SRC-JBJ H.B. 3144 77(R)   BILL ANALYSIS


Senate Research Center   H.B. 3144
77R11115 CLG-DBy: Hartnett (Bernsen)
Jurisprudence
5/4/2001
Engrossed


DIGEST AND PURPOSE 

Under current Texas law, a probate court is prohibited from acting on an
application for guardianship until all adult siblings and all adult
children of the proposed ward are served with notice.  This process may
take any number of months, but the validity of the guardianship may be
affected if all such persons are not served with notice.  A court is
authorized to appoint a physician to examine the proposed ward if the court
determines that this is necessary, but the court is not required to have a
hearing for this purpose.  Current law does not place a time constraint on
a claim made on a ward's estate by an unsecured creditor, though similar
provisions exist regarding a decedent's estate.  There are caps on the
amount of money of an estate under which the guardianship of the estate may
be terminated, creditors paid, or an interest of the estate may be sold.
H.B. 3144 modifies provisions relating to guardianship of incapacitated
persons, wards, or former wards to address certain concerns raised by these
issues. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 606(c), Texas Probate Code, to require all
applications, petitions and motions regarding guardianships, mental health
matters, rather than mental illness matters, or other matters addressed by
this chapter, in those counties in which there is a statutory probate
court, county court at law, or other statutory court exercising the
jurisdiction of a probate court, to be filed and heard in those courts and
the constitutional county court, rather than in the district courts, unless
otherwise provided by the legislature, and the judge of a county court is
authorized to hear any of those matters sitting for the judge of any other
county court.  

SECTION 2.  Amends Sections 633(c), (d), and (f), Texas Probate Code, to
require the sheriff or other officer to personally serve citation to appear
and answer the application for guardianship on certain persons under
certain conditions.  Requires the court clerk, at the applicant's request,
or the applicant to mail a copy of the notice by registered or certified
mail, return receipt requested, to certain persons under certain
conditions.  Makes a conforming change. 

SECTION 3.  Amends Section 687(b), Texas Probate Code, to require the court
to make its determination with respect to the necessity for a physician's
examination of the proposed ward at a hearing held for that purpose.
Requires the applicant, not later than the fourth day before the date of
the hearing, to give to the proposed ward and the proposed ward's attorney
ad litem written notice specifying the purpose and the date and time of the
hearing.  

SECTION 4.  Amends Section 694G, Texas Probate Code, to require the order
completely restoring the ward's capacity, if the court finds that a ward is
no longer an incapacitated person, to contain findings of fact and specify
certain information, including that the guardian is required to immediately
settle and close the guardianship in accordance with this chapter, rather
than Section 745 of this code and deliver all of the remaining guardianship
estate to the ward. 
 
SECTION 5.  Amends Section 745(c), Texas Probate Code, to authorize the
guardian of the estate, when the estate of a minor ward consists only of
cash or cash equivalents in an amount of $100,000, rather than $25,000, or
less, to be terminated and the assets paid to the county clerk of the
county in which the guardianship proceeding is pending. 

SECTION 6.  Amends Section 784, Texas Probate Code, by adding Subsection
(e), to  authorize the guardian of the estate, in the notice required by
Subsection (b) of this section, to expressly state in the notice that the
unsecured creditor must present a claim not later than the 120th day after
the date on which the unsecured creditor receives the notice or the claim
is barred, if the claim is not barred by the general statutes of
limitation.  Requires the notice under this subsection to include certain
information. 

SECTION 7.  Amends Section 786(a), Texas Probate Code, to provide that a
claim of an unsecured creditor for money that is not presented within the
time prescribed by the notice of presentment permitted by Section 784(e) is
barred.  

SECTION 8.  Amends Sections 887(a) and (e), Texas Probate Code, to
authorize the debtor, when a resident person who is a minor or other
incapacitated person, or the former ward of a guardianship terminated under
Part 4C who are referred to in this section as "creditor," are without a
legal guardian of the person's estate, and the person is entitled to money
in an amount that is $100,000, rather than $50,000, or less, the right to
which is liquidated and is uncontested in any pending lawsuit, to pay the
money to the county clerk of the county in which the creditor resides to
the account of the creditor, giving the creditor's name, the creditor's
social security identification number, the nature of the creditor's
disability, and, if the creditor is a minor, the minor's age, and the
creditor's post-office address.  Makes a conforming change. 

SECTION 9.  Amends Section 889(a), Texas Probate Code, to authorize a
natural or adoptive parent, or the managing conservator, of a minor who is
not a ward, when a minor has an interest in real or personal property and
the net value of the interest does not exceed $100,000, rather than
$50,000, to apply to the court for an order to sell the minor's interest in
the property, rather than the real or personal property, without being
appointed guardian.  

SECTION 10.  Amends Section 890(b), Texas Probate Code, to make a
conforming change. 

SECTION 11.  Makes application of the changes in law made by Sections 2, 3,
5, 6, 7, and 10 of this Act prospective. 
 
SECTION 12.  Makes application of the change in law made by Section 4 of
this Act prospective. 
 
SECTION 13.  Makes application of the change in law made by Section 9 of
this Act prospective. 
 
SECTION 14.  Effective date: September 1, 2001.