BILL ANALYSIS |
C.S.H.B. 1438 |
By: Thompson, Senfronia |
Judiciary & Civil Jurisprudence |
Committee Report (Substituted) |
BACKGROUND AND PURPOSE
As part of its ongoing review of Texas probate, guardianship, and trust law, the Real Estate, Probate, and Trust Law Section of the State Bar of Texas has proposed several updates to the law regarding guardianships. Interested parties have also identified certain other probate issues, including guardianships and other matters related to incapacitated persons, requiring legislative attention. The parties also note that certain changes are needed that relate to the recusal or disqualification of a statutory probate judge or other judge authorized to hear probate, guardianship, or mental health matters and to the subsequent assignment of another judge. C.S.H.B. 1438 seeks to implement these proposed updates and to address these issues.
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CRIMINAL JUSTICE IMPACT
It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.
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RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
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ANALYSIS
C.S.H.B. 1438 amends the Estates Code to require a court on hearing an application for transfer of guardianship to another county, if certain prerequisites are met, to enter an order requiring any existing bond of the guardian to remain in effect until a new bond has been given or a rider has been filed in accordance with statutory provisions and bill provisions regarding the review of a transfer of guardianship. The bill requires the court to which a guardianship was transferred, after holding a hearing to consider modifying provisions of the transferred guardianship, to enter an order requiring the guardian to give a new bond payable to the judge of the court to which the guardianship was transferred or file a rider to an existing bond noting the court to which the guardianship was transferred.
C.S.H.B. 1438 revises the provision requiring a person filing an application for guardianship to mail a copy of the application and a notice of the citation issued by the court clerk to, among other persons, each person named as another relative within the third degree by consanguinity in the application, as required by statute, if the proposed ward's spouse and each of the proposed ward's parents, adult siblings, and adult children are deceased or if there is no spouse, parent, adult sibling, or adult child, to instead specify that the copy and notice of the citation must be sent to each adult named in the application as an "other living relative" of the proposed ward within the third degree by consanguinity under those same conditions.
C.S.H.B. 1438 specifies, for purposes of the requirement that a county clerk record in a record book entitled "Judge's Guardianship Docket" a notation of each order, judgment, decree, and proceeding, that such a notation is for each guardianship rather than each estate.
C.S.H.B. 1438 expands the sources from which a person or entity is entitled to be reimbursed for a filing fee after the creation of a guardianship to include a management trust, if a management trust has been created for the benefit of the ward under the applicable statutory provisions and the court determines it is in the ward's best interest.
C.S.H.B. 1438, for purposes of the authorization for a county clerk to require a person who files an application, complaint, or opposition relating to a certain guardianship proceeding to provide security for the probable costs of the proceeding before filing the application, complaint, or opposition, to also authorize the clerk to obtain from the court an order requiring that action.
C.S.H.B. 1438 authorizes an interested person to intervene in a guardianship proceeding only by filing a timely motion to intervene that is served on the parties, notwithstanding the Texas Rules of Civil Procedure. The bill requires the motion to state the grounds for intervention in the proceeding and be accompanied by a pleading that sets out the purpose for which intervention is sought. The bill establishes that the court has the discretion to grant or deny the motion and requires the court, in exercising that discretion, to consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.
C.S.H.B. 1438 establishes, for purposes of statutory provisions relating to the sworn application for appointment of a guardian containing a statement regarding the proposed ward and certain other related facts regarding the guardianship, that a proposed ward's relatives within the third degree by consanguinity include the proposed ward's grandparent or grandchild and great-grandparent, great-grandchild, aunt who is a sister of a parent of the proposed ward, uncle who is a brother of a parent of the proposed ward, nephew who is a child of a brother or sister of the proposed ward, or niece who is a child of a brother or sister of the proposed ward.
C.S.H.B. 1438 authorizes a court, before an order appointing a guardian is entered or in such an order, to require the deposit of cash, securities, or other assets of a proposed ward or ward in a financial institution, as described by applicable statutory provisions governing an agreement regarding the deposit of estate assets, for safekeeping. The bill requires the amount of the bond required to be given by the guardian under statutory provisions regarding the general requirements for a bond to be reduced in proportion to the amount of the cash or the value of the securities or other assets deposited.
C.S.H.B. 1438 expands the sources from which a court may compensate a guardian ad litem, regardless of whether a guardianship is created for the proposed ward, to include a management trust, if a management trust has been created for the benefit of the proposed ward under the applicable statutory provisions.
C.S.H.B. 1438 revises the declaration made in the forms to be used as alternatives to a self-proving affidavit regarding the declaration of appointment of a guardian for the declarant's children or the declaration of a guardian in the event of later incapacity or need of guardian to add the specification in those forms that the declaration of the appointment is made willingly.
C.S.H.B. 1438 revises the provision requiring the clerk of the county having venue of the proceeding for the appointment of a guardian to obtain criminal history record information relating to any person proposed to serve as a guardian except for the ward's or proposed ward's family member or an attorney to remove the exception for the ward's or proposed ward's family member and to make a conforming change regarding the applicable use of that information by a court.
C.S.H.B. 1438 expands the sources from which the court costs of a guardianship proceeding are paid to include a management trust, if a management trust has been created for the benefit of the ward and the court determines it is in the ward's best interest.
C.S.H.B. 1438 revises the provision authorizing a successor guardian to settle with the successor's predecessor and receive and give a receipt for any portion of the estate property that remains in the successor's possession to specify instead that the successor guardian may settle with the predecessor and receive and give a receipt for such a portion that remains in the predecessor's possession.
C.S.H.B. 1438 revises the provision establishing the duration of certain temporary guardianships to specify that the term expires on the earliest of the conclusion of the hearing challenging or contesting the application, the date a permanent guardian appointed by the court for the proposed ward qualifies to serve as the ward's guardian, or the 12-month anniversary of the date the temporary guardian qualifies, unless the term is extended by court order issued after a motion to extend the term is filed and a hearing on the motion is held.
C.S.H.B. 1438 clarifies that a guardian appointed by a foreign court to represent an incapacitated person who is residing in Texas or intends to move to Texas may file an application with a court in the county in which the ward resides or in which it is intended that the ward will reside to have the guardianship transferred to that court.
C.S.H.B. 1438 extends the applicability of the requirement that an initial accounting of a management trust be filed by certain trustees in guardianship proceedings by a certain date to a trustee of a management trust created for a person who, on the date the trust is created, is a ward under an existing guardianship and requires the applicable trustee to file the applicable report with the court that created the guardianship.
C.S.H.B. 1438 authorizes the court, if a minor who is not a ward does not have a parent or managing conservator willing or able to file an application with a court for an order to sell an interest of the minor in property without being appointed guardian, to appoint an attorney ad litem or guardian ad litem to act on the minor's behalf for the limited purpose of applying for an order to sell the minor's interest in property. The bill makes applicable to the attorney ad litem and guardian ad litem so appointed the statutory provisions regarding the application for such a sale and the venue for such an application.
C.S.H.B. 1438 makes applicable to a guardian of the person or estate appointed by a foreign court the statutory provisions relating to the sale of a ward's property without guardianship of the estate and adds the specification, for purposes of the provision regarding the authority of a guardian to file an application with a court for an order to sell an interest of the ward's estate without being appointed guardian of the ward's estate, that the estate is in Texas.
C.S.H.B. 1438 amends the Finance Code to exclude from the application of statutory provisions providing the exclusive method for compelled discovery of a record of a financial institution a record request in connection with an investigation conducted under Estates Code provisions regarding an investigation of the circumstances alleged in a guardianship application to determine whether a less restrictive alternative to guardianship is appropriate, an investigation of a complaint received from any person about a guardianship, or a court-initiated investigation to determine whether a person domiciled or found in the county in which the court is located is an incapacitated person and whether a guardianship is necessary.
C.S.H.B. 1438 amends the Government Code to remove and repeal statutory provisions relating to the procedure for filing and hearing a motion to recuse or disqualify a statutory probate court judge. The bill instead establishes that Texas Rules of Civil Procedure governing the recusal and disqualification of district and county court judges, and the grounds for such recusal or disqualification, apply to the recusal and disqualification of a statutory probate court judge except as otherwise provided by the bill or another general statutory provision relating to statutory probate courts. The bill grants the presiding judge of the statutory probate courts the authority to perform, and requires the presiding judge to perform, the functions and duties of the presiding judge of the administrative judicial region under the rules, including the duty to hear or rule on a referred motion of recusal or disqualification or, subject to certain conditions, to assign a judge to hear and rule on such a motion. The bill authorizes the presiding judge of the statutory probate courts to assign a presiding judge of the administrative judicial region to hear and rule on a referred motion of recusal or disqualification only with the consent of the presiding judge of the administrative judicial region. The bill prohibits the presiding judge of the statutory probate courts from assigning a judge of a statutory probate court located in the same county as the statutory probate court served by the judge who is the subject of the motion of recusal or disqualification.
C.S.H.B. 1438 authorizes the judge who hears a motion of recusal or disqualification of a statutory probate court judge, after notice and hearing, to order the party or attorney who filed the motion, or both, to pay the reasonable attorney's fees and expenses incurred by another party if the judge determines that the motion was groundless and filed in bad faith or for the purpose of harassment, or was clearly brought for unnecessary delay and without sufficient cause, and to enjoin the movant from filing other recusal motions in the case without the prior written consent of the presiding judge of the statutory probate courts.
C.S.H.B. 1438 specifies that a judge who recuses himself or herself and serves a statutory probate court located in a county with only one such court is required to request that the presiding judge of the statutory probate courts, instead of the presiding judge of the administrative judicial district, assign a judge to hear the case. The bill specifies, for a judge who recuses himself or herself and serves a statutory probate court located in a county with more than one such court, that the request for the clerk who serves the statutory probate courts in that county to randomly reassign the case to a judge of one of the other statutory probate courts located in the county is directed to the presiding judge of the statutory probate courts. The bill specifies that a judge who disqualifies himself or herself is required to request that the presiding judge of the statutory probate courts, instead of the presiding judge of the administrative judicial district, assign a judge to hear the case and limits that requirement to a judge who serves a statutory probate court located in a county with only one such court. The bill requires a judge who disqualifies himself or herself and serves a statutory probate court located in a county with more than one such court to request that the presiding judge of the statutory probate courts order the clerk who serves the statutory probate courts in that county to randomly reassign the case to a judge of one of the other statutory probate courts.
C.S.H.B. 1438 specifies that the presiding judge of the statutory probate courts, instead of the judge who heard the motion, is required to transfer the case to another court or to assign another judge to the case if a motion for recusal or disqualification is granted. The bill requires the presiding judge or the judge assigned to decide the motion to enter an order of recusal or disqualification, as appropriate, and request the reassignment of the case. The bill specifies that a clerk of a statutory probate court who is unable to reassign a case as requested because the other statutory probate court judges in the county have been recused or disqualified, or are otherwise unavailable to hear the case, is required to immediately notify the presiding judge of the statutory probate courts, instead of the presiding judge of the administrative judicial district, and is required to request that the presiding judge of the statutory probate courts, instead of the presiding judge of the administrative judicial district, assign a judge to hear the case.
C.S.H.B. 1438 specifies that the presiding judge of the statutory probate courts, instead of the presiding judge of the administrative judicial district, is required to assign a statutory probate court judge or a former or retired judge of a statutory probate court to hear a case not later than the 15th day after the date an order of recusal or disqualification of a statutory probate court judge is issued in the case under certain circumstances involving the recusal or disqualification of a judge that serves a statutory probate court located in a county with only one such court or if the presiding judge receives notice and a request for assignment from the clerk of the statutory probate court. The bill requires the chief justice of the supreme court, if the judge who is the subject of an order of recusal or disqualification is the presiding judge of the statutory probate courts, to assign a regional presiding judge, a statutory probate judge, or a former or retired judge of a statutory probate court to hear the case.
C.S.H.B. 1438 requires the presiding judge of the statutory probate courts to assign or order the clerk who serves the statutory probate courts to randomly assign a judge or former or retired judge of a statutory probate court to hear a case in which a statutory probate judge has been recused or disqualified, as applicable. The bill authorizes a judge or a former or retired judge of a statutory probate court to be assigned by the presiding judge of the statutory probate courts to hold court in a statutory probate court, a county court, or any statutory court exercising probate jurisdiction when the statutory probate judge is recused or disqualified in certain matters. The bill adds the recusal of a county judge, in addition to the absence, incapacitation, or disqualification of a county judge, to the circumstances that require a visiting judge to be assigned by the presiding judge of the statutory probate courts for a case involving probate, guardianship, or mental health matters.
C.S.H.B. 1438 repeals Sections 25.002201(c) and 25.00255(b)–(f), (h), (i), (i-1), (i-4), and (j), Government Code.
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EFFECTIVE DATE
September 1, 2015.
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COMPARISON OF ORIGINAL AND SUBSTITUTE
While C.S.H.B. 1438 may differ from the original in minor or nonsubstantive ways, the following comparison is organized and formatted in a manner that indicates the substantial differences between the introduced and committee substitute versions of the bill.
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