88R20532 EAS-F
By: Thompson of Harris H.B. No. 3184
Substitute the following for H.B. No. 3184:
By: Flores C.S.H.B. No. 3184
A BILL TO BE ENTITLED
AN ACT
relating to guardianships and the delivery of certain notices or
other communications in connection with guardianship proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1002, Estates Code, is amended by adding
Section 1002.0265 to read as follows:
Sec. 1002.0265. QUALIFIED DELIVERY METHOD. "Qualified
delivery method" means delivery by:
(1) hand delivery by courier, with courier's proof of
delivery receipt;
(2) certified or registered mail, return receipt
requested, with return receipt; or
(3) a private delivery service designated as a
designated delivery service by the United States Secretary of the
Treasury under Section 7502(f)(2), Internal Revenue Code of 1986,
with proof of delivery receipt.
SECTION 2. Section 1023.004(c), Estates Code, is amended to
read as follows:
(c) If a court made a motion to transfer a guardianship, the
guardian shall be given notice by a qualified delivery method
[certified mail] to appear and show cause why the guardianship
should not be transferred.
SECTION 3. The heading to Section 1051.052, Estates Code,
is amended to read as follows:
Sec. 1051.052. SERVICE BY MAIL OR QUALIFIED DELIVERY
METHOD.
SECTION 4. Section 1051.052, Estates Code, is amended by
amending Subsections (b), (c), (d), (e), and (f) and adding
Subsection (h) to read as follows:
(b) Except as provided by Subsection (c), the county clerk
shall issue a citation or notice required or permitted to be served
by a qualified delivery method [registered or certified mail] and
shall serve the citation or notice by sending [mailing] the
original citation or notice by a qualified delivery method
[registered or certified mail].
(c) A guardian shall issue a notice required to be given by
the guardian by a qualified delivery method [registered or
certified mail] and shall serve the notice by sending [mailing] the
original notice by a qualified delivery method [registered or
certified mail].
(d) The county clerk or guardian, as applicable, shall send
[mail] a citation or notice under Subsection (b) or (c) with an
instruction to deliver the citation or notice to the addressee only
and with return receipt or other proof of delivery requiring
recipient signature requested. The clerk or guardian, as
applicable, shall address the envelope containing the citation or
notice to:
(1) the attorney of record in the proceeding for the
person to be cited or notified; or
(2) the person to be cited or notified, if the citation
or notice to the attorney is returned undelivered or the person to
be cited or notified has no attorney of record in the proceeding.
(e) Service by a qualified delivery method [mail] must be
made at least 20 days before the return day of the citation or
notice, excluding the date of service. The date of service [by
mail] is the date of mailing, the date of deposit with the private
delivery service, or the date of delivery by courier, as
applicable.
(f) A copy of a citation or notice served under Subsection
(a), (b), or (c) and a certificate of the person serving the
citation or notice showing that the citation or notice was sent
[mailed] and the date of the mailing, the date of deposit with a
private delivery service, or the date of delivery by courier, as
applicable, shall be filed and recorded. A returned receipt or
other proof of delivery receipt for a citation or notice served
under Subsection (b) or (c) shall be attached to the certificate.
(h) The applicant or movant in a guardianship proceeding
shall pay the cost of delivery of a citation or notice under this
section.
SECTION 5. Sections 1051.055(a) and (b), Estates Code, are
amended to read as follows:
(a) If a party is represented by an attorney of record in a
guardianship proceeding, including a proposed ward who has been
personally served with notice of the proceeding and is represented
by an attorney ad litem, a citation or notice required to be served
on the party shall be served instead on that attorney.
(b) A notice served on an attorney under this section may be
served by[:
[(1)] delivery to the attorney in person or by a
qualified delivery method [;
[(2) registered or certified mail, return receipt
requested; or
[(3) any other form of mail that requires proof of
delivery].
SECTION 6. Section 1051.056, Estates Code, is amended to
read as follows:
Sec. 1051.056. SERVICE ON GUARDIAN OR RECEIVER. Unless
this title expressly provides for another method of service, the
county clerk who issues a citation or notice required to be served
on a guardian or receiver shall serve the citation or notice by
sending [mailing] the original citation or notice by a qualified
delivery method [registered or certified mail] to:
(1) the guardian's or receiver's attorney of record;
or
(2) the guardian or receiver, if the guardian or
receiver does not have an attorney of record.
SECTION 7. Sections 1051.104(a) and (b), Estates Code, are
amended to read as follows:
(a) The person filing an application for guardianship shall
send [mail] a copy of the application and a notice containing the
information required in the citation issued under Section 1051.102
by a qualified delivery method [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 named 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.
(b) The applicant shall file with the court:
(1) a copy of any notice required by Subsection (a) and
the return receipts or other proofs of delivery of the notice; and
(2) an affidavit sworn to by the applicant or the
applicant's attorney stating:
(A) that the notice was sent [mailed] as required
by Subsection (a); and
(B) the name of each person to whom the notice was
sent [mailed], if the person's name is not shown on the return
receipt or other proof of delivery.
SECTION 8. Section 1051.153(b), Estates Code, is amended to
read as follows:
(b) Proof of service consists of:
(1) if the service is made by a sheriff or constable,
the return of service;
(2) if the service is made by a private person, the
person's affidavit;
(3) if the service is made by mail or by a qualified
delivery method:
(A) the certificate of the county clerk making
the service, or the affidavit of the guardian or other person making
the service that states that the citation or notice was mailed or
sent by a qualified delivery method and the date of the mailing, the
date of deposit with the private delivery service, or the date of
delivery by courier, as applicable; and
(B) the return receipt or other proof of delivery
receipt attached to the certificate or affidavit, as applicable, if
the service [mailing] was made by a qualified delivery method
[registered or certified mail and a receipt has been returned]; and
(4) if the service is made by publication:
(A) a statement that:
(i) is made by the Office of Court
Administration of the Texas Judicial System or an employee of the
office;
(ii) contains or to which is attached a copy
of the published citation or notice; and
(iii) states the date of publication on the
public information Internet website maintained as required by
Section 72.034, Government Code [, as added by Chapter 606 (S.B.
891), Acts of the 86th Legislature, Regular Session, 2019]; and
(B) an affidavit that:
(i) is made by the publisher of the
newspaper in which the citation or notice was published or an
employee of the publisher;
(ii) contains or to which is attached a copy
of the published citation or notice; and
(iii) states the date of publication
printed on the newspaper in which the citation or notice was
published.
SECTION 9. Section 1057.002(b), Estates Code, is amended to
read as follows:
(b) The resident agent shall send, by a qualified delivery
method [certified mail, return receipt requested], a copy of a
resignation statement filed under Subsection (a) to:
(1) the guardian at the address most recently known by
the resident agent; and
(2) each party in the case or the party's attorney or
other designated representative of record.
SECTION 10. Section 1104.103, Estates Code, is amended by
amending Subsections (a) and (b) and adding Subsection (a-1) to
read as follows:
(a) The surviving parent of an adult individual who is an
incapacitated person may, if the parent is the guardian of the
person or estate of the adult individual, by will or written
declaration appoint an eligible person to serve as guardian of the
person or estate, as applicable, of the adult individual:
(1) after the parent dies;
(2) in the event the parent resigns as guardian of the
person or estate; or
(3) in the event of the parent's incapacity.
(a-1) If the surviving parent is both the guardian of the
person and estate of the adult individual, the surviving parent may
by will or written declaration appoint different eligible persons
to serve as guardian of the person and guardian of the estate.
(b) After the surviving parent dies or resigns as guardian,
or if the court finds the surviving parent has become an
incapacitated person after being appointed the adult individual's
guardian, the court shall appoint the person or persons designated
in the will or declaration to serve as guardian of the person,
guardian of the estate, or both, in preference to any other person
otherwise entitled to serve as guardian under this title, unless
the court finds that the person designated to serve as guardian:
(1) is disqualified;
(2) is deceased;
(3) refuses to serve; or
(4) would not serve the adult individual's best
interests.
SECTION 11. Section 1105.002(a), Estates Code, is amended
to read as follows:
(a) Except as provided by Subsection (b), a guardian is
considered to have qualified when the guardian has:
(1) taken and filed the oath, or made and filed the
declaration, required under Section 1105.051;
(2) given the required bond;
(3) [filed the bond with the clerk; and
[(4)] obtained the judge's approval of the bond; and
(4) filed the bond with the clerk.
SECTION 12. Section 1106.001(a), Estates Code, is amended
to read as follows:
(a) When a person who is appointed guardian has qualified
under Section 1105.002, the clerk shall issue to the guardian a
certificate under the court's seal stating:
(1) the fact of the appointment and of the
qualification;
(2) the date of the appointment and of the
qualification; and
(3) the date the letters of guardianship expire.
SECTION 13. Section 1106.005, Estates Code, is amended to
read as follows:
Sec. 1106.005. EFFECT OF LETTERS [OR
CERTIFICATE]. (a) Letters of guardianship [or a certificate]
issued as prescribed by [under] Section 1106.001 under the court's
seal by [of] the clerk of the court that granted the letters are
[is] sufficient evidence of:
(1) the appointment and qualification of the guardian;
and
(2) the date of qualification.
(b) The court order that appoints the guardian is evidence
of the authority granted to the guardian and of the scope of the
powers and duties that the guardian may exercise only after the date
letters of guardianship [or a certificate has] have been issued
under Section 1106.001.
SECTION 14. Subchapter B, Chapter 1151, Estates Code, is
amended by adding Section 1151.0525 to read as follows:
Sec. 1151.0525. ACCESS AND MANAGEMENT OF WARD'S FUNDS BY
GUARDIAN OF PERSON. (a) This section applies only to the guardian
of the person of a ward for whom the court has not appointed a
guardian of the estate.
(b) On application to and order from the court, the guardian
of the person of a ward may access, manage, and spend the ward's
funds in an amount not to exceed $20,000 per year for the ward's
benefit. The court shall require the guardian to file a new bond or
a rider to an existing bond that meets the surety requirements for a
guardian of the estate's bond under Section 1105.160.
(c) A guardian of the person shall include any expenditures
made for the benefit of the ward if authorized by court order under
Subsection (b) in the annual report required by Section 1163.101.
(d) When there is no longer a need for the guardian of the
person to access, manage, or spend the ward's funds, the guardian of
the person shall file a sworn affidavit of fulfillment with the
court. After the filing of the affidavit, the court, on motion
filed with the court, may authorize the guardian to file a new bond
or a rider to an existing bond that meets the requirements for a
guardian of the person's bond under Section 1105.102, and may
discharge the guardian of the person and the guardian's sureties on
a bond required by Subsection (b).
SECTION 15. Section 1153.001(a), Estates Code, is amended
to read as follows:
(a) Within one month after receiving letters of
guardianship, a guardian of an estate shall provide notice
requiring each person who has a claim against the estate to present
the claim within the period prescribed by law. The notice must be:
(1) published in a newspaper of general circulation in
the county in which the letters were issued; and
(2) sent to the comptroller by a qualified delivery
method [certified or registered mail], if the ward remitted or
should have remitted taxes administered by the comptroller.
SECTION 16. Sections 1153.003(b) and (c), Estates Code, are
amended to read as follows:
(b) Notice provided under this section must be:
(1) sent by a qualified delivery method [certified or
registered mail, return receipt requested]; and
(2) addressed to the record holder of the claim at the
record holder's last known post office address.
(c) The following shall be filed in the court from which the
letters of guardianship were issued:
(1) a copy of each notice required by Subsection
(a)(1) with the return receipt or other proof of delivery, if
available; and
(2) the guardian's affidavit stating:
(A) that the notice was sent [mailed] as required
by law; and
(B) the name of the person to whom the notice was
sent [mailed], if that name is not shown on the notice or receipt.
SECTION 17. Section 1153.005(a), Estates Code, is amended
to read as follows:
(a) A guardian of an estate is not required to give a notice
required by Section 1153.001 or 1153.003 if another person also
appointed as guardian or a former guardian has given that notice.
SECTION 18. Section 1155.002(a), Estates Code, is amended
to read as follows:
(a) The court may authorize compensation for a guardian
serving as a guardian of the person alone from available funds of
the ward's estate or other funds available for that purpose. The
court may set the compensation in an amount not to exceed the
greater of $3,000 per year or five percent of the ward's gross
income.
SECTION 19. Section 1156.052(c), Estates Code, is amended
to read as follows:
(c) A person who makes an application to the court under
this section shall send [mail] notice of the application by a
qualified delivery method [certified mail] to all interested
persons.
SECTION 20. Section 1162.003, Estates Code, is amended to
read as follows:
Sec. 1162.003. NOTICE OF APPLICATION FOR ESTABLISHMENT OF
ESTATE OR OTHER TRANSFER PLAN. A person who makes an application
to the court under Section 1162.001 shall send [mail] notice of the
application by a qualified delivery method [certified mail] to:
(1) all devisees under a will, trust, or other
beneficial instrument relating to the ward's estate;
(2) the ward's spouse;
(3) the ward's dependents; and
(4) any other person as directed by the court.
SECTION 21. Section 1162.006(b), Estates Code, is amended
to read as follows:
(b) Notice required by Subsection (a) must be sent
[delivered] by a qualified delivery method[:
[(1) registered or certified mail to a person
described by Subsection (a)(1); and
[(2) certified mail to a person described by
Subsection (a)(2), (3), (4), or (5)].
SECTION 22. Section 1202.054(b-2), Estates Code, is amended
to read as follows:
(b-2) Not later than the 30th day after the date the court
receives an informal letter from a ward under Subsection (a), the
court shall send the ward a letter by a qualified delivery method
[certified mail]:
(1) acknowledging receipt of the informal letter; and
(2) advising the ward of the date on which the court
appointed the court investigator or guardian ad litem as required
under Subsection (b) and the contact information for the court
investigator or guardian ad litem.
SECTION 23. Sections 1203.052(a-1) and (b), Estates Code,
are amended to read as follows:
(a-1) The court may remove a guardian for a reason listed in
Subsection (a) on the:
(1) court's own motion, after the guardian has been
notified[,] by a qualified delivery method [certified mail, return
receipt requested,] to answer at a time and place set in the notice;
or
(2) complaint of an interested person, after the
guardian has been cited by personal service to answer at a time and
place set in the notice.
(b) In addition to the authority granted to the court under
Subsection (a), the court may, on the complaint of the guardianship
certification program of the Judicial Branch Certification
Commission, remove a guardian who would be ineligible for
appointment under Subchapter H, Chapter 1104, because of the
guardian's failure to maintain the certification required under
Subchapter F, Chapter 1104. The guardian shall be given notice[,]
by a qualified delivery method [certified mail, return receipt
requested,] to appear and contest the request for removal under
this subsection at a time and place set in the notice.
SECTION 24. Section 1351.001(a), Estates Code, is amended
to read as follows:
(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 $250,000
[$100,000].
SECTION 25. 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 $250,000 [$100,000].
SECTION 26. Section 1352.052(a), Estates Code, is amended
to read as follows:
(a) If the net value of a minor's interest in a residence
homestead does not exceed $250,000 [$100,000], a parent, subject to
Subsection (b), or managing conservator of the minor may apply to
the court under this subchapter for an order authorizing the parent
or managing conservator to receive on the minor's behalf, without
being appointed guardian, an extension of credit that is secured
wholly or partly by a lien on the homestead.
SECTION 27. Section 1352.102, Estates Code, is amended to
read as follows:
Sec. 1352.102. AUTHORITY TO MORTGAGE MINOR WARD'S INTEREST
WITHOUT GUARDIANSHIP OF THE ESTATE. If the net value of a minor
ward's interest in a residence homestead does not exceed $250,000
[$100,000], the guardian of the person of the ward may apply to the
court under this subchapter for an order authorizing the guardian
to receive on the ward's behalf an extension of credit that is
secured wholly or partly by a lien on the homestead.
SECTION 28. Section 1353.004, Estates Code, is amended by
adding Subsection (c-1) to read as follows:
(c-1) If the court finds that the ward's spouse fails to
comply with an order described by Subsection (c), the court may,
after notice and a hearing, order any third party or entity in
possession to deliver to the incapacitated spouse's guardian of the
estate the community property described by Subsection (c).
SECTION 29. Section 1355.001(a), Estates Code, is amended
to read as follows:
(a) In this section, "resident creditor" means a person who:
(1) is a resident of this state; and
(2) is entitled to money in an amount that is $250,000
[$100,000] or less, the right to which is liquidated and is
uncontested in any pending lawsuit.
SECTION 30. Sections 1355.002(a) and (b), Estates Code, are
amended to read as follows:
(a) In this section, "creditor" means a person who is
entitled to money in an amount that is not more than $250,000
[$100,000] owing as a result of transactions in this state, the
right to which is liquidated and is uncontested in any pending
lawsuit in this state.
(b) This section applies only to a nonresident creditor who
is:
(1) a nonresident minor [and has a nonresident
guardian of the estate appointed by a foreign court];
(2) a nonresident person who is adjudged by a foreign
court to be incapacitated [and has a nonresident guardian of the
estate appointed by that court]; or
(3) the nonresident former ward of a guardianship
terminated under Chapter 1204 who has no legal guardian qualified
in this state.
SECTION 31. Section 1104.103(c), Estates Code, is repealed.
SECTION 32. (a) The changes in law made by this Act to the
following provisions of the Estates Code apply only to an action
filed or a guardianship proceeding commenced on or after the
effective date of this Act:
(1) Sections 1023.004(c), 1051.153(b), 1057.002(b),
1153.001(a), 1153.005(a), 1156.052(c), 1162.006(b),
1202.054(b-2), and 1353.004;
(2) Sections 1051.052(b), (c), (d), (e), (f), and (h);
(3) Sections 1051.055(a) and (b);
(4) Sections 1051.056 and 1162.003;
(5) Sections 1051.104(a) and (b);
(6) Sections 1153.003(b) and (c); and
(7) Sections 1203.052(a-1) and (b).
(b) Sections 1105.002(a), 1106.001(a), 1106.005, and
1155.002(a), Estates Code, as amended by this Act, and Section
1151.0525, Estates Code, as added by this Act, apply to a
guardianship created before, on, or after the effective date of
this Act.
(c) Sections 1351.001(a), 1351.052, 1352.052(a), and
1352.102, Estates Code, as amended by this Act, apply only to an
application for a court order filed on or after the effective date
of this Act. An application for a court order 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.
(d) Sections 1355.001(a) and 1355.002(a) and (b), Estates
Code, as amended by this Act, apply only to a payment made by a
debtor on or after the effective date of this Act. A payment made by
a debtor before the effective date of this Act is governed by the
law in effect on the date the payment was made, and the former law is
continued in effect for that purpose.
SECTION 33. This Act takes effect September 1, 2023.