82R14209 MTB-F

By: Hartnett H.B. No. 2900

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 612, Texas Probate Code, is amended to read as follows:

Sec. 612. APPLICATION FOR TRANSFER OF GUARDIANSHIP TO ANOTHER COUNTY. When a guardian or any other person desires to transfer [remove] the transaction of the business of the guardianship from one county to another, the person shall file a written application in the court in which the guardianship is pending stating the reason for the transfer [moving the transaction of business].

SECTION 2. Section 613(a), Texas Probate Code, is amended to read as follows:

(a) On filing an application to transfer [remove] a guardianship to another county, the sureties on the bond of the guardian shall be cited by personal service to appear and show cause why the application should not be granted.

SECTION 3. Sections 614, 615, 616, 617, and 618, Texas Probate Code, are amended to read as follows:

Sec. 614. COURT ACTION. (a) On hearing an application under Section 612 of this code, if good cause is not shown to deny the application and it appears that transfer [removal] of the guardianship is in the best interests of the ward, the court shall enter an order authorizing the transfer [removal] on payment on behalf of the estate of all accrued costs.

(b) In an order entered under Subsection (a) of this section, the court shall require the guardian, not later than the 20th day after the date the order is entered, to:

(1) give a new bond payable to the judge of the court to which the guardianship is transferred; or

(2) file a rider to an existing bond noting the court to which the guardianship is transferred.

Sec. 615. TRANSFER OF RECORD. When an order of transfer [removal] is made under Section 614 of this code, the clerk shall record any unrecorded papers of the guardianship required to be recorded. On payment of the clerk's fee, the clerk shall transmit to the county clerk of the county to which the guardianship was ordered transferred [removed]:

(1) the case file of the guardianship proceedings; and

(2) a certified copy of the index of the guardianship records.

Sec. 616. TRANSFER [REMOVAL] EFFECTIVE. The order transferring [removing] a guardianship does not take effect until:

(1) the case file and a certified copy of the index required by Section 615 of this code are filed in the office of the county clerk of the county to which the guardianship was ordered transferred [removed]; and

(2) a certificate under the clerk's official seal and reporting the filing of the case file and a certified copy of the index is filed in the court ordering the transfer [removal] by the county clerk of the county to which the guardianship was ordered transferred [removed].

Sec. 617. CONTINUATION OF GUARDIANSHIP. When a guardianship is transferred [removed] from one county to another in accordance with this subpart, the guardianship proceeds in the court to which it was transferred [removed] as if it had been originally commenced in that court. It is not necessary to record in the receiving court any of the papers in the case that were recorded in the court from which the case was transferred [removed].

Sec. 618. NEW GUARDIAN APPOINTED ON TRANSFER [REMOVAL]. If it appears to the court that transfer [removal] of the guardianship is in the best interests of the ward, but that because of the transfer [removal] it is not in the best interests of the ward [will be unduly expensive or unduly inconvenient to the estate] for the guardian of the estate to continue to serve in that capacity, the court may in its order of transfer [removal] revoke the letters of guardianship and appoint a new guardian, and the former guardian shall account for and deliver the estate as provided by this chapter in a case in which a guardian resigns.

SECTION 4. Subpart B, Part 2, Chapter XIII, Texas Probate Code, is amended by adding Section 619 to read as follows:

Sec. 619. REVIEW OF TRANSFERRED GUARDIANSHIP. Not later than the 90th day after the date the transfer of the guardianship takes effect under Section 616 of this code, the court to which the guardianship was transferred shall hold a hearing to consider modifying the rights, duties, and powers of the guardian or any other provisions of the transferred guardianship.

SECTION 5. Subpart E, Part 2, Chapter XIII, Texas Probate Code, is amended by adding Section 652 to read as follows:

Sec. 652. LOCATION OF HEARING. (a) Except as provided by Subsection (b) of this section, the judge may hold a hearing on a guardianship matter involving an adult ward or adult proposed ward at any suitable location in the county in which the guardianship matter is pending. The hearing should be held in a physical setting that is not likely to have a harmful effect on the ward or proposed ward.

(b) On the request of the adult proposed ward, the adult ward, or the attorney of the proposed ward or ward, the hearing may not be held under the authority of this section at a place other than the courthouse.

SECTION 6. Section 892, Texas Probate Code, is amended by amending Subsections (a) and (e) and adding Subsection (f-1) to read as follows:

(a) A guardian appointed by a foreign court to represent an incapacitated person who is residing in this state or intends to move to this state may file an application with a court in which the ward resides or intends to reside to have the guardianship transferred to the court. The application must have attached a certified copy of all papers of the guardianship filed and recorded in the foreign court.

(e) The [On the court's own motion or on the motion of the ward or any interested person, the] court shall hold a hearing to:

(1) consider the application for receipt and acceptance of a foreign guardianship; and

(2) consider modifying the administrative procedures or requirements of the proposed transferred guardianship in accordance with local and state law.

(f-1) At the time of granting an application for receipt and acceptance of a foreign guardianship, the court may also modify the administrative procedures or requirements of the transferred guardianship in accordance with local and state law.

SECTION 7. Section 894(b), Texas Probate Code, is amended to read as follows:

(b) A court that delays further action in a guardianship proceeding under Subsection (a) of this section shall determine whether venue of the proceeding is more suitable in that court or in the foreign court. In making that determination, the court may consider:

(1) the interests of justice;

(2) the best interests of the ward or proposed ward; [and]

(3) the convenience of the parties; and

(4) the preference of the ward or proposed ward, if the ward or proposed ward is 12 years of age or older.

SECTION 8. Subpart G, Part 5, Chapter XIII, Texas Probate Code, is amended by adding Section 895 to read as follows:

Sec. 895. DETERMINATION OF MOST APPROPRIATE FORUM FOR CERTAIN GUARDIANSHIP PROCEEDINGS. (a) If at any time a court of this state determines that it acquired jurisdiction of a proceeding for the appointment of a guardian of the person or estate, or both, of a ward or proposed ward because of unjustifiable conduct, the court may:

(1) decline to exercise jurisdiction;

(2) exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the ward or proposed ward or the protection of the ward's or proposed ward's property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or

(3) continue to exercise jurisdiction after considering:

(A) the extent to which the ward or proposed ward and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction;

(B) whether the court of this state is a more appropriate forum than the court of any other state after considering the factors described by Section 894(b) of this code; and

(C) whether the court of any other state would have jurisdiction under the factual circumstances of the matter.

(b) If a court of this state determines that it acquired jurisdiction of a proceeding for the appointment of a guardian of the person or estate, or both, of a ward or proposed ward because a party seeking to invoke the court's jurisdiction engaged in unjustifiable conduct, the court may assess against that party necessary and reasonable expenses, including attorney's fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against this state or a governmental subdivision, agency, or instrumentality of this state unless authorized by other law.

SECTION 9. Section 893, Texas Probate Code, is repealed.

SECTION 10. Sections 612, 613, 614, 615, 616, 617, and 618, Texas Probate Code, as amended by this Act, and Section 619, Texas Probate Code, as added by this Act, apply only to an application for the transfer of a guardianship to another county filed on or after the effective date of this Act. An application for the transfer of a guardianship to another county 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 11. Section 652, Texas Probate Code, as added by this Act, applies to a guardianship matter that is pending or commenced on or after the effective date of this Act.

SECTION 12. The changes in law made by this Act to Sections 892 and 893, Texas Probate Code, apply only to an application for receipt and acceptance of a foreign guardianship filed on or after the effective date of this Act. An application for receipt and acceptance of a foreign guardianship 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 13. Section 894, Texas Probate Code, as amended by this Act, and Section 895, Texas Probate Code, as added by this Act, apply only to a guardianship proceeding filed on or after the effective date of this Act. A guardianship proceeding filed before the effective date of this Act is governed by the law in effect on the date the proceeding was filed, and the former law is continued in effect for that purpose.

SECTION 14. This Act takes effect September 1, 2011.