|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
|
relating to the regulation of heir finders by the Texas Private |
|
Security Board; providing penalties. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Section 1702.002, Occupations Code, is amended |
|
by adding Subdivisions (6-b) and (8-a) to read as follows: |
|
(6-b) "Estate," "heir," and "probate court" have the |
|
meanings assigned by Section 3, Texas Probate Code. |
|
(8-a) "Heir finder" means a person who for payment of a |
|
fee, assignment of a portion of any interest in a decedent's estate, |
|
or other consideration provides information, assistance, forensic |
|
genealogy research, or other efforts related to another person's |
|
right to or interest in a decedent's estate. |
|
SECTION 2. Subsection (a), Section 1702.004, Occupations |
|
Code, is amended to read as follows: |
|
(a) The board, in addition to performing duties required by |
|
other law or exercising powers granted by other law: |
|
(1) licenses investigations companies and security |
|
services contractors; |
|
(2) issues commissions to certain security officers; |
|
(3) issues authorizations to certain security |
|
officers engaged in the personal protection of individuals; |
|
(4) registers: |
|
(A) certain individuals connected with a license |
|
holder; and |
|
(B) certain individuals employed in a field |
|
connected to private investigation or private security; [and] |
|
(5) licenses heir finders under Subchapter K-1; and |
|
(6) regulates license holders, security officers, and |
|
registrants under this chapter. |
|
SECTION 3. Section 1702.042, Occupations Code, is amended |
|
to read as follows: |
|
Sec. 1702.042. PERSONNEL; CONFLICT OF INTEREST. An |
|
employee of the commission may not: |
|
(1) have a financial or business interest, contingent |
|
or otherwise, in a security services contractor, [or] |
|
investigations company, or company providing services as an heir |
|
finder; or |
|
(2) be licensed under this chapter. |
|
SECTION 4. Chapter 1702, Occupations Code, is amended by |
|
adding Subchapter K-1 to read as follows: |
|
SUBCHAPTER K-1. REGULATION OF HEIR FINDERS |
|
Sec. 1702.271. DEFINITION. In this subchapter, "family |
|
member," with respect to a decedent, means a person who would be |
|
considered an heir of the decedent at the time of the decedent's |
|
death. |
|
Sec. 1702.272. APPLICATION OF SUBCHAPTER. (a) This |
|
subchapter does not apply to: |
|
(1) a person acting in the capacity of a personal |
|
representative, attorney ad litem, guardian ad litem, or other |
|
person appointed by a probate court in which a proceeding in |
|
connection with a decedent's estate is pending; |
|
(2) a forensic genealogist employed or retained by a |
|
government agency, court, or court-appointed attorney ad litem; or |
|
(3) an attorney providing legal services to a |
|
decedent's family member if the attorney has not agreed to pay to |
|
any other person a portion of the fees received from the family |
|
member or the family member's interest in the decedent's estate. |
|
(b) In this section, "attorney ad litem," "guardian ad |
|
litem," and "personal representative" have the meanings assigned by |
|
the Texas Probate Code. |
|
Sec. 1702.273. LICENSE REQUIRED. (a) A person may not |
|
offer to provide or provide services as an heir finder unless the |
|
person holds a license as an heir finder. |
|
(b) A license under this subchapter: |
|
(1) is valid for three years from the date of issuance; |
|
and |
|
(2) may be renewed. |
|
Sec. 1702.274. LICENSE APPLICATION. An application for a |
|
license under this subchapter must be in the form prescribed by the |
|
board and include: |
|
(1) the full name and business address of the |
|
applicant; |
|
(2) the name under which the applicant intends to do |
|
business; |
|
(3) a statement as to the general nature of the |
|
business in which the applicant intends to engage; |
|
(4) if the applicant is an entity other than an |
|
individual, the full name and residence address of each partner, |
|
officer, and director of the applicant, and of the applicant's |
|
manager; |
|
(5) if the applicant is an individual, two |
|
classifiable sets of fingerprints of the applicant or, if the |
|
applicant is an entity other than an individual, of each officer and |
|
of each partner or shareholder who owns at least a 25 percent |
|
interest in the applicant; |
|
(6) a verified statement of the applicant's experience |
|
and qualifications; |
|
(7) a report from the department stating the |
|
applicant's record of any convictions for a Class B misdemeanor or |
|
equivalent offense or a greater offense; |
|
(8) the social security number of the individual |
|
making the application; and |
|
(9) other information, evidence, statements, or |
|
documents required by the board. |
|
Sec. 1702.275. FEES. The board may adopt fees as necessary |
|
for the issuance of a license under this subchapter. |
|
Sec. 1702.276. INSURANCE; BOND. A license holder shall |
|
maintain on file with the board at all times a surety bond and |
|
certificate of insurance as required by board rule. The insurance |
|
policy must contain minimum limits of $2 million for all |
|
occurrences. |
|
Sec. 1702.277. CERTAIN CONTRACTS. (a) This section |
|
applies only to a contract or other agreement that: |
|
(1) is entered into with a family member of a decedent |
|
or with another person on behalf of the family member; and |
|
(2) provides for payment of a fee, assignment of a |
|
portion of any interest in the decedent's estate, or other |
|
consideration by the family member out of the family member's right |
|
to or interest in the decedent's estate to a person licensed under |
|
this subchapter for providing information, assistance, forensic |
|
genealogy research, or other efforts related to the family member's |
|
right to or interest in the decedent's estate or property. |
|
(b) Except as provided by Subsection (c), if the amount or |
|
value of the fee, assignment, or other consideration for a contract |
|
or other agreement described by Subsection (a) is equal to or less |
|
than 30 percent of the value of the family member's right to or |
|
interest in the decedent's estate, a person licensed under this |
|
subchapter may enter into the contract or agreement only at the |
|
discretion of the probate court in which the proceeding in |
|
connection with the decedent's estate is pending. |
|
(c) A person licensed under this subchapter may not enter |
|
into a contract or other agreement described by Subsection (a): |
|
(1) subject to Subsection (d), during the 75-day |
|
period after the earlier of: |
|
(A) the date of the filing of an application for |
|
determination of heirship of the decedent; or |
|
(B) the date of the filing of a pleading to |
|
determine which family members of the decedent have a right to |
|
property in the decedent's estate, if the right to the property is |
|
based principally on the probate court's determination of the |
|
decedent's family history; or |
|
(2) if the amount or value of the fee, assignment, or |
|
other consideration is greater than 30 percent of the value of the |
|
family member's right to or interest in the decedent's estate. |
|
(d) Subsection (c)(1) applies only if a forensic |
|
genealogist or attorney ad litem has been appointed by a probate |
|
court in which a proceeding in connection with the decedent's |
|
estate is pending. |
|
(e) A contract entered into in violation of this section is |
|
void. |
|
Sec. 1702.278. COMPLAINTS AND DISCIPLINARY ACTIONS. A |
|
person licensed under this subchapter is subject to the same |
|
complaint procedures and disciplinary actions as other persons |
|
regulated under this chapter. |
|
Sec. 1702.279. PENALTIES. A person licensed under this |
|
subchapter is subject to the same penalties and enforcement |
|
procedures as other persons regulated under this chapter. |
|
Sec. 1702.280. FIDUCIARY DUTY; LIABILITY. (a) A person |
|
licensed under this subchapter who provides services as an heir |
|
finder to another person owes a fiduciary duty to the other person |
|
to act in that person's best interest. |
|
(b) A person who breaches a fiduciary duty under Subsection |
|
(a) is liable for any damages resulting from the breach, including: |
|
(1) any loss or depreciation in value of the estate as |
|
a result of the breach; |
|
(2) any profit made by the person as a result of the |
|
breach; |
|
(3) any profit that would have accrued to the estate if |
|
there had been no breach; |
|
(4) exemplary damages; and |
|
(5) costs and attorney's fees incurred as a result of |
|
the breach. |
|
SECTION 5. Chapter I, Texas Probate Code, is amended by |
|
adding Section 36G to read as follows: |
|
Sec. 36G. HEIR FINDERS. (a) In this section, "heir |
|
finder" has the meaning assigned by Section 1702.002, Occupations |
|
Code. |
|
(b) The court may not appoint an attorney as an attorney ad |
|
litem in a probate proceeding if the attorney: |
|
(1) is acting as or represents an heir finder in the |
|
same proceeding; or |
|
(2) has acted as or has represented an heir finder in |
|
another probate proceeding concerning the same decedent. |
|
(c) Chapter 1702, Occupations Code, governs the licensing |
|
and regulation of heir finders. |
|
SECTION 6. Section 36G, Texas Probate Code, as added by this |
|
Act, applies only to a probate proceeding commenced on or after the |
|
effective date of this Act without regard to whether: |
|
(1) the decedent's death occurred before, on, or after |
|
that date; or |
|
(2) the probate proceeding is the original proceeding. |
|
SECTION 7. As soon as possible after the effective date of |
|
this Act, the Texas Private Security Board shall adopt the form, |
|
procedures, and fees necessary to implement Subchapter K-1, Chapter |
|
1702, Occupations Code, as added by this Act. |
|
SECTION 8. Notwithstanding Subchapter K-1, Chapter 1702, |
|
Occupations Code, as added by this Act, a person offering to provide |
|
or providing services as an heir finder is not required to be |
|
licensed under that subchapter before January 1, 2010. |
|
SECTION 9. Section 1702.277, Occupations Code, as added by |
|
this Act, applies only to a contract entered into on or after |
|
January 1, 2010. |
|
SECTION 10. (a) Except as provided by Subsection (b) of |
|
this section, this Act takes effect September 1, 2009. |
|
(b) Sections 1702.273, 1702.277, 1702.278, 1702.279, and |
|
1702.280, Occupations Code, as added by this Act, take effect |
|
January 1, 2010. |
|
|
|
* * * * * |