Texas 2017 - 85th Regular

Texas House Bill HB2636 Compare Versions

Only one version of the bill is available at this time.

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1	1	85R8613 JSC-F
2	2	By: Dutton H.B. No. 2636
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to court-ordered financial support by parents of an adult
8	8	with a medically determinable disability.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. The legislature finds that:
11	11	(1) the office of the attorney general, the designated
12	12	Title IV-D agency, and all courts in this state must comply with the
13	13	regulations in the federal Social Security Act (42 U.S.C. Section
14	14	301 et seq.) when establishing, modifying, and enforcing financial
15	15	support for an adult with a medically determinable disability after
16	16	attaining 18 years of age;
17	17	(2) the Social Security Act has a specific definition
18	18	for the term "disability";
19	19	(3) the attorney general has determined in Tex. Att'y
20	20	Gen. Op. No. GA-0868 (2011) that Section 1-b, Article VIII, Texas
21	21	Constitution, uses the definition of the term "disability" in the
22	22	Social Security Act for adults seeking tax benefits on real
23	23	property;
24	24	(4) there is confusion among state courts regarding
25	25	the meaning and application of Subchapter F, Chapter 154, Family
26	26	Code; and
27	27	(5) clarification, guidance, and consistency are
28	28	required to ensure compliance with the Social Security Act, the
29	29	Texas Constitution, and the intent of the legislature.
30	30	SECTION 2. The heading to Chapter 154, Family Code, is
31	31	amended to read as follows:
32	32	CHAPTER 154. CHILD SUPPORT AND SUPPORT OF CERTAIN ADULTS WITH
33	33	DISABILITY
34	34	SECTION 3. The heading to Subchapter A, Chapter 154, Family
35	35	Code, is amended to read as follows:
36	36	SUBCHAPTER A. COURT-ORDERED FINANCIAL [CHILD] SUPPORT OF CHILD OR
37	37	ADULT WITH MEDICALLY DETERMINABLE DISABILITY
38	38	SECTION 4. The heading to Section 154.001, Family Code, is
39	39	amended to read as follows:
40	40	Sec. 154.001. FINANCIAL SUPPORT OF CHILD OR ADULT WITH
41	41	MEDICALLY DETERMINABLE DISABILITY.
42	42	SECTION 5. Sections 154.001(a) and (a-1), Family Code, are
43	43	amended to read as follows:
44	44	(a) The court may order either or both parents to support a
45	45	child in the manner specified by the order:
46	46	(1) until the child is 18 years of age or until
47	47	graduation from high school, whichever occurs later;
48	48	(2) until the child is emancipated through marriage,
49	49	through removal of the disabilities of minority by court order, or
50	50	by other operation of law;
51	51	(3) until the death of the child; or
52	52	(4) as provided by Subchapter F, for a child who is an
53	53	adult with a medically determinable disability [if the child is
54	54	disabled as defined in this chapter, for an indefinite period].
55	55	(a-1) The court may order each person who is financially
56	56	able and whose parental rights have been terminated with respect to
57	57	either a child in substitute care for whom the department has been
58	58	appointed managing conservator or a child who was conceived as a
59	59	direct result of conduct that constitutes an offense under Section
60	60	21.02, 22.011, 22.021, or 25.02, Penal Code, to support the child in
61	61	the manner specified by the order:
62	62	(1) until the earliest of:
63	63	(A) the child's adoption;
64	64	(B) the child's 18th birthday or graduation from
65	65	high school, whichever occurs later;
66	66	(C) removal of the child's disabilities of
67	67	minority by court order, marriage, or other operation of law; or
68	68	(D) the child's death; or
69	69	(2) as provided by Subchapter F, for a child who is an
70	70	adult with a medically determinable disability [if the child is
71	71	disabled as defined in this chapter, for an indefinite period].
72	72	SECTION 6. (a) Section 154.015(c), Family Code, as
73	73	effective until September 1, 2018, is amended to read as follows:
74	74	(c) For purposes of this section, the court of continuing
75	75	jurisdiction shall determine the amount of the unpaid child support
76	76	obligation for each child of the deceased obligor. In determining
77	77	the amount of the unpaid child support obligation, the court shall
78	78	consider all relevant factors, including:
79	79	(1) the present value of the total amount of monthly
80	80	periodic child support payments that would become due between the
81	81	month in which the obligor dies and the month in which the child
82	82	turns 18 years of age, based on the amount of the periodic monthly
83	83	child support payments under the child support order in effect on
84	84	the date of the obligor's death;
85	85	(2) the present value of the total amount of health
86	86	insurance premiums payable for the benefit of the child from the
87	87	month in which the obligor dies until the month in which the child
88	88	turns 18 years of age, based on the cost of health insurance for the
89	89	child ordered to be paid on the date of the obligor's death;
90	90	(3) in the case of [a disabled child under 18 years of
91	91	age or] an adult with a medically determinable disability
92	92	[disabled child], an amount to be determined by the court under
93	93	Section 154.306;
94	94	(4) the nature and amount of any benefit to which the
95	95	child would be entitled as a result of the obligor's death,
96	96	including life insurance proceeds, annuity payments, trust
97	97	distributions, social security death benefits, and retirement
98	98	survivor benefits; and
99	99	(5) any other financial resource available for the
100	100	support of the child.
101	101	(b) Section 154.015(c), Family Code, as effective on
102	102	September 1, 2018, is amended to read as follows:
103	103	(c) For purposes of this section, the court of continuing
104	104	jurisdiction shall determine the amount of the unpaid child support
105	105	obligation for each child of the deceased obligor. In determining
106	106	the amount of the unpaid child support obligation, the court shall
107	107	consider all relevant factors, including:
108	108	(1) the present value of the total amount of monthly
109	109	periodic child support payments that would become due between the
110	110	month in which the obligor dies and the month in which the child
111	111	turns 18 years of age, based on the amount of the periodic monthly
112	112	child support payments under the child support order in effect on
113	113	the date of the obligor's death;
114	114	(2) the present value of the total amount of health
115	115	insurance and dental insurance premiums payable for the benefit of
116	116	the child from the month in which the obligor dies until the month
117	117	in which the child turns 18 years of age, based on the cost of health
118	118	insurance and dental insurance for the child ordered to be paid on
119	119	the date of the obligor's death;
120	120	(3) in the case of [a disabled child under 18 years of
121	121	age or] an adult with a medically determinable disability
122	122	[disabled child], an amount to be determined by the court under
123	123	Section 154.306;
124	124	(4) the nature and amount of any benefit to which the
125	125	child would be entitled as a result of the obligor's death,
126	126	including life insurance proceeds, annuity payments, trust
127	127	distributions, social security death benefits, and retirement
128	128	survivor benefits; and
129	129	(5) any other financial resource available for the
130	130	support of the child.
131	131	SECTION 7. (a) Section 154.016(b), Family Code, as
132	132	effective until September 1, 2018, is amended to read as follows:
133	133	(b) In determining the nature and extent of the obligation
134	134	to provide for the support of the child in the event of the death of
135	135	the obligor, the court shall consider all relevant factors,
136	136	including:
137	137	(1) the present value of the total amount of monthly
138	138	periodic child support payments from the date the child support
139	139	order is rendered until the month in which the child turns 18 years
140	140	of age, based on the amount of the periodic monthly child support
141	141	payment under the child support order;
142	142	(2) the present value of the total amount of health
143	143	insurance premiums payable for the benefit of the child from the
144	144	date the child support order is rendered until the month in which
145	145	the child turns 18 years of age, based on the cost of health
146	146	insurance for the child ordered to be paid; and
147	147	(3) in the case of [a disabled child under 18 years of
148	148	age or] an adult with a medically determinable disability
149	149	[disabled child], an amount to be determined by the court under
150	150	Section 154.306.
151	151	(b) Section 154.016(b), Family Code, as effective on
152	152	September 1, 2018, is amended to read as follows:
153	153	(b) In determining the nature and extent of the obligation
154	154	to provide for the support of the child in the event of the death of
155	155	the obligor, the court shall consider all relevant factors,
156	156	including:
157	157	(1) the present value of the total amount of monthly
158	158	periodic child support payments from the date the child support
159	159	order is rendered until the month in which the child turns 18 years
160	160	of age, based on the amount of the periodic monthly child support
161	161	payment under the child support order;
162	162	(2) the present value of the total amount of health
163	163	insurance and dental insurance premiums payable for the benefit of
164	164	the child from the date the child support order is rendered until
165	165	the month in which the child turns 18 years of age, based on the cost
166	166	of health insurance and dental insurance for the child ordered to be
167	167	paid; and
168	168	(3) in the case of [a disabled child under 18 years of
169	169	age or] an adult with a medically determinable disability
170	170	[disabled child], an amount to be determined by the court under
171	171	Section 154.306.
172	172	SECTION 8. The heading of Subchapter F, Chapter 154, Family
173	173	Code, is amended to read as follows:
174	174	SUBCHAPTER F. FINANCIAL SUPPORT FOR [A MINOR OR] ADULT WITH
175	175	MEDICALLY DETERMINABLE DISABILITY [DISABLED CHILD]
176	176	SECTION 9. Subchapter F, Chapter 154, Family Code, is
177	177	amended by adding Section 154.3001 to read as follows:
178	178	Sec. 154.3001. POLICY STATEMENT. It is the policy of this
179	179	state that any financial support awarded to an adult with a
180	180	medically determinable disability must comply with the federal
181	181	Social Security Act (42 U.S.C. Section 301 et seq.), the Texas
182	182	Constitution, and the laws of this state.
183	183	SECTION 10. Section 154.301, Family Code, is amended to
184	184	read as follows:
185	185	Sec. 154.301. DEFINITIONS. In this subchapter:
186	186	(1) "Adult [child]" means an individual [a child] 18
187	187	years of age or older.
188	188	(2) "Disability" means:
189	189	(A) the inability to engage in any substantial
190	190	gainful activity by reason of any medically determinable physical
191	191	or mental impairment that can be expected to result in death or that
192	192	has lasted or can be expected to last for a continuous period of not
193	193	less than 12 months; and
194	194	(B) the impairment described by Paragraph (A) is
195	195	of such severity that the adult:
196	196	(i) is unable to do work previously
197	197	performed by the adult; and
198	198	(ii) considering the adult's age,
199	199	education, and work experience, is unable to engage in any other
200	200	kind of substantial gainful work that exists in the national
201	201	economy.
202	202	(3) "Guardian" means a person appointed by a court in
203	203	accordance with Chapter 1101, Estates Code.
204	204	(4) "Personal supervision" means guidance and
205	205	instruction by someone who is physically present and in such
206	206	proximity that visual contact can be maintained and immediate
207	207	assistance given when required.
208	208	(5) "Physical custody" means actual possession and
209	209	control by a person of another person, including continuously
210	210	living in the same household and providing continuous and direct
211	211	care ["Child" means a son or daughter of any age].
212	212	SECTION 11. Section 154.302, Family Code, is amended to
213	213	read as follows:
214	214	Sec. 154.302. COURT-ORDERED FINANCIAL SUPPORT FOR ADULT
215	215	WITH MEDICALLY DETERMINABLE DISABILITY [DISABLED CHILD]. (a) The
216	216	court may order either or both parents of an adult to provide for
217	217	the financial support of the adult [a child] for a [an indefinite]
218	218	period of one year and may determine the rights and duties of the
219	219	parents if the court identifies competent evidence in the record
220	220	and finds that:
221	221	(1) the adult [child], whether institutionalized or
222	222	not, has a disability and requires continuous, substantial care and
223	223	continuous, personal supervision by a person who has physical
224	224	custody [because of a mental or physical disability and will not be
225	225	capable of self-support]; and
226	226	(2) the disability existed [exists, or the cause of
227	227	the disability is known to exist,] on or before the adult's 18th
228	228	birthday [of the child].
229	229	(b) Except as otherwise provided by this subsection, a [A]
230	230	court that orders financial support under this section shall
231	231	designate the adult to receive the support directly. On
232	232	presentation of competent evidence that the adult cannot manage the
233	233	financial support, the court may designate a [parent of the child or
234	234	another] person, including a parent having physical custody of the
235	235	adult or a guardian, [guardianship of the child under a court order]
236	236	to receive the financial support [for the child. The court may
237	237	designate a child who is 18 years of age or older to receive the
238	238	support directly].
239	239	(c) Not later than the 60th day after the date of the
240	240	expiration of an order establishing financial support for an adult
241	241	with a medically determinable disability, a person may file a
242	242	motion for the annual review of the financial support for the adult
243	243	to determine if the facts and circumstances have changed since the
244	244	order was rendered to warrant continuation or termination of the
245	245	financial support ordered under this section.
246	246	(d) Before ordering the initial financial support or any
247	247	future support, the court must issue findings specifically
248	248	identifying competent evidence in the record establishing:
249	249	(1) the existence of the adult's disability;
250	250	(2) the severity of the adult's impairment;
251	251	(3) that the adult requires continuous, substantial
252	252	care and continuous, personal supervision by a person, including a
253	253	parent or a guardian, who has physical custody; and
254	254	(4) that the disability existed on or before the
255	255	adult's 18th birthday.
256	256	(e) The findings required under Subsection (d) are in
257	257	addition to any request for findings of fact and conclusions of law
258	258	timely requested under Rules 296 and 297, Texas Rules of Civil
259	259	Procedure. If a court fails to file the findings under Subsection
260	260	(d), an order requiring the payment of financial support is
261	261	unenforceable.
262	262	(f) An appeal of a final judgment ordering financial support
263	263	may be stayed if competent evidence is presented that the
264	264	requirements under this section were not satisfied. An appeal of
265	265	the final judgment is an accelerated appeal and must be decided no
266	266	later than the 180th day after the date a notice of appeal is filed.
267	267	SECTION 12. Section 154.303, Family Code, is amended to
268	268	read as follows:
269	269	Sec. 154.303. STANDING TO SUE. (a) A suit provided by this
270	270	subchapter may be filed only by:
271	271	(1) a parent of the adult who has physical custody of
272	272	the adult, a guardian, [child] or another person having physical
273	273	custody [or guardianship of the child under a court order]; or
274	274	(2) the adult, [child] if the adult [child]:
275	275	(A) [is 18 years of age or older;
276	276	[(B)] does not have an intellectual [a mental]
277	277	disability; and
278	278	(B) [(C)] is determined by the court to be
279	279	capable of managing the adult's [child's] financial affairs.
280	280	(b) The person under Subsection (a) who filed the suit
281	281	[parent, the child, if the child is 18 years of age or older, or
282	282	other person] may not transfer or assign the cause of action to any
283	283	person, including a governmental or private entity [or agency],
284	284	except for an assignment made to the Title IV-D agency under Section
285	285	231.104 or in the provision of financial [child] support
286	286	enforcement services under Section 159.307.
287	287	SECTION 13. Section 154.305, Family Code, is amended to
288	288	read as follows:
289	289	Sec. 154.305. SPECIFIC PROCEDURES. (a) A suit under this
290	290	subchapter may be filed:
291	291	(1) regardless of the age of the adult [child]; and
292	292	(2) as an independent cause of action or joined with
293	293	any other claim or remedy provided by this code.
294	294	(a-1) The person filing the suit must prove by a
295	295	preponderance of the evidence that all the requirements under
296	296	Section 154.302 have been met. If competent evidence is not
297	297	provided satisfying each of the requirements under Section 154.302,
298	298	the court shall dismiss the suit.
299	299	(b) If no court has continuing, exclusive jurisdiction of
300	300	the adult [child], an action under this subchapter may be filed as
301	301	an original suit by filing a petition to determine the eligibility
302	302	for financial support for an adult [affecting the parent-child
303	303	relationship].
304	304	(c) If there is a court of continuing, exclusive
305	305	jurisdiction, an action under this subchapter may be filed as a suit
306	306	for modification as provided by Chapter 156 by filing a petition to
307	307	determine the eligibility for financial support for an adult.
308	308	SECTION 14. Section 154.306, Family Code, is amended to
309	309	read as follows:
310	310	Sec. 154.306. AMOUNT OF FINANCIAL SUPPORT FOR ADULT WITH
311	311	MEDICALLY DETERMINABLE DISABILITY [AFTER AGE 18]. (a) In
312	312	calculating [determining] the amount of financial support to be
313	313	paid to an adult by either or both parents after the adult's [a
314	314	child's] 18th birthday, the specific terms and conditions of that
315	315	financial support, and the rights and duties of both parents with
316	316	respect to the financial support of the adult [child], the court
317	317	shall consider only [determine and give special consideration to]:
318	318	(1) the medical documentation and testimony in the
319	319	record supporting any existing or future needs of the adult [child]
320	320	directly related to the adult's intellectual [adult child's mental]
321	321	or physical disability and the continuous, substantial care and
322	322	continuous, personal supervision directly required by or related to
323	323	that disability;
324	324	(2) whether the person who has physical custody,
325	325	including a parent or guardian, directly pays for or will pay for
326	326	the continuous, substantial care and continuous, personal [or]
327	327	supervision of the adult [child or provides or will provide
328	328	substantial care or personal supervision of the adult child];
329	329	(3) the financial resources available to both parents
330	330	for the support, continuous, substantial care, and continuous,
331	331	personal supervision of the adult [child]; and
332	332	(4) the adult's eligibility for any state or federal
333	333	program providing services and [other] financial [resources or
334	334	other resources or programs available for the] support for adults
335	335	with a medically determinable disability [, care, and supervision
336	336	of the adult child].
337	337	(b) An adult who is not eligible for a state or federal
338	338	program providing services and financial support for adults with a
339	339	medically determinable disability is not eligible to receive
340	340	financial support under this section.
341	341	(c) In calculating the amount of financial support, a court
342	342	shall offset the amount an adult receives from a state or federal
343	343	program providing services and financial support for adults with a
344	344	medically determinable disability. The court may not award more
345	345	than the amount required to provide for the needs of the adult, as
346	346	supported by competent evidence.
347	347	SECTION 15. Section 154.307, Family Code, is amended to
348	348	read as follows:
349	349	Sec. 154.307. MODIFICATION AND ENFORCEMENT. An order
350	350	provided by this subchapter may contain provisions governing the
351	351	rights and duties of both parents with respect to the financial
352	352	support of the adult [child] and may be modified or enforced in the
353	353	same manner as any other order provided by this title.
354	354	SECTION 16. Section 154.308, Family Code, is amended to
355	355	read as follows:
356	356	Sec. 154.308. REMEDY NOT EXCLUSIVE. (a) This subchapter
357	357	does not affect [a parent's]:
358	358	(1) a cause of action brought by any person, including
359	359	a parent or guardian, for the support of an adult with a medically
360	360	determinable disability [a disabled child] under any other law; or
361	361	(2) the ability of any person, including a parent or
362	362	guardian, to contract for the support of an adult with a medically
363	363	determinable disability [a disabled child].
364	364	(b) This subchapter does not affect the substantive or
365	365	procedural rights or remedies of a person, other than a parent, a
366	366	guardian, [including] a governmental agency, or a private entity,
367	367	[or agency,] with respect to the support of an adult with a
368	368	medically determinable disability [a disabled child] under any
369	369	other law.
370	370	SECTION 17. Section 154.309, Family Code, is amended to
371	371	read as follows:
372	372	Sec. 154.309. POSSESSION OF OR ACCESS TO ADULT WITH
373	373	MEDICALLY DETERMINABLE DISABILITY [DISABLED CHILD]. (a) A court
374	374	may render an order for the possession of or access to an adult with
375	375	a medically determinable disability [disabled child] that is
376	376	appropriate under the circumstances.
377	377	(b) Possession of or access to an adult described by
378	378	Subsection (a) [disabled child] is enforceable in the manner
379	379	provided by Chapter 157. An adult [disabled child] may refuse
380	380	possession or access if the adult does not have an intellectual
381	381	disability and [disabled child] is mentally competent.
382	382	(c) A court that obtains continuing, exclusive jurisdiction
383	383	of a suit affecting the parent-child relationship involving a minor
384	384	with a medically determinable disability [disabled person who is a
385	385	child] retains continuing, exclusive jurisdiction of subsequent
386	386	proceedings involving the person[, including proceedings] after
387	387	the person is an adult. Notwithstanding this subsection and any
388	388	other law, a probate court may exercise jurisdiction in a
389	389	guardianship proceeding under Subtitle D, Title 3, Estates Code,
390	390	involving [for] the person after the person is an adult.
391	391	SECTION 18. (a) The changes in law made by this Act apply
392	392	to a suit for the financial support of an adult with a medically
393	393	determinable disability filed on or after the effective date of
394	394	this Act. A suit filed before the effective date of this Act is
395	395	governed by the law in effect on the date the suit was filed, and the
396	396	former law is continued in effect for that purpose.
397	397	(b) The change in law made by this Act does not by itself
398	398	constitute a material and substantial change of circumstances under
399	399	Section 156.401, Family Code, sufficient to warrant modification of
400	400	a court order or a portion of a decree that provides for the
401	401	financial support of an adult with a medically determinable
402	402	disability rendered before the effective date of this Act.
403	403	SECTION 19. This Act takes effect September 1, 2017.