1-1 By: Hartnett (Senate Sponsor - Bernsen) H.B. No. 3144
1-2 (In the Senate - Received from the House April 30, 2001;
1-3 April 30, 2001, read first time and referred to Committee on
1-4 Jurisprudence; May 10, 2001, reported favorably by the following
1-5 vote: Yeas 6, Nays 0; May 10, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to incapacitated persons, wards, and former wards.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 606(c), Texas Probate Code, is amended to
1-11 read as follows:
1-12 (c) In those counties in which there is a statutory probate
1-13 court, county court at law, or other statutory court exercising the
1-14 jurisdiction of a probate court, all applications, petitions and
1-15 motions regarding guardianships, mental health [illness] matters,
1-16 or other matters addressed by this chapter shall be filed and heard
1-17 in those courts and the constitutional county court, rather than in
1-18 the district courts, unless otherwise provided by the legislature,
1-19 and the judge of a county court may hear any of those matters
1-20 sitting for the judge of any other county court. Except as
1-21 provided by Section 608 of this code, in contested guardianship
1-22 matters, the judge of the constitutional county court may on the
1-23 judge's own motion, and shall on the motion of a party to the
1-24 proceeding, transfer the proceeding to the statutory probate court,
1-25 county court at law, or other statutory court exercising the
1-26 jurisdiction of a probate court. The court to which the proceeding
1-27 is transferred may hear the proceeding as if originally filed in
1-28 the court.
1-29 SECTION 2. Sections 633(c), (d), and (f), Texas Probate Code,
1-30 are amended to read as follows:
1-31 (c) The sheriff or other officer shall personally serve
1-32 citation to appear and answer the application for guardianship on:
1-33 (1) a proposed ward who is 12 years of age or older;
1-34 (2) the parents of a proposed ward if the whereabouts
1-35 of the parents are known or can be reasonably ascertained;
1-36 (3) any court-appointed conservator or person having
1-37 control of the care and welfare of the proposed ward; [and]
1-38 (4) a proposed ward's spouse if the whereabouts of the
1-39 spouse are known or can be reasonably ascertained; and
1-40 (5) [(6)] the person named in the application to be
1-41 appointed guardian, if that person is not the applicant.
1-42 (d) The court clerk, at the applicant's request, or the
1-43 applicant shall mail a copy of the notice by registered or
1-44 certified mail, return receipt requested, to the following persons
1-45 if their whereabouts are known or can be reasonably ascertained:
1-46 (1) [all adult siblings and] all adult children of a
1-47 proposed ward;
1-48 (2) all adult siblings of a proposed ward;
1-49 (3) the administrator of a nursing home facility or
1-50 similar facility in which the proposed ward resides;
1-51 (4) [(3)] the operator of a residential facility in
1-52 which the proposed ward resides;
1-53 (5) [(4)] a person whom the applicant knows to hold a
1-54 power of attorney signed by the proposed ward;
1-55 (6) [(5)] a person designated to serve as guardian of
1-56 the proposed ward by a written declaration under Section 679 of
1-57 this code, if the applicant knows of the existence of the
1-58 declaration;
1-59 (7) [(6)] a person designated to serve as guardian of
1-60 the proposed ward in the probated will of the last surviving parent
1-61 of the ward; and
1-62 (8) [(7)] a person designated to serve as guardian of
1-63 the proposed ward by a written declaration of the proposed ward's
1-64 last surviving parent, if the declarant is deceased and the
2-1 applicant knows of the existence of the declaration.
2-2 (f) The court may not act on an application for the creation
2-3 of a guardianship until the Monday following the expiration of the
2-4 10-day period beginning the date service of notice and citation has
2-5 been made as provided by Subsections (b), (c), and (d)(1) of this
2-6 section. The validity of a guardianship created under this chapter
2-7 is not affected by the failure of the clerk or applicant to comply
2-8 with the requirements of Subsections (d)(2)-(8) [(d)(2)-(7)] of
2-9 this section.
2-10 SECTION 3. Section 687(b), Texas Probate Code, is amended to
2-11 read as follows:
2-12 (b) Except as provided by Subsection (c) of this section, if
2-13 the court determines it is necessary, the court may appoint the
2-14 necessary physicians to examine the proposed ward. The court must
2-15 make its determination with respect to the necessity for a
2-16 physician's examination of the proposed ward at a hearing held for
2-17 that purpose. Not later than the fourth day before the date of the
2-18 hearing, the applicant shall give to the proposed ward and the
2-19 proposed ward's attorney ad litem written notice specifying the
2-20 purpose and the date and time of the hearing. A physician who
2-21 examines the proposed ward, other than a physician or psychologist
2-22 who examines the proposed ward under Subsection (c) of this
2-23 section, shall make available to an attorney ad litem appointed to
2-24 represent the proposed ward, for inspection, a written letter or
2-25 certificate from the physician that complies with the requirements
2-26 of Subsection (a) of this section.
2-27 SECTION 4. Section 694G, Texas Probate Code, is amended to
2-28 read as follows:
2-29 Sec. 694G. ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY.
2-30 If the court finds that a ward is no longer an incapacitated
2-31 person, the order completely restoring the ward's capacity must
2-32 contain findings of fact and specify:
2-33 (1) the information required by Section 694J of this
2-34 code;
2-35 (2) that the ward is no longer an incapacitated
2-36 person;
2-37 (3) that there is no further need for a guardianship
2-38 of the person or estate of the ward;
2-39 (4) that the guardian is required to:
2-40 (A) immediately settle and close the
2-41 guardianship in accordance with [Section 745 of] this chapter
2-42 [code]; and
2-43 (B) deliver all of the remaining guardianship
2-44 estate to the ward; and
2-45 (5) that the clerk shall revoke letters of
2-46 guardianship when the guardianship is finally settled and closed.
2-47 SECTION 5. Section 745(c), Texas Probate Code, is amended to
2-48 read as follows:
2-49 (c) When the estate of a minor ward consists only of cash or
2-50 cash equivalents in an amount of $100,000 [$25,000] or less, the
2-51 guardianship of the estate may be terminated and the assets paid to
2-52 the county clerk of the county in which the guardianship proceeding
2-53 is pending, and the clerk shall manage the funds as provided by
2-54 Section 887 of this code.
2-55 SECTION 6. Section 784, Texas Probate Code, is amended by
2-56 adding Subsection (e) to read as follows:
2-57 (e) In the notice required by Subsection (b) of this
2-58 section, the guardian of the estate may expressly state in the
2-59 notice that the unsecured creditor must present a claim not later
2-60 than the 120th day after the date on which the unsecured creditor
2-61 receives the notice or the claim is barred, if the claim is not
2-62 barred by the general statutes of limitation. The notice under
2-63 this subsection must include:
2-64 (1) the address to which claims may be presented; and
2-65 (2) an instruction that the claim be filed with the
2-66 clerk of the court issuing the letters of guardianship.
2-67 SECTION 7. Section 786(a), Texas Probate Code, is amended to
2-68 read as follows:
2-69 (a) A claim may be presented to the guardian of the estate
3-1 at any time when the estate is not closed and when suit on the
3-2 claim has not been barred by the general statutes of limitation. A
3-3 claim of an unsecured creditor for money that is not presented
3-4 within the time prescribed by the notice of presentment permitted
3-5 by Section 784(e) of this code is barred.
3-6 SECTION 8. Sections 887(a) and (e), Texas Probate Code, are
3-7 amended to read as follows:
3-8 (a) When a resident person who is a minor or other
3-9 incapacitated person, or the former ward of a guardianship
3-10 terminated under Subpart C, Part 4, of this code, who are referred
3-11 to in this section as "creditor," are without a legal guardian of
3-12 the person's estate, and the person is entitled to money in an
3-13 amount that is $100,000 [$50,000] or less, the right to which is
3-14 liquidated and is uncontested in any pending lawsuit, the debtor
3-15 may pay the money to the county clerk of the county in which the
3-16 creditor resides to the account of the creditor, giving the
3-17 creditor's name, the creditor's social security identification
3-18 number, the nature of the creditor's disability, and, if the
3-19 creditor is a minor, the minor's age, and the creditor's
3-20 post-office address. The receipt for the money signed by the clerk
3-21 is binding on the creditor as of the date of receipt and to the
3-22 extent of the payment. The clerk, by letter mailed to the address
3-23 given by the debtor, shall apprise the creditor of the fact that
3-24 the deposit was made. On receipt of the payment by the clerk, the
3-25 clerk shall call the receipt of the payment to the court's
3-26 attention and shall invest the money as authorized under this
3-27 chapter pursuant to court order in the name and for the account of
3-28 the minor or other person entitled to the money. Any increase,
3-29 dividend, or income from an investment made under this section
3-30 shall be credited to the account of the minor or other person
3-31 entitled to the investment. Any money that is deposited under the
3-32 terms of this section that has not been paid out shall be subject
3-33 to the provisions of this chapter not later than October 1, 1993.
3-34 (e) When a nonresident minor, a nonresident person who is
3-35 adjudged by a court of competent jurisdiction to be incapacitated,
3-36 or the former ward of a guardianship terminated under Subpart C,
3-37 Part 4, of this code who has no legal guardian qualified in this
3-38 state is entitled to money in an amount that is not more than
3-39 $100,000 [$50,000] owing as a result of transactions within this
3-40 state, the right to which is liquidated and is uncontested in any
3-41 pending lawsuit in this state, the debtor in this state may pay the
3-42 money to the guardian of the creditor who is duly qualified in the
3-43 domiciliary jurisdiction or to the county clerk of any county in
3-44 this state in which real property owned by the nonresident person
3-45 is located. If the person is not known to own any real property in
3-46 any county in this state the debtor has the right to pay the money
3-47 to the county clerk of the county of this state in which the debtor
3-48 resides. In either case, the debtor's payment to the clerk is for
3-49 the use and benefit and for the account of the nonresident
3-50 creditor. The receipt for the payment signed by the clerk that
3-51 recites the name of the creditor and the post office address of the
3-52 creditor, if known, is binding on the creditor as of the date and
3-53 to the extent of the payment. The clerk shall handle the money
3-54 paid to the clerk by the debtor in the same manner as provided for
3-55 cases of payments to the accounts of residents of this state under
3-56 Subsections (a)-(d) of this section. All applicable provisions of
3-57 Subsections (a)-(d) of this section apply to the handling and
3-58 disposition of money or any increase, dividend, or income paid to
3-59 the clerk for the use, benefit, and account of the nonresident
3-60 creditor.
3-61 SECTION 9. Section 889(a), Texas Probate Code, is amended to
3-62 read as follows:
3-63 (a) When a minor has an interest in real or personal
3-64 property and the net value of the [minor's] interest [in real or
3-65 personal property in an estate] does not exceed $100,000 [$50,000],
3-66 a natural or adoptive parent, or the managing conservator, of a
3-67 minor who is not a ward may apply to the court for an order to sell
3-68 the minor's interest in the [real or personal] property [of a minor
3-69 in an estate] without being appointed guardian. A minor may not
4-1 disaffirm a sale of property pursuant to a court order under this
4-2 section.
4-3 SECTION 10. Section 890(b), Texas Probate Code, is amended to
4-4 read as follows:
4-5 (b) When a ward has an interest in real or personal property
4-6 in an estate and the net value of the interest does not exceed
4-7 $100,000 [$50,000], the guardian may apply under oath to the court
4-8 for an order to sell the ward's interest in the property without
4-9 being appointed guardian of the estate. A ward may not disaffirm a
4-10 sale of property pursuant to a court order under this section.
4-11 SECTION 11. The changes in law made by Sections 2, 3, 5, 6,
4-12 7, and 10 of this Act apply only to an application for the
4-13 appointment of a guardian that is filed on or after the effective
4-14 date of this Act. An application for the appointment of a guardian
4-15 that is filed before the effective date of this Act is governed by
4-16 the law in effect on the date the application was filed, and the
4-17 former law is continued in effect for that purpose.
4-18 SECTION 12. The change in law made by Section 4 of this Act
4-19 applies only to an application for the restoration of a ward's
4-20 capacity that is filed on or after the effective date of this Act.
4-21 An application for the restoration of a ward's capacity that is
4-22 filed before the effective date of this Act is governed by the law
4-23 in effect on the date the application was filed, and the former law
4-24 is continued in effect for that purpose.
4-25 SECTION 13. The change in law made by Section 9 of this Act
4-26 applies only to an application for the sale of an interest in
4-27 property of a minor filed on or after the effective date of this
4-28 Act. An application for the sale of an interest in property of a
4-29 minor that is filed before the effective date of this Act is
4-30 governed by the law in effect on the date the application was
4-31 filed, and the former law is continued in effect for that purpose.
4-32 SECTION 14. This Act takes effect September 1, 2001.
4-33 * * * * *