Texas 2023 - 88th Regular

Texas House Bill HB785 Compare Versions

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Version 2 (New)

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1	1	H.B. No. 785
2	2
3	3
4	4	AN ACT
5	5	relating to the delivery of certain notices or other communications
6	6	in connection with guardianship proceedings.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Chapter 1002, Estates Code, is amended by adding
9	9	Section 1002.0265 to read as follows:
10	10	Sec. 1002.0265. QUALIFIED DELIVERY METHOD. "Qualified
11	11	delivery method" means delivery by:
12	12	(1) hand delivery by courier, with courier's proof of
13	13	delivery receipt;
14	14	(2) certified or registered mail, return receipt
15	15	requested, with return receipt; or
16	16	(3) a private delivery service designated as a
17	17	designated delivery service by the United States Secretary of the
18	18	Treasury under Section 7502(f)(2), Internal Revenue Code of 1986,
19	19	with proof of delivery receipt.
20	20	SECTION 2. Section 1023.004(c), Estates Code, is amended to
21	21	read as follows:
22	22	(c) If a court made a motion to transfer a guardianship, the
23	23	guardian shall be given notice by a qualified delivery method
24	24	[certified mail] to appear and show cause why the guardianship
25	25	should not be transferred.
26	26	SECTION 3. The heading to Section 1051.052, Estates Code,
27	27	is amended to read as follows:
28	28	Sec. 1051.052. SERVICE BY MAIL OR QUALIFIED DELIVERY
29	29	METHOD.
30	30	SECTION 4. Section 1051.052, Estates Code, is amended by
31	31	amending Subsections (b), (c), (d), (e), and (f) and adding
32	32	Subsection (h) to read as follows:
33	33	(b) Except as provided by Subsection (c), the county clerk
34	34	shall issue a citation or notice required or permitted to be served
35	35	by a qualified delivery method [registered or certified mail] and
36	36	shall serve the citation or notice by sending [mailing] the
37	37	original citation or notice by a qualified delivery method
38	38	[registered or certified mail].
39	39	(c) A guardian shall issue a notice required to be given by
40	40	the guardian by a qualified delivery method [registered or
41	41	certified mail] and shall serve the notice by sending [mailing] the
42	42	original notice by a qualified delivery method [registered or
43	43	certified mail].
44	44	(d) The county clerk or guardian, as applicable, shall send
45	45	[mail] a citation or notice under Subsection (b) or (c) with an
46	46	instruction to deliver the citation or notice to the addressee only
47	47	and with return receipt or other proof of delivery requiring
48	48	recipient signature requested. The clerk or guardian, as
49	49	applicable, shall address the envelope containing the citation or
50	50	notice to:
51	51	(1) the attorney of record in the proceeding for the
52	52	person to be cited or notified; or
53	53	(2) the person to be cited or notified, if the citation
54	54	or notice to the attorney is returned undelivered or the person to
55	55	be cited or notified has no attorney of record in the proceeding.
56	56	(e) Service by a qualified delivery method [mail] must be
57	57	made at least 20 days before the return day of the citation or
58	58	notice, excluding the date of service. The date of service [by
59	59	mail] is the date of mailing, the date of deposit with the private
60	60	delivery service, or the date of delivery by courier, as
61	61	applicable.
62	62	(f) A copy of a citation or notice served under Subsection
63	63	(a), (b), or (c) and a certificate of the person serving the
64	64	citation or notice showing that the citation or notice was sent
65	65	[mailed] and the date of the mailing, the date of deposit with a
66	66	private delivery service, or the date of delivery by courier, as
67	67	applicable, shall be filed and recorded. A returned receipt or
68	68	other proof of delivery receipt for a citation or notice served
69	69	under Subsection (b) or (c) shall be attached to the certificate.
70	70	(h) The applicant or movant in a guardianship proceeding
71	71	shall pay the cost of delivery of a citation or notice under this
72	72	section, to be taxed as costs in the proceeding.
73	73	SECTION 5. Sections 1051.055(a) and (b), Estates Code, are
74	74	amended to read as follows:
75	75	(a) If a party is represented by an attorney of record in a
76	76	guardianship proceeding, including a proposed ward who has been
77	77	personally served with notice of the proceeding and is represented
78	78	by an attorney ad litem, a citation or notice required to be served
79	79	on the party shall be served instead on that attorney.
80	80	(b) A notice served on an attorney under this section may be
81	81	served by[:
82	82	[(1)] delivery to the attorney in person or by a
83	83	qualified delivery method [;
84	84	[(2) registered or certified mail, return receipt
85	85	requested; or
86	86	[(3) any other form of mail that requires proof of
87	87	delivery].
88	88	SECTION 6. Section 1051.056, Estates Code, is amended to
89	89	read as follows:
90	90	Sec. 1051.056. SERVICE ON GUARDIAN OR RECEIVER. Unless
91	91	this title expressly provides for another method of service, the
92	92	county clerk who issues a citation or notice required to be served
93	93	on a guardian or receiver shall serve the citation or notice by
94	94	sending [mailing] the original citation or notice by a qualified
95	95	delivery method [registered or certified mail] to:
96	96	(1) the guardian's or receiver's attorney of record;
97	97	or
98	98	(2) the guardian or receiver, if the guardian or
99	99	receiver does not have an attorney of record.
100	100	SECTION 7. Sections 1051.104(a) and (b), Estates Code, are
101	101	amended to read as follows:
102	102	(a) The person filing an application for guardianship shall
103	103	send [mail] a copy of the application and a notice containing the
104	104	information required in the citation issued under Section 1051.102
105	105	by a qualified delivery method [registered or certified mail,
106	106	return receipt requested, or by any other form of mail that provides
107	107	proof of delivery,] to the following persons, if their whereabouts
108	108	are known or can be reasonably ascertained:
109	109	(1) each adult child of the proposed ward;
110	110	(2) each adult sibling of the proposed ward;
111	111	(3) the administrator of a nursing home facility or
112	112	similar facility in which the proposed ward resides;
113	113	(4) the operator of a residential facility in which
114	114	the proposed ward resides;
115	115	(5) a person whom the applicant knows to hold a power
116	116	of attorney signed by the proposed ward;
117	117	(6) a person designated to serve as guardian of the
118	118	proposed ward by a written declaration under Subchapter E, Chapter
119	119	1104, if the applicant knows of the existence of the declaration;
120	120	(7) a person designated to serve as guardian of the
121	121	proposed ward in the probated will of the last surviving parent of
122	122	the proposed ward;
123	123	(8) a person designated to serve as guardian of the
124	124	proposed ward by a written declaration of the proposed ward's last
125	125	surviving parent, if the declarant is deceased and the applicant
126	126	knows of the existence of the declaration; and
127	127	(9) each adult named in the application as an "other
128	128	living relative" of the proposed ward within the third degree by
129	129	consanguinity, as required by Section 1101.001(b)(11) or (13), if
130	130	the proposed ward's spouse and each of the proposed ward's parents,
131	131	adult siblings, and adult children are deceased or there is no
132	132	spouse, parent, adult sibling, or adult child.
133	133	(b) The applicant shall file with the court:
134	134	(1) a copy of any notice required by Subsection (a) and
135	135	the return receipts or other proofs of delivery of the notice; and
136	136	(2) an affidavit sworn to by the applicant or the
137	137	applicant's attorney stating:
138	138	(A) that the notice was sent [mailed] as required
139	139	by Subsection (a); and
140	140	(B) the name of each person to whom the notice was
141	141	sent [mailed], if the person's name is not shown on the return
142	142	receipt or other proof of delivery.
143	143	SECTION 8. Section 1051.153(b), Estates Code, is amended to
144	144	read as follows:
145	145	(b) Proof of service consists of:
146	146	(1) if the service is made by a sheriff or constable,
147	147	the return of service;
148	148	(2) if the service is made by a private person, the
149	149	person's affidavit;
150	150	(3) if the service is made by mail or by a qualified
151	151	delivery method:
152	152	(A) the certificate of the county clerk making
153	153	the service, or the affidavit of the guardian or other person making
154	154	the service that states that the citation or notice was mailed or
155	155	sent by a qualified delivery method and the date of the mailing, the
156	156	date of deposit with the private delivery service, or the date of
157	157	delivery by courier, as applicable; and
158	158	(B) the return receipt or other proof of delivery
159	159	receipt attached to the certificate or affidavit, as applicable, if
160	160	the service [mailing] was made by a qualified delivery method
161	161	[registered or certified mail and a receipt has been returned]; and
162	162	(4) if the service is made by publication:
163	163	(A) a statement that:
164	164	(i) is made by the Office of Court
165	165	Administration of the Texas Judicial System or an employee of the
166	166	office;
167	167	(ii) contains or to which is attached a copy
168	168	of the published citation or notice; and
169	169	(iii) states the date of publication on the
170	170	public information Internet website maintained as required by
171	171	Section 72.034, Government Code [, as added by Chapter 606 (S.B.
172	172	891), Acts of the 86th Legislature, Regular Session, 2019]; and
173	173	(B) an affidavit that:
174	174	(i) is made by the publisher of the
175	175	newspaper in which the citation or notice was published or an
176	176	employee of the publisher;
177	177	(ii) contains or to which is attached a copy
178	178	of the published citation or notice; and
179	179	(iii) states the date of publication
180	180	printed on the newspaper in which the citation or notice was
181	181	published.
182	182	SECTION 9. Section 1057.002(b), Estates Code, is amended to
183	183	read as follows:
184	184	(b) The resident agent shall send, by a qualified delivery
185	185	method [certified mail, return receipt requested], a copy of a
186	186	resignation statement filed under Subsection (a) to:
187	187	(1) the guardian at the address most recently known by
188	188	the resident agent; and
189	189	(2) each party in the case or the party's attorney or
190	190	other designated representative of record.
191	191	SECTION 10. Section 1153.001(a), Estates Code, is amended
192	192	to read as follows:
193	193	(a) Within one month after receiving letters of
194	194	guardianship, a guardian of an estate shall provide notice
195	195	requiring each person who has a claim against the estate to present
196	196	the claim within the period prescribed by law. The notice must be:
197	197	(1) published in a newspaper of general circulation in
198	198	the county in which the letters were issued; and
199	199	(2) sent to the comptroller by a qualified delivery
200	200	method [certified or registered mail], if the ward remitted or
201	201	should have remitted taxes administered by the comptroller.
202	202	SECTION 11. Sections 1153.003(b) and (c), Estates Code, are
203	203	amended to read as follows:
204	204	(b) Notice provided under this section must be:
205	205	(1) sent by a qualified delivery method [certified or
206	206	registered mail, return receipt requested]; and
207	207	(2) addressed to the record holder of the claim at the
208	208	record holder's last known post office address.
209	209	(c) The following shall be filed in the court from which the
210	210	letters of guardianship were issued:
211	211	(1) a copy of each notice required by Subsection
212	212	(a)(1) with the return receipt or other proof of delivery, if
213	213	available; and
214	214	(2) the guardian's affidavit stating:
215	215	(A) that the notice was sent [mailed] as required
216	216	by law; and
217	217	(B) the name of the person to whom the notice was
218	218	sent [mailed], if that name is not shown on the notice or receipt.
219	219	SECTION 12. Section 1156.052(c), Estates Code, is amended
220	220	to read as follows:
221	221	(c) A person who makes an application to the court under
222	222	this section shall send [mail] notice of the application by a
223	223	qualified delivery method [certified mail] to all interested
224	224	persons.
225	225	SECTION 13. Section 1162.003, Estates Code, is amended to
226	226	read as follows:
227	227	Sec. 1162.003. NOTICE OF APPLICATION FOR ESTABLISHMENT OF
228	228	ESTATE OR OTHER TRANSFER PLAN. A person who makes an application
229	229	to the court under Section 1162.001 shall send [mail] notice of the
230	230	application by a qualified delivery method [certified mail] to:
231	231	(1) all devisees under a will, trust, or other
232	232	beneficial instrument relating to the ward's estate;
233	233	(2) the ward's spouse;
234	234	(3) the ward's dependents; and
235	235	(4) any other person as directed by the court.
236	236	SECTION 14. Section 1162.006(b), Estates Code, is amended
237	237	to read as follows:
238	238	(b) Notice required by Subsection (a) must be sent
239	239	[delivered] by a qualified delivery method[:
240	240	[(1) registered or certified mail to a person
241	241	described by Subsection (a)(1); and
242	242	[(2) certified mail to a person described by
243	243	Subsection (a)(2), (3), (4), or (5)].
244	244	SECTION 15. Section 1202.054(b-2), Estates Code, is amended
245	245	to read as follows:
246	246	(b-2) Not later than the 30th day after the date the court
247	247	receives an informal letter from a ward under Subsection (a), the
248	248	court shall send the ward a letter by a qualified delivery method
249	249	[certified mail]:
250	250	(1) acknowledging receipt of the informal letter; and
251	251	(2) advising the ward of the date on which the court
252	252	appointed the court investigator or guardian ad litem as required
253	253	under Subsection (b) and the contact information for the court
254	254	investigator or guardian ad litem.
255	255	SECTION 16. Sections 1203.052(a-1) and (b), Estates Code,
256	256	are amended to read as follows:
257	257	(a-1) The court may remove a guardian for a reason listed in
258	258	Subsection (a) on the:
259	259	(1) court's own motion, after the guardian has been
260	260	notified[,] by a qualified delivery method [certified mail, return
261	261	receipt requested,] to answer at a time and place set in the notice;
262	262	or
263	263	(2) complaint of an interested person, after the
264	264	guardian has been cited by personal service to answer at a time and
265	265	place set in the notice.
266	266	(b) In addition to the authority granted to the court under
267	267	Subsection (a), the court may, on the complaint of the guardianship
268	268	certification program of the Judicial Branch Certification
269	269	Commission, remove a guardian who would be ineligible for
270	270	appointment under Subchapter H, Chapter 1104, because of the
271	271	guardian's failure to maintain the certification required under
272	272	Subchapter F, Chapter 1104. The guardian shall be given notice[,]
273	273	by a qualified delivery method [certified mail, return receipt
274	274	requested,] to appear and contest the request for removal under
275	275	this subsection at a time and place set in the notice.
276	276	SECTION 17. The changes in law made by this Act apply only
277	277	to an action filed or a guardianship proceeding commenced on or
278	278	after the effective date of this Act.
279	279	SECTION 18. This Act takes effect September 1, 2023.
280	280	______________________________ ______________________________
281	281	President of the Senate Speaker of the House
282	282	I certify that H.B. No. 785 was passed by the House on April
283	283	14, 2023, by the following vote: Yeas 141, Nays 2, 2 present, not
284	284	voting.
285	285	______________________________
286	286	Chief Clerk of the House
287	287	I certify that H.B. No. 785 was passed by the Senate on May 9,
288	288	2023, by the following vote: Yeas 31, Nays 0.
289	289	______________________________
290	290	Secretary of the Senate
291	291	APPROVED: _____________________
292	292	Date
293	293	_____________________
294	294	Governor