19 guardian ad litem shall protect the missing person in a manner that
3-20 will enable the court to determine the appropriate action to take
3-21 in relation to the best interests of the missing person.
3-22 (f) An attorney ad litem or a guardian ad litem appointed
3-23 under this section is entitled to reasonable compensation for
3-24 services in an amount set by the court to be charged as costs in
3-25 the proceeding.
3-26 (g) The cost of a proceeding instituted under this section
3-27 shall be paid from the receivership, if a receivership is created.
3-28 If the court denies an application for appointment of a receiver,
3-29 the applicant shall pay the costs of the proceeding.
3-30 (h) The term of a receivership granted under this section
3-31 may not exceed six months, unless, before the expiration of the
3-32 term and for good cause shown, the court extends the receivership
3-33 for another term not to exceed six months.
3-34 Sec. 79.018. NOTICE AND CITATION FOR RECEIVERSHIP FOR
3-35 CERTAIN MISSING PERSONS. (a) On the filing of an application
3-36 under Section 79.017, the court clerk shall issue a citation that
3-37 states that the application for receivership was filed and
3-38 includes:
3-39 (1) the name of the missing person; and
3-40 (2) the name of the applicant.
3-41 (b) The citation must cite all persons interested in the
3-42 welfare of the missing person to appear at the time and place
3-43 stated in the notice for purposes of contesting the application.
3-44 The citation shall be posted.
3-45 (c) The citation shall be published in a newspaper of
3-46 general circulation:
3-47 (1) once in the county in which the missing person
3-48 resides; and
3-49 (2) once in each county in which property of the
3-50 missing person's estate is located.
3-51 SECTION 6. This Act takes effect September 1, 1997, and
3-52 applies only to a proceeding for receivership of the estate of a
3-53 missing person that is instituted on or after that date. A
3-54 proceeding for receivership of the estate of a missing person that
3-55 is instituted before the effective date of this Act is governed by
3-56 the law in effect on the date on which the proceeding was
3-57 instituted, and the former law is continued in effect for that
3-58 purpose.
3-59 SECTION 7. The importance of this legislation and the
3-60 crowded condition of the calendars in both houses create an
3-61 emergency and an imperative public necessity that the
3-62 constitutional rule requiring bills to be read on three several
3-63 days in each house be suspended, and this rule is hereby suspended.
3-64 * * * * *