1-1 By: Naishtat (Senate Sponsor - Wentworth) H.B. No. 3343
1-2 (In the Senate - Received from the House May 11, 1999;
1-3 May 12, 1999, read first time and referred to Committee on
1-4 Jurisprudence; May 14, 1999, reported favorably by the following
1-5 vote: Yeas 4, Nays 0; May 14, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to receiverships for certain missing persons.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 64.001(a), Civil Practice and Remedies
1-11 Code, is amended to read as follows:
1-12 (a) A court of competent jurisdiction may appoint a
1-13 receiver:
1-14 (1) in an action by a vendor to vacate a fraudulent
1-15 purchase of property;
1-16 (2) in an action by a creditor to subject any property
1-17 or fund to his claim;
1-18 (3) in an action between partners or others jointly
1-19 owning or interested in any property or fund;
1-20 (4) in an action by a mortgagee for the foreclosure of
1-21 the mortgage and sale of the mortgaged property;
1-22 (5) for a corporation that is insolvent, is in
1-23 imminent danger of insolvency, has been dissolved, or has forfeited
1-24 its corporate rights; or
1-25 (6) [for a missing person as prescribed by Chapter 79,
1-26 Human Resources Code; or]
1-27 [(7)] in any other case in which a receiver may be
1-28 appointed under the rules of equity.
1-29 SECTION 2. Section 64.001, Civil Practice and Remedies Code,
1-30 is amended by adding Subsection (d) to read as follows:
1-31 (d) A court having family law jurisdiction or a probate
1-32 court located in the county in which a missing person, as defined
1-33 by Article 62.001, Code of Criminal Procedure, resides or, if the
1-34 missing person is not a resident of this state, located in the
1-35 county in which the majority of the property of a missing person's
1-36 estate is located may, on the court's own motion or on the
1-37 application of an interested party, appoint a receiver for the
1-38 missing person if:
1-39 (1) it appears that the estate of the missing person
1-40 is in danger of injury, loss, or waste; and
1-41 (2) the estate of the missing person is in need of a
1-42 representative.
1-43 SECTION 3. Section 64.001, Civil Practice and Remedies Code,
1-44 is amended by adding Subsection (d) to read as follows:
1-45 (d) A court having family law jurisdiction or a probate
1-46 court located in the county in which a missing person, as defined
1-47 by Article 63.001, Code of Criminal Procedure, resides or, if the
1-48 missing person is not a resident of this state, located in the
1-49 county in which the majority of the property of a missing person's
1-50 estate is located may, on the court's own motion or on the
1-51 application of an interested party, appoint a receiver for the
1-52 missing person if:
1-53 (1) it appears that the estate of the missing person
1-54 is in danger of injury, loss, or waste; and
1-55 (2) the estate of the missing person is in need of a
1-56 representative.
1-57 SECTION 4. Section 64.034, Civil Practice and Remedies Code,
1-58 is amended to read as follows:
1-59 Sec. 64.034. INVESTMENTS, LOANS, AND CONTRIBUTIONS
1-60 [INVESTMENT] OF FUNDS. (a) Except as provided by Subsection (b),
1-61 on [On] an order of the court to which all parties consent, a
1-62 receiver may invest for interest any funds that he holds.
1-63 (b) A receiver appointed for a missing person under Section
1-64 64.001(d) who has on hand an amount of money belonging to the
2-1 missing person in excess of the amount needed for current
2-2 necessities and expenses may, on order of the court, invest, lend,
2-3 or contribute all or a part of the excess amount in the manner
2-4 provided by Subpart L, Part 4, Chapter XIII, Texas Probate Code,
2-5 for investments, loans, or contributions by guardians. The
2-6 receiver shall report to the court all transactions involving the
2-7 excess amount in the manner that reports are required of guardians.
2-8 SECTION 5. Chapter 64, Civil Practice and Remedies Code, is
2-9 amended by adding Subchapter G to read as follows:
2-10 SUBCHAPTER G. RECEIVER FOR CERTAIN MISSING PERSONS
2-11 Sec. 64.101. NOTICE AND CITATION FOR RECEIVERSHIP FOR
2-12 CERTAIN MISSING PERSONS. (a) On the filing of an application for
2-13 the appointment of a receiver for a missing person under Section
2-14 64.001(d), the court clerk shall issue a citation that states that
2-15 the application for receivership was filed and includes:
2-16 (1) the name of the missing person; and
2-17 (2) the name of the applicant.
2-18 (b) The citation must cite all persons interested in the
2-19 welfare of the missing person to appear at the time and place
2-20 stated in the notice for purposes of contesting the application.
2-21 The citation shall be posted.
2-22 (c) The citation shall be published in a newspaper of
2-23 general circulation:
2-24 (1) once in the county in which the missing person
2-25 resides; and
2-26 (2) once in each county in which property of the
2-27 missing person's estate is located.
2-28 Sec. 64.102. PROCEEDING TO APPOINT RECEIVER. (a) The court
2-29 shall appoint an attorney ad litem to represent the interests of a
2-30 missing person at a proceeding to appoint a receiver for the
2-31 missing person under Section 64.001(d). To be eligible for
2-32 appointment as an attorney ad litem under this subsection, a person
2-33 must be certified in the same manner and to the same extent as a
2-34 person who is appointed as an attorney ad litem for a proposed ward
2-35 under Section 646, Texas Probate Code.
2-36 (b) The court may appoint a guardian ad litem for a missing
2-37 person if the court determines that the appointment would be in the
2-38 best interest of the missing person. A guardian ad litem appointed
2-39 under this subsection is an officer of the court. The guardian ad
2-40 litem shall protect the missing person in a manner that will enable
2-41 the court to determine the appropriate action to take in relation
2-42 to the best interest of the missing person.
2-43 (c) An attorney ad litem or a guardian ad litem appointed
2-44 under this section is entitled to reasonable compensation for
2-45 services in an amount set by the court to be charged as costs in
2-46 the proceeding.
2-47 (d) The cost of a proceeding instituted for the appointment
2-48 of a receiver for a missing person under Section 64.001(d) shall be
2-49 paid from the receivership, if a receivership is created. If the
2-50 court denies an application for appointment of a receiver, the
2-51 applicant shall pay the costs of the proceeding.
2-52 (e) The term of a receivership for a missing person granted
2-53 under Section 64.001(d) may not exceed six months unless, before
2-54 the expiration of the term and for good cause shown, the court
2-55 extends the receivership for another term not to exceed six months.
2-56 Sec. 64.103. BOND. The bond under Section 64.023 required
2-57 to be executed by a receiver for a missing person appointed under
2-58 Section 64.001(d) must be set in an amount the court considers
2-59 necessary to protect the estate of the missing person.
2-60 Sec. 64.104. EXPENDITURES BY RECEIVER. If, during the
2-61 receivership for a missing person under Section 64.001(d), the
2-62 needs of the spouse or dependent children of the missing person
2-63 require the use of the income or corpus of the estate for
2-64 education, clothing, or subsistence, the court may, with or without
2-65 application, by order entered in the minutes of the court,
2-66 appropriate an amount of the income or corpus sufficient for that
2-67 purpose. The income or corpus shall be used by the receiver to pay
2-68 claims for education, clothing, or subsistence that are presented
2-69 to the court and approved and ordered to be paid.
3-1 Sec. 64.105. RECEIVER'S EXPENSES, ACCOUNT, AND COMPENSATION.
3-2 (a) All necessary expenses incurred by a receiver appointed under
3-3 Section 64.001(d) for a missing person in administering the
3-4 property shall be reported to the court at intervals not longer
3-5 than six months in length, as required by the court, and shall be
3-6 reported in an annual report filed not later than the 60th day
3-7 after the end of each calendar year if the court extends the
3-8 receivership in accordance with Section 64.102(e). The report
3-9 shall be made to the court by a sworn statement of account,
3-10 including a report of:
3-11 (1) the receiver's acts;
3-12 (2) the condition of the property;
3-13 (3) the status of the threatened danger to the
3-14 property; and
3-15 (4) the progress made toward abatement of the
3-16 threatened danger.
3-17 (b) If the court is satisfied that the statement is correct
3-18 and reasonable in all respects, the court shall promptly by order
3-19 approve the report and authorize the reimbursement of the receiver
3-20 from the funds under the receiver's control.
3-21 (c) For official services rendered, the receiver is entitled
3-22 to be compensated in the same manner and amount as is provided by
3-23 Chapter XIII, Texas Probate Code, for similar services rendered by
3-24 guardians of estates.
3-25 Sec. 64.106. CLOSING RECEIVERSHIP. When the threatened
3-26 danger has abated and the estate of a missing person for whom a
3-27 receiver was appointed under Section 64.001(d) is no longer liable
3-28 to injury, loss, or waste for the lack of a representative or when
3-29 the receivership terminates under Section 64.102(e), whichever
3-30 occurs earlier, the receiver shall:
3-31 (1) report to the court; and
3-32 (2) file with the clerk a full and final sworn account
3-33 of:
3-34 (A) all property received by the receiver;
3-35 (B) all sums paid out;
3-36 (C) all acts performed by the receiver with
3-37 respect to the property; and
3-38 (D) all property remaining in the receiver's
3-39 control.
3-40 Sec. 64.107. ACTION OF COURT. (a) If, on hearing the report
3-41 and account required under Section 64.106, the court is satisfied
3-42 that the danger of injury, loss, or waste has abated and that the
3-43 report and account are correct, the court shall render an order
3-44 finding that the danger has abated and that the report and account
3-45 are correct and shall direct the receiver to deliver the property
3-46 to the person from whom the receiver took possession as receiver,
3-47 to the missing person, or to another person the court finds to be
3-48 entitled to possession of the estate. The person to whom the
3-49 property is delivered shall execute and file with the clerk an
3-50 appropriate receipt for the property delivered.
3-51 (b) The order of the court shall discharge the receiver and
3-52 the receiver's sureties.
3-53 (c) If the court is not satisfied that the danger has
3-54 abated, or is not satisfied with the report and account, the court
3-55 shall render an order continuing the receivership in effect until
3-56 the court is satisfied that the danger has abated and that the
3-57 report and account are correct, subject to the limitation
3-58 prescribed by Section 64.102(e) for the extension of a
3-59 receivership.
3-60 Sec. 64.108. RECORDATION OF PROCEEDINGS. All orders, bonds,
3-61 reports, accounts, and notices in the receivership proceedings
3-62 under this subchapter shall be recorded in the minutes of the
3-63 court.
3-64 SECTION 6. Section 6.501(b), Family Code, is amended to read
3-65 as follows:
3-66 (b) A temporary restraining order under this subchapter may
3-67 not include a provision:
3-68 (1) the subject of which is a requirement,
3-69 appointment, award, or other order listed in Section 64.104, Civil
4-1 Practice and Remedies [886A, Texas Probate] Code; or
4-2 (2) that:
4-3 (A) excludes a spouse from occupancy of the
4-4 residence where that spouse is living except as provided in a
4-5 protective order made in accordance with Title 4;
4-6 (B) prohibits a party from spending funds for
4-7 reasonable and necessary living expenses; or
4-8 (C) prohibits a party from engaging in acts
4-9 reasonable and necessary to conduct that party's usual business and
4-10 occupation.
4-11 SECTION 7. Sections 886, 886A, 886B, 886C, 886D, 886E, and
4-12 886F, Texas Probate Code, are repealed.
4-13 SECTION 8. Sections 79.017 and 79.018, Human Resources Code,
4-14 as added by Chapter 1376, Acts of the 75th Legislature, Regular
4-15 Session, 1997, and editorially redesignated as Articles 62.023 and
4-16 62.024, Code of Criminal Procedure, are repealed.
4-17 SECTION 9. (a) This Act takes effect September 1, 1999.
4-18 (b) Section 2 of this Act takes effect only if the Act of
4-19 the 76th Legislature, Regular Session, 1999, relating to
4-20 nonsubstantive additions to and corrections in enacted codes, does
4-21 not take effect.
4-22 (c) Section 3 of this Act takes effect only if the Act of
4-23 the 76th Legislature, Regular Session, 1999, relating to
4-24 nonsubstantive additions to and corrections in enacted codes, takes
4-25 effect.
4-26 SECTION 10. The importance of this legislation and the
4-27 crowded condition of the calendars in both houses create an
4-28 emergency and an imperative public necessity that the
4-29 constitutional rule requiring bills to be read on three several
4-30 days in each house be suspended, and this rule is hereby suspended.
4-31 * * * * *