By: Zaffirini S.B. No. 1457
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to guardianships and the delivery of certain notices or
  other communications in connection with guardianship proceedings.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 1002, Estates Code, is amended by adding
  Section 1002.0265 to read as follows:
         Sec. 1002.0265.  QUALIFIED DELIVERY METHOD. "Qualified
  delivery method" means delivery by:
               (1)  hand delivery by courier, with courier's proof of
  delivery receipt; 
               (2)  certified or registered mail, return receipt
  requested, with return receipt; or
               (3)  a private delivery service designated as a
  designated delivery service by the United States Secretary of the
  Treasury under Section 7502(f)(2), Internal Revenue Code of 1986,
  with proof of delivery receipt.
         SECTION 2.  Section 1023.004(c), Estates Code, is amended to
  read as follows:
         (c)  If a court made a motion to transfer a guardianship, the
  guardian shall be given notice by a qualified delivery method 
  [certified mail] to appear and show cause why the guardianship
  should not be transferred.
         SECTION 3.  The heading to Section 1051.052, Estates Code,
  is amended to read as follows:
         Sec. 1051.052.  SERVICE BY MAIL OR QUALIFIED DELIVERY
  METHOD.
         SECTION 4.  Section 1051.052, Estates Code, is amended by
  amending Subsections (b), (c), (d), (e), and (f) and adding
  Subsection (h) to read as follows:
         (b)  Except as provided by Subsection (c), the county clerk
  shall issue a citation or notice required or permitted to be served
  by a qualified delivery method [registered or certified mail] and
  shall serve the citation or notice by sending [mailing] the
  original citation or notice by a qualified delivery method
  [registered or certified mail].
         (c)  A guardian shall issue a notice required to be given by
  the guardian by a qualified delivery method [registered or
  certified mail] and shall serve the notice by sending [mailing] the
  original notice by a qualified delivery method [registered or
  certified mail].
         (d)  The county clerk or guardian, as applicable, shall send
  [mail] a citation or notice under Subsection (b) or (c) with an
  instruction to deliver the citation or notice to the addressee only
  and with return receipt or other proof of delivery requiring
  recipient signature requested. The clerk or guardian, as
  applicable, shall address the envelope containing the citation or
  notice to:
               (1)  the attorney of record in the proceeding for the
  person to be cited or notified; or
               (2)  the person to be cited or notified, if the citation
  or notice to the attorney is returned undelivered or the person to
  be cited or notified has no attorney of record in the proceeding.
         (e)  Service by a qualified delivery method [mail] must be
  made at least 20 days before the return day of the citation or
  notice, excluding the date of service.  The date of service [by
  mail] is the date of mailing, the date of deposit with the private
  delivery service, or the date of delivery by courier, as
  applicable.
         (f)  A copy of a citation or notice served under Subsection
  (a), (b), or (c) and a certificate of the person serving the
  citation or notice showing that the citation or notice was sent
  [mailed] and the date of the mailing, the date of deposit with a
  private delivery service, or the date of delivery by courier, as
  applicable, shall be filed and recorded.  A returned receipt or
  other proof of delivery receipt for a citation or notice served
  under Subsection (b) or (c) shall be attached to the certificate.
         (h)  The applicant or movant in a guardianship proceeding
  shall pay the cost of delivery of a citation or notice under this
  section.
         SECTION 5.  Sections 1051.055(a) and (b), Estates Code, are
  amended to read as follows:
         (a)  If a party is represented by an attorney of record in a
  guardianship proceeding, including a proposed ward who has been
  personally served with notice of the proceeding and is represented
  by an attorney ad litem, a citation or notice required to be served
  on the party shall be served instead on that attorney.
         (b)  A notice served on an attorney under this section may be
  served by[:
               [(1)]  delivery to the attorney in person or by a
  qualified delivery method[;
               [(2)  registered or certified mail, return receipt
  requested; or
               [(3)  any other form of mail that requires proof of
  delivery].
         SECTION 6.  Section 1051.056, Estates Code, is amended to
  read as follows:
         Sec. 1051.056.  SERVICE ON GUARDIAN OR RECEIVER.  Unless
  this title expressly provides for another method of service, the
  county clerk who issues a citation or notice required to be served
  on a guardian or receiver shall serve the citation or notice by
  sending [mailing] the original citation or notice by a qualified
  delivery method [registered or certified mail] to:
               (1)  the guardian's or receiver's attorney of record;
  or
               (2)  the guardian or receiver, if the guardian or
  receiver does not have an attorney of record.
         SECTION 7.  Sections 1051.104(a) and (b), Estates Code, are
  amended to read as follows:
         (a)  The person filing an application for guardianship shall
  send [mail] a copy of the application and a notice containing the
  information required in the citation issued under Section 1051.102
  by a qualified delivery method [registered or certified mail,
  return receipt requested, or by any other form of mail that provides
  proof of delivery,] to the following persons, if their whereabouts
  are known or can be reasonably ascertained:
               (1)  each adult child of the proposed ward;
               (2)  each adult sibling of the proposed ward;
               (3)  the administrator of a nursing home facility or
  similar facility in which the proposed ward resides;
               (4)  the operator of a residential facility in which
  the proposed ward resides;
               (5)  a person whom the applicant knows to hold a power
  of attorney signed by the proposed ward;
               (6)  a person designated to serve as guardian of the
  proposed ward by a written declaration under Subchapter E, Chapter
  1104, if the applicant knows of the existence of the declaration;
               (7)  a person designated to serve as guardian of the
  proposed ward in the probated will of the last surviving parent of
  the proposed ward;
               (8)  a person designated to serve as guardian of the
  proposed ward by a written declaration of the proposed ward's last
  surviving parent, if the declarant is deceased and the applicant
  knows of the existence of the declaration; and
               (9)  each adult named in the application as an "other
  living relative" of the proposed ward within the third degree by
  consanguinity, as required by Section 1101.001(b)(11) or (13), if
  the proposed ward's spouse and each of the proposed ward's parents,
  adult siblings, and adult children are deceased or there is no
  spouse, parent, adult sibling, or adult child.
         (b)  The applicant shall file with the court:
               (1)  a copy of any notice required by Subsection (a) and
  the return receipts or other proofs of delivery of the notice; and
               (2)  an affidavit sworn to by the applicant or the
  applicant's attorney stating:
                     (A)  that the notice was sent [mailed] as required
  by Subsection (a); and
                     (B)  the name of each person to whom the notice was
  sent [mailed], if the person's name is not shown on the return
  receipt or other proof of delivery.
         SECTION 8.  Section 1051.153(b), Estates Code, is amended to
  read as follows:
         (b)  Proof of service consists of:
               (1)  if the service is made by a sheriff or constable,
  the return of service;
               (2)  if the service is made by a private person, the
  person's affidavit;
               (3)  if the service is made by mail or by a qualified
  delivery method:
                     (A)  the certificate of the county clerk making
  the service, or the affidavit of the guardian or other person making
  the service that states that the citation or notice was mailed or
  sent by a qualified delivery method and the date of the mailing, the
  date of deposit with the private delivery service, or the date of
  delivery by courier, as applicable; and
                     (B)  the return receipt or other proof of delivery
  receipt attached to the certificate or affidavit, as applicable, if
  the service [mailing] was made by a qualified delivery method
  [registered or certified mail and a receipt has been returned]; and
               (4)  if the service is made by publication:
                     (A)  a statement that:
                           (i)  is made by the Office of Court
  Administration of the Texas Judicial System or an employee of the
  office;
                           (ii)  contains or to which is attached a copy
  of the published citation or notice; and
                           (iii)  states the date of publication on the
  public information Internet website maintained as required by
  Section 72.034, Government Code [, as added by Chapter 606 (S.B.
  891), Acts of the 86th Legislature, Regular Session, 2019]; and
                     (B)  an affidavit that:
                           (i)  is made by the publisher of the
  newspaper in which the citation or notice was published or an
  employee of the publisher;
                           (ii)  contains or to which is attached a copy
  of the published citation or notice; and
                           (iii)  states the date of publication
  printed on the newspaper in which the citation or notice was
  published.
         SECTION 9.  Section 1057.002(b), Estates Code, is amended to
  read as follows:
         (b)  The resident agent shall send, by a qualified delivery
  method [certified mail, return receipt requested], a copy of a
  resignation statement filed under Subsection (a) to:
               (1)  the guardian at the address most recently known by
  the resident agent; and
               (2)  each party in the case or the party's attorney or
  other designated representative of record.
         SECTION 10.  Section 1104.103, Estates Code, is amended by
  amending Subsections (a) and (b) and adding Subsection (a-1) to
  read as follows:
         (a) The surviving parent of an adult individual who is an
  incapacitated person may, if the parent is the guardian of the
  person or estate of the adult individual, by will or written
  declaration appoint an eligible person to serve as guardian of the
  person or estate, as applicable, of the adult individual:
               (1)  after the parent dies; 
               (2)  in the event the parent resigns as guardian of the
  person or estate; or
               (3)  in the event of the parent's incapacity.
         (a-1)  If the surviving parent is both the guardian of the
  person and estate of the adult individual, the surviving parent may
  by will or written declaration appoint different eligible persons
  to serve as guardian of the person and guardian of the estate.
         (b)  After the surviving parent dies or resigns as guardian,
  or if the court finds the surviving parent has become an
  incapacitated person after being appointed the adult individual's
  guardian, the court shall appoint the person or persons designated
  in the will or declaration to serve as guardian of the person,
  guardian of the estate, or both, in preference to any other person
  otherwise entitled to serve as guardian under this title, unless
  the court finds that the person designated to serve as guardian:
               (1)  is disqualified;
               (2)  is deceased;
               (3)  refuses to serve; or
               (4)  would not serve the adult individual's best
  interests.
         SECTION 11.  Section 1105.002(a), Estates Code, is amended
  to read as follows:
         (a)  Except as provided by Subsection (b), a guardian is
  considered to have qualified when the guardian has:
               (1)  taken and filed the oath, or made and filed the
  declaration, required under Section 1105.051;
               (2)  given the required bond;
               (3)  [filed the bond with the clerk; and
               [(4)]  obtained the judge's approval of the bond; and 
               (4)  filed the bond with the clerk.
         SECTION 12.  Section 1106.001(a), Estates Code, is amended
  to read as follows:
          (a)  When a person who is appointed guardian has qualified
  under Section 1105.002, the clerk shall issue to the guardian a
  certificate under the court's seal stating:
               (1)  the fact of the appointment and of the
  qualification;
               (2)  the date of the appointment and of the
  qualification; and
               (3)  the date the letters of guardianship expire.
         SECTION 13.  Section 1106.005, Estates Code, is amended to
  read as follows:
         Sec. 1106.005.  EFFECT OF LETTERS [OR
  CERTIFICATE].  (a)  Letters of guardianship [or a certificate]
  issued as prescribed by [under] Section 1106.001 under the court's
  seal by [of] the clerk of the court that granted the letters are
  [is] sufficient evidence of:
               (1)  the appointment and qualification of the guardian;
  and
               (2)  the date of qualification.
         (b)  The court order that appoints the guardian is evidence
  of the authority granted to the guardian and of the scope of the
  powers and duties that the guardian may exercise only after the date
  letters of guardianship [or a certificate has] have been issued
  under Section 1106.001.
         SECTION 14.  Subchapter B, Chapter 1151, Estates Code, is
  amended by adding Section 1151.0525 to read as follows:
         Sec. 1151.0525.  ACCESS AND MANAGEMENT OF WARD'S FUNDS BY
  GUARDIAN OF PERSON. (a) This section applies only to the guardian
  of the person of a ward for whom the court has not appointed a
  guardian of the estate. 
         (b)  On application to and order from the court, the guardian
  of the person of a ward may access, manage, and spend the ward's
  funds in an amount not to exceed $20,000 per year for the ward's
  benefit. The court shall require the guardian to file a new bond or
  a rider to an existing bond that meets the surety requirements for a
  guardian of the estate's bond under Section 1105.160.
         (c)  A guardian of the person shall include any expenditures
  made for the benefit of the ward if authorized by court order under
  Subsection (b) in the annual report required by Section 1163.101.
         (d)  When there is no longer a need for the guardian of the
  person to access, manage, or spend the ward's funds, the guardian of
  the person shall file a sworn affidavit of fulfillment with the
  court. After the filing of the affidavit, the court, on motion
  filed with the court, may authorize the guardian to file a new bond
  or a rider to an existing bond that meets the requirements for a
  guardian of the person's bond under Section 1105.102, and may
  discharge the guardian of the person and the guardian's sureties on
  a bond required by Subsection (b).
         SECTION 15.  Section 1153.001(a), Estates Code, is amended
  to read as follows:
         (a)  Within one month after receiving letters of
  guardianship, a guardian of an estate shall provide notice
  requiring each person who has a claim against the estate to present
  the claim within the period prescribed by law. The notice must be:
               (1)  published in a newspaper of general circulation in
  the county in which the letters were issued; and
               (2)  sent to the comptroller by a qualified delivery
  method [certified or registered mail], if the ward remitted or
  should have remitted taxes administered by the comptroller.
         SECTION 16.  Sections 1153.003(b) and (c), Estates Code, are
  amended to read as follows:
         (b)  Notice provided under this section must be:
               (1)  sent by a qualified delivery method [certified or
  registered mail, return receipt requested]; and
               (2)  addressed to the record holder of the claim at the
  record holder's last known post office address.
         (c)  The following shall be filed in the court from which the
  letters of guardianship were issued:
               (1)  a copy of each notice required by Subsection
  (a)(1) with the return receipt or other proof of delivery, if
  available; and
               (2)  the guardian's affidavit stating:
                     (A)  that the notice was sent [mailed] as required
  by law; and
                     (B)  the name of the person to whom the notice was
  sent [mailed], if that name is not shown on the notice or receipt.
         SECTION 17.  Section 1153.005(a), Estates Code, is amended
  to read as follows:
         (a)  A guardian of an estate is not required to give a notice
  required by Section 1153.001 or 1153.003 if another person also
  appointed as guardian or a former guardian has given that notice.
         SECTION 18.  Section 1155.002(a), Estates Code, is amended
  to read as follows:
         (a)  The court may authorize compensation for a guardian
  serving as a guardian of the person alone from available funds of
  the ward's estate or other funds available for that purpose.  The
  court may set the compensation in an amount not to exceed the
  greater of $3,000 per year or five percent of the ward's gross
  income.
         SECTION 19.  Section 1156.052(c), Estates Code, is amended
  to read as follows:
         (c)  A person who makes an application to the court under
  this section shall send [mail] notice of the application by a
  qualified delivery method [certified mail] to all interested
  persons.
         SECTION 20.  Section 1162.003, Estates Code, is amended to
  read as follows:
         Sec. 1162.003.  NOTICE OF APPLICATION FOR ESTABLISHMENT OF
  ESTATE OR OTHER TRANSFER PLAN.  A person who makes an application
  to the court under Section 1162.001 shall send [mail] notice of the
  application by a qualified delivery method [certified mail] to:
               (1)  all devisees under a will, trust, or other
  beneficial instrument relating to the ward's estate;
               (2)  the ward's spouse;
               (3)  the ward's dependents; and
               (4)  any other person as directed by the court.
         SECTION 21.  Section 1162.006(b), Estates Code, is amended
  to read as follows:
         (b)  Notice required by Subsection (a) must be sent 
  [delivered] by a qualified delivery method[:
               [(1)  registered or certified mail to a person
  described by Subsection (a)(1); and
               [(2)  certified mail to a person described by
  Subsection (a)(2), (3), (4), or (5)].
         SECTION 22.  Section 1202.054(b-2), Estates Code, is amended
  to read as follows:
         (b-2)  Not later than the 30th day after the date the court
  receives an informal letter from a ward under Subsection (a), the
  court shall send the ward a letter by a qualified delivery method
  [certified mail]:
               (1)  acknowledging receipt of the informal letter; and
               (2)  advising the ward of the date on which the court
  appointed the court investigator or guardian ad litem as required
  under Subsection (b) and the contact information for the court
  investigator or guardian ad litem.
         SECTION 23.  Sections 1203.052(a-1) and (b), Estates Code,
  are amended to read as follows:
         (a-1)  The court may remove a guardian for a reason listed in
  Subsection (a) on the:
               (1)  court's own motion, after the guardian has been
  notified[,] by a qualified delivery method [certified mail, return
  receipt requested,] to answer at a time and place set in the notice;
  or
               (2)  complaint of an interested person, after the
  guardian has been cited by personal service to answer at a time and
  place set in the notice.
         (b)  In addition to the authority granted to the court under
  Subsection (a), the court may, on the complaint of the guardianship
  certification program of the Judicial Branch Certification
  Commission, remove a guardian who would be ineligible for
  appointment under Subchapter H, Chapter 1104, because of the
  guardian's failure to maintain the certification required under
  Subchapter F, Chapter 1104.  The guardian shall be given notice[,]
  by a qualified delivery method [certified mail, return receipt
  requested,] to appear and contest the request for removal under
  this subsection at a time and place set in the notice.
         SECTION 24.  Section 1351.001(a), Estates Code, is amended
  to read as follows:
         (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 $250,000
  [$100,000].
         SECTION 25.  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 $250,000 [$100,000].
         SECTION 26.  Section 1352.052(a), Estates Code, is amended
  to read as follows:
         (a)  If the net value of a minor's interest in a residence
  homestead does not exceed $250,000 [$100,000], a parent, subject to
  Subsection (b), or managing conservator of the minor may apply to
  the court under this subchapter for an order authorizing the parent
  or managing conservator to receive on the minor's behalf, without
  being appointed guardian, an extension of credit that is secured
  wholly or partly by a lien on the homestead.
         SECTION 27.  Section 1352.102, Estates Code, is amended to
  read as follows:
         Sec. 1352.102.  AUTHORITY TO MORTGAGE MINOR WARD'S INTEREST
  WITHOUT GUARDIANSHIP OF THE ESTATE.  If the net value of a minor
  ward's interest in a residence homestead does not exceed $250,000 
  [$100,000], the guardian of the person of the ward may apply to the
  court under this subchapter for an order authorizing the guardian
  to receive on the ward's behalf an extension of credit that is
  secured wholly or partly by a lien on the homestead.
         SECTION 28.  Section 1353.004, Estates Code, is amended by
  adding Subsection (c-1) to read as follows:
         (c-1)  If the court finds that the ward's spouse fails to
  comply with an order described by Subsection (c), the court may,
  after notice and a hearing, order any third party or entity in
  possession to deliver to the incapacitated spouse's guardian of the
  estate the community property described by Subsection (c). 
         SECTION 29.  Section 1355.001(a), Estates Code, is amended
  to read as follows:
         (a)  In this section, "resident creditor" means a person who:
               (1)  is a resident of this state; and
               (2)  is entitled to money in an amount that is $250,000 
  [$100,000] or less, the right to which is liquidated and is
  uncontested in any pending lawsuit.
         SECTION 30.  Sections 1355.002(a) and (b), Estates Code, are
  amended to read as follows:
         (a)  In this section, "creditor" means a person who is
  entitled to money in an amount that is not more than $250,000 
  [$100,000] owing as a result of transactions in this state, the
  right to which is liquidated and is uncontested in any pending
  lawsuit in this state.
         (b)  This section applies only to a nonresident creditor who
  is:
               (1)  a nonresident minor [and has a nonresident
  guardian of the estate appointed by a foreign court];
               (2)  a nonresident person who is adjudged by a foreign
  court to be incapacitated [and has a nonresident guardian of the
  estate appointed by that court]; or
               (3)  the nonresident former ward of a guardianship
  terminated under Chapter 1204 who has no legal guardian qualified
  in this state.
         SECTION 31.  Section 1104.103(c), Estates Code, is repealed.
         SECTION 32.  (a) The changes in law made by this Act to the
  following provisions of the Estates Code apply only to an action
  filed or a guardianship proceeding commenced on or after the
  effective date of this Act:
               (1)  Sections 1023.004(c), 1051.153(b), 1057.002(b),
  1153.001(a), 1153.005(a), 1156.052(c), 1162.006(b),
  1202.054(b-2), and 1353.004;
               (2)  Sections 1051.052(b), (c), (d), (e), (f), and (h);
               (3)  Sections 1051.055(a) and (b);
               (4)  Sections 1051.056 and 1162.003;
               (5)  Sections 1051.104(a) and (b);
               (6)  Sections 1153.003(b) and (c); and
               (7)  Sections 1203.052(a-1) and (b).
         (b)  Sections 1105.002(a), 1106.001(a), 1106.005, and
  1155.002(a), Estates Code, as amended by this Act, and Section
  1151.0525, Estates Code, as added by this Act, apply to a
  guardianship created before, on, or after the effective date of
  this Act.
         (c)  Sections 1351.001(a), 1351.052, 1352.052(a), and
  1352.102, Estates Code, as amended by this Act, apply only to an
  application for a court order filed on or after the effective date
  of this Act. An application for a court order 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.
         (d)  Sections 1355.001(a) and 1355.002(a) and (b), Estates
  Code, as amended by this Act, apply only to a payment made by a
  debtor on or after the effective date of this Act. A payment made by
  a debtor before the effective date of this Act is governed by the
  law in effect on the date the payment was made, and the former law is
  continued in effect for that purpose.
         SECTION 33.  This Act takes effect September 1, 2023.