H.B. No. 1438
AN ACT
relating to probate matters, including guardianships and other
matters related to incapacitated persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1023.005, Estates Code, is amended to
read as follows:
Sec. 1023.005. COURT ACTION. [(a)] On hearing an
application under Section 1023.003, if good cause is not shown to
deny the application and it appears that transfer of the
guardianship is in the best interests of the ward, the court shall
enter an order:
(1) authorizing the transfer on payment on behalf of
the estate of all accrued costs; and
(2) requiring that any existing bond of the guardian
must remain in effect until a new bond has been given or a rider has
been filed in accordance with Section 1023.010.
[(b) In an order entered under Subsection (a), the court
shall require the guardian, not later than the 20th day after the
date the order is entered, to:
[(1) give a new bond payable to the judge of the court
to which the guardianship is transferred; or
[(2) file a rider to an existing bond noting the court
to which the guardianship is transferred.]
SECTION 2. Section 1023.010, Estates Code, is amended to
read as follows:
Sec. 1023.010. REVIEW OF TRANSFERRED GUARDIANSHIP. (a)
Not later than the 90th day after the date the transfer of the
guardianship takes effect under Section 1023.007, the court to
which the guardianship was transferred shall hold a hearing to
consider modifying the rights, duties, and powers of the guardian
or any other provisions of the transferred guardianship.
(b) After the hearing described by Subsection (a), the court
to which the guardianship was transferred shall enter an order
requiring the guardian to:
(1) give a new bond payable to the judge of the court
to which the guardianship was transferred; or
(2) file a rider to an existing bond noting the court
to which the guardianship was transferred.
SECTION 3. Section 1051.104(a), Estates Code, is amended to
read as follows:
(a) The person filing an application for guardianship shall
mail a copy of the application and a notice containing the
information required in the citation issued under Section 1051.102
by registered or certified mail, return receipt requested, or by
any other form of mail that provides proof of delivery, to the
following persons, if their whereabouts are known or can be
reasonably ascertained:
(1) each adult child of the proposed ward;
(2) each adult sibling of the proposed ward;
(3) the administrator of a nursing home facility or
similar facility in which the proposed ward resides;
(4) the operator of a residential facility in which
the proposed ward resides;
(5) a person whom the applicant knows to hold a power
of attorney signed by the proposed ward;
(6) a person designated to serve as guardian of the
proposed ward by a written declaration under Subchapter E, Chapter
1104, if the applicant knows of the existence of the declaration;
(7) a person designated to serve as guardian of the
proposed ward in the probated will of the last surviving parent of
the proposed ward;
(8) a person designated to serve as guardian of the
proposed ward by a written declaration of the proposed ward's last
surviving parent, if the declarant is deceased and the applicant
knows of the existence of the declaration; and
(9) each adult [person] named [as another relative
within the third degree by consanguinity] in the application as an
"other living relative" of the proposed ward within the third
degree by consanguinity, as required by Section 1101.001(b)(11) or
(13), if the proposed ward's spouse and each of the proposed ward's
parents, adult siblings, and adult children are deceased or there
is no spouse, parent, adult sibling, or adult child.
SECTION 4. Section 1052.001(a), Estates Code, is amended to
read as follows:
(a) The county clerk shall maintain a record book titled
"Judge's Guardianship Docket" and shall record in the book:
(1) the name of each person with respect to whom, or
with respect to whose estate, a proceeding is commenced or sought to
be commenced;
(2) the name of the guardian of the estate or person or
of the applicant for letters of guardianship;
(3) the date each original application for a
guardianship proceeding is filed;
(4) a notation of each order, judgment, decree, and
proceeding that occurs in each guardianship [estate], including the
date it occurs; and
(5) the docket number of each guardianship as assigned
under Subsection (b).
SECTION 5. Section 1053.052(a), Estates Code, is amended to
read as follows:
(a) The clerk may require or may obtain from the court an
order requiring a person who files an application, complaint, or
opposition relating to a guardianship proceeding, other than a
guardian, attorney ad litem, or guardian ad litem, to provide
security for the probable costs of the proceeding before filing the
application, complaint, or opposition.
SECTION 6. Subchapter D, Chapter 1054, Estates Code, is
amended by adding Section 1054.155 to read as follows:
Sec. 1054.155. NOTICE REGARDING REQUEST TO FINANCIAL
INSTITUTION FOR CUSTOMER RECORDS. If a request is made to a
financial institution for a customer record in connection with an
investigation conducted under Section 1054.151 or 1054.152, the
court shall provide written notice of that fact to the ward or
proposed ward with respect to whom the investigation is conducted
not later than the fifth day after the date the financial
institution produces the customer record.
SECTION 7. Subchapter A, Chapter 1055, Estates Code, is
amended by adding Section 1055.003 to read as follows:
Sec. 1055.003. INTERVENTION BY INTERESTED PERSON. (a)
Notwithstanding the Texas Rules of Civil Procedure, an interested
person may intervene in a guardianship proceeding only by filing a
timely motion to intervene that is served on the parties.
(b) The motion must state the grounds for intervention in
the proceeding and be accompanied by a pleading that sets out the
purpose for which intervention is sought.
(c) The court has the discretion to grant or deny the motion
and, in exercising that discretion, must consider whether:
(1) the intervention will unduly delay or prejudice
the adjudication of the original parties' rights; or
(2) the proposed intervenor has such an adverse
relationship with the ward or proposed ward that the intervention
would unduly prejudice the adjudication of the original parties'
rights.
SECTION 8. Section 1101.001, Estates Code, is amended by
adding Subsection (c) to read as follows:
(c) For purposes of this section, a proposed ward's
relatives within the third degree by consanguinity include the
proposed ward's:
(1) grandparent or grandchild; and
(2) great-grandparent, great-grandchild, aunt who is
a sister of a parent of the proposed ward, uncle who is a brother of
a parent of the proposed ward, nephew who is a child of a brother or
sister of the proposed ward, or niece who is a child of a brother or
sister of the proposed ward.
SECTION 9. Subchapter D, Chapter 1101, Estates Code, is
amended by adding Section 1101.156 to read as follows:
Sec. 1101.156. DEPOSIT OF ESTATE ASSETS. (a) At the time
or after an order appointing a guardian is signed by the court but
before letters of guardianship are issued, a court may, on the
request of a party, require the deposit for safekeeping of cash,
securities, or other assets of a ward or proposed ward in a
financial institution described by Section 1105.155(b).
(b) The amount of the bond required to be given by the
guardian under Section 1105.101 shall be reduced in proportion to
the amount of the cash or the value of the securities or other
assets deposited under this section.
SECTION 10. Section 1102.001, Estates Code, is amended to
read as follows:
Sec. 1102.001. COURT-INITIATED INVESTIGATION. (a) If a
court has probable cause to believe that a person domiciled or found
in the county in which the court is located is an incapacitated
person, and the person does not have a guardian in this state, the
court shall appoint a guardian ad litem or court investigator to
investigate the person's conditions and circumstances to determine
whether:
(1) the person is an incapacitated person; and
(2) a guardianship is necessary.
(b) If a court appoints a guardian ad litem or court
investigator under Subsection (a):
(1) the court's order appointing a guardian ad litem or
court investigator must include a statement that the person
believed to be incapacitated has the right to petition the court to
have the appointment set aside;
(2) at the initial meeting between the guardian ad
litem or court investigator and the person believed to be
incapacitated, the guardian ad litem or court investigator, as
appropriate, shall provide a copy of the information letter under
Section 1102.003 and the order to, and discuss the contents of the
letter and order with, the person believed to be incapacitated; and
(3) during the period beginning after the date of the
initial meeting described by Subdivision (2) and ending on the date
an application for the appointment of a guardian is filed, the
person believed to be incapacitated may petition the court to have
the appointment of the guardian ad litem or court investigator, as
appropriate, set aside.
SECTION 11. Section 1102.003, Estates Code, is amended by
adding Subsection (c) to read as follows:
(c) Any information provided by the Department of Family and
Protective Services under this section that is confidential under
Chapter 48, Human Resources Code, remains confidential and is not
subject to disclosure under Chapter 552, Government Code.
SECTION 12. Section 1102.005, Estates Code, is amended to
read as follows:
Sec. 1102.005. COMPENSATION OF GUARDIAN AD LITEM. (a)
Regardless of whether a guardianship is created for a proposed ward
and except as provided by Section 1155.151, a [A] court that
appoints a guardian ad litem under Section 1102.001 may authorize
compensation of the guardian ad litem from available funds of:
(1) the proposed ward's estate; or
(2) the management trust, if a management trust has
been created for the benefit of the proposed ward under Chapter
1301[, regardless of whether a guardianship is created for the
proposed ward].
(b) Except as provided by Section 1155.151, after [After]
examining the proposed ward's assets or the assets of any
management trust created for the proposed ward's benefit under
Chapter 1301, and determining that the proposed ward or the
management trust is unable to pay for services provided by the
guardian ad litem, the court may authorize compensation from the
county treasury.
SECTION 13.
Chapter 1102, Estates Code, is amended by
adding Section 1102.006 to read as follows:
Sec. 1102.006. NOTICE REGARDING REQUEST TO FINANCIAL
INSTITUTION FOR CUSTOMER RECORDS. If a request is made to a
financial institution for a customer record in connection with an
investigation conducted under Section 1102.001, the court shall
provide written notice of that fact to the proposed ward with
respect to whom the investigation is conducted not later than the
fifth day after the date the financial institution produces the
customer record.
SECTION 14. Section 1104.154(a), Estates Code, is amended
to read as follows:
(a) As an alternative to the self-proving affidavit
authorized by Section 1104.153, a declaration of appointment of a
guardian for the declarant's children in the event of the
declarant's death or incapacity may be simultaneously executed,
attested, and made self-proved by including the following in
substantially the same form and with substantially the same
contents:
I, _________________________, as declarant, after being duly
sworn, declare to the undersigned witnesses and to the undersigned
authority that this instrument is my Declaration of Appointment of
Guardian for My Children in the Event of My Death or Incapacity, and
that I willingly make [have made] and execute [executed] it for the
purposes expressed in the declaration. I now sign this declaration
in the presence of the attesting witnesses and the undersigned
authority on this ____ day of ________, 20__.
___________________________
Declarant
The undersigned, _____________________ and
___________________, each being 14 years of age or older, after
being duly sworn, declare to the declarant and to the undersigned
authority that the declarant declared to us that this instrument is
the declarant's Declaration of Appointment of Guardian for the
Declarant's Children in the Event of Declarant's Death or
Incapacity and that the declarant executed it for the purposes
expressed in the declaration. The declarant then signed this
declaration and we believe the declarant to be of sound mind. We now
sign our names as attesting witnesses on this _____ day of
___________, 20___.
___________________________
Witness
___________________________
Witness
Subscribed and sworn to before me by the above named
declarant, and affiants, this ____ day of __________________, 20__.
___________________________
Notary Public in and for the
State of Texas
My Commission expires:
___________________________
SECTION 15. Section 1104.205(a), Estates Code, is amended
to read as follows:
(a) As an alternative to the self-proving affidavit
authorized by Section 1104.204, a declaration of guardian in the
event of later incapacity or need of guardian may be simultaneously
executed, attested, and made self-proved by including the following
in substantially the same form and with substantially the same
contents:
I, _________________________, as declarant, after being duly
sworn, declare to the undersigned witnesses and to the undersigned
authority that this instrument is my Declaration of Guardian in the
Event of Later Incapacity or Need of Guardian, and that I willingly
make [have made] and execute [executed] it for the purposes
expressed in the declaration. I now sign this declaration in the
presence of the attesting witnesses and the undersigned authority
on this ____ day of ________, 20__.
___________________________
Declarant
The undersigned, _____________________ and
___________________, each being 14 years of age or older, after
being duly sworn, declare to the declarant and to the undersigned
authority that the declarant declared to us that this instrument is
the declarant's Declaration of Guardian in the Event of Later
Incapacity or Need of Guardian and that the declarant executed it
for the purposes expressed in the declaration. The declarant then
signed this declaration and we believe the declarant to be of sound
mind. We now sign our names as attesting witnesses on this _____ day
of ___________, 20___.
___________________________
Witness
___________________________
Witness
Subscribed and sworn to before me by the above named
declarant, and affiants, this ____ day of __________________, 20__.
__________________________
Notary Public in and for the
State of Texas
My Commission expires:
__________________________
SECTION 16. Section 1104.402(a), Estates Code, is amended
to read as follows:
(a) Except as provided by Section 1104.403, 1104.404, or
1104.406(a), the clerk of the county having venue of the proceeding
for the appointment of a guardian shall obtain criminal history
record information that is maintained by the Department of Public
Safety or the Federal Bureau of Investigation identification
division relating to:
(1) a private professional guardian;
(2) each person who represents or plans to represent
the interests of a ward as a guardian on behalf of the private
professional guardian;
(3) each person employed by a private professional
guardian who will:
(A) have personal contact with a ward or proposed
ward;
(B) exercise control over and manage a ward's
estate; or
(C) perform any duties with respect to the
management of a ward's estate;
(4) each person employed by or volunteering or
contracting with a guardianship program to provide guardianship
services to a ward of the program on the program's behalf; or
(5) any other person proposed to serve as a guardian
under this title, including a proposed temporary guardian and a
proposed successor guardian, other than [the ward's or proposed
ward's family member or] an attorney.
SECTION 17. Section 1104.409, Estates Code, is amended to
read as follows:
Sec. 1104.409. USE OF INFORMATION BY COURT. The court
shall use the information obtained under this subchapter only in
determining whether to:
(1) appoint, remove, or continue the appointment of a
private professional guardian, a guardianship program, or the
department; or
(2) appoint any other person proposed to serve as a
guardian under this title, including a proposed temporary guardian
and a proposed successor guardian, other than [the ward's or
proposed ward's family member or] an attorney.
SECTION 18. Section 1155.151, Estates Code, is amended by
amending Subsections (a) and (b) and adding Subsections (a-1),
(a-2), (a-3), (a-4), (d), (e), and (f) to read as follows:
(a) In a guardianship proceeding, the court costs of the
proceeding, including the costs described by Subsection (a-1) [cost
of the guardians ad litem, attorneys ad litem, court visitor,
mental health professionals, and interpreters appointed under this
title, shall be set in an amount the court considers equitable and
just and, except as provided by Subsection (c)], shall, except as
provided by Subsection (c), be paid as follows [out of the
guardianship estate, or the county treasury if the estate is
insufficient to pay the cost], and the court shall issue the
judgment accordingly:
(1) out of the guardianship estate;
(2) out of the management trust, if a management trust
has been created for the benefit of the ward under Chapter 1301 and
the court determines it is in the ward's best interest;
(3) by the party to the proceeding who incurred the
costs, unless that party filed, on the party's own behalf, an
affidavit of inability to pay the costs under Rule 145, Texas Rules
of Civil Procedure, that shows the party is unable to afford the
costs, if:
(A) there is no guardianship estate or no
management trust has been created for the ward's benefit; or
(B) the assets of the guardianship estate or
management trust, as appropriate, are insufficient to pay the
costs; or
(4) out of the county treasury if:
(A) there is no guardianship estate or management
trust or the assets of the guardianship estate or management trust,
as appropriate, are insufficient to pay the costs; and
(B) the party to the proceeding who incurred the
costs filed, on the party's own behalf, an affidavit of inability to
pay the costs under Rule 145, Texas Rules of Civil Procedure, that
shows the party is unable to afford the costs.
(a-1) In a guardianship proceeding, the cost of any
guardians ad litem, attorneys ad litem, court visitors, mental
health professionals, and interpreters appointed under this title
shall be set in an amount the court considers equitable and just.
(a-2) Notwithstanding any other law requiring the payment
of court costs in a guardianship proceeding, the following are not
required to pay court costs on the filing of or during a
guardianship proceeding:
(1) an attorney ad litem;
(2) a guardian ad litem;
(3) a person or entity who files an affidavit of
inability to pay the costs under Rule 145, Texas Rules of Civil
Procedure, that shows the person or entity is unable to afford the
costs;
(4) a nonprofit guardianship program;
(5) a governmental entity; and
(6) a government agency or nonprofit agency providing
guardianship services.
(a-3) For purposes of Subsections (a) and (a-2), a person or
entity who files an affidavit of inability to pay the costs under
Rule 145, Texas Rules of Civil Procedure, is unable to afford the
costs if the affidavit shows that the person or entity:
(1) is currently receiving assistance or other
benefits from a government program under which assistance or other
benefits are provided to individuals on a means-tested basis;
(2) is eligible for and currently receiving free legal
services in the guardianship proceeding through the following:
(A) a legal services provider funded partly by
the Texas Access to Justice Foundation;
(B) a legal services provider funded partly by
the Legal Services Corporation; or
(C) a nonprofit corporation formed under the laws
of this state that provides legal services to low-income
individuals whose household income is at or below 200 percent of the
federal poverty guidelines as determined by the United States
Department of Health and Human Services;
(3) applied and was eligible for free legal services
through a person or entity listed in Subdivision (2) but was
declined representation; or
(4) has a household income that is at or below 200
percent of the federal poverty guidelines as determined by the
United States Department of Health and Human Services and has money
or other available assets, excluding any homestead and exempt
property under Chapter 42, Property Code, in an amount that does not
exceed $2,000.
(a-4) If an affidavit of inability to pay costs filed under
Rule 145, Texas Rules of Civil Procedure, is contested, the court,
at a hearing, shall review the contents of and attachments to the
affidavit and any other evidence offered at the hearing and make a
determination as to whether the person or entity is unable to
afford the costs. If the court finds that the person or entity is
able to afford the costs, the person or entity must pay the court
costs. Except with leave of court, no further action in the
guardianship proceeding may be taken by a person or entity found
able to afford costs until payment of those costs is made.
(b) The costs attributable to the services of a person
described by Subsection (a-1) [(a)] shall be paid under this
section at any time after the commencement of the proceeding as
ordered by the court.
(d) If a guardianship of the estate or management trust
under Chapter 1301 is created, a person or entity who paid any costs
on the filing of or during the proceeding is entitled to be
reimbursed out of assets of the guardianship estate or management
trust, as appropriate, for the costs if:
(1) the assets of the estate or trust, as appropriate,
are sufficient to cover the reimbursement of the costs; and
(2) the person or entity has not been ordered by the
court to pay the costs as all or part of the payment of court costs
under Subsection (c).
(e) If at any time after a guardianship of the estate or
management trust under Chapter 1301 is created there are sufficient
assets of the estate or trust, as appropriate, to pay the amount of
any of the costs exempt from payment under Subsection (a-2), the
court shall require the guardian to pay out of the guardianship
estate or management trust, as appropriate, to the court clerk for
deposit in the county treasury the amount of any of those costs.
(f) To the extent that this section conflicts with the Texas
Rules of Civil Procedure or other rules, this section controls.
SECTION 19. Section 1163.101(c), Estates Code, is amended
to read as follows:
(c) The guardian of the person shall file a sworn affidavit
that contains:
(1) the guardian's current name, address, and
telephone number;
(2) the ward's date of birth and current name, address,
telephone number, and age;
(3) a description of the type of home in which the ward
resides, which shall be described as:
(A) the ward's own home;
(B) a nursing home;
(C) a guardian's home;
(D) a foster home;
(E) a boarding home;
(F) a relative's home, in which case the
description must specify the relative's relationship to the ward;
(G) a hospital or medical facility; or
(H) another type of residence;
(4) statements indicating:
(A) the length of time the ward has resided in the
present home;
(B) the reason for a change in the ward's
residence, if a change in the ward's residence has occurred in the
past year;
(C) the date the guardian most recently saw the
ward;
(D) how frequently the guardian has seen the ward
in the past year;
(E) whether the guardian has possession or
control of the ward's estate;
(F) whether the ward's mental health has
improved, deteriorated, or remained unchanged during the past year,
including a description of the change if a change has occurred;
(G) whether the ward's physical health has
improved, deteriorated, or remained unchanged during the past year,
including a description of the change if a change has occurred;
(H) whether the ward has regular medical care;
and
(I) the ward's treatment or evaluation by any of
the following persons during the past year, including the person's
name and a description of the treatment:
(i) a physician;
(ii) a psychiatrist, psychologist, or other
mental health care provider;
(iii) a dentist;
(iv) a social or other caseworker; or
(v) any other individual who provided
treatment;
(5) a description of the ward's activities during the
past year, including recreational, educational, social, and
occupational activities, or a statement that no activities were
available or that the ward was unable or refused to participate in
activities;
(6) the guardian's evaluation of:
(A) the ward's living arrangements as excellent,
average, or below average, including an explanation if the
conditions are below average;
(B) whether the ward is content or unhappy with
the ward's living arrangements; and
(C) unmet needs of the ward;
(7) a statement indicating whether the guardian's
power should be increased, decreased, or unaltered, including an
explanation if a change is recommended;
(8) a statement indicating that the guardian has paid
the bond premium for the next reporting period;
(9) if the guardian is a private professional
guardian, a guardianship program, or the Department of Aging and
Disability Services, whether the guardian or an individual
certified under Subchapter C, Chapter 155 [111], Government Code,
who is providing guardianship services to the ward and who is filing
[swearing to] the affidavit on the guardian's behalf, is or has been
the subject of an investigation conducted by the Guardianship
Certification Board during the preceding year; and
(10) any additional information the guardian desires
to share with the court regarding the ward, including:
(A) whether the guardian has filed for emergency
detention of the ward under Subchapter A, Chapter 573, Health and
Safety Code; and
(B) if applicable, the number of times the
guardian has filed for emergency detention and the dates of the
applications for emergency detention.
SECTION 20. The heading to Section 1163.1011, Estates Code,
is amended to read as follows:
Sec. 1163.1011. USE OF UNSWORN DECLARATION IN LIEU OF SWORN
DECLARATION OR AFFIDAVIT FOR [ELECTRONIC] FILING [OF] ANNUAL
REPORT.
SECTION 21. Section 1163.1011(a), Estates Code, is amended
to read as follows:
(a) A guardian of the person who is required to file an
[files the] annual report under [required by] Section 1163.101
[electronically] with the court, including a guardian filing the
annual report electronically, may use an unsworn declaration made
as provided by this section instead of the [a written] sworn
declaration or affidavit required by Section 1163.101.
SECTION 22. Section 1203.202(c), Estates Code, is amended
to read as follows:
(c) A successor guardian may:
(1) make himself or herself, and be made, a party to a
suit prosecuted by or against the successor's predecessor;
(2) settle with the predecessor and receive and give a
receipt for any portion of the estate property that remains in the
predecessor's [successor's] possession; or
(3) commence a suit on the bond or bonds of the
predecessor, in the successor's own name and capacity, for all the
estate property that:
(A) came into the predecessor's possession; and
(B) has not been accounted for by the
predecessor.
SECTION 23. Section 1251.052(b), Estates Code, is amended
to read as follows:
(b) The term of a temporary guardian appointed under Section
1251.051 expires on the earliest of the following:
(1) [at] the conclusion of the hearing challenging or
contesting the application; [or]
(2) [on] the date a permanent guardian appointed by
the court for the proposed ward qualifies to serve as the ward's
guardian; or
(3) the nine-month anniversary of the date the
temporary guardian qualifies, unless the term is extended by court
order issued after a motion to extend the term is filed and a
hearing on the motion is held.
SECTION 24. Section 1253.051, Estates Code, is amended to
read as follows:
Sec. 1253.051. APPLICATION FOR RECEIPT AND ACCEPTANCE OF
FOREIGN GUARDIANSHIP. A guardian appointed by a foreign court to
represent an incapacitated person who is residing in this state or
intends to move to this state may file an application with a court
in the county in which the ward resides or in which it is intended
that the ward will [intends to] reside to have the guardianship
transferred to that [the] court. The application must have
attached a certified copy of all papers of the guardianship filed
and recorded in the foreign court.
SECTION 25. Section 1301.1535, Estates Code, is amended to
read as follows:
Sec. 1301.1535. INITIAL ACCOUNTING BY CERTAIN TRUSTEES
REQUIRED. (a) This section applies only to a trustee of a
management trust created for a person who [for whom a guardianship
proceeding is pending] on the date the trust is created is:
(1) a ward under an existing guardianship; or
(2) a proposed ward with respect to whom an
application for guardianship has been filed and is pending.
(b) Not later than the 30th day after the date a trustee to
which this section applies receives property into the trust, the
trustee shall file with the court that created the guardianship or
the court in which the application for guardianship was filed
[proceeding is pending] a report describing all property held in
the trust on the date of the report and specifying the value of the
property on that date.
SECTION 26. Section 1351.001, Estates Code, is amended to
read as follows:
Sec. 1351.001. AUTHORITY TO SELL MINOR'S INTEREST IN
PROPERTY WITHOUT GUARDIANSHIP. (a) A parent or managing
conservator of a minor who is not a ward may apply to the court under
this subchapter for an order to sell an interest of the minor in
property without being appointed guardian if the net value of the
interest does not exceed $100,000.
(b) If a minor who is not a ward does not have a parent or
managing conservator willing or able to file an application under
Subsection (a), the court may appoint an attorney ad litem or
guardian ad litem to act on the minor's behalf for the limited
purpose of applying for an order to sell the minor's interest in
property under this subchapter.
SECTION 27. Sections 1351.002(a) and (b), Estates Code, are
amended to read as follows:
(a) A parent, [or] managing conservator, or attorney ad
litem or guardian ad litem appointed under Section 1351.001(b)
shall apply to the court under oath for the sale of property under
this subchapter.
(b) An application must contain:
(1) the minor's name;
(2) a legal description of the real property or a
description that identifies the personal property, as applicable;
(3) the minor's interest in the property;
(4) the purchaser's name;
(5) a statement that the sale of the minor's interest
in the property is for cash; and
(6) a statement that all money received from the sale
of the minor's interest in the property [by the parent or managing
conservator] shall be used for the minor's use and benefit.
SECTION 28. Section 1351.051, Estates Code, is amended to
read as follows:
Sec. 1351.051. APPLICABILITY OF SUBCHAPTER. This
subchapter applies only to a ward who has:
(1) a guardian of the person but does not have a
guardian of the estate; or
(2) a guardian of the person or estate appointed by a
foreign court.
SECTION 29. Section 1351.052, Estates Code, is amended to
read as follows:
Sec. 1351.052. AUTHORITY TO SELL WARD'S INTEREST IN
PROPERTY WITHOUT APPOINTMENT AS GUARDIAN OF THE ESTATE IN THIS
STATE. A guardian of the person of a ward or a guardian of the
person or estate of a ward appointed by a foreign court may apply to
the court under this subchapter for an order to sell an interest in
property in the ward's estate without being appointed guardian of
the ward's estate in this state if the net value of the interest
does not exceed $100,000.
SECTION 30. Section 1351.053(b), Estates Code, is amended
to read as follows:
(b) For purposes of Subsection (a)(2), references in
Section 1351.002(b) to[:
[(1)] "minor" are replaced with references to "ward."
["ward"; and
[(2) "parent or managing conservator" are replaced
with references to "guardian of the person."]
SECTION 31. Section 59.006(a), Finance Code, is amended to
read as follows:
(a) This section provides the exclusive method for
compelled discovery of a record of a financial institution relating
to one or more customers but does not create a right of privacy in a
record. This section does not apply to and does not require or
authorize a financial institution to give a customer notice of:
(1) a demand or inquiry from a state or federal
government agency authorized by law to conduct an examination of
the financial institution;
(2) a record request from a state or federal
government agency or instrumentality under statutory or
administrative authority that provides for, or is accompanied by, a
specific mechanism for discovery and protection of a customer
record of a financial institution, including a record request from
a federal agency subject to the Right to Financial Privacy Act of
1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
Internal Revenue Service under Section 1205, Internal Revenue Code
of 1986;
(3) a record request from or report to a government
agency arising out of:
(A) the investigation or prosecution of a
criminal offense;
(B) the investigation of alleged abuse, neglect,
or exploitation of an elderly or disabled person in accordance with
Chapter 48, Human Resources Code; or
(C) the assessment for or provision of
guardianship services under Subchapter E, Chapter 161, Human
Resources Code;
(4) a record request in connection with a garnishment
proceeding in which the financial institution is garnishee and the
customer is debtor;
(5) a record request by a duly appointed receiver for
the customer;
(6) an investigative demand or inquiry from a state
legislative investigating committee;
(7) an investigative demand or inquiry from the
attorney general of this state as authorized by law other than the
procedural law governing discovery in civil cases; [or]
(8) the voluntary use or disclosure of a record by a
financial institution subject to other applicable state or federal
law; or
(9) a record request in connection with an
investigation conducted under Section 1054.151, 1054.152, or
1102.001, Estates Code.
SECTION 32. Sections 25.0022(d) and (h), Government Code,
are amended to read as follows:
(d) The presiding judge shall:
(1) ensure the promulgation of local rules of
administration in accordance with policies and guidelines set by
the supreme court;
(2) advise local statutory probate court judges on
case flow management practices and auxiliary court services;
(3) perform a duty of a local administrative statutory
probate court judge if the local administrative judge does not
perform that duty;
(4) appoint an assistant presiding judge of the
statutory probate courts;
(5) call and preside over annual meetings of the
judges of the statutory probate courts at a time and place in the
state as designated by the presiding judge;
(6) call and convene other meetings of the judges of
the statutory probate courts as considered necessary by the
presiding judge to promote the orderly and efficient administration
of justice in the statutory probate courts;
(7) study available statistics reflecting the
condition of the dockets of the probate courts in the state to
determine the need for the assignment of judges under this section;
(8) compare local rules of court to achieve uniformity
of rules to the extent practical and consistent with local
conditions; and
(9) assign or order the clerk who serves the statutory
probate courts to randomly assign a judge or former or retired judge
of a statutory probate court to hear a case under Section
25.002201(a) or 25.00255, as applicable [the circumstances
described by Section 25.002201(b)].
(h) Subject to Section 25.002201, a judge or a former or
retired judge of a statutory probate court may be assigned by the
presiding judge of the statutory probate courts to hold court in a
statutory probate court, a county court, or any statutory court
exercising probate jurisdiction when:
(1) a statutory probate judge requests assignment of
another judge to the judge's court;
(2) a statutory probate judge is absent, disabled, or
disqualified for any reason;
(3) a statutory probate judge is present or is trying
cases as authorized by the constitution and laws of this state and
the condition of the court's docket makes it necessary to appoint an
additional judge;
(4) the office of a statutory probate judge is vacant;
(5) the presiding judge of an administrative judicial
district requests the assignment of a statutory probate judge to
hear a probate matter in a county court or statutory county court;
(6) the statutory probate [presiding] judge is [of the
administrative judicial district fails to timely assign a judge to
replace a] recused or disqualified [statutory probate court judge]
as described by Section 25.002201(a) [Section 25.002201(b)];
(7) a county court judge requests the assignment of a
statutory probate judge to hear a probate matter in the county
court; or
(8) a local administrative statutory probate court
judge requests the assignment of a statutory probate judge to hear a
matter in a statutory probate court.
SECTION 33. Sections 25.002201(a) and (b), Government Code,
are amended to read as follows:
(a) Except as provided by Subsection (b), not [Not] later
than the 15th day after the date an order of recusal or
disqualification of a statutory probate court judge is issued in a
case, the presiding judge [of the administrative judicial district]
shall assign a statutory probate court judge or a former or retired
judge of a statutory probate court to hear the case if:
(1) the judge of the statutory probate court recused
himself or herself under Section 25.00255(g)(1)(A);
(2) the judge of the statutory probate court
disqualified himself or herself under Section 25.00255(g-1);
(3) the order was issued under Section
25.00255(i-3)(1); or
(4) the presiding judge [of the administrative
judicial district] receives notice and a request for assignment
from the clerk of the statutory probate court under Section
25.00255(l).
(b) If the [presiding] judge who is the subject of an order
of recusal or disqualification is [of an administrative judicial
district does not assign a judge under Subsection (a) within the
time prescribed by that subsection,] the presiding judge of the
statutory probate courts, the chief justice of the supreme court
shall [may] assign a regional presiding judge, a statutory probate
judge, or a former or retired judge of a statutory probate court to
hear the case [instead of the presiding judge of the administrative
judicial district making the assignment under that subsection].
SECTION 34. Section 25.00255, Government Code, is amended
by amending Subsections (a), (g), (g-1), (i-2), (i-3), (i-5), and
(l) and adding Subsection (a-1) to read as follows:
(a) Notwithstanding any conflicting provision in the Texas
Rules of Civil Procedure, Rules 18a and 18b, Texas Rules of Civil
Procedure, apply to the recusal and disqualification of a statutory
probate court judge except as otherwise provided by this section or
another provision of this subchapter. The presiding judge:
(1) has the authority and shall perform the functions
and duties of the presiding judge of the administrative judicial
region under the rules, including the duty to hear or rule on a
referred motion of recusal or disqualification or, subject to
Subdivisions (2) and (3) and to Section 25.002201, assign a judge to
hear and rule on a referred motion of recusal or disqualification;
(2) may assign a presiding judge of the administrative
judicial region to hear and rule on a referred motion of recusal or
disqualification only with the consent of the presiding judge of
the administrative judicial region; and
(3) may not assign a judge of a statutory probate court
located in the same county as the statutory probate court served by
the judge who is the subject of the motion of recusal or
disqualification [A party in a hearing or trial in a statutory
probate court may file with the clerk of the court a motion stating
grounds for the recusal or disqualification of the judge. The
grounds may include any disability of the judge to preside over the
case].
(a-1) Notwithstanding Rule 18a(h), Texas Rules of Civil
Procedure, or any other conflicting provision of the rules, the
judge who hears a motion of recusal or disqualification, after
notice and hearing, may:
(1) order the party or attorney who filed the motion,
or both, to pay the reasonable attorney's fees and expenses
incurred by another party if the judge determines that the motion
was:
(A) groundless and filed in bad faith or for the
purpose of harassment; or
(B) clearly brought for unnecessary delay and
without sufficient cause; and
(2) enjoin the movant from filing other recusal
motions in the case without the prior written consent of the
presiding judge of the statutory probate courts.
(g) A judge who recuses himself or herself:
(1) shall enter an order of recusal and:
(A) if the judge serves a statutory probate court
located in a county with only one statutory probate court, request
that the presiding judge [of the administrative judicial district]
assign a judge under Section 25.002201 to hear the case; or
(B) subject to Subsection (l), if the judge
serves a statutory probate court located in a county with more than
one statutory probate court, request that the presiding judge order
[request that] the clerk who serves the statutory probate courts in
that county to randomly reassign the case to a judge of one of the
other statutory probate courts located in the county; and
(2) may not take other action in the case except for
good cause stated in the order in which the action is taken.
(g-1) A judge who disqualifies himself or herself:
(1) shall enter an order of disqualification and:
(A) if the judge serves a statutory probate court
located in a county with only one statutory probate court, request
that the presiding judge [of the administrative judicial district]
assign a judge under Section 25.002201 to hear the case; or
(B) subject to Subsection (l), if the judge
serves a statutory probate court located in a county with more than
one statutory probate court, request that the presiding judge order
the clerk who serves the statutory probate courts in that county to
randomly reassign the case to a judge of one of the other statutory
probate courts; and
(2) may not take other action in the case.
(i-2) A judge who hears a motion for recusal or
disqualification [under Subsection (i) or (i-1)] may also hear any
amended or supplemented motion for recusal or disqualification
filed in the case.
(i-3) If a motion for recusal or disqualification is granted
[after a hearing conducted as provided by Subsection (i) or (i-1)],
the presiding judge [who heard the motion] shall transfer the case
to another court or assign another judge to the case and:
(1) if the judge subject to recusal or
disqualification serves a statutory probate court located in a
county with only one statutory probate court, the presiding judge
or judge assigned to decide the motion shall enter an order of
recusal or disqualification, as appropriate, and request that the
presiding judge [of the administrative judicial district] assign a
judge under Section 25.002201 to hear the case; or
(2) subject to Subsection (l), if the judge subject to
recusal or disqualification serves a statutory probate court
located in a county with more than one statutory probate court, the
presiding judge or judge assigned to decide the motion shall enter
an order of recusal or disqualification, as appropriate, and
request that the clerk who serves the statutory probate courts in
that county randomly reassign the case to a judge of one of the
other statutory probate courts located in the county.
(i-5) A judge assigned to hear a motion for recusal or
disqualification [under Subsection (i)] is entitled to receive the
same salary, compensation, and expenses, and to be paid in the same
manner and from the same fund, as a judge otherwise assigned under
Section 25.0022[, except that a judge assigned under Subsection (i)
shall provide the information required by Section 25.0022(l) to the
presiding judge of the administrative judicial district, who shall
immediately forward the information to the presiding judge of the
statutory probate courts].
(l) If a clerk of a statutory probate court is unable to
reassign a case as requested under Subsection (g)(1)(B),
(g-1)(1)(B), or (i-3)(2) because the other statutory probate court
judges in the county have been recused or disqualified or are
otherwise unavailable to hear the case, the clerk shall immediately
notify the presiding judge [of the administrative judicial
district] and request that the presiding judge [of the
administrative judicial district] assign a judge under Section
25.002201 to hear the case.
SECTION 35. Section 26.012, Government Code, is amended to
read as follows:
Sec. 26.012. ASSIGNMENT OF VISITING JUDGE FOR PROBATE,
GUARDIANSHIP, AND MENTAL HEALTH MATTERS. If the county judge is
absent, incapacitated, recused, or disqualified to act in a
probate, guardianship, or mental health matter, a visiting judge
shall be assigned in accordance with Section 25.0022(h).
SECTION 36. Sections 411.1386(a) and (e), Government Code,
are amended to read as follows:
(a) Except as provided by Subsections (a-1), (a-5), and
(a-6), the clerk of the county having venue over a proceeding for
the appointment of a guardian under Title 3, Estates [Chapter XIII,
Texas Probate] Code, shall obtain from the department criminal
history record information maintained by the department that
relates to:
(1) a private professional guardian;
(2) each person who represents or plans to represent
the interests of a ward as a guardian on behalf of the private
professional guardian;
(3) each person employed by a private professional
guardian who will:
(A) have personal contact with a ward or proposed
ward;
(B) exercise control over and manage a ward's
estate; or
(C) perform any duties with respect to the
management of a ward's estate;
(4) each person employed by or volunteering or
contracting with a guardianship program to provide guardianship
services to a ward of the program on the program's behalf; or
(5) any other person proposed to serve as a guardian
under Title 3, Estates [Chapter XIII, Texas Probate] Code,
including a proposed temporary guardian and a proposed successor
guardian, other than [the ward's or proposed ward's family member
or] an attorney.
(e) The court, as that term is defined by Section 1002.008,
Estates [601, Texas Probate] Code, shall use the information
obtained or provided under Subsection (a), (a-4)(1), (a-5), or
(a-6) only in determining whether to:
(1) appoint, remove, or continue the appointment of a
private professional guardian, a guardianship program, or the
Department of Aging and Disability Services; or
(2) appoint any other person proposed to serve as a
guardian under Title 3, Estates [Chapter XIII, Texas Probate] Code,
including a proposed temporary guardian and a proposed successor
guardian, other than [the ward's or proposed ward's family member
or] an attorney.
SECTION 37. The following are repealed:
(1) Sections 1052.051(d), (e), and (f), Estates Code;
(2) Sections 25.00255(b), (c), (d), (e), (f), (h),
(i), (i-1), (i-4), and (j), Government Code; and
(3) Section 25.002201(c), Government Code.
SECTION 38. (a) Except as otherwise provided by this
section, the changes in law made by this Act apply to:
(1) a guardianship created before, on, or after the
effective date of this Act; and
(2) an application for a guardianship pending on, or
filed on or after, the effective date of this Act.
(b) The changes in law made by this Act to Sections 1023.005
and 1023.010, Estates Code, apply only to an application for the
transfer of a guardianship to another county filed on or after the
effective date of this Act. An application for the transfer of a
guardianship to another county filed before the effective date of
this Act is governed by the law in effect on the date the
application was filed, and the former law is continued in effect for
that purpose.
(c) The changes in law made by this Act to Sections 1104.154
and 1104.205, Estates Code, apply only to a declaration executed on
or after the effective date of this Act. A declaration executed
before the effective date of this Act is governed by the law in
effect on the date the declaration was executed, and the former law
is continued in effect for that purpose.
(d) The changes in law made by this Act to Section
1301.1535, Estates Code, apply only to a management trust created
on or after the effective date of this Act. A management trust
created before the effective date of this Act is governed by the law
in effect on the date the management trust was created, and the
former law is continued in effect for that purpose.
(e) The changes in law made by this Act to Sections 1351.001
and 1351.002, Estates Code, apply only to an application for the
sale of an interest in property of a minor filed on or after the
effective date of this Act. An application for the sale of an
interest in property of a minor that is filed before the effective
date of this Act is governed by the law in effect on the date the
application was filed, and the former law is continued in effect for
that purpose.
(f) The changes in law made by this Act to Sections
1351.051, 1351.052, and 1351.053, Estates Code, apply only to an
application for the sale of an interest in property of a ward filed
on or after the effective date of this Act. An application for the
sale of an interest in property of a ward that is filed before the
effective date of this Act is governed by the law in effect on the
date the application was filed, and the former law is continued in
effect for that purpose.
(g) The changes in law made by this Act to Sections
1052.051, 1102.001, and 1155.151, Estates Code, and Section
1055.003, Estates Code, as added by this Act, apply only to a
guardianship proceeding commenced on or after the effective date of
this Act. A guardianship proceeding commenced before the effective
date of this Act is governed by the law as it existed immediately
before that date, and that law is continued in effect for that
purpose.
(h) The change in law made by this Act to Section
1251.052(b), Estates Code, applies only to a temporary guardian
appointed on or after the effective date of this Act. A temporary
guardian appointed before the effective date of this Act is
governed by the law in effect when the guardian was appointed, and
the former law is continued in effect for that purpose.
(i) Sections 25.0022, 25.002201, 25.00255, and 26.012,
Government Code, as amended by this Act, apply only to a motion for
recusal or disqualification of a judge that is filed on or after the
effective date of this Act. A motion for recusal or
disqualification of a judge filed before the effective date of this
Act is governed by the law in effect on the date the motion was
filed, and the former law is continued in effect for that purpose.
SECTION 39. This Act takes effect September 1, 2015.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1438 was passed by the House on May
15, 2015, by the following vote: Yeas 129, Nays 10, 2 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 1438 on May 28, 2015, by the following vote: Yeas 132, Nays 9,
2 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 1438 was passed by the Senate, with
amendments, on May 26, 2015, by the following vote: Yeas 30, Nays
1.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor