Texas 2023 - 88th 2nd C.S.

Texas Senate Bill SB12 Compare Versions

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1	1	By: Zaffirini S.B. No. 12
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to guardianships for persons who are incapacitated;
7	7	changing a fee.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 1002, Estates Code, is amended by adding
10	10	Section 1002.0265 to read as follows:
11	11	Sec. 1002.0265. QUALIFIED DELIVERY METHOD. "Qualified
12	12	delivery method" means delivery by:
13	13	(1) hand delivery by courier, with courier's proof of
14	14	delivery receipt;
15	15	(2) certified or registered mail, return receipt
16	16	requested, with return receipt; or
17	17	(3) a private delivery service designated as a
18	18	designated delivery service by the United States Secretary of the
19	19	Treasury under Section 7502(f)(2), Internal Revenue Code of 1986,
20	20	with proof of delivery receipt.
21	21	SECTION 2. Section 1023.002(c), Estates Code, is amended to
22	22	read as follows:
23	23	(c) If it appears to the court at any time before the
24	24	guardianship is closed that the proceeding was commenced in a court
25	25	that did not have venue over the proceeding, the court shall, on the
26	26	application of any interested person, transfer the proceeding to
27	27	the proper county in the manner prescribed by Section 1023.006.
28	28	SECTION 3. Sections 1023.004(a) and (c), Estates Code, are
29	29	amended to read as follows:
30	30	(a) On filing an application or on motion of a court to
31	31	transfer a guardianship to another county under Section 1023.002 or
32	32	1023.003, the sureties on the bond of the guardian shall be cited by
33	33	a qualified delivery method [personal service] to appear and show
34	34	cause why the guardianship should not be transferred.
35	35	(c) If a court made a motion to transfer a guardianship, the
36	36	guardian shall be given notice by a qualified delivery method
37	37	[certified mail] to appear and show cause why the guardianship
38	38	should not be transferred.
39	39	SECTION 4. Section 1023.005(c), Estates Code, is amended to
40	40	read as follows:
41	41	(c) On receipt of an order described by Subsection (a), the
42	42	clerk of the court to which the guardianship is transferred
43	43	[county] shall accept the transfer of the guardianship.
44	44	SECTION 5. Section 1023.006, Estates Code, is amended to
45	45	read as follows:
46	46	Sec. 1023.006. TRANSFER OF RECORD. (a) When an order of
47	47	transfer is made under Section 1023.002 or 1023.005, the clerk of
48	48	the court transferring a proceeding shall, using the electronic
49	49	filing system established under Section 72.031, Government Code,
50	50	send to the proper court in the county to which the transfer is
51	51	made:
52	52	(1) a transfer certificate and certified index of
53	53	transferred documents;
54	54	(2) a copy of each order, including a copy of the order
55	55	of transfer signed by the transferring court;
56	56	(3) a copy of the original papers filed in the
57	57	transferring court, including any papers previously received on
58	58	transfer from a court in another county;
59	59	(4) a copy of the transfer certificate and certified
60	60	index of transferred documents from each previous transfer, if
61	61	applicable; and
62	62	(5) a bill of any costs that have accrued in the
63	63	transferring court.
64	64	(b) The clerk of the transferring court shall use the
65	65	standardized transfer certificate and index of transferred
66	66	documents form created by the Office of Court Administration of the
67	67	Texas Judicial System under Section 72.037, Government Code, when
68	68	transferring a proceeding under this section.
69	69	(c) The clerk of the transferring court shall keep a copy of
70	70	transferred pleadings, orders, and all other papers filed into the
71	71	case record.
72	72	(d) The clerk of the transferee court shall, subject to
73	73	Section 1023.005, accept the documents transferred under
74	74	Subsection (a) and docket the case.
75	75	(e) The clerk of the transferee court shall physically or
76	76	electronically mark or stamp the transfer certificate and index of
77	77	transferred documents to evidence the date and time of acceptance
78	78	under Subsection (c) but may not physically or electronically mark
79	79	or stamp any other document transferred under Subsection (a).
80	80	(f) Sections 80.001 and 80.002, Government Code, do not
81	81	apply to the transfer of documents under this section [shall record
82	82	any unrecorded papers of the guardianship required to be
83	83	recorded. On payment of the clerk's fee, the clerk shall transmit
84	84	in electronic or paper form to the county clerk of the county to
85	85	which the guardianship was ordered transferred:
86	86	[(1) the case file of the guardianship proceedings;
87	87	and
88	88	[(2) a certified copy of the index of the guardianship
89	89	records].
90	90	SECTION 6. Section 1023.007, Estates Code, is amended to
91	91	read as follows:
92	92	Sec. 1023.007. TRANSFER EFFECTIVE. The order transferring
93	93	a guardianship does not take effect until:
94	94	(1) the case file and a certified copy of the index
95	95	required by Section 1023.006 are filed in electronic or paper form
96	96	in the office of the county clerk of the county to which the
97	97	guardianship was ordered transferred; and
98	98	(2) a certificate under the court's [clerk's] official
99	99	seal and reporting the filing of the case file and a certified copy
100	100	of the index is filed using the electronic filing system
101	101	established under Section 72.031, Government Code, [in electronic
102	102	or paper form] in the court ordering the transfer by the county
103	103	clerk of the county to which the guardianship was ordered
104	104	transferred.
105	105	SECTION 7. Chapter 1023, Estates Code, is amended by adding
106	106	Section 1023.0071 to read as follows:
107	107	Sec. 1023.0071. TRANSFER FEE. (a) The fee for filing a
108	108	guardianship case transferred from another county under this
109	109	chapter in which the guardian has previously been appointed and
110	110	qualified in accordance with this title is $45 payable to the clerk
111	111	of the court to which the case is transferred. No portion of this
112	112	fee may be sent to the state.
113	113	(b) A party may not be assessed any other filing fee by the
114	114	clerk of the court to which the guardianship is transferred in
115	115	connection with the filing and docketing of the transferred case.
116	116	(c) To the extent that this section conflicts with another
117	117	state statute, the Texas Rules of Civil Procedure, or other rules,
118	118	this section prevails.
119	119	SECTION 8. Section 1105.002(a), Estates Code, is amended to
120	120	read as follows:
121	121	(a) Except as provided by Subsection (b), a guardian is
122	122	considered to have qualified when the guardian has:
123	123	(1) taken and filed the oath, or made and filed the
124	124	declaration, required under Section 1105.051;
125	125	(2) given the required bond;
126	126	(3) [filed the bond with the clerk; and
127	127	[(4)] obtained the judge's approval of the bond; and
128	128	(4) filed the bond with the clerk.
129	129	SECTION 9. Section 1105.157, Estates Code, is amended by
130	130	amending Subsections (a) and (d) and adding Subsection (d-1) to
131	131	read as follows:
132	132	(a) Instead of giving a surety or sureties on a bond, or to
133	133	reduce the amount of a bond, the guardian of an estate may deposit
134	134	the guardian's own cash or securities acceptable to the court with:
135	135	(1) a financial institution as defined by Section
136	136	201.101, Finance Code, that has its main office or a branch office
137	137	in this state; or
138	138	(2) the registry of the court, for which the clerk of
139	139	the court shall issue a receipt.
140	140	(d) A receipt issued by a depository under Subsection (c) or
141	141	a record of deposit to the registry of the court must be attached to
142	142	the guardian's bond and must be in substantially the following
143	143	form:
144	144	The State of Texas
145	145	County of (insert name of county)
146	146	Know all persons by these presents that I/we, (name
147	147	of each principal), as principal, have deposited cash or securities
148	148	as evidenced by the attached receipt or record of deposit issued by
149	149	(name of depository where cash or securities are deposited or
150	150	the name of the court) on (date of deposit), are held and
151	151	firmly bound to the judge of (insert reference to appropriate
152	152	judge), and that judge's successors in office, in the sum of $ ,
153	153	having been so deposited; conditioned that the above bound
154	154	principal or principals, appointed by the judge as guardian or
155	155	temporary guardian of the person or of the estate, or both, of
156	156	(name of ward and whether the person is a minor or is an
157	157	incapacitated person other than a minor), shall well and truly
158	158	perform all of the duties required of the guardian or temporary
159	159	guardian by law under appointment.
160	160	(d-1) The guardian's bond and depository receipt, if
161	161	applicable, shall [and] be delivered to and filed by the county
162	162	clerk after the bond [receipt] is approved by the judge.
163	163	SECTION 10. Section 1106.001(a), Estates Code, is amended
164	164	to read as follows:
165	165	(a) When a person who is appointed guardian has qualified
166	166	under Section 1105.002, the clerk shall issue to the guardian a
167	167	certificate under the court's seal stating:
168	168	(1) the fact of the appointment and of the
169	169	qualification;
170	170	(2) the date of the appointment and of the
171	171	qualification; and
172	172	(3) the date the letters of guardianship expire.
173	173	SECTION 11. Section 1106.005, Estates Code, is amended to
174	174	read as follows:
175	175	Sec. 1106.005. EFFECT OF LETTERS [OR
176	176	CERTIFICATE]. (a) Letters of guardianship [or a certificate]
177	177	issued as prescribed by [under] Section 1106.001 under the court's
178	178	seal by [of] the clerk of the court that granted the letters are
179	179	[is] sufficient evidence of:
180	180	(1) the appointment and qualification of the guardian;
181	181	and
182	182	(2) the date of qualification.
183	183	(b) The court order that appoints the guardian is evidence
184	184	of the authority granted to the guardian and of the scope of the
185	185	powers and duties that the guardian may exercise only after the date
186	186	letters of guardianship [or a certificate has] have been issued
187	187	under Section 1106.001.
188	188	SECTION 12. Section 1151.051(c), Estates Code, is amended
189	189	to read as follows:
190	190	(c) A guardian of the person has:
191	191	(1) the right to have physical possession of the ward
192	192	and to establish the ward's legal domicile;
193	193	(2) the duty to provide care, supervision, and
194	194	protection for the ward;
195	195	(3) the duty to provide the ward with clothing, food,
196	196	medical care, and shelter;
197	197	(4) the power to consent to medical, psychiatric, and
198	198	surgical treatment other than the inpatient psychiatric commitment
199	199	of the ward;
200	200	(5) on application to and order of the court, the power
201	201	to establish a trust in accordance with 42 U.S.C. Section
202	202	1396p(d)(4)(B) and direct that the income of the ward as defined by
203	203	that section be paid directly to the trust, solely for the purpose
204	204	of the ward's eligibility for medical assistance under Chapter 32,
205	205	Human Resources Code; [and]
206	206	(6) the duty to notify the court, as soon as
207	207	practicable, if the ward has died or is admitted to a medical
208	208	facility for acute care for a period of three or more days;
209	209	(7) the duty to notify the court not later than the
210	210	30th day after the date the ward's residence or address has changed;
211	211	(8) the duty to notify the court not later than the
212	212	30th day after the date of a change in the guardian's residence,
213	213	address, phone number, or any other information used by the court to
214	214	contact the guardian; and
215	215	(9) the power to sign documents necessary or
216	216	appropriate to facilitate employment of the ward if:
217	217	(A) the guardian was appointed with full
218	218	authority over the person of the ward under Section 1101.151; or
219	219	(B) the power is specified in the court order
220	220	appointing the guardian with limited powers over the person of the
221	221	ward under Section 1101.152.
222	222	SECTION 13. Section 1155.151(a), Estates Code, is amended
223	223	to read as follows:
224	224	(a) In a guardianship proceeding, the court costs of the
225	225	proceeding, including the costs described by Subsection (a-1),
226	226	shall, except as provided by Subsection (c), be paid as follows, and
227	227	the court shall issue the judgment accordingly:
228	228	(1) out of the guardianship estate, if a guardian of
229	229	the estate has been created for the benefit of the ward and the
230	230	court determines it is in the ward's best interest;
231	231	(2) out of the management trust, if a management trust
232	232	has been created for the benefit of the ward under Chapter 1301 and
233	233	the court determines it is in the ward's best interest;
234	234	(3) by the party to the proceeding who incurred the
235	235	costs, unless that party filed, on the party's own behalf, an
236	236	affidavit of inability to pay the costs under Rule 145, Texas Rules
237	237	of Civil Procedure, that shows the party is unable to afford the
238	238	costs, if:
239	239	(A) there is no guardianship estate or [no]
240	240	management trust that has been created for the ward's benefit; or
241	241	(B) the assets of the guardianship estate or
242	242	management trust, as appropriate, are insufficient to pay the
243	243	costs; or
244	244	(4) out of the county treasury if:
245	245	(A) there is no guardianship estate or management
246	246	trust or the assets of the guardianship estate or management trust,
247	247	as appropriate, are insufficient to pay the costs; and
248	248	(B) the party to the proceeding who incurred the
249	249	costs filed, on the party's own behalf, an affidavit of inability to
250	250	pay the costs under Rule 145, Texas Rules of Civil Procedure, that
251	251	shows the party is unable to afford the costs.
252	252	SECTION 14. Section 1156.052, Estates Code, is amended to
253	253	read as follows:
254	254	Sec. 1156.052. ALLOWANCE FOR WARD'S SPOUSE, MINOR CHILDREN,
255	255	OR INCAPACITATED ADULT CHILDREN [DEPENDENT]. (a) Subject to
256	256	Section 1156.051 and on application to the court, the court may
257	257	order the guardian of the estate of a ward to spend money from the
258	258	ward's estate for the education and maintenance of the ward's
259	259	spouse, minor children, or incapacitated adult children
260	260	[dependent].
261	261	(b) In determining whether to order the expenditure of money
262	262	from a ward's estate for the ward's spouse, minor children, or
263	263	incapacitated adult children [dependent], as appropriate, under
264	264	this section, the court shall consider:
265	265	(1) the circumstances of the ward, the ward's spouse,
266	266	and the ward's minor children and incapacitated adult children
267	267	[dependents];
268	268	(2) the ability and duty of the ward's spouse to
269	269	support himself or herself and the ward's minor children or
270	270	incapacitated adult children [dependent];
271	271	(3) the size of the ward's estate;
272	272	(4) a beneficial interest the ward or the ward's
273	273	spouse, minor children, or incapacitated adult children have [or
274	274	dependent has] in a trust; and
275	275	(5) an existing estate plan, including a trust or
276	276	will, that provides a benefit to the ward's spouse, minor children,
277	277	or incapacitated adult children [dependent].
278	278	(c) A person who makes an application to the court under
279	279	this section shall send [mail] notice of the application by a
280	280	qualified delivery method [certified mail] to all interested
281	281	persons.
282	282	(d) Copies of the notices sent under Subsection (c) must be
283	283	filed with the court with a copy of the proof of delivery receipt
284	284	for each notice sent.
285	285	SECTION 15. Section 1203.006, Estates Code, is amended to
286	286	read as follows:
287	287	Sec. 1203.006. REQUIREMENTS FOR DISCHARGE. (a) A
288	288	guardian applying to resign may not be discharged until:
289	289	(1) the resignation application has been heard;
290	290	(2) the exhibit and final account or report required
291	291	under Section 1203.001 has been examined, settled, and approved;
292	292	and
293	293	(3) the guardian [applicant] has satisfied the court
294	294	that the guardian [applicant] has:
295	295	(A) delivered any estate property remaining in
296	296	the guardian's [applicant's] possession; or
297	297	(B) complied with all court orders relating to
298	298	the guardian's [applicant's] trust as guardian.
299	299	(b) When a guardian applying to resign has fully complied
300	300	with the court orders, the court shall enter an order:
301	301	(1) accepting the resignation; [and]
302	302	(2) discharging the guardian;
303	303	(3) canceling the letters issued to the guardian; and
304	304	(4) [applicant and,] if the guardian [applicant] is
305	305	under bond, discharging and releasing the [applicant's] sureties on
306	306	the guardian's bond.
307	307	SECTION 16. Section 1204.105, Estates Code, is amended by
308	308	adding Subsection (h) to read as follows:
309	309	(h) The guardian of the estate shall file an affidavit sworn
310	310	to by the guardian or a certificate signed by the guardian's
311	311	attorney stating:
312	312	(1) the name of each person to whom citation was served
313	313	under this section, indicating the method of service;
314	314	(2) the name of each person executing a waiver of
315	315	citation under Subsection (d); and
316	316	(3) that each person whose whereabouts are known or
317	317	can be reasonably ascertained who is entitled to citation under
318	318	this section was provided a copy of the account for final
319	319	settlement, indicating the method of delivery for each person to
320	320	whom a copy was provided.
321	321	SECTION 17. Section 1204.151, Estates Code, is amended to
322	322	read as follows:
323	323	Sec. 1204.151. DISCHARGE OF GUARDIAN WHEN NO ESTATE
324	324	PROPERTY REMAINS. The court shall enter an order discharging a
325	325	guardian from the guardian's trust, canceling the letters issued to
326	326	the guardian of the estate, and closing the guardianship estate if,
327	327	on final settlement of the estate, none of the estate remains in the
328	328	guardian's possession.
329	329	SECTION 18. Section 1204.152, Estates Code, is amended to
330	330	read as follows:
331	331	Sec. 1204.152. DISCHARGE OF GUARDIAN WHEN ESTATE FULLY
332	332	ADMINISTERED. The court shall enter an order discharging a
333	333	guardian of the estate from the guardian's trust, canceling the
334	334	letters issued to the guardian of the estate, and declaring the
335	335	estate closed when:
336	336	(1) the guardian has fully administered the estate in
337	337	accordance with this title and the court's orders;
338	338	(2) the guardian's account for final settlement has
339	339	been approved; and
340	340	(3) the guardian has delivered all of the estate
341	341	remaining in the guardian's possession to any person entitled to
342	342	receive the estate.
343	343	SECTION 19. Section 1251.005(a), Estates Code, is amended
344	344	to read as follows:
345	345	(a) On the filing of an application for temporary
346	346	guardianship, the court clerk shall issue:
347	347	(1) citation to be personally served on:
348	348	(A) the proposed ward; and
349	349	(B) the proposed temporary guardian named in the
350	350	application, if that person is not the applicant; and
351	351	(2) notice to be served in the manner provided under
352	352	Rule 21a, Texas Rules of Civil Procedure, on the proposed ward's
353	353	appointed attorney.
354	354	SECTION 20. Section 1023.008, Estates Code, is repealed.
355	355	SECTION 21. (a) Except as otherwise provided by this
356	356	section, the changes in law made by this Act apply to a guardianship
357	357	created before, on, or after the effective date of this Act.
358	358	(b) Sections 1023.002(c), 1023.004(a) and (c), 1023.005(c),
359	359	1023.006, and 1023.007, Estates Code, as amended by this Act, and
360	360	Section 1023.0071, Estates Code, as added by this Act, apply only to
361	361	an application filed or motion made to transfer a guardianship on or
362	362	after the effective date of this Act.
363	363	(c) Sections 1023.006, 1156.052, and 1251.005(a), Estates
364	364	Code, as amended by this Act, apply only to an application filed on
365	365	or after the effective date of this Act. An application filed
366	366	before the effective date of this Act is governed by the law in
367	367	effect on the date the application was filed, and the former law is
368	368	continued in effect for that purpose.
369	369	SECTION 22. This Act takes effect September 1, 2023.