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                                  * * * * *