1-1     By:  Thompson (Senate Sponsor - Harris)               H.B. No. 2003

 1-2           (In the Senate - Received from the House April 27, 1997;

 1-3     April 29, 1997, read first time and referred to Committee on

 1-4     Jurisprudence; May 6, 1997, reported favorably by the following

 1-5     vote:  Yeas 6, Nays 0; May 6, 1997, sent to printer.)

 1-6                            A BILL TO BE ENTITLED

 1-7                                   AN ACT

 1-8     relating to emergency intervention proceedings concerning a

 1-9     decedent's estate.

1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-11           SECTION 1.  Part 2, Chapter XII, Texas Probate Code, as added

1-12     by Chapter 712, Acts of the 73rd Legislature, Regular Session,

1-13     1993, is transferred and redesignated as Part 3, Chapter V, Texas

1-14     Probate Code, and is renumbered and amended to read as follows:

1-15              PART 3 [2].  EMERGENCY INTERVENTION PROCEEDINGS;

1-16                         FUNERAL AND BURIAL EXPENSES

1-17           Sec. 108 [520].  TIME TO FILE EMERGENCY APPLICATION.  An

1-18     applicant may file an application requesting emergency intervention

1-19     by a court exercising probate jurisdiction to provide for the

1-20     payment of funeral and burial expenses or the protection and

1-21     storage of personal property owned by the decedent that was located

1-22     in rented accommodations on the date of the decedent's death with

1-23     the clerk of the court in the county of domicile of the decedent or

1-24     the county in which the rental accommodations that contain the

1-25     decedent's personal property are located.  The application must be

1-26     filed not earlier than the third day after the date of the

1-27     decedent's death and not later than the 90th day after the date of

1-28     the decedent's death.

1-29           Sec. 109 [521].  ELIGIBLE APPLICANTS FOR EMERGENCY

1-30     INTERVENTION.  A person qualified to serve as an administrator

1-31     under Section 77 of this  code may file an emergency intervention

1-32     application.

1-33           Sec. 110 [521A].  REQUIREMENTS FOR EMERGENCY INTERVENTION.

1-34     An applicant may file an emergency application with the court under

1-35     Section 108 [520] of this code only if an application has not been

1-36     filed and is not pending under Section 81, 82, 137, or 145 of this

1-37     code and the applicant:

1-38                 (1)  needs to obtain funds for the funeral and burial

1-39     of the decedent; or

1-40                 (2)  needs to gain access to rental accommodations in

1-41     which the decedent's personal property is located and the applicant

1-42     has been denied access to those accommodations.

1-43           Sec. 111 [522].  CONTENTS OF EMERGENCY INTERVENTION

1-44     APPLICATION FOR FUNERAL AND BURIAL EXPENSES.  (a)  An application

1-45     for emergency intervention to obtain funds needed for a decedent's

1-46     funeral and burial expenses must be sworn and must contain:

1-47                 (1)  the name, address, social security number, and

1-48     interest of the applicant;

1-49                 (2)  the facts showing an immediate necessity for the

1-50     issuance of an emergency intervention order under this section by

1-51     the court;

1-52                 (3)  the date of the decedent's death, place of death,

1-53     decedent's residential address, and the name and address of the

1-54     funeral home holding the decedent's remains;

1-55                 (4)  any known or ascertainable heirs and devisees of

1-56     the decedent and the reason:

1-57                       (A)  the heirs and devisees cannot be contacted;

1-58     or

1-59                       (B)  the heirs and devisees have refused to

1-60     assist in the decedent's burial;

1-61                 (5)  a description of funeral and burial procedures

1-62     necessary and a statement from the funeral home that contains a

1-63     detailed and itemized description of the cost of the funeral and

1-64     burial procedures; and

 2-1                 (6)  the name and address of an individual, entity, or

 2-2     financial institution, including an employer, that is in possession

 2-3     of any funds of or due to the decedent, and related account numbers

 2-4     and balances, if known by the applicant.

 2-5           (b)  The application shall also state whether there are any

 2-6     written instructions from the decedent relating to the type and

 2-7     manner of funeral or burial the decedent would like to have.  The

 2-8     applicant shall attach the instructions, if available, to the

 2-9     application and shall fully comply with the instructions.  If

2-10     written instructions do not exist, the applicant may not permit the

2-11     decedent's remains to be cremated unless the applicant obtains the

2-12     court's permission to cremate the decedent's remains.

2-13           Sec. 112 [522A].  CONTENTS FOR EMERGENCY INTERVENTION

2-14     APPLICATION FOR ACCESS TO PERSONAL PROPERTY.  An application for

2-15     emergency intervention to gain access to rental accommodations of a

2-16     decedent at the time of the decedent's death that contain the

2-17     decedent's personal property must be sworn and must contain:

2-18                 (1)  the name, address, social security number, and

2-19     interest of the applicant;

2-20                 (2)  the facts showing an immediate necessity for the

2-21     issuance of an emergency intervention order by the court;

2-22                 (3)  the date and place of the decedent's death, the

2-23     decedent's residential address, and the name and address of the

2-24     funeral home holding the decedent's remains;

2-25                 (4)  any known or ascertainable heirs and devisees of

2-26     the decedent and the reason:

2-27                       (A)  the heirs and devisees cannot be contacted;

2-28     or

2-29                       (B)  the heirs and devisees have refused to

2-30     assist in the protection of the decedent's personal property;

2-31                 (5)  the type and location of the decedent's personal

2-32     property and the name of the person in possession of the property;

2-33     and

2-34                 (6)  the name and address of the owner or manager of

2-35     the decedent's rental accommodations and whether access to the

2-36     accommodations is necessary.

2-37           Sec. 113 [523].  ORDERS OF EMERGENCY INTERVENTION.  (a)  If

2-38     the court determines on review of an application filed under

2-39     Section 108 [520] of this code that emergency intervention is

2-40     necessary to obtain funds needed for a decedent's funeral and

2-41     burial expenses, the court may order funds of the decedent held by

2-42     an employer, individual, or financial institution to be paid

2-43     directly to a funeral home only for reasonable and necessary

2-44     attorney's fees for the attorney who obtained the order granted

2-45     under this section, for court costs for obtaining the order, and

2-46     for funeral and burial expenses not to exceed $5,000 as ordered by

2-47     the court to provide the decedent with a reasonable, dignified, and

2-48     appropriate funeral and burial.

2-49           (b)  If the court determines on review of an application

2-50     filed under Section 108 [520] of this code that emergency

2-51     intervention is necessary to gain access to accommodations rented

2-52     by the decedent at the time of the decedent's death that contain

2-53     the decedent's personal property, the court may order one or more

2-54     of the following:

2-55                 (1)  the owner or agent of the rental accommodations

2-56     shall grant the applicant access to the accommodations at a

2-57     reasonable time and in the presence of the owner or agent;

2-58                 (2)  the applicant and owner or agent of the rental

2-59     accommodations shall jointly prepare and file with the court a list

2-60     that generally describes the decedent's property found at the

2-61     premises;

2-62                 (3)  the applicant or the owner or agent of the rental

2-63     accommodations may remove and store the decedent's property at

2-64     another location until claimed by the decedent's heirs; [or]

2-65                 (4)  the applicant has only the powers that are

2-66     specifically stated in the order and that are necessary to protect

2-67     the decedent's property that is the subject of the application; or

2-68                 (5)  funds of the decedent held by an employer,

2-69     individual, or financial institution to be paid to the applicant

 3-1     for reasonable and necessary attorney's fees and court costs for

 3-2     obtaining the order.

 3-3           (c)  The court clerk may issue certified copies of an

 3-4     emergency intervention order on request of the applicant only until

 3-5     the 90th day after the date the order was signed or the date a

 3-6     personal representative is qualified, whichever occurs first.

 3-7           (d)  A person who is furnished with a certified copy of an

 3-8     emergency intervention order within the period described by

 3-9     Subsection (c) of this section is not personally liable for the

3-10     person's actions that are taken in accordance with and in reliance

3-11     on the order.

3-12           Sec. 114 [524].  TERMINATION.  (a)  All power and authority

3-13     of an applicant under an emergency intervention order cease to be

3-14     effective or enforceable on the 90th day after the date the order

3-15     was issued or on the date a personal representative is qualified,

3-16     whichever occurs first.

3-17           (b)  If a personal representative has not been appointed when

3-18     an emergency intervention order issued under Section 113(b)

3-19     [523(b)] of this code ceases to be effective, a person who is in

3-20     possession of the decedent's personal property that is the subject

3-21     of the order, without incurring civil liability, may:

3-22                 (1)  release the property to the decedent's heirs; or

3-23                 (2)  dispose of the property under Subchapter C,

3-24     Chapter 54, Property Code, or Section 7.209 or 7.210, Business &

3-25     Commerce Code.

3-26           Sec. 115 [525].  LIMITATION ON RIGHT OF SURVIVING SPOUSE TO

3-27     CONTROL DECEASED'S BURIAL OR CREMATION.  (a)  An application under

3-28     this section may be filed by:

3-29                 (1)  the executor of the deceased's will; or

3-30                 (2)  the next of kin of the deceased, the nearest in

3-31     order of descent first, and so on, and next of kin includes the

3-32     deceased's descendants who legally adopted the deceased or who have

3-33     been legally adopted by the deceased.

3-34           (b)  An application under this section must be under oath and

3-35     must establish:

3-36                 (1)  whether the deceased died intestate or testate;

3-37                 (2)  the surviving spouse is alleged to be a principal

3-38     or accomplice in a wilful act which resulted in the death of the

3-39     deceased; and

3-40                 (3)  good cause exists to limit the right of the

3-41     surviving spouse to control the burial and interment or cremation

3-42     of the deceased spouse.

3-43           (c)  After notice and hearing, without regard to whether the

3-44     deceased died intestate or testate, a court may limit the right of

3-45     a surviving spouse, whether or not the spouse has been designated

3-46     by the deceased's will as the executor of a deceased spouse's

3-47     estate, to control the burial and interment or cremation of the

3-48     deceased spouse if the court finds that there is good cause to

3-49     believe that the surviving spouse is the principal or an accomplice

3-50     in a wilful act which resulted in the death of the deceased spouse.

3-51           (d)  If the court limits the surviving spouse's right of

3-52     control, as provided by Subsection (c), the court shall designate

3-53     and authorize a person to make burial or cremation arrangements.

3-54           SECTION 2.  This Act takes effect September 1, 1997.  The

3-55     changes in law made by this Act apply only to an application that

3-56     is filed on or after the effective date of this Act.  An

3-57     application that is filed before the effective date of this Act is

3-58     governed by the law in effect at the time the application was

3-59     filed, and the former law is continued in effect for that purpose.

3-60           SECTION 3.  The importance of this legislation and the

3-61     crowded condition of the calendars in both houses create an

3-62     emergency and an imperative public necessity that the

3-63     constitutional rule requiring bills to be read on three several

3-64     days in each house be suspended, and this rule is hereby suspended.

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