Texas 2011 - 82nd Regular

Texas Senate Bill SB286 Compare Versions

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Old	New	Differences
1	1	82R30511 KLA-D
2	2	By: Harris S.B. No. 286
3	3	(Hartnett)
4	4	Substitute the following for S.B. No. 286: No.
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to attorney's fees and other costs in guardianship
10	10	proceedings.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 665B, Texas Probate Code, as amended by
13	13	Chapters 314 (H.B. 587) and 930 (H.B. 3080), Acts of the 81st
14	14	Legislature, Regular Session, 2009, is reenacted and amended to
15	15	read as follows:
16	16	Sec. 665B. PAYMENT OF ATTORNEY'S FEES TO CERTAIN ATTORNEYS.
17	17	(a) A court that creates a guardianship or creates a management
18	18	trust under Section 867 of this code for a ward under this chapter,
19	19	on request of a person who filed an application to be appointed
20	20	guardian of the proposed ward, an application for the appointment
21	21	of another suitable person as guardian of the proposed ward, or an
22	22	application for the creation of the management trust, may authorize
23	23	the payment of reasonable and necessary attorney's fees, as
24	24	determined by the court, in amounts the court considers fair and
25	25	just, to an attorney who represents the person who filed the
26	26	application at the application hearing, regardless of whether the
27	27	person is appointed the ward's guardian or whether a management
28	28	trust is created, from[:
29	29	[(1)] available funds of the ward's estate or
30	30	management trust, if created, subject to Subsection (a-1) of this
31	31	section and Section 669 of this code, if applicable.
32	32	(a-1) The court may authorize amounts that otherwise would
33	33	be paid from the ward's estate or the management trust as provided
34	34	by Subsection (a) of this section to instead be paid from the county
35	35	treasury,[; or
36	36	[(2)] subject to Subsection (c) of this section, [the
37	37	county treasury] if:
38	38	(1) [(A)] the ward's estate or[, if created,]
39	39	management trust[,] is insufficient to pay [for] the amounts
40	40	[services provided by the attorney]; and
41	41	(2) [(B)] funds in the county treasury are budgeted
42	42	for that purpose.
43	43	(b) The court may not authorize attorney's fees under this
44	44	section unless the court finds that the applicant acted in good
45	45	faith and for just cause in the filing and prosecution of the
46	46	application.
47	47	(c) The court may authorize the payment of attorney's fees
48	48	from the county treasury under Subsection (a-1) [(a)] of this
49	49	section only if the court is satisfied that the attorney to whom the
50	50	fees will be paid has not received, and is not seeking, payment for
51	51	the services described by that subsection from any other source.
52	52	SECTION 2. Section 665D(c), Texas Probate Code, is amended
53	53	to read as follows:
54	54	(c) The court shall set the compensation of an attorney
55	55	described by Subsection (a) of this section for the performance of
56	56	guardianship services in accordance with Section 665 of this code.
57	57	The court shall set attorney's fees for an attorney described by
58	58	Subsection (a) of this section for legal services provided in
59	59	accordance with Sections [665A,] 665B, [and] 666, and 669 of this
60	60	code.
61	61	SECTION 3. Section 669, Texas Probate Code, is amended to
62	62	read as follows:
63	63	Sec. 669. COSTS IN [AGAINST] GUARDIANSHIP PROCEEDING
64	64	GENERALLY. (a) Except as provided by Subsection (b) of this
65	65	section, in a guardianship matter, the cost of the proceeding,
66	66	including the cost of the guardian ad litem, attorney ad litem,
67	67	court investigator, [or] court visitor, mental health
68	68	professionals, interpreters, and other attorneys, shall be set in
69	69	an amount the court considers fair and just and shall be paid out of
70	70	the guardianship estate, or, if the estate is insufficient to pay
71	71	for the cost of the proceeding, the cost of the proceeding shall be
72	72	paid out of the county treasury, except as provided by Subsection
73	73	(c) of this section, and the judgment of the court shall be issued
74	74	accordingly.
75	75	(b) If a court finds that a party in a guardianship
76	76	proceeding acted in bad faith or without just cause in prosecuting
77	77	or objecting to an application in the proceeding, the court may
78	78	require that party to pay all or part of the costs [denies an
79	79	application for the appointment of a guardian under this chapter
80	80	based on the recommendation of a court investigator, the applicant
81	81	shall pay the cost] of the proceeding.
82	82	(c) The court may order the applicant in a guardianship
83	83	proceeding to pay the cost of the guardian ad litem or court visitor
84	84	appointed in the proceeding if:
85	85	(1) the guardianship estate is insufficient to pay
86	86	that cost; and
87	87	(2) the applicant's gross annual family income exceeds
88	88	200 percent of the federal poverty level.
89	89	SECTION 4. Section 875(i), Texas Probate Code, is amended
90	90	to read as follows:
91	91	(i) If the court appoints a temporary guardian after the
92	92	hearing required by Subsection (f)(1) of this section, all court
93	93	costs, including attorney's fees, may be assessed as provided in
94	94	Section [665A,] 665B[,] or 669 of this code.
95	95	SECTION 5. Section 665A, Texas Probate Code, is repealed.
96	96	SECTION 6. The changes in law made by this Act apply to a
97	97	guardianship created before, on, or after the effective date of
98	98	this Act.
99	99	SECTION 7. This Act takes effect immediately if it receives
100	100	a vote of two-thirds of all the members elected to each house, as
101	101	provided by Section 39, Article III, Texas Constitution. If this
102	102	Act does not receive the vote necessary for immediate effect, this
103	103	Act takes effect September 1, 2011.