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A BILL TO BE ENTITLED
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AN ACT
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relating to probate matters, including guardianships and other |
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matters related to incapacitated persons. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1023.005, Estates Code, is amended to |
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read as follows: |
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Sec. 1023.005. COURT ACTION. [(a)] On hearing an |
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application under Section 1023.003, if good cause is not shown to |
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deny the application and it appears that transfer of the |
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guardianship is in the best interests of the ward, the court shall |
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enter an order: |
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(1) authorizing the transfer on payment on behalf of |
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the estate of all accrued costs; and |
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(2) requiring that any existing bond of the guardian |
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must remain in effect until a new bond has been given or a rider has |
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been filed in accordance with Section 1023.010. |
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[(b)
In an order entered under Subsection (a), the court
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shall require the guardian, not later than the 20th day after the
|
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date the order is entered, to:
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[(1)
give a new bond payable to the judge of the court
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to which the guardianship is transferred; or
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[(2)
file a rider to an existing bond noting the court
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to which the guardianship is transferred.] |
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SECTION 2. Section 1023.010, Estates Code, is amended to |
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read as follows: |
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Sec. 1023.010. REVIEW OF TRANSFERRED GUARDIANSHIP. (a) |
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Not later than the 90th day after the date the transfer of the |
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guardianship takes effect under Section 1023.007, the court to |
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which the guardianship was transferred shall hold a hearing to |
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consider modifying the rights, duties, and powers of the guardian |
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or any other provisions of the transferred guardianship. |
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(b) After the hearing described by Subsection (a), the court |
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to which the guardianship was transferred shall enter an order |
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requiring the guardian to: |
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(1) give a new bond payable to the judge of the court |
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to which the guardianship was transferred; or |
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(2) file a rider to an existing bond noting the court |
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to which the guardianship was transferred. |
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SECTION 3. Section 1051.104(a), Estates Code, is amended to |
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read as follows: |
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(a) The person filing an application for guardianship shall |
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mail a copy of the application and a notice containing the |
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information required in the citation issued under Section 1051.102 |
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by registered or certified mail, return receipt requested, or by |
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any other form of mail that provides proof of delivery, to the |
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following persons, if their whereabouts are known or can be |
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reasonably ascertained: |
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(1) each adult child of the proposed ward; |
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(2) each adult sibling of the proposed ward; |
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(3) the administrator of a nursing home facility or |
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similar facility in which the proposed ward resides; |
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(4) the operator of a residential facility in which |
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the proposed ward resides; |
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(5) a person whom the applicant knows to hold a power |
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of attorney signed by the proposed ward; |
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(6) a person designated to serve as guardian of the |
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proposed ward by a written declaration under Subchapter E, Chapter |
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1104, if the applicant knows of the existence of the declaration; |
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(7) a person designated to serve as guardian of the |
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proposed ward in the probated will of the last surviving parent of |
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the proposed ward; |
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(8) a person designated to serve as guardian of the |
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proposed ward by a written declaration of the proposed ward's last |
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surviving parent, if the declarant is deceased and the applicant |
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knows of the existence of the declaration; and |
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(9) each adult [person] named [as another relative
|
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within the third degree by consanguinity] in the application as an |
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"other living relative" of the proposed ward within the third |
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degree by consanguinity, as required by Section 1101.001(b)(11) or |
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(13), if the proposed ward's spouse and each of the proposed ward's |
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parents, adult siblings, and adult children are deceased or there |
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is no spouse, parent, adult sibling, or adult child. |
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SECTION 4. Section 1052.001(a), Estates Code, is amended to |
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read as follows: |
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(a) The county clerk shall maintain a record book titled |
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"Judge's Guardianship Docket" and shall record in the book: |
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(1) the name of each person with respect to whom, or |
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with respect to whose estate, a proceeding is commenced or sought to |
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be commenced; |
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(2) the name of the guardian of the estate or person or |
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of the applicant for letters of guardianship; |
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(3) the date each original application for a |
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guardianship proceeding is filed; |
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(4) a notation of each order, judgment, decree, and |
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proceeding that occurs in each guardianship [estate], including the |
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date it occurs; and |
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(5) the docket number of each guardianship as assigned |
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under Subsection (b). |
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SECTION 5. Section 1052.051(f), Estates Code, is amended to |
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read as follows: |
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(f) After the creation of a guardianship, a person or entity |
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is entitled to be reimbursed for a filing fee described by |
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Subsection (d), other than a deposit for payment to an attorney ad |
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litem, from: |
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(1) the guardianship estate; |
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(2) the management trust, if a management trust has |
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been created for the benefit of the ward under Chapter 1301 and the |
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court determines it is in the ward's best interest; or |
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(3) [(2)] the county treasury, if the assets of the |
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guardianship estate or management trust, as appropriate, are [is] |
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insufficient to pay the amount of the filing fee. |
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SECTION 6. Section 1053.052(a), Estates Code, is amended to |
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read as follows: |
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(a) The clerk may require or may obtain from the court an |
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order requiring a person who files an application, complaint, or |
|
opposition relating to a guardianship proceeding, other than a |
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guardian, attorney ad litem, or guardian ad litem, to provide |
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security for the probable costs of the proceeding before filing the |
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application, complaint, or opposition. |
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SECTION 7. Subchapter A, Chapter 1055, Estates Code, is |
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amended by adding Section 1055.003 to read as follows: |
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Sec. 1055.003. INTERVENTION BY INTERESTED PERSON. (a) |
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Notwithstanding the Texas Rules of Civil Procedure, an interested |
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person may intervene in a guardianship proceeding only by filing a |
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timely motion to intervene that is served on the parties. |
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(b) The motion must state the grounds for intervention in |
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the proceeding and be accompanied by a pleading that sets out the |
|
purpose for which intervention is sought. |
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(c) The court has the discretion to grant or deny the motion |
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and, in exercising that discretion, must consider whether the |
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intervention will unduly delay or prejudice the adjudication of the |
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original parties' rights. |
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SECTION 8. Section 1101.001, Estates Code, is amended by |
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adding Subsection (c) to read as follows: |
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(c) For purposes of this section, a proposed ward's |
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relatives within the third degree by consanguinity include the |
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proposed ward's: |
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(1) grandparent or grandchild; and |
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(2) great-grandparent, great-grandchild, aunt who is |
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a sister of a parent of the proposed ward, uncle who is a brother of |
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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 |
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sister of the proposed ward. |
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SECTION 9. Subchapter D, Chapter 1101, Estates Code, is |
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amended by adding Section 1101.156 to read as follows: |
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Sec. 1101.156. REQUIRED DEPOSIT OF ESTATE ASSETS. (a) |
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Before an order appointing a guardian is entered, or in such an |
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order, a court may require the deposit of cash, securities, or other |
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assets of a proposed ward or ward in a financial institution |
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described by Section 1105.155(b) for safekeeping. |
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(b) The amount of the bond required to be given by the |
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guardian under Section 1105.101 shall be reduced in proportion to |
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the amount of the cash or the value of the securities or other |
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assets deposited under this section. |
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SECTION 10. Section 1102.005, Estates Code, is amended to |
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read as follows: |
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Sec. 1102.005. COMPENSATION OF GUARDIAN AD LITEM. (a) |
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Regardless of whether a guardianship is created for a proposed |
|
ward, a [A] court that appoints a guardian ad litem under Section |
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1102.001 may authorize compensation of the guardian ad litem from |
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available funds of: |
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(1) the proposed ward's estate; or |
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(2) the management trust, if a management trust has |
|
been created for the benefit of the proposed ward under Chapter |
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1301[, regardless of whether a guardianship is created for the
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proposed ward]. |
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(b) After examining the proposed ward's assets or the assets |
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of any management trust created for the proposed ward's benefit |
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under Chapter 1301, and determining that the proposed ward or the |
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management trust is unable to pay for services provided by the |
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guardian ad litem, the court may authorize compensation from the |
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county treasury. |
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SECTION 11. Section 1104.154(a), Estates Code, is amended |
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to read as follows: |
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(a) As an alternative to the self-proving affidavit |
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authorized by Section 1104.153, a declaration of appointment of a |
|
guardian for the declarant's children in the event of the |
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declarant's death or incapacity may be simultaneously executed, |
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attested, and made self-proved by including the following in |
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substantially the same form and with substantially the same |
|
contents: |
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I, _________________________, as declarant, after being duly |
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sworn, declare to the undersigned witnesses and to the undersigned |
|
authority that this instrument is my Declaration of Appointment of |
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Guardian for My Children in the Event of My Death or Incapacity, and |
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that I willingly make [have made] and execute [executed] it for the |
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purposes expressed in the declaration. I now sign this declaration |
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in the presence of the attesting witnesses and the undersigned |
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authority on this ____ day of ________, 20__. |
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___________________________ |
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Declarant |
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The undersigned, _____________________ and |
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___________________, each being 14 years of age or older, after |
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being duly sworn, declare to the declarant and to the undersigned |
|
authority that the declarant declared to us that this instrument is |
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the declarant's Declaration of Appointment of Guardian for the |
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Declarant's Children in the Event of Declarant's Death or |
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Incapacity and that the declarant executed it for the purposes |
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expressed in the declaration. The declarant then signed this |
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declaration and we believe the declarant to be of sound mind. We now |
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sign our names as attesting witnesses on this _____ day of |
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___________, 20___. |
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___________________________ |
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Witness |
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___________________________ |
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Witness |
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Subscribed and sworn to before me by the above named |
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declarant, and affiants, this ____ day of __________________, 20__. |
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___________________________ |
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Notary Public in and for the |
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State of Texas |
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My Commission expires: |
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___________________________ |
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SECTION 12. Section 1104.205(a), Estates Code, is amended |
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to read as follows: |
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(a) As an alternative to the self-proving affidavit |
|
authorized by Section 1104.204, a declaration of guardian in the |
|
event of later incapacity or need of guardian may be simultaneously |
|
executed, attested, and made self-proved by including the following |
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in substantially the same form and with substantially the same |
|
contents: |
|
I, _________________________, as declarant, after being duly |
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sworn, declare to the undersigned witnesses and to the undersigned |
|
authority that this instrument is my Declaration of Guardian in the |
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Event of Later Incapacity or Need of Guardian, and that I willingly |
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make [have made] and execute [executed] it for the purposes |
|
expressed in the declaration. I now sign this declaration in the |
|
presence of the attesting witnesses and the undersigned authority |
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on this ____ day of ________, 20__. |
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___________________________ |
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Declarant |
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The undersigned, _____________________ and |
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___________________, each being 14 years of age or older, after |
|
being duly sworn, declare to the declarant and to the undersigned |
|
authority that the declarant declared to us that this instrument is |
|
the declarant's Declaration of Guardian in the Event of Later |
|
Incapacity or Need of Guardian and that the declarant executed it |
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for the purposes expressed in the declaration. The declarant then |
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signed this declaration and we believe the declarant to be of sound |
|
mind. We now sign our names as attesting witnesses on this _____ day |
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of ___________, 20___. |
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___________________________ |
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Witness |
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___________________________ |
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Witness |
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Subscribed and sworn to before me by the above named |
|
declarant, and affiants, this ____ day of __________________, 20__. |
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__________________________ |
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Notary Public in and for the |
|
State of Texas |
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My Commission expires: |
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__________________________ |
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SECTION 13. Section 1104.402(a), Estates Code, is amended |
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to read as follows: |
|
(a) Except as provided by Section 1104.403, 1104.404, or |
|
1104.406(a), the clerk of the county having venue of the proceeding |
|
for the appointment of a guardian shall obtain criminal history |
|
record information that is maintained by the Department of Public |
|
Safety or the Federal Bureau of Investigation identification |
|
division relating to: |
|
(1) a private professional guardian; |
|
(2) each person who represents or plans to represent |
|
the interests of a ward as a guardian on behalf of the private |
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professional guardian; |
|
(3) each person employed by a private professional |
|
guardian who will: |
|
(A) have personal contact with a ward or proposed |
|
ward; |
|
(B) exercise control over and manage a ward's |
|
estate; or |
|
(C) perform any duties with respect to the |
|
management of a ward's estate; |
|
(4) each person employed by or volunteering or |
|
contracting with a guardianship program to provide guardianship |
|
services to a ward of the program on the program's behalf; or |
|
(5) any other person proposed to serve as a guardian |
|
under this title, including a proposed temporary guardian and a |
|
proposed successor guardian, other than [the ward's or proposed
|
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ward's family member or] an attorney. |
|
SECTION 14. Section 1104.409, Estates Code, is amended to |
|
read as follows: |
|
Sec. 1104.409. USE OF INFORMATION BY COURT. The court |
|
shall use the information obtained under this subchapter only in |
|
determining whether to: |
|
(1) appoint, remove, or continue the appointment of a |
|
private professional guardian, a guardianship program, or the |
|
department; or |
|
(2) appoint any other person proposed to serve as a |
|
guardian under this title, including a proposed temporary guardian |
|
and a proposed successor guardian, other than [the ward's or
|
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proposed ward's family member or] an attorney. |
|
SECTION 15. Section 1155.151(a), Estates Code, is amended |
|
to read as follows: |
|
(a) In a guardianship proceeding, the court costs of the |
|
proceeding, including the cost of the guardians ad litem, attorneys |
|
ad litem, court visitor, mental health professionals, and |
|
interpreters appointed under this title, shall be set in an amount |
|
the court considers equitable and just and, except as provided by |
|
Subsection (c), shall be paid as follows, and the court shall issue |
|
the judgment accordingly: |
|
(1) out of the guardianship estate; |
|
(2) out of the management trust, if a management trust |
|
has been created for the benefit of the ward under Chapter 1301 and |
|
the court determines it is in the ward's best interest; [,] or |
|
(3) out of the county treasury if the assets of the |
|
guardianship estate or management trust, as appropriate, are [is] |
|
insufficient to pay the cost[, and the court shall issue the
|
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judgment accordingly]. |
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SECTION 16. Section 1163.101(c), Estates Code, is amended |
|
to read as follows: |
|
(c) The guardian of the person shall file a sworn affidavit |
|
that contains: |
|
(1) the guardian's current name, address, and |
|
telephone number; |
|
(2) the ward's date of birth and current name, address, |
|
telephone number, and age; |
|
(3) a description of the type of home in which the ward |
|
resides, which shall be described as: |
|
(A) the ward's own home; |
|
(B) a nursing home; |
|
(C) a guardian's home; |
|
(D) a foster home; |
|
(E) a boarding home; |
|
(F) a relative's home, in which case the |
|
description must specify the relative's relationship to the ward; |
|
(G) a hospital or medical facility; or |
|
(H) another type of residence; |
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(4) statements indicating: |
|
(A) the length of time the ward has resided in the |
|
present home; |
|
(B) the reason for a change in the ward's |
|
residence, if a change in the ward's residence has occurred in the |
|
past year; |
|
(C) the date the guardian most recently saw the |
|
ward; |
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(D) how frequently the guardian has seen the ward |
|
in the past year; |
|
(E) whether the guardian has possession or |
|
control of the ward's estate; |
|
(F) whether the ward's mental health has |
|
improved, deteriorated, or remained unchanged during the past year, |
|
including a description of the change if a change has occurred; |
|
(G) whether the ward's physical health has |
|
improved, deteriorated, or remained unchanged during the past year, |
|
including a description of the change if a change has occurred; |
|
(H) whether the ward has regular medical care; |
|
and |
|
(I) the ward's treatment or evaluation by any of |
|
the following persons during the past year, including the person's |
|
name and a description of the treatment: |
|
(i) a physician; |
|
(ii) a psychiatrist, psychologist, or other |
|
mental health care provider; |
|
(iii) a dentist; |
|
(iv) a social or other caseworker; or |
|
(v) any other individual who provided |
|
treatment; |
|
(5) a description of the ward's activities during the |
|
past year, including recreational, educational, social, and |
|
occupational activities, or a statement that no activities were |
|
available or that the ward was unable or refused to participate in |
|
activities; |
|
(6) the guardian's evaluation of: |
|
(A) the ward's living arrangements as excellent, |
|
average, or below average, including an explanation if the |
|
conditions are below average; |
|
(B) whether the ward is content or unhappy with |
|
the ward's living arrangements; and |
|
(C) unmet needs of the ward; |
|
(7) a statement indicating whether the guardian's |
|
power should be increased, decreased, or unaltered, including an |
|
explanation if a change is recommended; |
|
(8) a statement indicating that the guardian has paid |
|
the bond premium for the next reporting period; |
|
(9) if the guardian is a private professional |
|
guardian, a guardianship program, or the Department of Aging and |
|
Disability Services, whether the guardian or an individual |
|
certified under Subchapter C, Chapter 155 [111], Government Code, |
|
who is providing guardianship services to the ward and who is filing |
|
[swearing to] the affidavit on the guardian's behalf, is or has been |
|
the subject of an investigation conducted by the Guardianship |
|
Certification Board during the preceding year; and |
|
(10) any additional information the guardian desires |
|
to share with the court regarding the ward, including: |
|
(A) whether the guardian has filed for emergency |
|
detention of the ward under Subchapter A, Chapter 573, Health and |
|
Safety Code; and |
|
(B) if applicable, the number of times the |
|
guardian has filed for emergency detention and the dates of the |
|
applications for emergency detention. |
|
SECTION 17. The heading to Section 1163.1011, Estates Code, |
|
is amended to read as follows: |
|
Sec. 1163.1011. USE OF UNSWORN DECLARATION IN LIEU OF SWORN |
|
DECLARATION OR AFFIDAVIT FOR [ELECTRONIC] FILING [OF] ANNUAL |
|
REPORT. |
|
SECTION 18. Section 1163.1011(a), Estates Code, is amended |
|
to read as follows: |
|
(a) A guardian of the person who is required to file an |
|
[files the] annual report under [required by] Section 1163.101 |
|
[electronically] with the court, including a guardian filing the |
|
annual report electronically, may use an unsworn declaration made |
|
as provided by this section instead of the [a written] sworn |
|
declaration or affidavit required by Section 1163.101. |
|
SECTION 19. Section 1203.202(c), Estates Code, is amended |
|
to read as follows: |
|
(c) A successor guardian may: |
|
(1) make himself or herself, and be made, a party to a |
|
suit prosecuted by or against the successor's predecessor; |
|
(2) settle with the predecessor and receive and give a |
|
receipt for any portion of the estate property that remains in the |
|
predecessor's [successor's] possession; or |
|
(3) commence a suit on the bond or bonds of the |
|
predecessor, in the successor's own name and capacity, for all the |
|
estate property that: |
|
(A) came into the predecessor's possession; and |
|
(B) has not been accounted for by the |
|
predecessor. |
|
SECTION 20. Section 1251.052(b), Estates Code, is amended |
|
to read as follows: |
|
(b) The term of a temporary guardian appointed under Section |
|
1251.051 expires on the earliest of the following: |
|
(1) [at] the conclusion of the hearing challenging or |
|
contesting the application; [or] |
|
(2) [on] the date a permanent guardian appointed by |
|
the court for the proposed ward qualifies to serve as the ward's |
|
guardian; or |
|
(3) 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. |
|
SECTION 21. Section 1253.051, Estates Code, is amended to |
|
read as follows: |
|
Sec. 1253.051. APPLICATION FOR RECEIPT AND ACCEPTANCE OF |
|
FOREIGN GUARDIANSHIP. 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 the county in which the ward resides or in which it is intended |
|
that the ward will [intends to] reside to have the guardianship |
|
transferred to that [the] court. The application must have |
|
attached a certified copy of all papers of the guardianship filed |
|
and recorded in the foreign court. |
|
SECTION 22. Section 1301.1535, Estates Code, is amended to |
|
read as follows: |
|
Sec. 1301.1535. INITIAL ACCOUNTING BY CERTAIN TRUSTEES |
|
REQUIRED. (a) This section applies only to a trustee of a |
|
management trust created for a person who [for whom a guardianship
|
|
proceeding is pending] on the date the trust is created is: |
|
(1) a ward under an existing guardianship; or |
|
(2) a proposed ward with respect to whom an |
|
application for guardianship has been filed and is pending. |
|
(b) Not later than the 30th day after the date a trustee to |
|
which this section applies receives property into the trust, the |
|
trustee shall file with the court that created the guardianship or |
|
the court in which the application for guardianship was filed |
|
[proceeding is pending] a report describing all property held in |
|
the trust on the date of the report and specifying the value of the |
|
property on that date. |
|
SECTION 23. Section 1351.001, Estates Code, is amended to |
|
read as follows: |
|
Sec. 1351.001. AUTHORITY TO SELL MINOR'S INTEREST IN |
|
PROPERTY WITHOUT GUARDIANSHIP. (a) A parent or managing |
|
conservator of a minor who is not a ward may apply to the court under |
|
this subchapter for an order to sell an interest of the minor in |
|
property without being appointed guardian if the net value of the |
|
interest does not exceed $100,000. |
|
(b) If a minor who is not a ward does not have a parent or |
|
managing conservator willing or able to file an application under |
|
Subsection (a), the court may 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 under this subchapter. |
|
SECTION 24. Sections 1351.002(a) and (b), Estates Code, are |
|
amended to read as follows: |
|
(a) A parent, [or] managing conservator, or attorney ad |
|
litem or guardian ad litem appointed under Section 1351.001(b) |
|
shall apply to the court under oath for the sale of property under |
|
this subchapter. |
|
(b) An application must contain: |
|
(1) the minor's name; |
|
(2) a legal description of the real property or a |
|
description that identifies the personal property, as applicable; |
|
(3) the minor's interest in the property; |
|
(4) the purchaser's name; |
|
(5) a statement that the sale of the minor's interest |
|
in the property is for cash; and |
|
(6) a statement that all money received from the sale |
|
of the minor's interest in the property [by the parent or managing
|
|
conservator] shall be used for the minor's use and benefit. |
|
SECTION 25. Section 1351.051, Estates Code, is amended to |
|
read as follows: |
|
Sec. 1351.051. APPLICABILITY OF SUBCHAPTER. This |
|
subchapter applies only to a ward who has: |
|
(1) a guardian of the person but does not have a |
|
guardian of the estate; or |
|
(2) a guardian of the person or estate appointed by a |
|
foreign court. |
|
SECTION 26. Section 1351.052, Estates Code, is amended to |
|
read as follows: |
|
Sec. 1351.052. AUTHORITY TO SELL WARD'S INTEREST IN |
|
PROPERTY WITHOUT APPOINTMENT AS GUARDIAN OF THE ESTATE IN THIS |
|
STATE. A guardian of the person of a ward or a guardian of the |
|
person or estate of a ward appointed by a foreign court may apply to |
|
the court under this subchapter for an order to sell an interest in |
|
property in the ward's estate without being appointed guardian of |
|
the ward's estate in this state if the net value of the interest |
|
does not exceed $100,000. |
|
SECTION 27. Section 1351.053(b), Estates Code, is amended |
|
to read as follows: |
|
(b) For purposes of Subsection (a)(2), references in |
|
Section 1351.002(b) to[:
|
|
[(1)] "minor" are replaced with references to "ward." |
|
["ward"; and
|
|
[(2)
"parent or managing conservator" are replaced
|
|
with references to "guardian of the person."] |
|
SECTION 28. Section 59.006(a), Finance Code, is amended to |
|
read as follows: |
|
(a) This section provides the exclusive method for |
|
compelled discovery of a record of a financial institution relating |
|
to one or more customers but does not create a right of privacy in a |
|
record. This section does not apply to and does not require or |
|
authorize a financial institution to give a customer notice of: |
|
(1) a demand or inquiry from a state or federal |
|
government agency authorized by law to conduct an examination of |
|
the financial institution; |
|
(2) a record request from a state or federal |
|
government agency or instrumentality under statutory or |
|
administrative authority that provides for, or is accompanied by, a |
|
specific mechanism for discovery and protection of a customer |
|
record of a financial institution, including a record request from |
|
a federal agency subject to the Right to Financial Privacy Act of |
|
1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the |
|
Internal Revenue Service under Section 1205, Internal Revenue Code |
|
of 1986; |
|
(3) a record request from or report to a government |
|
agency arising out of: |
|
(A) the investigation or prosecution of a |
|
criminal offense; |
|
(B) the investigation of alleged abuse, neglect, |
|
or exploitation of an elderly or disabled person in accordance with |
|
Chapter 48, Human Resources Code; or |
|
(C) the assessment for or provision of |
|
guardianship services under Subchapter E, Chapter 161, Human |
|
Resources Code; |
|
(4) a record request in connection with a garnishment |
|
proceeding in which the financial institution is garnishee and the |
|
customer is debtor; |
|
(5) a record request by a duly appointed receiver for |
|
the customer; |
|
(6) an investigative demand or inquiry from a state |
|
legislative investigating committee; |
|
(7) an investigative demand or inquiry from the |
|
attorney general of this state as authorized by law other than the |
|
procedural law governing discovery in civil cases; [or] |
|
(8) the voluntary use or disclosure of a record by a |
|
financial institution subject to other applicable state or federal |
|
law; or |
|
(9) a record request in connection with an |
|
investigation conducted under Section 1054.151, 1054.152, or |
|
1102.001, Estates Code. |
|
SECTION 29. Sections 25.0022(d) and (h), Government Code, |
|
are amended to read as follows: |
|
(d) The presiding judge shall: |
|
(1) ensure the promulgation of local rules of |
|
administration in accordance with policies and guidelines set by |
|
the supreme court; |
|
(2) advise local statutory probate court judges on |
|
case flow management practices and auxiliary court services; |
|
(3) perform a duty of a local administrative statutory |
|
probate court judge if the local administrative judge does not |
|
perform that duty; |
|
(4) appoint an assistant presiding judge of the |
|
statutory probate courts; |
|
(5) call and preside over annual meetings of the |
|
judges of the statutory probate courts at a time and place in the |
|
state as designated by the presiding judge; |
|
(6) call and convene other meetings of the judges of |
|
the statutory probate courts as considered necessary by the |
|
presiding judge to promote the orderly and efficient administration |
|
of justice in the statutory probate courts; |
|
(7) study available statistics reflecting the |
|
condition of the dockets of the probate courts in the state to |
|
determine the need for the assignment of judges under this section; |
|
(8) compare local rules of court to achieve uniformity |
|
of rules to the extent practical and consistent with local |
|
conditions; and |
|
(9) 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 under Section |
|
25.002201(a) or 25.00255, as applicable [the circumstances
|
|
described by Section 25.002201(b)]. |
|
(h) Subject to Section 25.002201, a judge or a former or |
|
retired judge of a statutory probate court may 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: |
|
(1) a statutory probate judge requests assignment of |
|
another judge to the judge's court; |
|
(2) a statutory probate judge is absent, disabled, or |
|
disqualified for any reason; |
|
(3) a statutory probate judge is present or is trying |
|
cases as authorized by the constitution and laws of this state and |
|
the condition of the court's docket makes it necessary to appoint an |
|
additional judge; |
|
(4) the office of a statutory probate judge is vacant; |
|
(5) the presiding judge of an administrative judicial |
|
district requests the assignment of a statutory probate judge to |
|
hear a probate matter in a county court or statutory county court; |
|
(6) the statutory probate [presiding] judge is [of the
|
|
administrative judicial district fails to timely assign a judge to
|
|
replace a] recused or disqualified [statutory probate court judge] |
|
as described by Section 25.002201(a) [Section 25.002201(b)]; |
|
(7) a county court judge requests the assignment of a |
|
statutory probate judge to hear a probate matter in the county |
|
court; or |
|
(8) a local administrative statutory probate court |
|
judge requests the assignment of a statutory probate judge to hear a |
|
matter in a statutory probate court. |
|
SECTION 30. Sections 25.002201(a) and (b), Government Code, |
|
are amended to read as follows: |
|
(a) Except as provided by Subsection (b), not [Not] later |
|
than the 15th day after the date an order of recusal or |
|
disqualification of a statutory probate court judge is issued in a |
|
case, the presiding judge [of the administrative judicial district] |
|
shall assign a statutory probate court judge or a former or retired |
|
judge of a statutory probate court to hear the case if: |
|
(1) the judge of the statutory probate court recused |
|
himself or herself under Section 25.00255(g)(1)(A); |
|
(2) the judge of the statutory probate court |
|
disqualified himself or herself under Section 25.00255(g-1); |
|
(3) the order was issued under Section |
|
25.00255(i-3)(1); or |
|
(4) the presiding judge [of the administrative
|
|
judicial district] receives notice and a request for assignment |
|
from the clerk of the statutory probate court under Section |
|
25.00255(l). |
|
(b) If the [presiding] judge who is the subject of an order |
|
of recusal or disqualification is [of an administrative judicial
|
|
district does not assign a judge under Subsection (a) within the
|
|
time prescribed by that subsection,] the presiding judge of the |
|
statutory probate courts, the chief justice of the supreme court |
|
shall [may] assign a regional presiding judge, a statutory probate |
|
judge, or a former or retired judge of a statutory probate court to |
|
hear the case [instead of the presiding judge of the administrative
|
|
judicial district making the assignment under that subsection]. |
|
SECTION 31. Section 25.00255, Government Code, is amended |
|
by amending Subsections (a), (g), (g-1), (i-2), (i-3), (i-5), and |
|
(l) and adding Subsection (a-1) to read as follows: |
|
(a) Notwithstanding any conflicting provision in the Texas |
|
Rules of Civil Procedure, Rules 18a and 18b, Texas Rules of Civil |
|
Procedure, apply to the recusal and disqualification of a statutory |
|
probate court judge except as otherwise provided by this section or |
|
another provision of this subchapter. The presiding judge: |
|
(1) has the authority and shall 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 |
|
Subdivisions (2) and (3) and to Section 25.002201, assign a judge to |
|
hear and rule on a referred motion of recusal or disqualification; |
|
(2) may 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; and |
|
(3) may not assign 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 [A party in a hearing or trial in a statutory
|
|
probate court may file with the clerk of the court a motion stating
|
|
grounds for the recusal or disqualification of the judge. The
|
|
grounds may include any disability of the judge to preside over the
|
|
case]. |
|
(a-1) Notwithstanding Rule 18a(h), Texas Rules of Civil |
|
Procedure, or any other conflicting provision of the rules, the |
|
judge who hears a motion of recusal or disqualification, after |
|
notice and hearing, may: |
|
(1) 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: |
|
(A) groundless and filed in bad faith or for the |
|
purpose of harassment; or |
|
(B) clearly brought for unnecessary delay and |
|
without sufficient cause; and |
|
(2) 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. |
|
(g) A judge who recuses himself or herself: |
|
(1) shall enter an order of recusal and: |
|
(A) if the judge serves a statutory probate court |
|
located in a county with only one statutory probate court, request |
|
that the presiding judge [of the administrative judicial district] |
|
assign a judge under Section 25.002201 to hear the case; or |
|
(B) subject to Subsection (l), if the judge |
|
serves a statutory probate court located in a county with more than |
|
one statutory probate court, request that the presiding judge order |
|
[request that] 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; and |
|
(2) may not take other action in the case except for |
|
good cause stated in the order in which the action is taken. |
|
(g-1) A judge who disqualifies himself or herself: |
|
(1) shall enter an order of disqualification and: |
|
(A) if the judge serves a statutory probate court |
|
located in a county with only one statutory probate court, request |
|
that the presiding judge [of the administrative judicial district] |
|
assign a judge under Section 25.002201 to hear the case; or |
|
(B) subject to Subsection (l), if the judge |
|
serves a statutory probate court located in a county with more than |
|
one statutory probate court, request that the presiding judge 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; and |
|
(2) may not take other action in the case. |
|
(i-2) A judge who hears a motion for recusal or |
|
disqualification [under Subsection (i) or (i-1)] may also hear any |
|
amended or supplemented motion for recusal or disqualification |
|
filed in the case. |
|
(i-3) If a motion for recusal or disqualification is granted |
|
[after a hearing conducted as provided by Subsection (i) or (i-1)], |
|
the presiding judge [who heard the motion] shall transfer the case |
|
to another court or assign another judge to the case and: |
|
(1) if the judge subject to recusal or |
|
disqualification serves a statutory probate court located in a |
|
county with only one statutory probate court, the presiding judge |
|
or judge assigned to decide the motion shall enter an order of |
|
recusal or disqualification, as appropriate, and request that the |
|
presiding judge [of the administrative judicial district] assign a |
|
judge under Section 25.002201 to hear the case; or |
|
(2) subject to Subsection (l), if the judge subject to |
|
recusal or disqualification serves a statutory probate court |
|
located in a county with more than one statutory probate court, the |
|
presiding judge or judge assigned to decide the motion shall enter |
|
an order of recusal or disqualification, as appropriate, and |
|
request that the clerk who serves the statutory probate courts in |
|
that county randomly reassign the case to a judge of one of the |
|
other statutory probate courts located in the county. |
|
(i-5) A judge assigned to hear a motion for recusal or |
|
disqualification [under Subsection (i)] is entitled to receive the |
|
same salary, compensation, and expenses, and to be paid in the same |
|
manner and from the same fund, as a judge otherwise assigned under |
|
Section 25.0022[, except that a judge assigned under Subsection (i)
|
|
shall provide the information required by Section 25.0022(l) to the
|
|
presiding judge of the administrative judicial district, who shall
|
|
immediately forward the information to the presiding judge of the
|
|
statutory probate courts]. |
|
(l) If a clerk of a statutory probate court is unable to |
|
reassign a case as requested under Subsection (g)(1)(B), |
|
(g-1)(1)(B), or (i-3)(2) because the other statutory probate court |
|
judges in the county have been recused or disqualified or are |
|
otherwise unavailable to hear the case, the clerk shall immediately |
|
notify the presiding judge [of the administrative judicial
|
|
district] and request that the presiding judge [of the
|
|
administrative judicial district] assign a judge under Section |
|
25.002201 to hear the case. |
|
SECTION 32. Section 26.012, Government Code, is amended to |
|
read as follows: |
|
Sec. 26.012. ASSIGNMENT OF VISITING JUDGE FOR PROBATE, |
|
GUARDIANSHIP, AND MENTAL HEALTH MATTERS. If the county judge is |
|
absent, incapacitated, recused, or disqualified to act in a |
|
probate, guardianship, or mental health matter, a visiting judge |
|
shall be assigned in accordance with Section 25.0022(h). |
|
SECTION 33. Sections 411.1386(a) and (e), Government Code, |
|
are amended to read as follows: |
|
(a) Except as provided by Subsections (a-1), (a-5), and |
|
(a-6), the clerk of the county having venue over a proceeding for |
|
the appointment of a guardian under Title 3, Estates [Chapter XIII,
|
|
Texas Probate] Code, shall obtain from the department criminal |
|
history record information maintained by the department that |
|
relates to: |
|
(1) a private professional guardian; |
|
(2) each person who represents or plans to represent |
|
the interests of a ward as a guardian on behalf of the private |
|
professional guardian; |
|
(3) each person employed by a private professional |
|
guardian who will: |
|
(A) have personal contact with a ward or proposed |
|
ward; |
|
(B) exercise control over and manage a ward's |
|
estate; or |
|
(C) perform any duties with respect to the |
|
management of a ward's estate; |
|
(4) each person employed by or volunteering or |
|
contracting with a guardianship program to provide guardianship |
|
services to a ward of the program on the program's behalf; or |
|
(5) any other person proposed to serve as a guardian |
|
under Title 3, Estates [Chapter XIII, Texas Probate] Code, |
|
including a proposed temporary guardian and a proposed successor |
|
guardian, other than [the ward's or proposed ward's family member
|
|
or] an attorney. |
|
(e) The court, as that term is defined by Section 1002.008, |
|
Estates [601, Texas Probate] Code, shall use the information |
|
obtained or provided under Subsection (a), (a-4)(1), (a-5), or |
|
(a-6) only in determining whether to: |
|
(1) appoint, remove, or continue the appointment of a |
|
private professional guardian, a guardianship program, or the |
|
Department of Aging and Disability Services; or |
|
(2) appoint any other person proposed to serve as a |
|
guardian under Title 3, Estates [Chapter XIII, Texas Probate] Code, |
|
including a proposed temporary guardian and a proposed successor |
|
guardian, other than [the ward's or proposed ward's family member
|
|
or] an attorney. |
|
SECTION 34. The following are repealed: |
|
(1) Sections 25.00255(b), (c), (d), (e), (f), (h), |
|
(i), (i-1), (i-4), and (j), Government Code; and |
|
(2) Section 25.002201(c), Government Code. |
|
SECTION 35. (a) Except as otherwise provided by this |
|
section, the changes in law made by this Act apply to: |
|
(1) a guardianship created before, on, or after the |
|
effective date of this Act; and |
|
(2) an application for a guardianship pending on, or |
|
filed on or after, the effective date of this Act. |
|
(b) The changes in law made by this Act to Sections 1023.005 |
|
and 1023.010, Estates Code, 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. |
|
(c) The changes in law made by this Act to Sections 1104.154 |
|
and 1104.205, Estates Code, apply only to a declaration executed on |
|
or after the effective date of this Act. A declaration executed |
|
before the effective date of this Act is governed by the law in |
|
effect on the date the declaration was executed, and the former law |
|
is continued in effect for that purpose. |
|
(d) The changes in law made by this Act to Section |
|
1301.1535, Estates Code, apply only to a management trust created |
|
on or after the effective date of this Act. A management trust |
|
created before the effective date of this Act is governed by the law |
|
in effect on the date the management trust was created, and the |
|
former law is continued in effect for that purpose. |
|
(e) The changes in law made by this Act to Sections 1351.001 |
|
and 1351.002, Estates Code, apply only to an application for the |
|
sale of an interest in property of a minor filed on or after the |
|
effective date of this Act. An application for the sale of an |
|
interest in property of a minor that is 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. |
|
(f) The changes in law made by this Act to Sections |
|
1351.051, 1351.052, and 1351.053, Estates Code, apply only to an |
|
application for the sale of an interest in property of a ward filed |
|
on or after the effective date of this Act. An application for the |
|
sale of an interest in property of a ward that is 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. |
|
(g) Section 1055.003, Estates Code, as added by this Act, |
|
applies only to a guardianship proceeding commenced on or after the |
|
effective date of this Act. A guardianship proceeding commenced |
|
before the effective date of this Act is governed by the law as it |
|
existed immediately before that date, and that law is continued in |
|
effect for that purpose. |
|
(h) The change in law made by this Act to Section |
|
1251.052(b), Estates Code, applies only to a temporary guardian |
|
appointed on or after the effective date of this Act. A temporary |
|
guardian appointed before the effective date of this Act is |
|
governed by the law in effect when the guardian was appointed, and |
|
the former law is continued in effect for that purpose. |
|
(i) Sections 25.0022, 25.002201, 25.00255, and 26.012, |
|
Government Code, as amended by this Act, apply only to a motion for |
|
recusal or disqualification of a judge that is filed on or after the |
|
effective date of this Act. A motion for recusal or |
|
disqualification of a judge filed before the effective date of this |
|
Act is governed by the law in effect on the date the motion was |
|
filed, and the former law is continued in effect for that purpose. |
|
SECTION 36. This Act takes effect September 1, 2015. |