By Thompson                                           H.B. No. 1851
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to guardianships for incapacitated persons.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1.  Section 745(c), Texas Probate Code, is amended to
 1-5     read as follows:
 1-6           (c)  When the estate of a minor ward consists only of cash or
 1-7     cash equivalents in an amount of $50,000 [$25,000] or less, the
 1-8     guardianship of the estate may be terminated and the assets paid to
 1-9     the county clerk of the county in  which the guardianship
1-10     proceeding is pending, and the clerk shall manage the funds as
1-11     provided by Section 887 of this code.
1-12           SECTION 2.  Subpart D, Part 4, Chapter XIII, Texas Probate
1-13     Code, is amended by adding Sections 760A and 760B to read as
1-14     follows:
1-15           Sec. 760A.  CHANGE OF RESIDENT AGENT.  (a)  A guardian may
1-16     change its resident agent to accept service of process in a
1-17     guardianship proceeding  or other matter relating to the
1-18     guardianship by filing a statement of the change entitled
1-19     "Designation of Successor Resident Agent" with the court in which
1-20     the guardianship proceeding is pending.  The statement must contain
1-21     the names and addresses of the:
1-22                 (1)  guardian;
1-23                 (2)  resident agent; and
1-24                 (3)  successor resident agent.
 2-1           (b)  The designation of a successor resident agent made in a
 2-2     statement filed under this section takes effect on the date on
 2-3     which the  statement is filed with the court.
 2-4           Sec. 760B.  RESIGNATION OF RESIDENT AGENT.  (a)   A resident
 2-5     agent of a guardian may resign as the resident agent by giving
 2-6     notice to the guardian and filing with the court in which the
 2-7     guardianship proceeding is pending a statement entitled
 2-8     "Resignation of Resident Agent" that:
 2-9                 (1)  contains the name of the guardian;
2-10                 (2)  contains the address of the guardian most recently
2-11     known by the resident agent;
2-12                 (3)  states that notice of the resignation has been
2-13     given to the guardian and that the guardian does not have a
2-14     resident agent; and
2-15                 (4)  contains the date on which the notice of the
2-16     resignation was given to the guardian.
2-17           (b)  The resident agent shall send, by certified mail, return
2-18     receipt requested, a copy of a resignation statement filed under
2-19     Subsection (a)  of this section to:
2-20                 (1)  the guardian at the address most recently known by
2-21     the agent; and
2-22                 (2)  each party in the case or the party's attorney or
2-23     other designated representative of record.
2-24           (c)  The resignation of a resident agent takes effect on the
2-25     date on which the court enters an order accepting the agent's
2-26     resignation.  A court may not enter an order accepting the agent's
2-27     resignation unless the agent complies with the requirements of this
 3-1     section.
 3-2           SECTION 3.  Section 761(a), Texas Probate Code, is amended to
 3-3     read as follows:
 3-4           (a)  The court, on its own motion or on motion of any
 3-5     interested person, including the ward, and without notice, may
 3-6     remove any guardian, appointed under this chapter, who:
 3-7                 (1)  neglects to qualify in the manner and time
 3-8     required by law;
 3-9                 (2)  fails to return within 90 days after
3-10     qualification, unless the time is extended by order of the court,
3-11     an inventory of the property of the guardianship estate and list of
3-12     claims that have come to the guardian's knowledge;
3-13                 (3)  having been required to give a new bond, fails to
3-14     do so within the time prescribed;
3-15                 (4)  absents himself from the state for a period of
3-16     three months at one time without permission of the court, or
3-17     removes from the state;
3-18                 (5)  cannot be served with notices or other processes
3-19     because of the fact that:
3-20                       (A)  the guardian's whereabouts are unknown;
3-21                       (B)  [, or because] the guardian is eluding
3-22     service; or
3-23                       (C)  the guardian is a nonresident of this state
3-24     who does not have a resident agent to accept service of process in
3-25     any guardianship proceeding or other matter relating to the
3-26     guardianship;
3-27                 (6)  has misapplied, embezzled, or removed from the
 4-1     state, or is about to misapply, embezzle, or remove from the state,
 4-2     all or any part of the property committed to the guardian's care;
 4-3     or
 4-4                 (7)  has cruelly treated a ward, or has neglected to
 4-5     educate or maintain the ward as liberally as the means of the ward
 4-6     and the condition of the ward's estate permit.
 4-7           SECTION 4.  Subpart M, Part 4, Chapter XIII, Texas Probate
 4-8     Code, is amended by adding Section 865A to read as follows:
 4-9           Sec. 865A.  INSPECTION OF CERTAIN INSTRUMENT FOR ESTATE
4-10     PLANNING PURPOSES.  (a)  On the filing of an application under
4-11     Section 865 of this code, the guardian of the ward's estate may
4-12     apply to the court for an order to seek an in camera inspection of
4-13     a true copy of a will, codicil, trust, or other estate planning
4-14     instrument of the ward as a means of obtaining access to the
4-15     instrument for purposes of establishing an estate plan under
4-16     Section 865 of this code.
4-17           (b)  An application filed under this section must:
4-18                 (1)  be sworn to by the guardian;
4-19                 (2)  list all of the instruments requested for
4-20     inspection; and
4-21                 (3)  state one or more reasons supporting the necessity
4-22     to inspect each requested instrument for the purpose described by
4-23     Subsection (a) of this section.
4-24           (c)  A person who files an application under this section
4-25     shall send a copy of the application to:
4-26                 (1)  each person who has custody of an instrument
4-27     listed in the application;
 5-1                 (2)  the ward's spouse;
 5-2                 (3)  the ward's dependents;
 5-3                 (4)  all devisees under a will, trust, or other
 5-4     beneficial instrument relating to the ward's estate; and
 5-5                 (5)  any other person as directed by the court.
 5-6           (d)  Notice required by Subsection (c) of this section must
 5-7     be delivered by certified mail to a person described by Subsection
 5-8     (c)(2), (3), (4), or (5) of this section and by registered or
 5-9     certified mail to a person described by Subsection (c)(1) of this
5-10     section.   After the 10th day after the date on which the applicant
5-11     complies with the notice requirement, the applicant may request
5-12     that a hearing be held on the application.  Notice of the date,
5-13     time, and place of the hearing must be given by the applicant to
5-14     each person described by Subsection (c)(1) of this section when the
5-15     court sets a date for a hearing on the application.
5-16           (e)  After the conclusion of a hearing on the application and
5-17     on a finding that there is good cause for an in camera inspection
5-18     of a requested instrument, the court shall direct the person that
5-19     has custody of the requested will, codicil, trust, or other estate
5-20     planning instrument to deliver a true copy of the instrument to the
5-21     court for in camera inspection only.  After conducting an in camera
5-22     review of the instrument, the court, if good cause exists, shall
5-23     release all or part of the instrument to the applicant only for the
5-24     purpose described by Subsection (a) of this section.
5-25           (f)  The court may appoint a guardian ad litem for the ward
5-26     or an interested party at any stage of the proceedings if it is
5-27     considered advisable for the protection of the ward or the
 6-1     interested party.
 6-2           (g)  An attorney does not violate the attorney-client
 6-3     privilege solely by complying with a court order to release an
 6-4     instrument subject to this section.  Notwithstanding Section
 6-5     22.004, Government Code, the supreme court may not amend or adopt
 6-6     rules in conflict with this subsection.
 6-7           SECTION 5.  The change in law made by this Act to Section
 6-8     745(c), Texas Probate Code, applies only to an application to close
 6-9     a guardianship filed on or after the effective date of this Act.
6-10     An application to close a guardianship filed before the effective
6-11     date of this Act is governed by the law in effect on the date on
6-12     which the application was filed, and the former law is continued in
6-13     effect for that purpose.
6-14           SECTION 6.  Sections 760A and 760B, Texas Probate Code, as
6-15     added by this Act, apply only to a change in designation of or a
6-16     resignation of a resident agent made on or after the effective date
6-17     of this Act.  A change in designation of or the resignation of a
6-18     resident agent made before the effective date of this Act is
6-19     governed by the law in effect when the change in designation of or
6-20     the resignation of the resident agent occurred, and the former law
6-21     is continued in effect for that purpose.
6-22           SECTION 7.  The changes in law made by this Act to Section
6-23     761, Texas Probate Code, apply only to a motion for the removal of
6-24     a guardian made or filed on or after the effective date of this
6-25     Act.  A motion for the removal of a guardian made or filed before
6-26     the effective date of this Act is governed by the law in effect on
6-27     the date the motion was made or filed, and the former law is
 7-1     continued in effect for that purpose.
 7-2           SECTION 8.  This Act takes effect September 1, 1999.
 7-3           SECTION 9.  The importance of this legislation and the
 7-4     crowded condition of the calendars in both houses create an
 7-5     emergency and an imperative public necessity that the
 7-6     constitutional rule requiring bills to be read on three several
 7-7     days in each house be suspended, and this rule is hereby suspended.