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A BILL TO BE ENTITLED
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AN ACT
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relating to the rights of certain incapacitated persons that may be |
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terminated by a court in a guardianship proceeding and to the |
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restoration of certain rights. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 682, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 682. APPLICATION; CONTENTS. Any person may commence a |
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proceeding for the appointment of a guardian by filing a written |
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application in a court having jurisdiction and venue. The |
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application must be sworn to by the applicant and state: |
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(1) the name, sex, date of birth, and address of the |
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proposed ward; |
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(2) the name, relationship, and address of the person |
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the applicant desires to have appointed as guardian; |
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(3) whether guardianship of the person or estate, or |
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both, is sought; |
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(4) the nature and degree of the alleged incapacity, |
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the specific areas of protection and assistance requested, and the |
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limitation or termination of rights requested to be included in the |
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court's order of appointment, including a termination of: |
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(A) the right of a proposed ward who is 18 years |
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of age or older to vote in a public election; and |
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(B) the proposed ward's eligibility to hold or |
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obtain a license to operate a motor vehicle under Chapter 521, |
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Transportation Code; |
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(5) the facts requiring that a guardian be appointed |
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and the interest of the applicant in the appointment; |
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(6) the nature and description of any guardianship of |
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any kind existing for the proposed ward in any other state; |
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(7) the name and address of any person or institution |
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having the care and custody of the proposed ward; |
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(8) the approximate value and description of the |
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proposed ward's property, including any compensation, pension, |
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insurance, or allowance to which the proposed ward may be entitled; |
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(9) the name and address of any person whom the |
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applicant knows to hold a power of attorney signed by the proposed |
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ward and a description of the type of power of attorney; |
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(10) if the proposed ward is a minor and if known by |
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the applicant: |
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(A) the name of each parent of the proposed ward |
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and state the parent's address or that the parent is deceased; |
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(B) the name and age of each sibling, if any, of |
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the proposed ward and state the sibling's address or that the |
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sibling is deceased; and |
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(C) if each of the proposed ward's parents and |
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siblings are deceased, the names and addresses of the proposed |
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ward's next of kin who are adults; |
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(11) if the proposed ward is a minor, whether the minor |
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was the subject of a legal or conservatorship proceeding within the |
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preceding two-year period and, if so, the court involved, the |
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nature of the proceeding, and the final disposition, if any, of the |
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proceeding; |
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(12) if the proposed ward is an adult and if known by |
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the applicant: |
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(A) the name of the proposed ward's spouse, if |
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any, and state the spouse's address or that the spouse is deceased; |
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(B) the name of each of the proposed ward's |
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parents and state the parent's address or that the parent is |
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deceased; |
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(C) the name and age of each of the proposed |
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ward's siblings, if any, and state the sibling's address or that the |
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sibling is deceased; |
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(D) the name and age of each of the proposed |
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ward's children, if any, and state the child's address or that the |
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child is deceased; and |
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(E) if the proposed ward's spouse and each of the |
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proposed ward's parents, siblings, and children are deceased, or, |
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if there is no spouse, parent, adult sibling, or adult child, the |
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names and addresses of the proposed ward's next of kin who are |
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adults; |
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(13) facts showing that the court has venue over the |
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proceeding; and |
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(14) if applicable, that the person whom the applicant |
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desires to have appointed as a guardian is a private professional |
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guardian who is certified under Subchapter C, Chapter 111, |
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Government Code, and has complied with the requirements of Section |
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697 of this code. |
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SECTION 2. Subsection (a), Section 687, Texas Probate Code, |
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is amended to read as follows: |
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(a) The court may not grant an application to create a |
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guardianship for an incapacitated person, other than a minor, |
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person whose alleged incapacity is mental retardation, or person |
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for whom it is necessary to have a guardian appointed only to |
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receive funds from a governmental source, unless the applicant |
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presents to the court a written letter or certificate from a |
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physician licensed in this state that is dated not earlier than the |
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120th day before the date of the filing of the application and based |
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on an examination the physician performed not earlier than the |
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120th day before the date of the filing of the application. The |
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letter or certificate must: |
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(1) describe the nature and degree of incapacity, |
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including the medical history if reasonably available; |
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(2) provide a medical prognosis specifying the |
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estimated severity of the incapacity; |
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(3) state how or in what manner the proposed ward's |
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ability to make or communicate responsible decisions concerning |
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himself or herself is affected by the person's physical or mental |
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health; |
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(4) state whether any current medication affects the |
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demeanor of the proposed ward or the proposed ward's ability to |
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participate fully in a court proceeding; |
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(5) describe the precise physical and mental |
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conditions underlying a diagnosis of senility, if applicable; [and] |
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(6) state whether in the physician's opinion the |
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proposed ward: |
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(A) has the mental capacity to vote in a public |
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election; and |
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(B) has the ability to safely operate a motor |
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vehicle; and |
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(7) include any other information required by the |
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court. |
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SECTION 3. Section 693, Texas Probate Code, is amended by |
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amending Subsections (a) and (b) and adding Subsection (a-1) to |
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read as follows: |
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(a) If it is found that the proposed ward is totally without |
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capacity as provided by this code to care for himself or herself and |
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to manage the individual's property, the court may appoint a |
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guardian of the individual's person or estate, or both, with full |
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authority over the incapacitated person except as provided by law. |
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An order appointing a guardian under this subsection must contain |
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findings of fact and specify: |
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(1) the information required by Subsection (c) of this |
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section; |
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(2) that the guardian has full authority over the |
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incapacitated person; [and] |
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(3) if necessary, the amount of funds from the corpus |
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of the person's estate the court will allow the guardian to expend |
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for the education and maintenance of the person under Section 776 of |
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this code; and |
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(4) whether the person is totally incapacitated |
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because of a mental condition. |
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(a-1) If the court finds that a person is totally |
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incapacitated because of a mental condition, the order under |
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Subsection (a) of this section must also state that, because of the |
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person's total mental incapacity, the person is ineligible to: |
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(1) vote in a public election as provided by the |
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Election Code; and |
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(2) hold or obtain a license to operate a motor vehicle |
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under Chapter 521, Transportation Code. |
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(b) If it is found that the person lacks the capacity to do |
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some, but not all, of the tasks necessary to care for himself or |
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herself or to manage the individual's property, the court may |
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appoint a guardian with limited powers and permit the individual to |
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care for himself or herself or to manage the individual's property |
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commensurate with the individual's ability. An order appointing a |
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guardian under this subsection must contain findings of fact and |
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specify: |
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(1) the information required by Subsection (c) of this |
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section; |
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(2) the specific powers, limitations, or duties of the |
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guardian with respect to the care of the person or the management of |
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the person's property by the guardian; [and] |
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(3) if necessary, the amount of funds from the corpus |
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of the person's estate the court will allow the guardian to expend |
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for the education and maintenance of the person under Section 776 of |
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this code; and |
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(4) whether the person is incapacitated because of a |
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mental condition and, if so, whether the person retains the right to |
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vote in a public election or maintains eligibility to hold or obtain |
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a license to operate a motor vehicle under Chapter 521, |
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Transportation Code. |
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SECTION 4. Sections 694G and 694H, Texas Probate Code, are |
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amended to read as follows: |
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Sec. 694G. ORDER OF COMPLETE RESTORATION OF WARD'S |
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CAPACITY. If the court finds that a ward is no longer an |
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incapacitated person, the order completely restoring the ward's |
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capacity must contain findings of fact and specify: |
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(1) the information required by Section 694J of this |
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code; |
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(2) that the ward is no longer an incapacitated |
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person; |
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(3) that there is no further need for a guardianship of |
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the person or estate of the ward; |
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(3-a) if the ward's incapacity resulted from a mental |
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condition, that the ward's mental capacity is completely restored; |
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(4) that the guardian is required to: |
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(A) immediately settle the guardianship in |
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accordance with this chapter; and |
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(B) deliver all of the remaining guardianship |
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estate to the ward; and |
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(5) that the clerk shall revoke letters of |
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guardianship when the guardianship is finally settled and closed. |
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Sec. 694H. MODIFICATION OF GUARDIANSHIP. If the court |
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finds that a guardian's powers or duties should be expanded or |
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limited, the order modifying the guardianship must contain findings |
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of fact and specify: |
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(1) the information required by Section 694J of this |
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code; |
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(2) the specific powers, limitations, or duties of the |
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guardian with respect to the care of the ward or the management of |
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the property of the ward, as appropriate; |
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(3) the specific areas of protection and assistance to |
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be provided to the ward; |
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(4) any limitation of the ward's rights; [and] |
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(5) if the ward's incapacity resulted from a mental |
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condition, whether the ward retains the right to vote; and |
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(6) that the clerk shall modify the letters of |
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guardianship to the extent applicable to conform to the order. |
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SECTION 5. Chapter 1, Election Code, is amended by adding |
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Section 1.020 to read as follows: |
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Sec. 1.020. VOTING DISABILITY OR CANDIDACY |
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DISQUALIFICATION: DETERMINATION OF MENTAL INCAPACITY. (a) A |
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person determined to be totally mentally incapacitated by a court |
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exercising probate jurisdiction is not subject to a voting |
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disability or candidacy disqualification under this code if, |
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subsequent to that determination, the person's mental capacity has |
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been completely restored by a final judgment of a court exercising |
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probate jurisdiction. |
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(b) A person determined to be partially mentally |
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incapacitated without the right to vote by a court exercising |
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probate jurisdiction is not subject to a voting disability or |
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candidacy disqualification under this code if, subsequent to that |
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determination, the person's guardianship has been modified to |
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include the right to vote or the person's mental capacity has been |
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completely restored by a final judgment of a court exercising |
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probate jurisdiction. |
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SECTION 6. Section 11.002, Election Code, is amended to |
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read as follows: |
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Sec. 11.002. QUALIFIED VOTER. In this code, "qualified |
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voter" means a person who: |
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(1) is 18 years of age or older; |
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(2) is a United States citizen; |
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(3) has not been determined [mentally incompetent] by |
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a final judgment of a court exercising probate jurisdiction to be: |
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(A) totally mentally incapacitated; or |
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(B) partially mentally incapacitated without the |
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right to vote; |
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(4) has not been finally convicted of a felony or, if |
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so convicted, has: |
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(A) fully discharged the person's sentence, |
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including any term of incarceration, parole, or supervision, or |
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completed a period of probation ordered by any court; or |
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(B) been pardoned or otherwise released from the |
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resulting disability to vote; |
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(5) is a resident of this state; and |
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(6) is a registered voter. |
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SECTION 7. Subsection (a), Section 13.001, Election Code, |
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is amended to read as follows: |
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(a) To be eligible for registration as a voter in this |
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state, a person must: |
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(1) be 18 years of age or older; |
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(2) be a United States citizen; |
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(3) not have been determined [mentally incompetent] by |
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a final judgment of a court exercising probate jurisdiction to be: |
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(A) totally mentally incapacitated; or |
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(B) partially mentally incapacitated without the |
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right to vote; |
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(4) not have been finally convicted of a felony or, if |
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so convicted, must have: |
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(A) fully discharged the person's sentence, |
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including any term of incarceration, parole, or supervision, or |
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completed a period of probation ordered by any court; or |
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(B) been pardoned or otherwise released from the |
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resulting disability to vote; and |
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(5) be a resident of the county in which application |
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for registration is made. |
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SECTION 8. Section 13.002, Election Code, is amended by |
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amending Subsection (c) and adding Subsections (e) and (f) to read |
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as follows: |
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(c) A registration application must include: |
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(1) the applicant's first name, middle name, if any, |
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last name, and former name, if any; |
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(2) the month, day, and year of the applicant's birth; |
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(3) a statement that the applicant is a United States |
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citizen; |
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(4) a statement that the applicant is a resident of the |
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county; |
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(5) a statement that the applicant has not been |
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determined [mentally incompetent] by a final judgment of a court |
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exercising probate jurisdiction to be: |
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(A) totally mentally incapacitated; or |
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(B) partially mentally incapacitated without the |
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right to vote; |
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(6) a statement that the applicant has not been |
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finally convicted of a felony or that the applicant is a felon |
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eligible for registration under Section 13.001; |
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(7) the applicant's residence address or, if the |
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residence has no address, the address at which the applicant |
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receives mail and a concise description of the location of the |
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applicant's residence; |
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(8) the following information: |
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(A) the applicant's Texas driver's license number |
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or the number of a personal identification card issued by the |
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Department of Public Safety or a statement by the applicant that the |
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applicant has not been issued a driver's license or personal |
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identification card; or |
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(B) if the applicant has not been issued a number |
|
described by Paragraph (A), the last four digits of the applicant's |
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social security number or a statement by the applicant that the |
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applicant has not been issued a social security number; |
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(9) if the application is made by an agent, a statement |
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of the agent's relationship to the applicant; and |
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(10) the city and county in which the applicant |
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formerly resided. |
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(e) Instead of the statement required by Subsection (c)(5), |
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an applicant who has been determined to be totally mentally |
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incapacitated by a court and who is eligible to register because of |
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Section 1.020(a) shall include in the application a statement that |
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the person's mental capacity has been completely restored by a |
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final judgment of a court. |
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(f) Instead of the statement required by Subsection (c)(5), |
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an applicant who has been determined to be partially mentally |
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incapacitated without the right to vote by a court and who is |
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eligible to register because of Section 1.020(b) shall include in |
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the application a statement that the person's guardianship has been |
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modified to include the right to vote or the person's mental |
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capacity has been completely restored, as applicable, by a final |
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judgment of a court. |
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SECTION 9. The heading to Section 16.002, Election Code, is |
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amended to read as follows: |
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Sec. 16.002. MENTAL INCAPACITY [INCOMPETENCE]. |
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SECTION 10 Subsection (a), Section 16.002, Election Code, |
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is amended to read as follows: |
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(a) Each month the clerk of each court having proper |
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jurisdiction to adjudge a person mentally incapacitated |
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[incompetent] shall prepare an abstract of each final judgment of a |
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court served by the clerk, occurring in the month: |
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(1) [,] adjudging a person 18 years of age or older who |
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is a resident of the state to be: |
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(A) totally mentally incapacitated; or |
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(B) partially mentally incapacitated without the |
|
right to vote; |
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(2) adjudging the mental capacity of a person 18 years |
|
of age or older who is a resident of this state to be completely |
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restored; or |
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(3) modifying the guardianship of a person 18 years of |
|
age or older to include the right to vote [incompetent]. |
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SECTION 11. Subsection (a), Section 16.031, Election Code, |
|
is amended to read as follows: |
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(a) The registrar shall cancel a voter's registration |
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immediately on receipt of: |
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(1) notice under Section 13.072(b) or 15.021 or a |
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response under Section 15.053 that the voter's residence is outside |
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the county; |
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(2) an abstract of the voter's death certificate under |
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Section 16.001(a) or an abstract of an application indicating that |
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the voter is deceased under Section 16.001(b); |
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(3) an abstract of a final judgment of the voter's |
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total mental incapacity, partial mental incapacity without the |
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right to vote [incompetence], conviction of a felony, or |
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disqualification under Section 16.002, 16.003, or 16.004; |
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(4) notice under Section 112.012 that the voter has |
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applied for a limited ballot in another county; |
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(5) notice from a voter registration official in |
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another state that the voter has registered to vote outside this |
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state; or |
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(6) notice from the secretary of state that the voter |
|
has registered to vote in another county, as determined by the |
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voter's driver's license number or personal identification card |
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number issued by the Department of Public Safety or social security |
|
number. |
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SECTION 12. Subsection (a), Section 141.001, Election Code, |
|
is amended to read as follows: |
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(a) To be eligible to be a candidate for, or elected or |
|
appointed to, a public elective office in this state, a person must: |
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(1) be a United States citizen; |
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(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 [mentally incompetent] by |
|
a final judgment of a court exercising probate jurisdiction to be: |
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(A) totally mentally incapacitated; or |
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(B) partially mentally incapacitated without the |
|
right to vote; |
|
(4) have not been finally convicted of a felony from |
|
which the person has not been pardoned or otherwise released from |
|
the resulting disabilities; |
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(5) have resided continuously in the state for 12 |
|
months and in the territory from which the office is elected for six |
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months immediately preceding the following date: |
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(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 13. Section 141.031, Election Code, is amended to |
|
read as follows: |
|
Sec. 141.031. GENERAL REQUIREMENTS FOR APPLICATION. (a) A |
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candidate's application for a place on the ballot that is required |
|
by this code must: |
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(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 [mentally incompetent] by a final judgment of a court |
|
exercising probate jurisdiction to be: |
|
(i) totally mentally incapacitated; or |
|
(ii) partially mentally incapacitated |
|
without the right to vote; |
|
(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. |
|
(b) Instead of the statement required by Subsection |
|
(a)(4)(F), a candidate eligible for office because of Section |
|
1.020(a) shall include in the application a statement that the |
|
person's mental capacity has been completely restored by a final |
|
judgment of a court. |
|
(c) Instead of the statement required by Subsection |
|
(a)(4)(F), a candidate eligible for office because of Section |
|
1.020(b) shall include in the application a statement that the |
|
person's guardianship has been modified to include the right to |
|
vote or the person's mental capacity has been completely restored, |
|
as applicable, by a final judgment of a court. |
|
SECTION 14. Subsection (b), Section 143.005, Election Code, |
|
is amended to read as follows: |
|
(b) If a city charter prescribes the requirements that a |
|
candidate's application must satisfy for the candidate's name to be |
|
placed on the ballot, Section 141.031(a)(4)(L) [141.031(4)(L)] |
|
also applies to the application. The other provisions of Section |
|
141.031 do not apply. |
|
SECTION 15. Subsection (b), Section 144.003, Election Code, |
|
is amended to read as follows: |
|
(b) If a law outside this code purports to prescribe the |
|
exclusive requirements that a candidate's application must satisfy |
|
for the candidate's name to be placed on the ballot, Section |
|
141.031(a)(4)(L) [141.031(4)(L)] also applies to the application. |
|
The other provisions of Section 141.031 do not apply. |
|
SECTION 16. Subsection (b), Section 192.032, Election Code, |
|
is amended to read as follows: |
|
(b) An application must: |
|
(1) comply with Section 141.031, except that: |
|
(A) the application is not required to include a |
|
candidate's occupation, length of residence, or statement that the |
|
candidate is aware of the nepotism law; and |
|
(B) the application must contain the applicable |
|
information required by Section 141.031(a)(4) [141.031(4)] with |
|
respect to both the presidential candidate and the running mate; |
|
(2) state the names and residence addresses of |
|
presidential elector candidates in a number equal to the number of |
|
presidential electors that federal law allocates to the state; and |
|
(3) be accompanied by: |
|
(A) a petition that satisfies the requirements |
|
prescribed by Section 141.062; and |
|
(B) written statements signed by the |
|
vice-presidential candidate and each of the presidential elector |
|
candidates indicating that each of them consents to be a candidate. |
|
SECTION 17. (a) The changes in law made by this Act to |
|
Sections 682, 687, and 693, Texas Probate Code, apply only to an |
|
application for the appointment of a guardian that is filed on or |
|
after the effective date of this Act. An application for the |
|
appointment of a guardian that is filed before the effective date of |
|
this Act is governed by the law in effect on the date the |
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application was filed, and the former law is continued in effect for |
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that purpose. |
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(b) The changes in law made by this Act to Sections 694G and |
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694H, Texas Probate Code, apply only to an application for the |
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restoration of a ward's capacity or the modification of a ward's |
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guardianship that is filed on or after the effective date of this |
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Act. An application for the restoration of a ward's capacity or the |
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modification of a ward's guardianship that is filed before the |
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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. |
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(c) The changes in law made by this Act to the Election Code |
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apply only to an order issued or judgment entered by a court on or |
|
after the effective date of this Act. An order issued or judgment |
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entered by a court before the effective date of this Act is governed |
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by the law as it existed immediately before the effective date of |
|
this Act, and the former law is continued in effect for that |
|
purpose. |
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SECTION 18. This Act takes effect September 1, 2007. |