80R1193 MTB-F

By: Wentworth S.B. No. 1303

A BILL TO BE ENTITLED

AN ACT

relating to guardianship matters and proceedings.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 645, Texas Probate Code, is amended by adding Subsection (f) to read as follows:

(f) The term of appointment of a guardian ad litem made in a proceeding for the appointment of a guardian expires, without a court order, on the date the court either appoints a guardian or denies the application for appointment of a guardian, unless the court determines that the continued appointment of the guardian ad litem is in the ward's best interest.

SECTION 2. Section 646, Texas Probate Code, is amended by adding Subsection (e) to read as follows:

(e) The term of appointment of an attorney ad litem appointed under this section expires, without a court order, on the date the court either appoints a guardian or denies the application for appointment of a guardian, unless the court determines that the continued appointment of the attorney ad litem is in the ward's best interest.

SECTION 3. Section 665A, Texas Probate Code, is amended to read as follows:

Sec. 665A. PAYMENT FOR PROFESSIONAL SERVICES. The court shall order the payment of a fee set by the court as compensation to the attorneys, mental health professionals, and interpreters appointed under [Section 646 or 687 of] this chapter [code], as applicable, to be taxed as costs in the case. If after examining the proposed ward's assets the court determines the proposed ward is unable to pay for services provided by an attorney, a mental health professional, or an interpreter appointed under [Section 646 or 687 of] this chapter [code], as applicable, the county is responsible for the cost of those services.

SECTION 4. Section 683, Texas Probate Code, is amended to read as follows:

Sec. 683. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS. (a) If a court has probable cause to believe that a person domiciled or found in the county in which the court is located is an incapacitated person, and the person does not have a guardian in this state, the court shall appoint a guardian ad litem or court investigator to investigate the person's conditions and circumstances to determine whether the person is an incapacitated person. If after the investigation the guardian ad litem or court investigator believes that the person is an incapacitated person, the guardian ad litem or court investigator shall [and] file an application for the appointment of a guardian of the person or estate, or both, for [of] the person [believed to be incapacitated].

(b) To establish probable cause under this section, the court may require:

(1) an information letter about the person believed to be incapacitated that is submitted by an interested person and satisfies the requirements of Section 683A of this code; or

(2) a written letter or certificate from a physician who has examined the person believed to be incapacitated that satisfies the requirements of Section 687(a) of this code, except that the letter must be dated not earlier than the 120th day before the date of the appointment of a guardian ad litem or court investigator [filing of an application] under Subsection (a) of this section and be based on an examination the physician performed not earlier than the 120th day before that date.

(c) A court that appoints a guardian ad litem under Subsection (a) of this section [creates a guardianship for a ward under this chapter] may authorize compensation of the [a] guardian ad litem [who files an application under Subsection (a) of this section] from available funds of the proposed ward's estate, regardless of whether a guardianship is created for the proposed ward. If after examining the ward's or proposed ward's assets the court determines the ward or proposed ward is unable to pay for services provided by the guardian ad litem, the court may authorize compensation from the county treasury.

SECTION 5. Section 690, Texas Probate Code, is amended to read as follows:

Sec. 690. PERSONS APPOINTED GUARDIAN. Only one person may be appointed as guardian of the person or estate, but one person may be appointed guardian of the person and another of the estate, if it is in the best interest of the ward. Nothing in this section prohibits the joint appointment of:

(1) a husband and wife;

(2) [, of] joint managing conservators;

(3) [, or of] coguardians appointed under the laws of a jurisdiction other than this state; or

(4) both parents of an adult who is an incapacitated person if it is in the best interest of the incapacitated person.

SECTION 6. Section 693(a), Texas Probate Code, is amended to read as follows:

(a) If it is found that the proposed ward is totally without capacity as provided by this code to care for himself or herself and to manage the individual's property, the court may appoint a guardian of the individual's person or estate, or both, with full authority over the incapacitated person except as provided by law. An order appointing a guardian under this subsection must contain findings of fact and specify:

(1) the information required by Subsection (c) of this section;

(2) that the guardian has full authority over the incapacitated person; [and]

(3) if necessary, the amount of funds from the corpus of the person's estate the court will allow the guardian to expend for the education and maintenance of the person under Section 776 of this code; and

(4) whether the person is totally incapacitated because of a mental condition.

SECTION 7. Section 694C, Texas Probate Code, is amended by adding Subsection (c) to read as follows:

(c) An attorney ad litem appointed under this section is entitled to reasonable compensation for services in the amount set by the court to be taxed as costs in the proceeding, regardless of whether the proceeding results in the restoration of the ward's capacity or a modification of the ward's guardianship.

SECTION 8. Subpart A, Part 3, Chapter XIII, Texas Probate Code, is amended by adding Section 694L to read as follows:

Sec. 694L. PAYMENT FOR GUARDIANS AD LITEM. As provided by Section 645(b) of this code, a guardian ad litem appointed in a proceeding involving the complete restoration of a ward's capacity or modification of a ward's guardianship is entitled to reasonable compensation for services in the amount set by the court to be taxed as costs in the proceeding, regardless of whether the proceeding results in the restoration of the ward's capacity or modification of the ward's guardianship.

SECTION 9. Section 695(a), Texas Probate Code, is amended to read as follows:

(a) If a guardian dies, resigns, or is removed, the court may, on application and on service of notice as directed by the court, appoint a successor guardian. On a finding that a necessity for the immediate appointment of a successor guardian exists, the court may appoint a successor guardian without citation or notice.

SECTION 10. Sections 759(a) and (f), Texas Probate Code, are amended to read as follows:

(a) In case of the death of the guardian of the person or of the estate of a ward, a personal representative of the deceased guardian shall account for, pay, and deliver to a person legally entitled to receive the property, all the property belonging to the guardianship that is entrusted to the care of the representative, at the time and in the manner as the court orders. [On a finding that a necessity for the immediate appointment of a successor guardian exists, the court may appoint a successor guardian without citation or notice.]

(f) Except when otherwise expressly provided in this chapter, letters may not be revoked [and other letters granted] except on application, and after personal service of citation on the person[, if living,] whose letters are sought to be revoked, that the person appear and show cause why the application should not be granted.

SECTION 11. Section 760(b), Texas Probate Code, is amended to read as follows:

(b) If the necessity exists, the court may immediately accept a resignation and appoint a successor without citation or notice but may not discharge the person resigning as guardian of the estate or release the person or the sureties on the person's bond until final order or judgment is rendered on the final account of the guardian.

SECTION 12. Sections 761(c) and (f), Texas Probate Code, are amended to read as follows:

(c) The court may remove a guardian on its own motion, or on the complaint of an interested person, after the guardian has been cited by personal service to answer at a time and place set in the notice, when:

(1) sufficient grounds appear to support belief that the guardian has misapplied, embezzled, or removed from the state, or that the guardian is about to misapply, embezzle, or remove from the state, all or any part of the property committed to the care of the guardian;

(2) the guardian fails to return any account or report that is required by law to be made;

(3) the guardian fails to obey any proper order of the court having jurisdiction with respect to the performance of the guardian's duties;

(4) the guardian is proved to have been guilty of gross misconduct or mismanagement in the performance of the duties of the guardian;

(5) the guardian becomes incapacitated, or is sentenced to the penitentiary, or from any other cause becomes incapable of properly performing the duties of the guardian's trust;

(6) the guardian neglects or cruelly treats the ward;

(6-a) the guardian neglects to educate or maintain the ward as liberally as the means of the ward's estate and the ward's ability or condition permit;

(7) the guardian interferes with the ward's progress or participation in programs in the community;

(8) the guardian fails to comply with the requirements of Section 697 of this code; [or]

(9) the court determines that, because of the dissolution of the joint guardians' marriage, the termination of the guardians' joint appointment and the continuation of only one of the joint guardians as the sole guardian is in the best interest of the ward; or

(10) the guardian would be ineligible for appointment as a guardian under Section 681 of this code.

(f) If the necessity exists, the court may immediately appoint a successor without citation or notice but may not discharge the person removed as guardian of the estate or release the person or the sureties on the person's bond until final order or judgment is rendered on the final account of the guardian.

SECTION 13. Section 823, Texas Probate Code, is amended to read as follows:

Sec. 823. CITATION [AND RETURN] ON APPLICATION. On the filing of an application for the sale of real estate under Section 820 of this code and exhibit, the clerk shall issue a citation to all persons interested in the guardianship that describes the land or interest or part of the land or interest sought to be sold and that informs [requires] the persons of the right under Section 824 of this code to file an opposition to the sale during the period prescribed by the court [to appear at the time set by the court] as shown in the citation [and show cause why the sale should not be made], if they so elect. Service of citation shall be by posting.

SECTION 14. Section 824, Texas Probate Code, is amended to read as follows:

Sec. 824. OPPOSITION TO APPLICATION. When an application for an order of sale is made, a person interested in the guardianship[, before an order of sale is made by the court,] may, during the period provided in the citation issued under Section 823 of this code, file the person's opposition to the sale, in writing, or may make application for the sale of other property of the estate.

SECTION 15. Subpart H, Part 4, Chapter XIII, Texas Probate Code, is amended by adding Section 824A to read as follows:

Sec. 824A. HEARING ON APPLICATION AND ANY OPPOSITION. (a) The clerk of a court in which an application for an order of sale is filed shall immediately call to the attention of the judge any opposition to the sale that is filed during the period provided in the citation issued under Section 823 of this code. The court shall hold a hearing on an application if an opposition to the sale is filed during the period provided in the citation.

(b) A hearing on an application for an order of sale is not required under this section if no opposition to the application is filed during the period provided in the citation. The court, in its discretion, may determine that a hearing is necessary on the application even if no opposition was filed during that period.

(c) If the court orders a hearing under Subsection (a) or (b) of this section, the court shall designate in writing a date and time for hearing the application and any opposition, together with the evidence pertaining to the application and opposition. The clerk shall issue a notice to the applicant and to each person who files an opposition to the sale, if applicable, of the date and time of the hearing.

(d) The judge may, by entries on the docket, continue a hearing held under this section from time to time until the judge is satisfied concerning the application.

SECTION 16. Section 825, Texas Probate Code, is amended to read as follows:

Sec. 825. ORDER OF SALE. If satisfied [on hearing] that the sale of the property of the guardianship described in the application made under Section 820 of this code is necessary or advisable, the court shall order the sale to be made. Otherwise, the court may deny the application and, if the court deems best, may order the sale of other property the sale of which would be more advantageous to the estate. An order for the sale of real estate must specify:

(1) the property to be sold, giving a description that will identify the property;

(2) whether the property is to be sold at public auction or at private sale, and, if at public auction, the time and place of the sale;

(3) the necessity or advisability of the sale and its purpose;

(4) except in cases in which no general bond is required, that, having examined the general bond of the representative of the estate, the court finds it to be sufficient as required by law, or finds the bond to be insufficient and specifies the necessary or increased bond;

(5) that the sale shall be made and the report returned in accordance with law; and

(6) the terms of the sale.

SECTION 17. Section 855B, Texas Probate Code, is amended by amending Subsections (a) and (b) and adding Subsection (a-1) to read as follows:

(a) Not later than the 180th day after the date on which the guardian of the estate qualified as guardian or another date specified by the court, the guardian shall:

(1) have estate assets invested according to Section 855(b) of this code; or

(2) file a written application with the court for an order:

(A) [(1)] authorizing the guardian to:

(i) [(A)] develop and implement an investment plan for estate assets;

(ii) [(B)] invest in or sell securities under an investment plan developed under Subparagraph (i) [Paragraph (A)] of this paragraph [subdivision];

(iii) [(C)] declare that one or more estate assets must be retained, despite being underproductive with respect to income or overall return; or

(iv) [(D)] loan estate funds, invest in real estate or make other investments, or purchase a life, term, or endowment insurance policy or an annuity contract; or

(B) [(2)] modifying or eliminating the guardian's duty to invest the estate.

(a-1) The court may approve an investment plan under Subsection (a)(2) of this section without a hearing.

(b) If the court determines [On hearing the application under this section and on a finding by the preponderance of the evidence] that the action requested in the application is in the best interests of the ward and the ward's estate, the court shall render an order granting the authority requested in the application or an order modifying or eliminating the guardian's duty to keep the estate invested. An [The] order under this subsection must state in reasonably specific terms:

(1) the nature of the investment, investment plan, or other action requested in the application and authorized by the court, including, if applicable, the authority to invest in and sell securities in accordance with the objectives of the investment plan;

(2) when an investment must be reviewed and reconsidered by the guardian; and

(3) whether the guardian must report the guardian's review and recommendations to the court.

SECTION 18. Section 11.002, Election Code, is amended to read as follows:

Sec. 11.002. QUALIFIED VOTER. In this code, "qualified voter" means a person who:

(1) is 18 years of age or older;

(2) is a United States citizen;

(3) has not been determined to be totally mentally incapacitated [incompetent] by a final judgment of a court;

(4) has not been finally convicted of a felony or, if so convicted, has:

(A) fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or

(B) been pardoned or otherwise released from the resulting disability to vote;

(5) is a resident of this state; and

(6) is a registered voter.

SECTION 19. Section 13.001(a), Election Code, is amended to read as follows:

(a) To be eligible for registration as a voter in this state, a person must:

(1) be 18 years of age or older;

(2) be a United States citizen;

(3) not have been determined to be totally mentally incapacitated [incompetent] by a final judgment of a court;

(4) not have been finally convicted of a felony or, if so convicted, must have:

(A) fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or

(B) been pardoned or otherwise released from the resulting disability to vote; and

(5) be a resident of the county in which application for registration is made.

SECTION 20. Section 13.002(c), Election Code, is amended to read as follows:

(c) A registration application must include:

(1) the applicant's first name, middle name, if any, last name, and former name, if any;

(2) the month, day, and year of the applicant's birth;

(3) a statement that the applicant is a United States citizen;

(4) a statement that the applicant is a resident of the county;

(5) a statement that the applicant has not been determined to be totally mentally incapacitated [incompetent] by a final judgment of a court;

(6) a statement that the applicant has not been finally convicted of a felony or that the applicant is a felon eligible for registration under Section 13.001;

(7) the applicant's residence address or, if the residence has no address, the address at which the applicant receives mail and a concise description of the location of the applicant's residence;

(8) the following information:

(A) the applicant's Texas driver's license number or the number of a personal identification card issued by the Department of Public Safety or a statement by the applicant that the applicant has not been issued a driver's license or personal identification card; or

(B) if the applicant has not been issued a number described by Paragraph (A), the last four digits of the applicant's social security number or a statement by the applicant that the applicant has not been issued a social security number;

(9) if the application is made by an agent, a statement of the agent's relationship to the applicant; and

(10) the city and county in which the applicant formerly resided.

SECTION 21. The heading to Section 16.002, Election Code, is amended to read as follows:

Sec. 16.002. MENTAL INCAPACITY [INCOMPETENCE].

SECTION 22. Section 16.002(a), Election Code, is amended to read as follows:

(a) Each month the clerk of each court having jurisdiction to adjudge a person mentally incapacitated [incompetent] shall prepare an abstract of each final judgment of a court served by the clerk, occurring in the month, adjudging a person 18 years of age or older who is a resident of the state to be totally mentally incapacitated [incompetent].

SECTION 23. Section 16.031(a), Election Code, is amended to read as follows:

(a) The registrar shall cancel a voter's registration immediately on receipt of:

(1) notice under Section 13.072(b) or 15.021 or a response under Section 15.053 that the voter's residence is outside the county;

(2) an abstract of the voter's death certificate under Section 16.001(a) or an abstract of an application indicating that the voter is deceased under Section 16.001(b);

(3) an abstract of a final judgment of the voter's total mental incapacity [incompetence], conviction of a felony, or disqualification under Section 16.002, 16.003, or 16.004;

(4) notice under Section 112.012 that the voter has applied for a limited ballot in another county;

(5) notice from a voter registration official in another state that the voter has registered to vote outside this state; or

(6) notice from the secretary of state that the voter has registered to vote in another county, as determined by the voter's driver's license number or personal identification card number issued by the Department of Public Safety or social security number.

SECTION 24. Section 141.001(a), Election Code, is amended to read as follows:

(a) To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must:

(1) be a United States citizen;

(2) be 18 years of age or older on the first day of the term to be filled at the election or on the date of appointment, as applicable;

(3) have not been determined to be totally mentally incapacitated [incompetent] by a final judgment of a court;

(4) have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities;

(5) have resided continuously in the state for 12 months and in the territory from which the office is elected for six months immediately preceding the following date:

(A) for a candidate whose name is to appear on a general primary election ballot, the date of the regular filing deadline for a candidate's application for a place on the ballot;

(B) for an independent candidate, the date of the regular filing deadline for a candidate's application for a place on the ballot;

(C) for a write-in candidate, the date of the election at which the candidate's name is written in;

(D) for a party nominee who is nominated by any method other than by primary election, the date the nomination is made; and

(E) for an appointee to an office, the date the appointment is made; and

(6) satisfy any other eligibility requirements prescribed by law for the office.

SECTION 25. Section 141.031, Election Code, is amended to read as follows:

Sec. 141.031. GENERAL REQUIREMENTS FOR APPLICATION. A candidate's application for a place on the ballot that is required by this code must:

(1) be in writing;

(2) be signed and sworn to by the candidate and indicate the date that the candidate swears to the application;

(3) be timely filed with the appropriate authority; and

(4) include:

(A) the candidate's name;

(B) the candidate's occupation;

(C) the office sought, including any place number or other distinguishing number;

(D) an indication of whether the office sought is to be filled for a full or unexpired term if the office sought and another office to be voted on have the same title but do not have place numbers or other distinguishing numbers;

(E) a statement that the candidate is a United States citizen;

(F) a statement that the candidate has not been determined to be totally mentally incapacitated [incompetent] by a final judgment of a court;

(G) a statement that the candidate has not been finally convicted of a felony from which the candidate has not been pardoned or otherwise released from the resulting disabilities;

(H) the candidate's date of birth;

(I) the candidate's residence address or, if the residence has no address, the address at which the candidate receives mail and a concise description of the location of the candidate's residence;

(J) the candidate's length of continuous residence in the state and in the territory from which the office sought is elected as of the date the candidate swears to the application;

(K) the statement: "I, __________, of __________ County, Texas, being a candidate for the office of __________, swear that I will support and defend the constitution and laws of the United States and of the State of Texas"; and

(L) a statement that the candidate is aware of the nepotism law, Chapter 573, Government Code.

SECTION 26. Section 822, Texas Probate Code, is repealed.

SECTION 27. (a) Sections 645(f) and 646(e), Texas Probate Code, as added by this Act, apply only to a guardianship proceeding for which a court has appointed a guardian ad litem or attorney ad litem to represent the interests of a person on or after the effective date of this Act.

(b) The changes in law made by this Act to Section 665A, Texas Probate Code, apply only to a guardianship proceeding for which a court has appointed an attorney, mental health professional, or interpreter to represent the interests of a person:

(1) on or after the effective date of this Act; or

(2) before the effective date of this Act if the proceeding is pending on the effective date of this Act.

(c) The changes in law made by this Act to Section 683, Texas Probate Code, apply only to the appointment of a guardian ad litem or court investigator made on or after the effective date of this Act. The appointment of a guardian ad litem or court investigator made before the effective date of this Act is governed by the law in effect on the date of appointment, and the former law is continued in effect for that purpose.

(d) The changes in law made by this Act to Section 694C, Texas Probate Code, and Section 694L, Texas Probate Code, as added by this Act, apply only to an application for the restoration of a ward's capacity or the modification of a ward's guardianship that is filed on or after the effective date of this Act. An application for the restoration of a ward's capacity or the modification of a ward's guardianship that is filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

(e) The changes in law made by this Act to Sections 690, 693, and 855B, Texas Probate Code, apply only to an application for the appointment of a guardian filed on or after the effective date of this Act. An application for the appointment of a guardian filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

(f) The changes in law made by this Act to Sections 695(a) and 759(f), Texas Probate Code, apply only to an application for the appointment of a successor guardian filed on or after the effective date of this Act. An application for the appointment of a successor guardian filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

(g) The changes in law made by this Act to Section 760, Texas Probate Code, apply only to an application for resignation filed on or after the effective date of this Act. An application for resignation filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

(h) The changes in law made by this Act to Section 761(f), Texas Probate Code, apply only to a motion for the removal of a guardian made or filed on or after the effective date of this Act. A motion for the removal of a guardian made or filed before the effective date of this Act is governed by the law in effect on the date the motion was made or filed, and the former law is continued in effect for that purpose.

(i) The changes in law made by this Act to Sections 823, 824, and 825, Texas Probate Code, apply only to an application for the sale of real property filed on or after the effective date of this Act. An application for the sale of real property filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

SECTION 28. This Act takes effect September 1, 2007.