H.B. No. 2189
AN ACT
relating to temporary guardianship procedures.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 875, Texas Probate Code, is amended by
amending Subsections (b), (c), (d), (e), (f), (g), and (k) and
adding Subsection (l) to read as follows:
(b) [A person for whom a temporary guardian has been
appointed may not be presumed to be incapacitated.] The person
retains all rights and powers that are not specifically granted to
the person's temporary guardian by court order.
(c) A sworn, written application for the appointment of a
temporary guardian shall [may] be filed before the court appoints a
temporary guardian. [The application must be filed not later than
the end of the next business day of the court after the date of
appointment of the temporary guardian.] The application must
state:
(1) the name and address of the person who is the
subject of the guardianship proceeding;
(2) the danger to the person or property alleged to be
imminent;
(3) the type of appointment and the particular
protection and assistance being requested;
(4) the facts and reasons supporting the allegations
and requests;
(5) the name, address, and qualification of the
proposed temporary guardian;
(6) the name, address, and interest of the applicant;
and
(7) if applicable, that the proposed temporary
guardian is a private professional guardian who has complied with
the requirements of Section 697 of this code.
(d) On [At the earliest of] the filing of an application for
temporary guardianship [or the appointment of a temporary
guardian], the court shall appoint an attorney to represent the
proposed ward in all guardianship proceedings in which independent
counsel has not been retained by or on behalf of the proposed ward.
(e) On the filing of an application for temporary
guardianship, the clerk shall issue notice that shall be served on
the respondent, the respondent's appointed attorney, and the
proposed temporary guardian named in the application, if that
person is not the applicant. The notice must describe the rights of
the parties and the date, time, place, purpose, and possible
consequences of a hearing on the application. A copy of the
application [and, if applicable, a copy of the order appointing the
temporary guardian] must be attached to the notice.
(f)(1) A hearing shall be held not later than the 10th day
after the date of the filing of the application for temporary
guardianship unless the hearing date is postponed [extended] as
provided by Subdivision (2) of this subsection. At a hearing under
this section, the respondent has the right to:
(A) receive prior notice;
(B) have representation by counsel;
(C) be present;
(D) present evidence and confront and
cross-examine witnesses; and
(E) a closed hearing if requested by the
respondent or the respondent's attorney.
(2) The [Every temporary guardianship granted before a
hearing on the application required by Subdivision (1) of this
subsection expires on its own terms at the conclusion of the hearing
unless the] respondent or the respondent's attorney may consent to
postpone the hearing on the application for temporary guardianship
for a period [consents that the order appointing the temporary
guardian may be extended for a longer period] not to exceed 30 [60]
days after the date of the filing of the application [for temporary
guardianship].
(3) Every application for temporary guardianship
[granted before a hearing on the application required by
Subdivision (1) of this subsection shall be set for hearing at the
earliest possible date and] takes precedence over all matters
except older matters of the same character.
(4) Immediately after an application for [Every]
temporary guardianship is filed, the court shall issue [granted
before a hearing on the application required by Subdivision (1) of
this subsection must include] an order that sets a certain date for
hearing on the application for temporary guardianship.
(5) On one day's notice to the party who filed the
application for [obtained a] temporary guardianship [before a
hearing on the application required by Subdivision (1) of this
subsection], the respondent or the respondent's attorney may appear
and move for the dismissal [dissolution or modification] of the
application for temporary guardianship. If a motion is made for
dismissal [dissolution or modification] of the application for
temporary guardianship, the court shall hear and determine the
motion as expeditiously as the ends of justice require.
(6) If the applicant is not the proposed temporary
guardian, a temporary guardianship may not be granted before a
hearing on the application required by Subdivision (1) of this
subsection unless the proposed temporary guardian appears in court.
(g) If at the conclusion of the hearing required by
Subsection (f)(1) of this section the court determines that the
applicant has established that there is substantial evidence that
the person is a minor or other incapacitated person, that there is
imminent danger that the physical health or safety of the
respondent will be seriously impaired, or that the respondent's
estate will be seriously damaged or dissipated unless immediate
action is taken, the court shall appoint a temporary guardian by
written order. The court shall assign to the temporary guardian
only those powers and duties that are necessary to protect the
respondent against the imminent danger shown. The court shall set
bond according to Subpart B, Part 3, of this chapter. The reasons
for the temporary guardianship and the powers and duties of the
temporary guardian must be described in the order of appointment.
(k) If an application for a temporary guardianship, for the
conversion of a temporary guardianship to a permanent guardianship,
or for a permanent guardianship is challenged or contested, the
court, on the court's own motion or on the motion of any interested
party, may appoint a new temporary guardian or grant a temporary
restraining order under Rule 680, Texas Rules of Civil Procedure,
or both, without issuing additional citation if the court finds
that the appointment or the issuance of the order is necessary to
protect the proposed ward or the proposed ward's estate.
(l) A temporary guardian appointed under Subsection (k) of
this section [this subsection] must qualify in the same form and
manner required of a guardian under this code. The term of the
temporary guardian expires at the conclusion of the hearing
challenging or contesting the application or on the date a
permanent guardian the court appoints for the proposed ward
qualifies to serve as the ward's guardian.
SECTION 2. The changes in law made by this Act to Section
875, Texas Probate Code, apply only to an application for the
appointment of a temporary guardian filed on or after the effective
date of this Act. An application for the appointment of a temporary
guardian filed before the effective date of this Act is governed by
the law in effect on the date on which the application was filed,
and the former law is continued in effect for that purpose.
SECTION 3. This Act takes effect September 1, 2003.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2189 was passed by the House on April
25, 2003, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 2189 on May 30, 2003, by a non-record
vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2189 was passed by the Senate, with
amendments, on May 28, 2003, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor