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A BILL TO BE ENTITLED
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AN ACT
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relating to attorney's fees and other costs in guardianship |
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proceedings. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 665B, Texas Probate Code, as amended by |
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Chapters 314 (H.B. 587) and 930 (H.B. 3080), Acts of the 81st |
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Legislature, Regular Session, 2009, is reenacted and amended to |
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read as follows: |
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Sec. 665B. PAYMENT OF ATTORNEY'S FEES TO CERTAIN ATTORNEYS. |
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(a) A court that creates a guardianship or creates a management |
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trust under Section 867 of this code for a ward under this chapter, |
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on request of a person who filed an application to be appointed |
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guardian of the proposed ward, an application for the appointment |
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of another suitable person as guardian of the proposed ward, or an |
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application for the creation of the management trust, may authorize |
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the payment of reasonable and necessary attorney's fees, as |
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determined by the court, in amounts the court considers fair and |
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just, to an attorney who represents the person who filed the |
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application at the application hearing, regardless of whether the |
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person is appointed the ward's guardian or whether a management |
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trust is created, from[:
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[(1)] available funds of the ward's estate or |
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management trust, if created, subject to Subsection (a-1) of this |
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section and Section 669 of this code, if applicable. |
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(a-1) The court may authorize amounts that otherwise would |
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be paid from the ward's estate or the management trust as provided |
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by Subsection (a) of this section to instead be paid from the county |
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treasury,[; or
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[(2)] subject to Subsection (c) of this section, [the
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county treasury] if: |
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(1) [(A)] the ward's estate or[, if created,] |
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management trust[,] is insufficient to pay [for] the amounts |
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[services provided by the attorney]; and |
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(2) [(B)] funds in the county treasury are budgeted |
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for that purpose. |
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(b) The court may not authorize attorney's fees under this |
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section unless the court finds that the applicant acted in good |
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faith and for just cause in the filing and prosecution of the |
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application. |
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(c) The court may authorize the payment of attorney's fees |
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from the county treasury under Subsection (a-1) [(a)] of this |
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section only if the court is satisfied that the attorney to whom the |
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fees will be paid has not received, and is not seeking, payment for |
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the services described by that subsection from any other source. |
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SECTION 2. Section 665D(c), Texas Probate Code, is amended |
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to read as follows: |
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(c) The court shall set the compensation of an attorney |
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described by Subsection (a) of this section for the performance of |
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guardianship services in accordance with Section 665 of this code. |
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The court shall set attorney's fees for an attorney described by |
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Subsection (a) of this section for legal services provided in |
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accordance with Sections [665A,] 665B, [and] 666, and 669 of this |
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code. |
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SECTION 3. Section 669, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 669. COSTS IN [AGAINST] GUARDIANSHIP PROCEEDING |
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GENERALLY. (a) Except as provided by Subsection (b) of this |
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section, in a guardianship matter, the cost of the proceeding, |
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including the cost of the guardian ad litem, attorney ad litem, |
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court investigator, [or] court visitor, mental health |
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professionals, interpreters, and other attorneys, shall be set in |
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an amount the court considers fair and just and shall be paid out of |
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the guardianship estate, or, if the estate is insufficient to pay |
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for the cost of the proceeding, the cost of the proceeding shall be |
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paid out of the county treasury, except as provided by Subsection |
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(c) of this section, and the judgment of the court shall be issued |
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accordingly. |
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(b) If a court finds that a party in a guardianship |
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proceeding acted in bad faith or without just cause in prosecuting |
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or objecting to an application in the proceeding, the court may |
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require that party to pay all or part of the costs [denies an
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application for the appointment of a guardian under this chapter
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based on the recommendation of a court investigator, the applicant
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shall pay the cost] of the proceeding. |
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(c) The court may order the applicant in a guardianship |
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proceeding to pay the cost of the guardian ad litem or court visitor |
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appointed in the proceeding if: |
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(1) the guardianship estate is insufficient to pay |
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that cost; and |
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(2) the applicant's gross annual family income exceeds |
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200 percent of the federal poverty level. |
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SECTION 4. Section 875(i), Texas Probate Code, is amended |
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to read as follows: |
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(i) If the court appoints a temporary guardian after the |
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hearing required by Subsection (f)(1) of this section, all court |
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costs, including attorney's fees, may be assessed as provided in |
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Section [665A,] 665B[,] or 669 of this code. |
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SECTION 5. Section 665A, Texas Probate Code, is repealed. |
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SECTION 6. The changes in law made by this Act apply to a |
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guardianship created before, on, or after the effective date of |
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this Act. |
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SECTION 7. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2011. |