Texas 2009 - 81st Regular

Texas Senate Bill SB1243 Compare Versions

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1	1	By: Wentworth S.B. No. 1243
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the regulation of heir finders by the Texas Private
7	7	Security Board; providing penalties.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 1702.002, Occupations Code, is amended
10	10	by adding Subdivisions (6-b) and (8-a) to read as follows:
11	11	(6-b) "Estate," "heir," and "probate court" have the
12	12	meanings assigned by Section 3, Texas Probate Code.
13	13	(8-a) "Heir finder" means a person who for payment of a
14	14	fee, assignment of a portion of any interest in a decedent's estate,
15	15	or other consideration provides information, assistance, forensic
16	16	genealogy research, or other efforts related to another person's
17	17	right to or interest in a decedent's estate.
18	18	SECTION 2. Subsection (a), Section 1702.004, Occupations
19	19	Code, is amended to read as follows:
20	20	(a) The board, in addition to performing duties required by
21	21	other law or exercising powers granted by other law:
22	22	(1) licenses investigations companies and security
23	23	services contractors;
24	24	(2) issues commissions to certain security officers;
25	25	(3) issues authorizations to certain security
26	26	officers engaged in the personal protection of individuals;
27	27	(4) registers:
28	28	(A) certain individuals connected with a license
29	29	holder; and
30	30	(B) certain individuals employed in a field
31	31	connected to private investigation or private security; [and]
32	32	(5) licenses heir finders under Subchapter K-1; and
33	33	(6) regulates license holders, security officers, and
34	34	registrants under this chapter.
35	35	SECTION 3. Section 1702.042, Occupations Code, is amended
36	36	to read as follows:
37	37	Sec. 1702.042. PERSONNEL; CONFLICT OF INTEREST. An
38	38	employee of the commission may not:
39	39	(1) have a financial or business interest, contingent
40	40	or otherwise, in a security services contractor, [or]
41	41	investigations company, or company providing services as an heir
42	42	finder; or
43	43	(2) be licensed under this chapter.
44	44	SECTION 4. Chapter 1702, Occupations Code, is amended by
45	45	adding Subchapter K-1 to read as follows:
46	46	SUBCHAPTER K-1. REGULATION OF HEIR FINDERS
47	47	Sec. 1702.271. DEFINITION. In this subchapter, "family
48	48	member," with respect to a decedent, means a person who would be
49	49	considered an heir of the decedent at the time of the decedent's
50	50	death.
51	51	Sec. 1702.272. APPLICATION OF SUBCHAPTER. (a) This
52	52	subchapter does not apply to:
53	53	(1) a person acting in the capacity of a personal
54	54	representative, attorney ad litem, guardian ad litem, or other
55	55	person appointed by a probate court in which a proceeding in
56	56	connection with a decedent's estate is pending;
57	57	(2) a forensic genealogist employed or retained by a
58	58	government agency, court, or court-appointed attorney ad litem; or
59	59	(3) an attorney providing legal services to a
60	60	decedent's family member if the attorney has not agreed to pay to
61	61	any other person a portion of the fees received from the family
62	62	member or the family member's interest in the decedent's estate.
63	63	(b) In this section, "attorney ad litem," "guardian ad
64	64	litem," and "personal representative" have the meanings assigned by
65	65	the Texas Probate Code.
66	66	Sec. 1702.273. LICENSE REQUIRED. (a) A person may not
67	67	offer to provide or provide services as an heir finder unless the
68	68	person holds a license as an heir finder.
69	69	(b) A license under this subchapter:
70	70	(1) is valid for three years from the date of issuance;
71	71	and
72	72	(2) may be renewed.
73	73	Sec. 1702.274. LICENSE APPLICATION. An application for a
74	74	license under this subchapter must be in the form prescribed by the
75	75	board and include:
76	76	(1) the full name and business address of the
77	77	applicant;
78	78	(2) the name under which the applicant intends to do
79	79	business;
80	80	(3) a statement as to the general nature of the
81	81	business in which the applicant intends to engage;
82	82	(4) if the applicant is an entity other than an
83	83	individual, the full name and residence address of each partner,
84	84	officer, and director of the applicant, and of the applicant's
85	85	manager;
86	86	(5) if the applicant is an individual, two
87	87	classifiable sets of fingerprints of the applicant or, if the
88	88	applicant is an entity other than an individual, of each officer and
89	89	of each partner or shareholder who owns at least a 25 percent
90	90	interest in the applicant;
91	91	(6) a verified statement of the applicant's experience
92	92	and qualifications;
93	93	(7) a report from the department stating the
94	94	applicant's record of any convictions for a Class B misdemeanor or
95	95	equivalent offense or a greater offense;
96	96	(8) the social security number of the individual
97	97	making the application; and
98	98	(9) other information, evidence, statements, or
99	99	documents required by the board.
100	100	Sec. 1702.275. FEES. The board may adopt fees as necessary
101	101	for the issuance of a license under this subchapter.
102	102	Sec. 1702.276. INSURANCE; BOND. A license holder shall
103	103	maintain on file with the board at all times a surety bond and
104	104	certificate of insurance as required by board rule. The insurance
105	105	policy must contain minimum limits of $2 million for all
106	106	occurrences.
107	107	Sec. 1702.277. CERTAIN CONTRACTS. (a) This section
108	108	applies only to a contract or other agreement that:
109	109	(1) is entered into with a family member of a decedent
110	110	or with another person on behalf of the family member; and
111	111	(2) provides for payment of a fee, assignment of a
112	112	portion of any interest in the decedent's estate, or other
113	113	consideration by the family member out of the family member's right
114	114	to or interest in the decedent's estate to a person licensed under
115	115	this subchapter for providing information, assistance, forensic
116	116	genealogy research, or other efforts related to the family member's
117	117	right to or interest in the decedent's estate or property.
118	118	(b) Except as provided by Subsection (c), if the amount or
119	119	value of the fee, assignment, or other consideration for a contract
120	120	or other agreement described by Subsection (a) is equal to or less
121	121	than 30 percent of the value of the family member's right to or
122	122	interest in the decedent's estate, a person licensed under this
123	123	subchapter may enter into the contract or agreement only at the
124	124	discretion of the probate court in which the proceeding in
125	125	connection with the decedent's estate is pending.
126	126	(c) A person licensed under this subchapter may not enter
127	127	into a contract or other agreement described by Subsection (a):
128	128	(1) subject to Subsection (d), during the 75-day
129	129	period after the earlier of:
130	130	(A) the date of the filing of an application for
131	131	determination of heirship of the decedent; or
132	132	(B) the date of the filing of a pleading to
133	133	determine which family members of the decedent have a right to
134	134	property in the decedent's estate, if the right to the property is
135	135	based principally on the probate court's determination of the
136	136	decedent's family history; or
137	137	(2) if the amount or value of the fee, assignment, or
138	138	other consideration is greater than 30 percent of the value of the
139	139	family member's right to or interest in the decedent's estate.
140	140	(d) Subsection (c)(1) applies only if a forensic
141	141	genealogist or attorney ad litem has been appointed by a probate
142	142	court in which a proceeding in connection with the decedent's
143	143	estate is pending.
144	144	(e) A contract entered into in violation of this section is
145	145	void.
146	146	Sec. 1702.278. COMPLAINTS AND DISCIPLINARY ACTIONS. A
147	147	person licensed under this subchapter is subject to the same
148	148	complaint procedures and disciplinary actions as other persons
149	149	regulated under this chapter.
150	150	Sec. 1702.279. PENALTIES. A person licensed under this
151	151	subchapter is subject to the same penalties and enforcement
152	152	procedures as other persons regulated under this chapter.
153	153	Sec. 1702.280. FIDUCIARY DUTY; LIABILITY. (a) A person
154	154	licensed under this subchapter who provides services as an heir
155	155	finder to another person owes a fiduciary duty to the other person
156	156	to act in that person's best interest.
157	157	(b) A person who breaches a fiduciary duty under Subsection
158	158	(a) is liable for any damages resulting from the breach, including:
159	159	(1) any loss or depreciation in value of the estate as
160	160	a result of the breach;
161	161	(2) any profit made by the person as a result of the
162	162	breach;
163	163	(3) any profit that would have accrued to the estate if
164	164	there had been no breach;
165	165	(4) exemplary damages; and
166	166	(5) costs and attorney's fees incurred as a result of
167	167	the breach.
168	168	SECTION 5. Chapter I, Texas Probate Code, is amended by
169	169	adding Section 36G to read as follows:
170	170	Sec. 36G. HEIR FINDERS. (a) In this section, "heir
171	171	finder" has the meaning assigned by Section 1702.002, Occupations
172	172	Code.
173	173	(b) The court may not appoint an attorney as an attorney ad
174	174	litem in a probate proceeding if the attorney:
175	175	(1) is acting as or represents an heir finder in the
176	176	same proceeding; or
177	177	(2) has acted as or has represented an heir finder in
178	178	another probate proceeding concerning the same decedent.
179	179	(c) Chapter 1702, Occupations Code, governs the licensing
180	180	and regulation of heir finders.
181	181	SECTION 6. Section 36G, Texas Probate Code, as added by this
182	182	Act, applies only to a probate proceeding commenced on or after the
183	183	effective date of this Act without regard to whether:
184	184	(1) the decedent's death occurred before, on, or after
185	185	that date; or
186	186	(2) the probate proceeding is the original proceeding.
187	187	SECTION 7. As soon as possible after the effective date of
188	188	this Act, the Texas Private Security Board shall adopt the form,
189	189	procedures, and fees necessary to implement Subchapter K-1, Chapter
190	190	1702, Occupations Code, as added by this Act.
191	191	SECTION 8. Notwithstanding Subchapter K-1, Chapter 1702,
192	192	Occupations Code, as added by this Act, a person offering to provide
193	193	or providing services as an heir finder is not required to be
194	194	licensed under that subchapter before January 1, 2010.
195	195	SECTION 9. Section 1702.277, Occupations Code, as added by
196	196	this Act, applies only to a contract entered into on or after
197	197	January 1, 2010.
198	198	SECTION 10. (a) Except as provided by Subsection (b) of
199	199	this section, this Act takes effect September 1, 2009.
200	200	(b) Sections 1702.273, 1702.277, 1702.278, 1702.279, and
201	201	1702.280, Occupations Code, as added by this Act, take effect
202	202	January 1, 2010.