By: Harris S.B. No. 286
(In the Senate - Filed December 21, 2010; March 31, 2011,
read first time and referred to Committee on Jurisprudence;
March 14, 2011, reported favorably by the following vote: Yeas 5,
Nays 0; March 14, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to attorney's fees and other amounts taxed as costs in
guardianship proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 665A, Texas Probate Code, is amended to
read as follows:
Sec. 665A. PAYMENT FOR PROFESSIONAL SERVICES. The court
shall order the payment of a fee in an amount set by the court that
is fair and just as compensation to the attorneys, mental health
professionals, and interpreters appointed under this chapter, as
applicable, to be taxed as costs in the case. The court may
allocate attorney's fees taxed as costs under this section among
the parties as the court finds is fair and just. If after examining
the proposed ward's assets the court determines the proposed ward
is unable to pay for costs allocated to the proposed ward for
services provided by an attorney, a mental health professional, or
an interpreter appointed under this chapter, as applicable, the
county is responsible for those costs [the cost of those services].
SECTION 2. 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) subject to Subsection (a-1) of this section, the
parties to the guardianship proceeding, allocated as the court
finds is fair and just; or
(2) subject to Subsection (a-1) of this section,
available funds of the [ward's estate or] management trust, if
created.
(a-1) The court may authorize amounts allocated to the
ward's estate under Subsection (a)(1) of this section or amounts to
be paid from available funds of the management trust as provided by
Subsection (a)(2) 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 3. Subsection (a), Section 669, Texas Probate Code,
is amended to read as follows:
(a) Except as provided by Subsection (b) of this section or
Section 665A or 665B(a) of this code, in a guardianship matter, the
cost of the proceeding, including the cost of the guardian ad litem
or court visitor, 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,
and the judgment of the court shall be issued accordingly.
SECTION 4. The changes in law made by this Act apply to a
guardianship created before, on, or after the effective date of
this Act.
SECTION 5. 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.
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