By: Wentworth S.B. No. 1243
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of heir finders by the Texas Private
Security Board; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1702.002, Occupations Code, is amended
by adding Subdivisions (6-b) and (8-a) to read as follows:
(6-b) "Estate," "heir," and "probate court" have the
meanings assigned by Section 3, Texas Probate Code.
(8-a) "Heir finder" means a person who for payment of a
fee, assignment of a portion of any interest in a decedent's estate,
or other consideration provides information, assistance, forensic
genealogy research, or other efforts related to another person's
right to or interest in a decedent's estate.
SECTION 2. Subsection (a), Section 1702.004, Occupations
Code, is amended to read as follows:
(a) The board, in addition to performing duties required by
other law or exercising powers granted by other law:
(1) licenses investigations companies and security
services contractors;
(2) issues commissions to certain security officers;
(3) issues authorizations to certain security
officers engaged in the personal protection of individuals;
(4) registers:
(A) certain individuals connected with a license
holder; and
(B) certain individuals employed in a field
connected to private investigation or private security; [and]
(5) licenses heir finders under Subchapter K-1; and
(6) regulates license holders, security officers, and
registrants under this chapter.
SECTION 3. Section 1702.042, Occupations Code, is amended
to read as follows:
Sec. 1702.042. PERSONNEL; CONFLICT OF INTEREST. An
employee of the commission may not:
(1) have a financial or business interest, contingent
or otherwise, in a security services contractor, [or]
investigations company, or company providing services as an heir
finder; or
(2) be licensed under this chapter.
SECTION 4. Chapter 1702, Occupations Code, is amended by
adding Subchapter K-1 to read as follows:
SUBCHAPTER K-1. REGULATION OF HEIR FINDERS
Sec. 1702.271. DEFINITION. In this subchapter, "family
member," with respect to a decedent, means a person who would be
considered an heir of the decedent at the time of the decedent's
death.
Sec. 1702.272. APPLICATION OF SUBCHAPTER. (a) This
subchapter does not apply to:
(1) a person acting in the capacity of a personal
representative, attorney ad litem, guardian ad litem, or other
person appointed by a probate court in which a proceeding in
connection with a decedent's estate is pending;
(2) a forensic genealogist employed or retained by a
government agency, court, or court-appointed attorney ad litem; or
(3) an attorney providing legal services to a
decedent's family member if the attorney has not agreed to pay to
any other person a portion of the fees received from the family
member or the family member's interest in the decedent's estate.
(b) In this section, "attorney ad litem," "guardian ad
litem," and "personal representative" have the meanings assigned by
the Texas Probate Code.
Sec. 1702.273. LICENSE REQUIRED. (a) A person may not
offer to provide or provide services as an heir finder unless the
person holds a license as an heir finder.
(b) A license under this subchapter:
(1) is valid for three years from the date of issuance;
and
(2) may be renewed.
Sec. 1702.274. LICENSE APPLICATION. An application for a
license under this subchapter must be in the form prescribed by the
board and include:
(1) the full name and business address of the
applicant;
(2) the name under which the applicant intends to do
business;
(3) a statement as to the general nature of the
business in which the applicant intends to engage;
(4) if the applicant is an entity other than an
individual, the full name and residence address of each partner,
officer, and director of the applicant, and of the applicant's
manager;
(5) if the applicant is an individual, two
classifiable sets of fingerprints of the applicant or, if the
applicant is an entity other than an individual, of each officer and
of each partner or shareholder who owns at least a 25 percent
interest in the applicant;
(6) a verified statement of the applicant's experience
and qualifications;
(7) a report from the department stating the
applicant's record of any convictions for a Class B misdemeanor or
equivalent offense or a greater offense;
(8) the social security number of the individual
making the application; and
(9) other information, evidence, statements, or
documents required by the board.
Sec. 1702.275. FEES. The board may adopt fees as necessary
for the issuance of a license under this subchapter.
Sec. 1702.276. INSURANCE; BOND. A license holder shall
maintain on file with the board at all times a surety bond and
certificate of insurance as required by board rule. The insurance
policy must contain minimum limits of $2 million for all
occurrences.
Sec. 1702.277. CERTAIN CONTRACTS. (a) This section
applies only to a contract or other agreement that:
(1) is entered into with a family member of a decedent
or with another person on behalf of the family member; and
(2) provides for payment of a fee, assignment of a
portion of any interest in the decedent's estate, or other
consideration by the family member out of the family member's right
to or interest in the decedent's estate to a person licensed under
this subchapter for providing information, assistance, forensic
genealogy research, or other efforts related to the family member's
right to or interest in the decedent's estate or property.
(b) Except as provided by Subsection (c), if the amount or
value of the fee, assignment, or other consideration for a contract
or other agreement described by Subsection (a) is equal to or less
than 30 percent of the value of the family member's right to or
interest in the decedent's estate, a person licensed under this
subchapter may enter into the contract or agreement only at the
discretion of the probate court in which the proceeding in
connection with the decedent's estate is pending.
(c) A person licensed under this subchapter may not enter
into a contract or other agreement described by Subsection (a):
(1) subject to Subsection (d), during the 75-day
period after the earlier of:
(A) the date of the filing of an application for
determination of heirship of the decedent; or
(B) the date of the filing of a pleading to
determine which family members of the decedent have a right to
property in the decedent's estate, if the right to the property is
based principally on the probate court's determination of the
decedent's family history; or
(2) if the amount or value of the fee, assignment, or
other consideration is greater than 30 percent of the value of the
family member's right to or interest in the decedent's estate.
(d) Subsection (c)(1) applies only if a forensic
genealogist or attorney ad litem has been appointed by a probate
court in which a proceeding in connection with the decedent's
estate is pending.
(e) A contract entered into in violation of this section is
void.
Sec. 1702.278. COMPLAINTS AND DISCIPLINARY ACTIONS. A
person licensed under this subchapter is subject to the same
complaint procedures and disciplinary actions as other persons
regulated under this chapter.
Sec. 1702.279. PENALTIES. A person licensed under this
subchapter is subject to the same penalties and enforcement
procedures as other persons regulated under this chapter.
Sec. 1702.280. FIDUCIARY DUTY; LIABILITY. (a) A person
licensed under this subchapter who provides services as an heir
finder to another person owes a fiduciary duty to the other person
to act in that person's best interest.
(b) A person who breaches a fiduciary duty under Subsection
(a) is liable for any damages resulting from the breach, including:
(1) any loss or depreciation in value of the estate as
a result of the breach;
(2) any profit made by the person as a result of the
breach;
(3) any profit that would have accrued to the estate if
there had been no breach;
(4) exemplary damages; and
(5) costs and attorney's fees incurred as a result of
the breach.
SECTION 5. Chapter I, Texas Probate Code, is amended by
adding Section 36G to read as follows:
Sec. 36G. HEIR FINDERS. (a) In this section, "heir
finder" has the meaning assigned by Section 1702.002, Occupations
Code.
(b) The court may not appoint an attorney as an attorney ad
litem in a probate proceeding if the attorney:
(1) is acting as or represents an heir finder in the
same proceeding; or
(2) has acted as or has represented an heir finder in
another probate proceeding concerning the same decedent.
(c) Chapter 1702, Occupations Code, governs the licensing
and regulation of heir finders.
SECTION 6. Section 36G, Texas Probate Code, as added by this
Act, applies only to a probate proceeding commenced on or after the
effective date of this Act without regard to whether:
(1) the decedent's death occurred before, on, or after
that date; or
(2) the probate proceeding is the original proceeding.
SECTION 7. As soon as possible after the effective date of
this Act, the Texas Private Security Board shall adopt the form,
procedures, and fees necessary to implement Subchapter K-1, Chapter
1702, Occupations Code, as added by this Act.
SECTION 8. Notwithstanding Subchapter K-1, Chapter 1702,
Occupations Code, as added by this Act, a person offering to provide
or providing services as an heir finder is not required to be
licensed under that subchapter before January 1, 2010.
SECTION 9. Section 1702.277, Occupations Code, as added by
this Act, applies only to a contract entered into on or after
January 1, 2010.
SECTION 10. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2009.
(b) Sections 1702.273, 1702.277, 1702.278, 1702.279, and
1702.280, Occupations Code, as added by this Act, take effect
January 1, 2010.