SB 667, Hse 2nd Rdg, Amnd #2

Amend SB 667 (house committee printing) as follows:

(1) Add the following appropriately numbered SECTIONS to the bill and renumber subsequent SECTIONS of the bill accordingly:

SECTION ____. Chapter 1002, Estates Code, is amended by adding Sections 1002.0215 and 1002.0265 to read as follows:

Sec. 1002.0215. OFFICE OF PUBLIC GUARDIAN. "Office of public guardian" means an office of public guardian established by the commissioners court of a county under Subchapter G-1, Chapter 1104.

Sec. 1002.0265. PUBLIC GUARDIAN. "Public guardian" means a person:

(1) appointed to administer an office of public guardian by the commissioners court of a county under Subchapter G-1, Chapter 1104; or

(2) with which one or more counties enter into an agreement under Section 1104.327(a)(2) or (d).

SECTION ____. Section 1104.251(a), Estates Code, is amended to read as follows:

(a) An individual must be certified under Subchapter C, Chapter 155, Government Code, if the individual:

(1) is a private professional guardian;

(2) will represent the interests of a ward as a guardian on behalf of a private professional guardian;

(3) is providing guardianship services to a ward of a guardianship program on the program's behalf, except as provided by Section 1104.254; [or]

(4) is an employee of the Health and Human Services Commission [~~Department of Aging and Disability Services~~] providing guardianship services to a ward of the commission;

(5) is a public guardian; or

(6) will represent the interests of a ward as a guardian on behalf of a public guardian [~~department~~].

SECTION ____. Chapter 1104, Estates Code, is amended by adding Subchapter G-1 to read as follows:

SUBCHAPTER G-1. PUBLIC GUARDIANS

Sec. 1104.326. DEFINITION. In this subchapter, unless the context otherwise requires, "office" means an office of public guardian established under this subchapter.

Sec. 1104.327. ESTABLISHMENT OF OFFICES; PUBLIC GUARDIANS. (a) The commissioners court of a county by order may:

(1) create an office of public guardian to provide guardianship services described by Section 1104.334 to incapacitated persons; or

(2) enter into an agreement with a person operating a nonprofit guardianship program or private professional guardianship program located in the county or in an adjacent county to act as a public guardian by providing guardianship services described by Section 1104.334 to incapacitated persons.

(b) Subject to Subsection (c) and Section 1104.328, the commissioners court of a county shall appoint an individual as public guardian to administer the office of public guardian established under Subsection (a)(1) and may employ or authorize the public guardian to employ personnel necessary to perform the duties of the office, including personnel who will represent the interests of a ward as a guardian on behalf of the office if approved by the commissioners court.

(c) The commissioners court of a county may enter into an agreement with an individual to act as public guardian under Subsection (b) on a part-time basis with appropriate compensation if:

(1) the commissioners court determines a full-time appointment does not serve the needs of the county; and

(2) the individual who is appointed on a part-time basis is not employed in or does not hold another position that presents a conflict of interest.

(d) The commissioners courts of two or more counties may collectively enter into an agreement:

(1) to create and fund an office of public guardian for purposes of Subsection (a)(1) and to appoint the same individual as public guardian to that office under Subsection (b); or

(2) with a person operating a guardianship program described by Subsection (a)(2) to serve as a public guardian for purposes of that subdivision.

(e) An individual appointed as public guardian under Subsection (b) serves a term of five years.

Sec. 1104.328. QUALIFICATIONS OF PUBLIC GUARDIAN. To be appointed as public guardian under Section 1104.327(b), an individual must:

(1) be a licensed attorney or be certified under Subchapter C, Chapter 155, Government Code; and

(2) have demonstrable guardianship experience.

Sec. 1104.329. CONFLICT OF INTEREST. (a) Except as provided by Subsection (b), an office or public guardian must be independent from providers of services to wards and proposed wards and may not directly provide housing, medical, legal, or other direct, non-surrogate decision-making services to a ward or proposed ward, unless approved by the court.

(b) An office or public guardian may provide money management services described by Section 531.125, Government Code, or other representative payee services to a ward or proposed ward.

Sec. 1104.330. COMPENSATION. A person appointed or acting as public guardian under Section 1104.327 shall receive compensation as set by the commissioners court and is not entitled to compensation under Subchapter A, Chapter 1155, unless approved by the court or the person is appointed as guardian of a ward in accordance with Section 1104.334(a)(2)(B).

Sec. 1104.331. BOND REQUIREMENT. (a) A public guardian shall file with the court clerk a general bond in an amount fixed by the commissioners court payable to the county and issued by a surety company approved by the county judge. The bond must be conditioned on the faithful performance by the person of the person's duties and, if the public guardian administers an office, the office's duties.

(b) The bond required by this section satisfies any bond required under Chapter 1105.

Sec. 1104.332. VACANCY. If an individual appointed as public guardian under Section 1104.327(b) vacates the position, the commissioners court shall appoint, subject to Section 1104.328, an individual to serve as public guardian for the unexpired term.

Sec. 1104.333. POWERS AND DUTIES. (a) An office or public guardian shall:

(1) if applicable, evaluate the financial status of a proposed ward to determine whether the proposed ward is eligible to have the office or public guardian appointed guardian of the ward under Section 1104.334(a)(2)(A); and

(2) serve as guardian of the person or of the estate of a ward, or both, on appointment by a court in accordance with the requirements of this title.

(b) In connection with a financial evaluation under Subsection (a)(1) and on the request of an office or public guardian, a court with jurisdiction over the guardianship proceeding may order the release of public and private records, including otherwise confidential records, to the office or public guardian.

(c) Notwithstanding Section 552.261, Government Code, a state agency may not charge an office or public guardian for providing the office or public guardian with a copy of public information requested from the agency by the office or public guardian.

Sec. 1104.334. APPOINTMENT OF OFFICE OR PUBLIC GUARDIAN AS GUARDIAN. (a) In accordance with applicable law, including Subchapter C, Chapter 1101, a court may appoint an office or public guardian to serve as guardian of the person or of the estate of a ward, or both, if:

(1) on the date the guardianship application is filed, the ward resides in or is located in the county served by the office or public guardian; and

(2) the court finds that the ward:

(A) does not have sufficient assets or other resources to pay a private professional guardian to serve as the ward's guardian and the appointment is in the ward's best interest; or

(B) has sufficient assets or other resources to pay a private professional guardian to serve as the ward's guardian, the appointment is in the ward's best interest, and:

(i) the ward's family members who are eligible for appointment as the ward's guardian agree to the appointment of an office or public guardian to serve as the ward's guardian or are unable to agree on the person or persons that should be appointed as the ward's guardian; or

(ii) the ward does not have a family member, friend, or other suitable person willing and able to serve as the ward's guardian.

(b) For purposes of Subsection (a)(2), the determination of a ward's ability to pay a private professional guardian is dependent on:

(1) the nature, extent, and liquidity of the ward's assets;

(2) the ward's disposable net income, including income of a recipient of medical assistance that is used to pay expenses under Section 1155.202(a);

(3) the nature of the guardianship;

(4) the type, duration, and complexity of services required by the ward; and

(5) additional, foreseeable expenses.

(c) The number of appointments of an office under this section may not exceed 35 wards for each guardian representing the interests of wards on behalf of the office.

(d) If each guardian representing the interests of wards on behalf of an office reaches the limitation provided by Subsection (c), the office shall immediately give notice to the courts.

Sec. 1104.335. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION. (a) All files, reports, records, communications, or working papers used or developed by an office or public guardian in the performance of duties relating to a financial evaluation under Section 1104.333(a)(1) or the provision of guardianship services are confidential and not subject to disclosure under Chapter 552, Government Code.

(b) Confidential information may be disclosed only for a purpose consistent with this subchapter, as required by other state or federal law, or as necessary to enable an office or public guardian to exercise the powers and duties as guardian of the person or of the estate of a ward, or both.

(c) A court on its own motion or on the motion of an interested person may order disclosure of confidential information only if:

(1) a hearing on the motion is conducted;

(2) notice of the hearing is served on the office or public guardian and each interested person; and

(3) the court determines after the hearing and an in camera review of the information that disclosure is essential to the administration of justice and will not endanger the life or safety of any individual who:

(A) is being assessed for guardianship services;

(B) is a ward of the office or public guardian; or

(C) provides services to a ward of the office or public guardian.

(d) The Office of Court Administration of the Texas Judicial System shall establish policies and procedures for the exchange of information between offices, public guardians, and other appropriate governmental entities, as necessary for offices, public guardians, and governmental entities to properly execute their respective duties and responsibilities relating to guardianship services or other needed services for a ward. An exchange of information under this subsection does not constitute a release for purposes of waiving the confidentiality of the information exchanged.

(e) To the extent consistent with policies and procedures adopted by an office or public guardian, the office or public guardian on request may release confidential information in the record of an individual who is a former ward of the office or public guardian to:

(1) the individual;

(2) the individual's guardian; or

(3) an executor or administrator of the individual's estate.

(f) Before releasing confidential information under Subsection (e), an office or public guardian shall edit the information to protect the identity of any individual whose life or safety may be endangered by the release. A release of information under Subsection (e) does not constitute a release for purposes of waiving the confidentiality of the information released.

Sec. 1104.336. CERTAIN ADMINISTRATIVE COSTS. (a) If an office or public guardian is appointed guardian of the person or of the estate of a ward, or both, the administrative costs of the guardianship services provided to the ward may not be charged to the ward's estate unless the court determines, subject to Subsection (b), that the ward is financially able to pay all or part of the costs.

(b) A court shall measure a ward's ability to pay for costs under Subsection (a) by whether the ward has sufficient assets or other resources to pay a private professional guardian to serve as the ward's guardian in accordance with Section 1104.334(b).

Sec. 1104.337. OFFICE OF COURT ADMINISTRATION OF THE TEXAS JUDICIAL SYSTEM; REPORT. (a) Not later than December 1 of each even-numbered year, the Office of Court Administration of the Texas Judicial System shall submit a report to the governor and the legislature that contains an evaluation of public guardians established under this subchapter, including the establishment and operation of offices of public guardians under this subchapter and the provision of guardianship services by the offices. The report must include:

(1) an analysis of costs and offsetting savings or other benefits to the state as a result of the establishment and operation of offices and public guardians under this subchapter; and

(2) recommendations for legislation, if any.

(b) If it is cost-effective and feasible, the Office of Court Administration of the Texas Judicial System may contract with an appropriate research or public policy entity with expertise in gerontology, disabilities, and public administration to conduct the analysis described by Subsection (a)(1).

Sec. 1104.338. RULES. The supreme court, in consultation with the Office of Court Administration of the Texas Judicial System and the presiding judge of the statutory probate courts elected under Section 25.0022, Government Code, shall adopt rules necessary to implement this subchapter.

SECTION ____. Section 1104.402(a), Estates Code, is amended 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 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) a public guardian appointed under Section 1104.327(b);

(6) each person who represents or plans to represent the interests of a ward as a guardian on behalf of an office of public guardian;

(7) each person employed by an office of public 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; or

(8) any other person proposed to serve as a guardian under this title, including a proposed temporary guardian and a proposed successor guardian, other than an attorney.

SECTION ____. 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, an office of public guardian, or the Health and Human Services Commission [~~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 an attorney.

SECTION ____. Section 1155.151(a-2), Estates Code, is amended to read as follows:

(a-2) Notwithstanding any other law requiring the payment of court costs in a guardianship proceeding, the following are not required to pay court costs on the filing of or during a guardianship proceeding:

(1) an attorney ad litem;

(2) a guardian ad litem;

(3) a person or entity who files an affidavit of inability to pay the costs under Rule 145, Texas Rules of Civil Procedure, that shows the person or entity is unable to afford the costs;

(4) a nonprofit guardianship program;

(5) a governmental entity, including an office of public guardian; and

(6) a government agency or nonprofit agency providing guardianship services.

SECTION ____. Section 101.0814, Government Code, is amended to read as follows:

Sec. 101.0814. STATUTORY COUNTY COURT FEES AND COSTS: LOCAL GOVERNMENT CODE. The clerk of a statutory county court shall collect fees and costs under the Local Government Code as follows:

(1) additional filing fee to fund contingency fund for liability insurance, if authorized by the county commissioners court (Sec. 82.003, Local Government Code) . . . not to exceed $5;

(2) civil court actions (Sec. 118.052, Local Government Code):

(A) filing of original action (Secs. 118.052 and 118.053, Local Government Code):

(i) garnishment after judgment (Sec. 118.052, Local Government Code) . . . $15; and

(ii) all others (Sec. 118.052, Local Government Code) . . . $40;

(B) filing of action other than original (Secs. 118.052 and 118.054, Local Government Code) . . . $30; and

(C) services rendered after judgment in original action (Secs. 118.052 and 118.0545, Local Government Code):

(i) abstract of judgment (Sec. 118.052, Local Government Code) . . . $5; and

(ii) execution, order of sale, writ, or other process (Sec. 118.052, Local Government Code) . . . $5;

(3) probate court actions (Sec. 118.052, Local Government Code):

(A) probate original action (Secs. 118.052 and 118.055, Local Government Code):

(i) probate of a will with independent executor, administration with will attached, administration of an estate, guardianship or receivership of an estate, or muniment of title (Sec. 118.052, Local Government Code) . . . $40;

(ii) community survivors (Sec. 118.052, Local Government Code) . . . $40;

(iii) small estates (Sec. 118.052, Local Government Code) . . . $40;

(iv) declarations of heirship (Sec. 118.052, Local Government Code) . . . $40;

(v) mental health or chemical dependency services (Sec. 118.052, Local Government Code) . . . $40; and

(vi) additional, special fee (Secs. 118.052 and 118.064, Local Government Code) . . . $5;

(B) services in pending probate action (Secs. 118.052 and 118.056, Local Government Code):

(i) filing an inventory and appraisement (Secs. 118.052 and 118.056(d), Local Government Code) . . . $25;

(ii) approving and recording bond (Sec. 118.052, Local Government Code) . . . $3;

(iii) administering oath (Sec. 118.052, Local Government Code) . . . $2;

(iv) filing annual or final account of estate (Sec. 118.052, Local Government Code) . . . $25;

(v) filing application for sale of real or personal property (Sec. 118.052, Local Government Code) . . . $25;

(vi) filing annual or final report of guardian of a person (Sec. 118.052, Local Government Code) . . . $10; and

(vii) filing a document not listed under this paragraph after the filing of an order approving the inventory and appraisement or after the 120th day after the date of the initial filing of the action, whichever occurs first (Secs. 118.052 and 191.007, Local Government Code), if more than 25 pages . . . $25;

(C) adverse probate action (Secs. 118.052 and 118.057, Local Government Code) . . . $40;

(D) claim against estate (Secs. 118.052 and 118.058, Local Government Code) . . . $10;

(E) supplemental public [~~court-initiated~~] guardianship and related services fee (Secs. 118.052 and 118.067, Local Government Code) . . . $20; and

(F) supplemental public probate administrator fee (Secs. 118.052 and 118.068, Local Government Code) . . . $10;

(4) other fees (Sec. 118.052, Local Government Code):

(A) issuing document (Secs. 118.052 and 118.059, Local Government Code):

(i) original document and one copy (Sec. 118.052, Local Government Code) . . . $4; and

(ii) each additional set of an original and one copy (Sec. 118.052, Local Government Code) . . . $4;

(B) certified papers (Secs. 118.052 and 118.060, Local Government Code):

(i) for the clerk's certificate (Sec. 118.052, Local Government Code) . . . $5; and

(ii) a fee per page or part of a page (Sec. 118.052, Local Government Code) . . . $1;

(C) noncertified papers, for each page or part of a page (Secs. 118.052 and 118.0605, Local Government Code) . . . $1;

(D) letters testamentary, letter of guardianship, letter of administration, or abstract of judgment (Secs. 118.052 and 118.061, Local Government Code) . . . $2;

(E) safekeeping of wills (Secs. 118.052 and 118.062, Local Government Code) . . . $5;

(F) mail service of process (Secs. 118.052 and 118.063, Local Government Code) . . . same as sheriff; and

(G) records management and preservation fee (Secs. 118.052, 118.0546, and 118.0645, Local Government Code) . . . $5;

(5) additional filing fee for filing any civil action or proceeding requiring a filing fee, including an appeal, and on the filing of any counterclaim, cross-action, intervention, interpleader, or third-party action requiring a filing fee, to fund civil legal services for the indigent (Sec. 133.153, Local Government Code) . . . $10;

(6) on the filing of a civil suit, an additional filing fee to be used for court-related purposes for the support of the judiciary (Sec. 133.154, Local Government Code) . . . $42;

(7) additional filing fee to fund the courthouse security fund, if authorized by the county commissioners court (Sec. 291.008, Local Government Code) . . . not to exceed $5;

(8) additional filing fee for filing documents not subject to certain filing fees to fund the courthouse security fund, if authorized by the county commissioners court (Sec. 291.008, Local Government Code) . . . $1;

(9) additional filing fee to fund the courthouse security fund in Webb County, if authorized by the county commissioners court (Sec. 291.009, Local Government Code) . . . not to exceed $20; and

(10) court cost in civil cases other than suits for delinquent taxes to fund the county law library fund, if authorized by the county commissioners court (Sec. 323.023, Local Government Code) . . . not to exceed $35.

SECTION ____. Section 101.1013, Government Code, is amended to read as follows:

Sec. 101.1013. STATUTORY PROBATE COURT FEES AND COSTS: LOCAL GOVERNMENT CODE. The clerk of a statutory probate court shall collect fees and costs under the Local Government Code as follows:

(1) additional filing fee for filing any civil action or proceeding requiring a filing fee, including an appeal, and on the filing of any counterclaim, cross-action, intervention, interpleader, or third-party action requiring a filing fee to fund civil legal services for the indigent (Sec. 133.153, Local Government Code) . . . $10;

(2) additional filing fee to fund contingency fund for liability insurance, if authorized by the county commissioners court (Sec. 82.003, Local Government Code) . . . not to exceed $5;