76R8292 KLA-D
By Naishtat H.B. No. 3343
Substitute the following for H.B. No. 3343:
By Hartnett C.S.H.B. No. 3343
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to receiverships for certain missing persons.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 64.001(a), Civil Practice and Remedies
1-5 Code, is amended to read as follows:
1-6 (a) A court of competent jurisdiction may appoint a
1-7 receiver:
1-8 (1) in an action by a vendor to vacate a fraudulent
1-9 purchase of property;
1-10 (2) in an action by a creditor to subject any property
1-11 or fund to his claim;
1-12 (3) in an action between partners or others jointly
1-13 owning or interested in any property or fund;
1-14 (4) in an action by a mortgagee for the foreclosure of
1-15 the mortgage and sale of the mortgaged property;
1-16 (5) for a corporation that is insolvent, is in
1-17 imminent danger of insolvency, has been dissolved, or has forfeited
1-18 its corporate rights; or
1-19 (6) [for a missing person as prescribed by Chapter 79,
1-20 Human Resources Code; or]
1-21 [(7)] in any other case in which a receiver may be
1-22 appointed under the rules of equity.
1-23 SECTION 2. Section 64.001, Civil Practice and Remedies Code,
1-24 is amended by adding Subsection (d) to read as follows:
2-1 (d) A court having family law jurisdiction or a probate
2-2 court located in the county in which a missing person, as defined
2-3 by Article 62.001, Code of Criminal Procedure, resides or, if the
2-4 missing person is not a resident of this state, located in the
2-5 county in which the majority of the property of a missing person's
2-6 estate is located may, on the court's own motion or on the
2-7 application of an interested party, appoint a receiver for the
2-8 missing person if:
2-9 (1) it appears that the estate of the missing person
2-10 is in danger of injury, loss, or waste; and
2-11 (2) the estate of the missing person is in need of a
2-12 representative.
2-13 SECTION 3. Section 64.001, Civil Practice and Remedies Code,
2-14 is amended by adding Subsection (d) to read as follows:
2-15 (d) A court having family law jurisdiction or a probate
2-16 court located in the county in which a missing person, as defined
2-17 by Article 63.001, Code of Criminal Procedure, resides or, if the
2-18 missing person is not a resident of this state, located in the
2-19 county in which the majority of the property of a missing person's
2-20 estate is located may, on the court's own motion or on the
2-21 application of an interested party, appoint a receiver for the
2-22 missing person if:
2-23 (1) it appears that the estate of the missing person
2-24 is in danger of injury, loss, or waste; and
2-25 (2) the estate of the missing person is in need of a
2-26 representative.
2-27 SECTION 4. Section 64.034, Civil Practice and Remedies Code,
3-1 is amended to read as follows:
3-2 Sec. 64.034. INVESTMENTS, LOANS, AND CONTRIBUTIONS
3-3 [INVESTMENT] OF FUNDS. (a) Except as provided by Subsection (b),
3-4 on [On] an order of the court to which all parties consent, a
3-5 receiver may invest for interest any funds that he holds.
3-6 (b) A receiver appointed for a missing person under Section
3-7 64.001(d) who has on hand an amount of money belonging to the
3-8 missing person in excess of the amount needed for current
3-9 necessities and expenses may, on order of the court, invest, lend,
3-10 or contribute all or a part of the excess amount in the manner
3-11 provided by Subpart L, Part 4, Chapter XIII, Texas Probate Code,
3-12 for investments, loans, or contributions by guardians. The
3-13 receiver shall report to the court all transactions involving the
3-14 excess amount in the manner that reports are required of guardians.
3-15 SECTION 5. Chapter 64, Civil Practice and Remedies Code, is
3-16 amended by adding Subchapter G to read as follows:
3-17 SUBCHAPTER G. RECEIVER FOR CERTAIN MISSING PERSONS
3-18 Sec. 64.101. NOTICE AND CITATION FOR RECEIVERSHIP FOR
3-19 CERTAIN MISSING PERSONS. (a) On the filing of an application for
3-20 the appointment of a receiver for a missing person under Section
3-21 64.001(d), the court clerk shall issue a citation that states that
3-22 the application for receivership was filed and includes:
3-23 (1) the name of the missing person; and
3-24 (2) the name of the applicant.
3-25 (b) The citation must cite all persons interested in the
3-26 welfare of the missing person to appear at the time and place
3-27 stated in the notice for purposes of contesting the application.
4-1 The citation shall be posted.
4-2 (c) The citation shall be published in a newspaper of
4-3 general circulation:
4-4 (1) once in the county in which the missing person
4-5 resides; and
4-6 (2) once in each county in which property of the
4-7 missing person's estate is located.
4-8 Sec. 64.102. PROCEEDING TO APPOINT RECEIVER. (a) The court
4-9 shall appoint an attorney ad litem to represent the interests of a
4-10 missing person at a proceeding to appoint a receiver for the
4-11 missing person under Section 64.001(d). To be eligible for
4-12 appointment as an attorney ad litem under this subsection, a person
4-13 must be certified in the same manner and to the same extent as a
4-14 person who is appointed as an attorney ad litem for a proposed ward
4-15 under Section 646, Texas Probate Code.
4-16 (b) The court may appoint a guardian ad litem for a missing
4-17 person if the court determines that the appointment would be in the
4-18 best interest of the missing person. A guardian ad litem appointed
4-19 under this subsection is an officer of the court. The guardian ad
4-20 litem shall protect the missing person in a manner that will enable
4-21 the court to determine the appropriate action to take in relation
4-22 to the best interest of the missing person.
4-23 (c) An attorney ad litem or a guardian ad litem appointed
4-24 under this section is entitled to reasonable compensation for
4-25 services in an amount set by the court to be charged as costs in
4-26 the proceeding.
4-27 (d) The cost of a proceeding instituted for the appointment
5-1 of a receiver for a missing person under Section 64.001(d) shall be
5-2 paid from the receivership, if a receivership is created. If the
5-3 court denies an application for appointment of a receiver, the
5-4 applicant shall pay the costs of the proceeding.
5-5 (e) The term of a receivership for a missing person granted
5-6 under Section 64.001(d) may not exceed six months unless, before
5-7 the expiration of the term and for good cause shown, the court
5-8 extends the receivership for another term not to exceed six months.
5-9 Sec. 64.103. BOND. The bond under Section 64.023 required
5-10 to be executed by a receiver for a missing person appointed under
5-11 Section 64.001(d) must be set in an amount the court considers
5-12 necessary to protect the estate of the missing person.
5-13 Sec. 64.104. EXPENDITURES BY RECEIVER. If, during the
5-14 receivership for a missing person under Section 64.001(d), the
5-15 needs of the spouse or dependent children of the missing person
5-16 require the use of the income or corpus of the estate for
5-17 education, clothing, or subsistence, the court may, with or without
5-18 application, by order entered in the minutes of the court,
5-19 appropriate an amount of the income or corpus sufficient for that
5-20 purpose. The income or corpus shall be used by the receiver to pay
5-21 claims for education, clothing, or subsistence that are presented
5-22 to the court and approved and ordered to be paid.
5-23 Sec. 64.105. RECEIVER'S EXPENSES, ACCOUNT, AND COMPENSATION.
5-24 (a) All necessary expenses incurred by a receiver appointed under
5-25 Section 64.001(d) for a missing person in administering the
5-26 property shall be reported to the court at intervals not longer
5-27 than six months in length, as required by the court, and shall be
6-1 reported in an annual report filed not later than the 60th day
6-2 after the end of each calendar year if the court extends the
6-3 receivership in accordance with Section 64.102(e). The report
6-4 shall be made to the court by a sworn statement of account,
6-5 including a report of:
6-6 (1) the receiver's acts;
6-7 (2) the condition of the property;
6-8 (3) the status of the threatened danger to the
6-9 property; and
6-10 (4) the progress made toward abatement of the
6-11 threatened danger.
6-12 (b) If the court is satisfied that the statement is correct
6-13 and reasonable in all respects, the court shall promptly by order
6-14 approve the report and authorize the reimbursement of the receiver
6-15 from the funds under the receiver's control.
6-16 (c) For official services rendered, the receiver is entitled
6-17 to be compensated in the same manner and amount as is provided by
6-18 Chapter XIII, Texas Probate Code, for similar services rendered by
6-19 guardians of estates.
6-20 Sec. 64.106. CLOSING RECEIVERSHIP. When the threatened
6-21 danger has abated and the estate of a missing person for whom a
6-22 receiver was appointed under Section 64.001(d) is no longer liable
6-23 to injury, loss, or waste for the lack of a representative or when
6-24 the receivership terminates under Section 64.102(e), whichever
6-25 occurs earlier, the receiver shall:
6-26 (1) report to the court; and
6-27 (2) file with the clerk a full and final sworn account
7-1 of:
7-2 (A) all property received by the receiver;
7-3 (B) all sums paid out;
7-4 (C) all acts performed by the receiver with
7-5 respect to the property; and
7-6 (D) all property remaining in the receiver's
7-7 control.
7-8 Sec. 64.107. ACTION OF COURT. (a) If, on hearing the report
7-9 and account required under Section 64.106, the court is satisfied
7-10 that the danger of injury, loss, or waste has abated and that the
7-11 report and account are correct, the court shall render an order
7-12 finding that the danger has abated and that the report and account
7-13 are correct and shall direct the receiver to deliver the property
7-14 to the person from whom the receiver took possession as receiver,
7-15 to the missing person, or to another person the court finds to be
7-16 entitled to possession of the estate. The person to whom the
7-17 property is delivered shall execute and file with the clerk an
7-18 appropriate receipt for the property delivered.
7-19 (b) The order of the court shall discharge the receiver and
7-20 the receiver's sureties.
7-21 (c) If the court is not satisfied that the danger has
7-22 abated, or is not satisfied with the report and account, the court
7-23 shall render an order continuing the receivership in effect until
7-24 the court is satisfied that the danger has abated and that the
7-25 report and account are correct, subject to the limitation
7-26 prescribed by Section 64.102(e) for the extension of a
7-27 receivership.
8-1 Sec. 64.108. RECORDATION OF PROCEEDINGS. All orders, bonds,
8-2 reports, accounts, and notices in the receivership proceedings
8-3 under this subchapter shall be recorded in the minutes of the
8-4 court.
8-5 SECTION 6. Section 6.501(b), Family Code, is amended to read
8-6 as follows:
8-7 (b) A temporary restraining order under this subchapter may
8-8 not include a provision:
8-9 (1) the subject of which is a requirement,
8-10 appointment, award, or other order listed in Section 64.104, Civil
8-11 Practice and Remedies [886A, Texas Probate] Code; or
8-12 (2) that:
8-13 (A) excludes a spouse from occupancy of the
8-14 residence where that spouse is living except as provided in a
8-15 protective order made in accordance with Title 4;
8-16 (B) prohibits a party from spending funds for
8-17 reasonable and necessary living expenses; or
8-18 (C) prohibits a party from engaging in acts
8-19 reasonable and necessary to conduct that party's usual business and
8-20 occupation.
8-21 SECTION 7. Sections 886, 886A, 886B, 886C, 886D, 886E, and
8-22 886F, Texas Probate Code, are repealed.
8-23 SECTION 8. Sections 79.017 and 79.018, Human Resources Code,
8-24 as added by Chapter 1376, Acts of the 75th Legislature, Regular
8-25 Session, 1997, and editorially redesignated as Articles 62.023 and
8-26 62.024, Code of Criminal Procedure, are repealed.
8-27 SECTION 9. (a) This Act takes effect September 1, 1999.
9-1 (b) Section 2 of this Act takes effect only if the Act of
9-2 the 76th Legislature, Regular Session, 1999, relating to
9-3 nonsubstantive additions to and corrections in enacted codes, does
9-4 not take effect.
9-5 (c) Section 3 of this Act takes effect only if the Act of
9-6 the 76th Legislature, Regular Session, 1999, relating to
9-7 nonsubstantive additions to and corrections in enacted codes, takes
9-8 effect.
9-9 SECTION 10. The importance of this legislation and the
9-10 crowded condition of the calendars in both houses create an
9-11 emergency and an imperative public necessity that the
9-12 constitutional rule requiring bills to be read on three several
9-13 days in each house be suspended, and this rule is hereby suspended.