1-1 AN ACT
1-2 relating to incapacitated persons, wards, and former wards.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 606(c), Texas Probate Code, is amended to
1-5 read as follows:
1-6 (c) In those counties in which there is a statutory probate
1-7 court, county court at law, or other statutory court exercising the
1-8 jurisdiction of a probate court, all applications, petitions and
1-9 motions regarding guardianships, mental health [illness] matters,
1-10 or other matters addressed by this chapter shall be filed and heard
1-11 in those courts and the constitutional county court, rather than in
1-12 the district courts, unless otherwise provided by the legislature,
1-13 and the judge of a county court may hear any of those matters
1-14 sitting for the judge of any other county court. Except as
1-15 provided by Section 608 of this code, in contested guardianship
1-16 matters, the judge of the constitutional county court may on the
1-17 judge's own motion, and shall on the motion of a party to the
1-18 proceeding, transfer the proceeding to the statutory probate court,
1-19 county court at law, or other statutory court exercising the
1-20 jurisdiction of a probate court. The court to which the proceeding
1-21 is transferred may hear the proceeding as if originally filed in
1-22 the court.
1-23 SECTION 2. Sections 633(c), (d), and (f), Texas Probate Code,
1-24 are amended to read as follows:
2-1 (c) The sheriff or other officer shall personally serve
2-2 citation to appear and answer the application for guardianship on:
2-3 (1) a proposed ward who is 12 years of age or older;
2-4 (2) the parents of a proposed ward if the whereabouts
2-5 of the parents are known or can be reasonably ascertained;
2-6 (3) any court-appointed conservator or person having
2-7 control of the care and welfare of the proposed ward; [and]
2-8 (4) a proposed ward's spouse if the whereabouts of the
2-9 spouse are known or can be reasonably ascertained; and
2-10 (5) [(6)] the person named in the application to be
2-11 appointed guardian, if that person is not the applicant.
2-12 (d) The court clerk, at the applicant's request, or the
2-13 applicant shall mail a copy of the notice by registered or
2-14 certified mail, return receipt requested, to the following persons
2-15 if their whereabouts are known or can be reasonably ascertained:
2-16 (1) [all adult siblings and] all adult children of a
2-17 proposed ward;
2-18 (2) all adult siblings of a proposed ward;
2-19 (3) the administrator of a nursing home facility or
2-20 similar facility in which the proposed ward resides;
2-21 (4) [(3)] the operator of a residential facility in
2-22 which the proposed ward resides;
2-23 (5) [(4)] a person whom the applicant knows to hold a
2-24 power of attorney signed by the proposed ward;
2-25 (6) [(5)] a person designated to serve as guardian of
2-26 the proposed ward by a written declaration under Section 679 of
2-27 this code, if the applicant knows of the existence of the
3-1 declaration;
3-2 (7) [(6)] a person designated to serve as guardian of
3-3 the proposed ward in the probated will of the last surviving parent
3-4 of the ward; and
3-5 (8) [(7)] a person designated to serve as guardian of
3-6 the proposed ward by a written declaration of the proposed ward's
3-7 last surviving parent, if the declarant is deceased and the
3-8 applicant knows of the existence of the declaration.
3-9 (f) The court may not act on an application for the creation
3-10 of a guardianship until the Monday following the expiration of the
3-11 10-day period beginning the date service of notice and citation has
3-12 been made as provided by Subsections (b), (c), and (d)(1) of this
3-13 section. The validity of a guardianship created under this chapter
3-14 is not affected by the failure of the clerk or applicant to comply
3-15 with the requirements of Subsections (d)(2)-(8) [(d)(2)-(7)] of
3-16 this section.
3-17 SECTION 3. Section 687(b), Texas Probate Code, is amended to
3-18 read as follows:
3-19 (b) Except as provided by Subsection (c) of this section, if
3-20 the court determines it is necessary, the court may appoint the
3-21 necessary physicians to examine the proposed ward. The court must
3-22 make its determination with respect to the necessity for a
3-23 physician's examination of the proposed ward at a hearing held for
3-24 that purpose. Not later than the fourth day before the date of the
3-25 hearing, the applicant shall give to the proposed ward and the
3-26 proposed ward's attorney ad litem written notice specifying the
3-27 purpose and the date and time of the hearing. A physician who
4-1 examines the proposed ward, other than a physician or psychologist
4-2 who examines the proposed ward under Subsection (c) of this
4-3 section, shall make available to an attorney ad litem appointed to
4-4 represent the proposed ward, for inspection, a written letter or
4-5 certificate from the physician that complies with the requirements
4-6 of Subsection (a) of this section.
4-7 SECTION 4. Section 694G, Texas Probate Code, is amended to
4-8 read as follows:
4-9 Sec. 694G. ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY.
4-10 If the court finds that a ward is no longer an incapacitated
4-11 person, the order completely restoring the ward's capacity must
4-12 contain findings of fact and specify:
4-13 (1) the information required by Section 694J of this
4-14 code;
4-15 (2) that the ward is no longer an incapacitated
4-16 person;
4-17 (3) that there is no further need for a guardianship
4-18 of the person or estate of the ward;
4-19 (4) that the guardian is required to:
4-20 (A) immediately settle and close the
4-21 guardianship in accordance with [Section 745 of] this chapter
4-22 [code]; and
4-23 (B) deliver all of the remaining guardianship
4-24 estate to the ward; and
4-25 (5) that the clerk shall revoke letters of
4-26 guardianship when the guardianship is finally settled and closed.
4-27 SECTION 5. Section 745(c), Texas Probate Code, is amended to
5-1 read as follows:
5-2 (c) When the estate of a minor ward consists only of cash or
5-3 cash equivalents in an amount of $100,000 [$25,000] or less, the
5-4 guardianship of the estate may be terminated and the assets paid to
5-5 the county clerk of the county in which the guardianship proceeding
5-6 is pending, and the clerk shall manage the funds as provided by
5-7 Section 887 of this code.
5-8 SECTION 6. Section 784, Texas Probate Code, is amended by
5-9 adding Subsection (e) to read as follows:
5-10 (e) In the notice required by Subsection (b) of this
5-11 section, the guardian of the estate may expressly state in the
5-12 notice that the unsecured creditor must present a claim not later
5-13 than the 120th day after the date on which the unsecured creditor
5-14 receives the notice or the claim is barred, if the claim is not
5-15 barred by the general statutes of limitation. The notice under
5-16 this subsection must include:
5-17 (1) the address to which claims may be presented; and
5-18 (2) an instruction that the claim be filed with the
5-19 clerk of the court issuing the letters of guardianship.
5-20 SECTION 7. Section 786(a), Texas Probate Code, is amended to
5-21 read as follows:
5-22 (a) A claim may be presented to the guardian of the estate
5-23 at any time when the estate is not closed and when suit on the
5-24 claim has not been barred by the general statutes of limitation. A
5-25 claim of an unsecured creditor for money that is not presented
5-26 within the time prescribed by the notice of presentment permitted
5-27 by Section 784(e) of this code is barred.
6-1 SECTION 8. Sections 887(a) and (e), Texas Probate Code, are
6-2 amended to read as follows:
6-3 (a) When a resident person who is a minor or other
6-4 incapacitated person, or the former ward of a guardianship
6-5 terminated under Subpart C, Part 4, of this code, who are referred
6-6 to in this section as "creditor," are without a legal guardian of
6-7 the person's estate, and the person is entitled to money in an
6-8 amount that is $100,000 [$50,000] or less, the right to which is
6-9 liquidated and is uncontested in any pending lawsuit, the debtor
6-10 may pay the money to the county clerk of the county in which the
6-11 creditor resides to the account of the creditor, giving the
6-12 creditor's name, the creditor's social security identification
6-13 number, the nature of the creditor's disability, and, if the
6-14 creditor is a minor, the minor's age, and the creditor's
6-15 post-office address. The receipt for the money signed by the clerk
6-16 is binding on the creditor as of the date of receipt and to the
6-17 extent of the payment. The clerk, by letter mailed to the address
6-18 given by the debtor, shall apprise the creditor of the fact that
6-19 the deposit was made. On receipt of the payment by the clerk, the
6-20 clerk shall call the receipt of the payment to the court's
6-21 attention and shall invest the money as authorized under this
6-22 chapter pursuant to court order in the name and for the account of
6-23 the minor or other person entitled to the money. Any increase,
6-24 dividend, or income from an investment made under this section
6-25 shall be credited to the account of the minor or other person
6-26 entitled to the investment. Any money that is deposited under the
6-27 terms of this section that has not been paid out shall be subject
7-1 to the provisions of this chapter not later than October 1, 1993.
7-2 (e) When a nonresident minor, a nonresident person who is
7-3 adjudged by a court of competent jurisdiction to be incapacitated,
7-4 or the former ward of a guardianship terminated under Subpart C,
7-5 Part 4, of this code who has no legal guardian qualified in this
7-6 state is entitled to money in an amount that is not more than
7-7 $100,000 [$50,000] owing as a result of transactions within this
7-8 state, the right to which is liquidated and is uncontested in any
7-9 pending lawsuit in this state, the debtor in this state may pay the
7-10 money to the guardian of the creditor who is duly qualified in the
7-11 domiciliary jurisdiction or to the county clerk of any county in
7-12 this state in which real property owned by the nonresident person
7-13 is located. If the person is not known to own any real property in
7-14 any county in this state the debtor has the right to pay the money
7-15 to the county clerk of the county of this state in which the debtor
7-16 resides. In either case, the debtor's payment to the clerk is for
7-17 the use and benefit and for the account of the nonresident
7-18 creditor. The receipt for the payment signed by the clerk that
7-19 recites the name of the creditor and the post office address of the
7-20 creditor, if known, is binding on the creditor as of the date and
7-21 to the extent of the payment. The clerk shall handle the money
7-22 paid to the clerk by the debtor in the same manner as provided for
7-23 cases of payments to the accounts of residents of this state under
7-24 Subsections (a)-(d) of this section. All applicable provisions of
7-25 Subsections (a)-(d) of this section apply to the handling and
7-26 disposition of money or any increase, dividend, or income paid to
7-27 the clerk for the use, benefit, and account of the nonresident
8-1 creditor.
8-2 SECTION 9. Section 889(a), Texas Probate Code, is amended to
8-3 read as follows:
8-4 (a) When a minor has an interest in real or personal
8-5 property and the net value of the [minor's] interest [in real or
8-6 personal property in an estate] does not exceed $100,000 [$50,000],
8-7 a natural or adoptive parent, or the managing conservator, of a
8-8 minor who is not a ward may apply to the court for an order to sell
8-9 the minor's interest in the [real or personal] property [of a minor
8-10 in an estate] without being appointed guardian. A minor may not
8-11 disaffirm a sale of property pursuant to a court order under this
8-12 section.
8-13 SECTION 10. Section 890(b), Texas Probate Code, is amended to
8-14 read as follows:
8-15 (b) When a ward has an interest in real or personal property
8-16 in an estate and the net value of the interest does not exceed
8-17 $100,000 [$50,000], the guardian may apply under oath to the court
8-18 for an order to sell the ward's interest in the property without
8-19 being appointed guardian of the estate. A ward may not disaffirm a
8-20 sale of property pursuant to a court order under this section.
8-21 SECTION 11. The changes in law made by Sections 2, 3, 5, 6,
8-22 7, and 10 of this Act apply only to an application for the
8-23 appointment of a guardian that is filed on or after the effective
8-24 date of this Act. An application for the appointment of a guardian
8-25 that is filed before the effective date of this Act is governed by
8-26 the law in effect on the date the application was filed, and the
8-27 former law is continued in effect for that purpose.
9-1 SECTION 12. The change in law made by Section 4 of this Act
9-2 applies only to an application for the restoration of a ward's
9-3 capacity that is filed on or after the effective date of this Act.
9-4 An application for the restoration of a ward's capacity that is
9-5 filed before the effective date of this Act is governed by the law
9-6 in effect on the date the application was filed, and the former law
9-7 is continued in effect for that purpose.
9-8 SECTION 13. The change in law made by Section 9 of this Act
9-9 applies only to an application for the sale of an interest in
9-10 property of a minor filed on or after the effective date of this
9-11 Act. An application for the sale of an interest in property of a
9-12 minor that is filed before the effective date of this Act is
9-13 governed by the law in effect on the date the application was
9-14 filed, and the former law is continued in effect for that purpose.
9-15 SECTION 14. This Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3144 was passed by the House on April
27, 2001, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 3144 was passed by the Senate on May
22, 2001, by the following vote: Yeas 30, Nays 0, 1 present, not
voting.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor