BILL ANALYSIS
By: Hartnett
Committee Report (Substituted)
BACKGROUND AND PURPOSE
Since 1983, statutory probate courts have had the power to transfer cases filed in other courts that are appertaining or incident to an estate pending in their courts to themselves for trial and disposition. This power is found in Sections 5B and 608 of the Probate Code.
The use of this power has been largely uncontroversial except for personal injury and wrongful death cases. Use of the power by a statutory probate court to transfer to itself such cases when venue would not otherwise have been proper in the court's county has given rise to accusations of forum shopping.
In 1995 the Legislature enacted Section 15.007 of the Civil Practice and Remedies Code. This section makes certain that provisions of the CPRC "trump" conflicting venue provisions of the Probate Code regarding personal injury, death and property damage claims. The Supreme Court of Texas conclusively upheld this statute in Gonzalez v. Reliant Energy, 159, SW3d 615 (Tex. 2005), which led to concern among some practitioners that appropriate property damage claims, such as theft by an executor or guardian, would not be transferable under a strict reading of the statute. The purpose of this bill is to address this concern and to clarify that for matters not specifically covered by the trump statute, a statutory probate court may transfer causes of action appertaining or incident to an estate or guardianship without concern for venue.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
ANALYSIS
The bill would amend Section 15.007 of the Civil Practice
and Remedies Code by limiting the actions concerning property damage to which
such section applies to property damage related to a personal injury or death
suit. Other types of property damage suits would be subject to transfer to a
statutory probate court. In addition, the bill would amend Section 5B(b) and
Section 608 of the Probate Code and add a new Section 7 to the Probate Code,
which would have the effect of empowering a statutory probate court to transfer
any case that is not covered by the (trump) Section 15.007 of the Civil
Practice and Remedies Code. The bill would create its own trump by making such
cases subject to transfer regardless of whether venue would have otherwise been
proper in the statutory probate court or whether venue were proper or even
mandatory in the court from which the case is transferred.
EFFECTIVE DATE
September 1, 2007.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The substitute makes an exception to the application of the statute added by the bill the provisions of Section 123.005 of the Property Code which makes Travis County a proper venue for any action by the Attorney General for breach of fiduciary duty by the trustee of a charitable trust. This change is made to address concerns that without this exception the Attorney General would be required to spend additional funds to cover travel in cases consolidated outside Travis County.