82R30511 KLA-D
By: Harris S.B. No. 286
(Hartnett)
Substitute the following for S.B. No. 286: No.
A BILL TO BE ENTITLED
AN ACT
relating to attorney's fees and other costs in guardianship
proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 665B, Texas Probate Code, as amended by
Chapters 314 (H.B. 587) and 930 (H.B. 3080), Acts of the 81st
Legislature, Regular Session, 2009, is reenacted and amended to
read as follows:
Sec. 665B. PAYMENT OF ATTORNEY'S FEES TO CERTAIN ATTORNEYS.
(a) A court that creates a guardianship or creates a management
trust under Section 867 of this code for a ward under this chapter,
on request of a person who filed an application to be appointed
guardian of the proposed ward, an application for the appointment
of another suitable person as guardian of the proposed ward, or an
application for the creation of the management trust, may authorize
the payment of reasonable and necessary attorney's fees, as
determined by the court, in amounts the court considers fair and
just, to an attorney who represents the person who filed the
application at the application hearing, regardless of whether the
person is appointed the ward's guardian or whether a management
trust is created, from[:
[(1)] available funds of the ward's estate or
management trust, if created, subject to Subsection (a-1) of this
section and Section 669 of this code, if applicable.
(a-1) The court may authorize amounts that otherwise would
be paid from the ward's estate or the management trust as provided
by Subsection (a) of this section to instead be paid from the county
treasury,[; or
[(2)] subject to Subsection (c) of this section, [the
county treasury] if:
(1) [(A)] the ward's estate or[, if created,]
management trust[,] is insufficient to pay [for] the amounts
[services provided by the attorney]; and
(2) [(B)] funds in the county treasury are budgeted
for that purpose.
(b) The court may not authorize attorney's fees under this
section unless the court finds that the applicant acted in good
faith and for just cause in the filing and prosecution of the
application.
(c) The court may authorize the payment of attorney's fees
from the county treasury under Subsection (a-1) [(a)] of this
section only if the court is satisfied that the attorney to whom the
fees will be paid has not received, and is not seeking, payment for
the services described by that subsection from any other source.
SECTION 2. Section 665D(c), Texas Probate Code, is amended
to read as follows:
(c) The court shall set the compensation of an attorney
described by Subsection (a) of this section for the performance of
guardianship services in accordance with Section 665 of this code.
The court shall set attorney's fees for an attorney described by
Subsection (a) of this section for legal services provided in
accordance with Sections [665A,] 665B, [and] 666, and 669 of this
code.
SECTION 3. Section 669, Texas Probate Code, is amended to
read as follows:
Sec. 669. COSTS IN [AGAINST] GUARDIANSHIP PROCEEDING
GENERALLY. (a) Except as provided by Subsection (b) of this
section, in a guardianship matter, the cost of the proceeding,
including the cost of the guardian ad litem, attorney ad litem,
court investigator, [or] court visitor, mental health
professionals, interpreters, and other attorneys, shall be set in
an amount the court considers fair and just and shall be paid out of
the guardianship estate, or, if the estate is insufficient to pay
for the cost of the proceeding, the cost of the proceeding shall be
paid out of the county treasury, except as provided by Subsection
(c) of this section, and the judgment of the court shall be issued
accordingly.
(b) If a court finds that a party in a guardianship
proceeding acted in bad faith or without just cause in prosecuting
or objecting to an application in the proceeding, the court may
require that party to pay all or part of the costs [denies an
application for the appointment of a guardian under this chapter
based on the recommendation of a court investigator, the applicant
shall pay the cost] of the proceeding.
(c) The court may order the applicant in a guardianship
proceeding to pay the cost of the guardian ad litem or court visitor
appointed in the proceeding if:
(1) the guardianship estate is insufficient to pay
that cost; and
(2) the applicant's gross annual family income exceeds
200 percent of the federal poverty level.
SECTION 4. Section 875(i), Texas Probate Code, is amended
to read as follows:
(i) If the court appoints a temporary guardian after the
hearing required by Subsection (f)(1) of this section, all court
costs, including attorney's fees, may be assessed as provided in
Section [665A,] 665B[,] or 669 of this code.
SECTION 5. Section 665A, Texas Probate Code, is repealed.
SECTION 6. The changes in law made by this Act apply to a
guardianship created before, on, or after the effective date of
this Act.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011.