88R19055 EAS-F
By: Swanson H.B. No. 785
Substitute the following for H.B. No. 785:
By: Schofield C.S.H.B. No. 785
A BILL TO BE ENTITLED
AN ACT
relating to 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, to be taxed as costs in the proceeding.
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 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 11. 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 12. 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 13. 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 14. 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 15. 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 16. 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 17. The changes in law made by this Act apply only
to an action filed or a guardianship proceeding commenced on or
after the effective date of this Act.
SECTION 18. This Act takes effect September 1, 2023.