By: Zaffirini S.B. No. 1760
(In the Senate - Filed February 28, 2025; March 13, 2025,
read first time and referred to Committee on Jurisprudence;
April 10, 2025, reported favorably by the following vote: Yeas 5,
Nays 0; April 10, 2025, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to guardianships for persons who are incapacitated;
changing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1023.002(c), Estates Code, is amended to
read as follows:
(c) If it appears to the court at any time before the
guardianship is closed that the proceeding was commenced in a court
that did not have venue over the proceeding, the court shall, on the
application of any interested person, transfer the proceeding to
the proper county in the manner prescribed by Section 1023.006.
SECTION 2. Section 1023.004(a), Estates Code, is amended to
read as follows:
(a) On filing an application or on motion of a court to
transfer a guardianship to another county under Section 1023.002 or
1023.003, the sureties on the bond of the guardian shall be cited by
a qualified delivery method [personal service] to appear and show
cause why the guardianship should not be transferred.
SECTION 3. Section 1023.005(c), Estates Code, is amended to
read as follows:
(c) On receipt of an order described by Subsection (a), the
clerk of the court to which the guardianship is transferred
[county] shall accept the transfer of the guardianship.
SECTION 4. Sections 1023.006(a), (b), (c), (d), (e), and
(g), Estates Code, are amended to read as follows:
(a) Not later than the 10th working day after the date an
order of transfer is signed under Section 1023.002 or 1023.005, the
clerk shall record any unrecorded papers of the guardianship
required to be recorded. On payment of the clerk's fee, the clerk
shall send, using the electronic filing system established under
Section 72.031, Government Code, to the county clerk of the county
to which the guardianship was ordered transferred:
(1) a transfer certificate and certified index of
transferred documents;
(2) a copy of each [final] order;
(3) a copy of the order of transfer signed by the
transferring court;
(4) a copy of the original papers filed in the
transferring court, including any papers previously received on
transfer from a court in another county;
(5) a copy of the transfer certificate and certified
index of transferred documents from each previous transfer, if
applicable; and
(6) a bill of any costs accrued in the transferring
court.
(b) The clerk of the transferring court shall use the
standardized transfer certificate and certified index of
transferred documents form developed by the Office of Court
Administration of the Texas Judicial System under Section 72.037,
Government Code, when transferring a proceeding under this section.
(c) The clerk of the transferring court shall keep a copy of
the documents transferred under Subsection (a), including
transferred pleadings, orders, and all other papers filed into the
case record.
(d) The clerk of the court to which the proceeding is
transferred shall, subject to Section 1023.005:
(1) accept documents transferred under Subsection
(a);
(2) docket the proceeding [suit]; and
(3) notify, using the electronic filing system
established under Section 72.031, Government Code, all parties, the
clerk of the transferring court, and, if appropriate, the
transferring court's local registry that the proceeding [suit] has
been docketed.
(e) The clerk of the transferee court shall physically or
electronically mark or stamp the transfer certificate and certified
index of transferred documents to evidence the date and time of
acceptance under Subsection (d), but may not physically or
electronically mark or stamp any other document transferred under
Subsection (a).
(g) The clerks of both the transferee and transferring
courts may each produce under Chapter 51, Government Code,
certified or uncertified copies of documents transferred under
Subsection (a) but must include a copy of the transfer certificate
and certified index of transferred documents with each document
produced.
SECTION 5. Chapter 1023, Estates Code, is amended by adding
Section 1023.0071 to read as follows:
Sec. 1023.0071. TRANSFER FEE. (a) The fee for filing a
guardianship case transferred from another county under this
chapter in which the guardian has previously been appointed and
qualified in accordance with this title is $45 payable to the clerk
of the court to which the case is transferred. No portion of this
fee may be sent to the state.
(b) A party may not be assessed any other filing fee by the
clerk of the court to which the guardianship is transferred in
connection with the filing and docketing of the transferred case.
(c) To the extent that this section conflicts with another
state statute, the Texas Rules of Civil Procedure, or other rules,
this section prevails.
SECTION 6. Section 1105.157, Estates Code, is amended by
amending Subsections (a) and (d) and adding Subsection (d-1) to
read as follows:
(a) Instead of giving a surety or sureties on a bond, or to
reduce the amount of a bond, the guardian of an estate may deposit
the guardian's own cash or securities acceptable to the court with:
(1) a financial institution as defined by Section
201.101, Finance Code, that has its main office or a branch office
in this state; or
(2) the registry of the court, for which the clerk of
the court shall issue a receipt.
(d) A receipt issued by a depository under Subsection (c) or
a record of deposit to the registry of the court must be attached to
the guardian's bond and must be in substantially the following
form:
The State of Texas
County of ________ (insert name of county)
Know all persons by these presents that I/we, ___________
(name of each principal), as principal, have deposited cash or
securities as evidenced by the attached receipt or record of
deposit issued by _____ (name of depository where cash or
securities are deposited or the name of the court) on _____ (date of
deposit), are held and firmly bound to the judge of ______ (insert
reference to appropriate judge), and that judge's successors in
office, in the sum of $______, having been so deposited;
conditioned that the above bound principal or principals, appointed
by the judge as guardian or temporary guardian of the person or of
the estate, or both, of _________(name of ward and whether the
person is a minor or is an incapacitated person other than a minor),
shall well and truly perform all of the duties required of the
guardian or temporary guardian by law under appointment.
(d-1) The guardian's bond and depository receipt, if
applicable, shall [and] be delivered to and filed by the county
clerk after the bond [receipt] is approved by the judge.
SECTION 7. Section 1151.051(c), Estates Code, is amended to
read as follows:
(c) A guardian of the person has:
(1) the right to have physical possession of the ward
and to establish the ward's legal domicile;
(2) the duty to provide care, supervision, and
protection for the ward;
(3) the duty to provide the ward with clothing, food,
medical care, and shelter;
(4) the power to consent to medical, psychiatric, and
surgical treatment other than the inpatient psychiatric commitment
of the ward;
(5) on application to and order of the court, the power
to establish a trust in accordance with 42 U.S.C. Section
1396p(d)(4)(B) and direct that the income of the ward as defined by
that section be paid directly to the trust, solely for the purpose
of the ward's eligibility for medical assistance under Chapter 32,
Human Resources Code; [and]
(6) the duty to notify the court, as soon as
practicable, if the ward has died or is admitted to a medical
facility for acute care for a period of three or more days;
(7) the duty to notify the court not later than the
30th day after the date the ward's residence or address has changed;
(8) the duty to notify the court not later than the
30th day after the date of a change in the guardian's residence,
address, phone number, or any other information used by the court to
contact the guardian; and
(9) the power to sign documents necessary or
appropriate to facilitate employment of the ward if:
(A) the guardian was appointed with full
authority over the person of the ward under Section 1101.151; or
(B) the power is specified in the court order
appointing the guardian with limited powers over the person of the
ward under Section 1101.152.
SECTION 8. The heading to Section 1156.052, Estates Code,
is amended to read as follows:
Sec. 1156.052. ALLOWANCE FOR WARD'S SPOUSE, MINOR CHILDREN,
OR INCAPACITATED ADULT CHILDREN [DEPENDENT].
SECTION 9. Section 1156.052, Estates Code, is amended by
amending Subsections (a) and (b) and adding Subsection (d) to read
as follows:
(a) Subject to Section 1156.051 and on application to the
court, the court may order the guardian of the estate of a ward to
spend money from the ward's estate for the education and
maintenance of the ward's spouse, minor children, or incapacitated
adult children [dependent].
(b) In determining whether to order the expenditure of money
from a ward's estate for the ward's spouse, minor children, or
incapacitated adult children [dependent], as appropriate, under
this section, the court shall consider:
(1) the circumstances of the ward, the ward's spouse,
and the ward's minor children and incapacitated adult children
[dependents];
(2) the ability and duty of the ward's spouse to
support himself or herself and the ward's minor children or
incapacitated adult children [dependent];
(3) the size of the ward's estate;
(4) a beneficial interest the ward or the ward's
spouse, minor children, or incapacitated adult children have [or
dependent has] in a trust; and
(5) an existing estate plan, including a trust or
will, that provides a benefit to the ward's spouse, minor children,
or incapacitated adult children [dependent].
(d) Copies of the notices sent under Subsection (c) must be
filed with the court with a copy of the proof of delivery receipt
for each notice sent.
SECTION 10. Section 1203.006, Estates Code, is amended to
read as follows:
Sec. 1203.006. REQUIREMENTS FOR DISCHARGE. (a) A
guardian applying to resign may not be discharged until:
(1) the resignation application has been heard;
(2) the exhibit and final account or report required
under Section 1203.001 has been examined, settled, and approved;
and
(3) the guardian [applicant] has satisfied the court
that the guardian [applicant] has:
(A) delivered any estate property remaining in
the guardian's [applicant's] possession; or
(B) complied with all court orders relating to
the guardian's [applicant's] trust as guardian.
(b) When a guardian applying to resign has fully complied
with the court orders, the court shall enter an order:
(1) accepting the resignation; [and]
(2) discharging the guardian;
(3) canceling the letters issued to the guardian; and
(4) [applicant and,] if the guardian [applicant] is
under bond, discharging and releasing the [applicant's] sureties on
the guardian's bond.
SECTION 11. Section 1204.105, Estates Code, is amended by
adding Subsection (h) to read as follows:
(h) The guardian of the estate shall file an affidavit sworn
to by the guardian or a certificate signed by the guardian's
attorney stating:
(1) the name of each person to whom citation was served
under this section, indicating the method of service;
(2) the name of each person executing a waiver of
citation under Subsection (d); and
(3) that each person whose whereabouts are known or
can be reasonably ascertained who is entitled to citation under
this section was provided a copy of the account for final
settlement, indicating the method of delivery for each person to
whom a copy was provided.
SECTION 12. Section 1204.151, Estates Code, is amended to
read as follows:
Sec. 1204.151. DISCHARGE OF GUARDIAN WHEN NO ESTATE
PROPERTY REMAINS. The court shall enter an order discharging a
guardian from the guardian's trust, canceling the letters issued to
the guardian of the estate, and closing the guardianship estate if,
on final settlement of the estate, none of the estate remains in the
guardian's possession.
SECTION 13. Section 1204.152, Estates Code, is amended to
read as follows:
Sec. 1204.152. DISCHARGE OF GUARDIAN WHEN ESTATE FULLY
ADMINISTERED. The court shall enter an order discharging a
guardian of the estate from the guardian's trust, canceling the
letters issued to the guardian of the estate, and declaring the
estate closed when:
(1) the guardian has fully administered the estate in
accordance with this title and the court's orders;
(2) the guardian's account for final settlement has
been approved; and
(3) the guardian has delivered all of the estate
remaining in the guardian's possession to any person entitled to
receive the estate.
SECTION 14. Section 1251.005(a), Estates Code, is amended
to read as follows:
(a) On the filing of an application for temporary
guardianship, the court clerk shall issue:
(1) citation to be personally served on:
(A) the proposed ward; and
(B) the proposed temporary guardian named in the
application, if that person is not the applicant; and
(2) notice to be served on the proposed ward's
appointed attorney.
SECTION 15. Section 1023.008, Estates Code, is repealed.
SECTION 16. (a) Except as otherwise provided by this
section, the changes in law made by this Act apply to a guardianship
created before, on, or after the effective date of this Act.
(b) Sections 1023.002(c), 1023.004(a), 1023.005(c), and
1023.006(a), (b), (c), (d), (e), and (g), Estates Code, as amended
by this Act, and Section 1023.0071, Estates Code, as added by this
Act, apply only to an application filed or motion made to transfer a
guardianship on or after the effective date of this Act. An
application filed or motion made before the effective date of this
Act is governed by the law in effect on the date the application was
filed or motion was made, and the former law is continued in effect
for that purpose.
(c) Sections 1156.052 and 1251.005(a), Estates Code, as
amended by this Act, apply only to an application filed on or after
the effective date of this Act. An application 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.
SECTION 17. This Act takes effect September 1, 2025.
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