Bill Text: TX SB2248 | 2023-2024 | 88th Legislature | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to guardianships for persons who are incapacitated; changing a fee.

Spectrum: Bipartisan Bill

Status: (Vetoed) 2023-06-18 - Vetoed by the Governor [SB2248 Detail]

Download: Texas-2023-SB2248-Comm_Sub.html

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By: Zaffirini S.B. No. 2248
(In the Senate - Filed March 10, 2023; March 22, 2023, read
first time and referred to Committee on Jurisprudence;
April 24, 2023, reported favorably by the following vote: Yeas 5,
Nays 0; April 24, 2023, 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. Sections 1023.004(a) and (c), Estates Code, are
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
certified mail, return receipt requested, [personal service] to
appear and show cause why the guardianship should not be
transferred.
(c) If a court made a motion to transfer a guardianship, the
guardian shall be given notice by certified mail, return receipt
requested, 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. Section 1023.006, Estates Code, is amended to
read as follows:
Sec. 1023.006. TRANSFER OF RECORD. (a) When an order of
transfer is made under Section 1023.002 or 1023.005, the clerk of
the court transferring a proceeding shall, using the electronic
filing system established under Section 72.031, Government Code,
send to the proper court in the county to which the transfer is
made:
(1) a transfer certificate and certified index of
transferred documents;
(2) a copy of each order, including a copy of the order
of transfer signed by the transferring court;
(3) a copy of the original papers filed in the
transferring court, including any papers previously received on
transfer from a court in another county;
(4) a copy of the transfer certificate and certified
index of transferred documents from each previous transfer, if
applicable; and
(5) a bill of any costs that have accrued in the
transferring court.
(b) The clerk of the transferring court shall use the
standardized transfer certificate and index of transferred
documents form created 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
transferred pleadings, orders, and all other papers filed into the
case record.
(d) The clerk of the transferee court shall, subject to
Section 1023.005, accept the documents transferred under
Subsection (a) and docket the case.
(e) The clerk of the transferee court shall physically or
electronically mark or stamp the transfer certificate and index of
transferred documents to evidence the date and time of acceptance
under Subsection (c) but may not physically or electronically mark
or stamp any other document transferred under Subsection (a).
(f) Sections 80.001 and 80.002, Government Code, do not
apply to the transfer of documents under this section [shall record
any unrecorded papers of the guardianship required to be
recorded. On payment of the clerk's fee, the clerk shall transmit
in electronic or paper form to the county clerk of the county to
which the guardianship was ordered transferred:
[(1) the case file of the guardianship proceedings;
and
[(2) a certified copy of the index of the guardianship
records].
SECTION 5. Section 1023.007, Estates Code, is amended to
read as follows:
Sec. 1023.007. TRANSFER EFFECTIVE. The order transferring
a guardianship does not take effect until:
(1) the case file and a certified copy of the index
required by Section 1023.006 are filed in electronic or paper form
in the office of the county clerk of the county to which the
guardianship was ordered transferred; and
(2) a certificate under the court's [clerk's] official
seal and reporting the filing of the case file and a certified copy
of the index is filed using the electronic filing system
established under Section 72.031, Government Code, [in electronic
or paper form] in the court ordering the transfer by the county
clerk of the county to which the guardianship was ordered
transferred.
SECTION 6. 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 7. Subchapter I, Chapter 1104, Estates Code, is
amended by adding Section 1104.4015 to read as follows:
Sec. 1104.4015. CRIMINAL HISTORY RECORD INFORMATION
REQUIRED. A court may not appoint an individual to serve as
guardian or temporary guardian under this title unless the criminal
history record information relating to the proposed guardian has
been:
(1) provided to the court by the Judicial Branch
Certification Commission in accordance with Subchapter E, Chapter
155, Government Code; and
(2) considered by the court as required by Section
1104.409.
SECTION 8. Section 1104.405, Estates Code, is amended to
read as follows:
Sec. 1104.405. INFORMATION FOR EXCLUSIVE USE OF
COURT. (a) Criminal history record information [obtained or]
provided to the court as specified under Section 1104.4015
[1104.402, 1104.403, or 1104.404] is privileged and confidential
and is for the exclusive use of the court. The criminal history
record information may not be released or otherwise disclosed to
any person or agency except on court order or consent of the person
being investigated.
(b) The county clerk shall [may] destroy the criminal
history record information after the information is used for the
purposes authorized by this subchapter.
SECTION 9. Section 1104.408(a), Estates Code, is amended to
read as follows:
(a) Criminal history record information obtained under
Section 1104.407 is privileged and confidential and is for the
exclusive use of the court or guardianship certification program of
the Judicial Branch Certification Commission, as appropriate. The
information may not be released or otherwise disclosed to any
person or agency except:
(1) on court order;
(2) with the consent of the person being investigated;
or
(3) as authorized by [Section 1104.404 of this code
or] Section 411.1386(a-6), Government Code.
SECTION 10. 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 11. 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 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. 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 15. Section 1155.151(a), Estates Code, is amended
to read as follows:
(a) In a guardianship proceeding, the court costs of the
proceeding, including the costs described by Subsection (a-1),
shall, except as provided by Subsection (c), be paid as follows, and
the court shall issue the judgment accordingly:
(1) out of the guardianship estate, if a guardian of
the estate has been created for the benefit of the ward and the
court determines it is in the ward's best interest;
(2) out of the management trust, if a management trust
has been created for the benefit of the ward under Chapter 1301 and
the court determines it is in the ward's best interest;
(3) by the party to the proceeding who incurred the
costs, unless that party filed, on the party's own behalf, an
affidavit of inability to pay the costs under Rule 145, Texas Rules
of Civil Procedure, that shows the party is unable to afford the
costs, if:
(A) there is no guardianship estate or [no]
management trust that has been created for the ward's benefit; or
(B) the assets of the guardianship estate or
management trust, as appropriate, are insufficient to pay the
costs; or
(4) out of the county treasury if:
(A) there is no guardianship estate or management
trust or the assets of the guardianship estate or management trust,
as appropriate, are insufficient to pay the costs; and
(B) the party to the proceeding who incurred the
costs filed, on the party's own behalf, an affidavit of inability to
pay the costs under Rule 145, Texas Rules of Civil Procedure, that
shows the party is unable to afford the costs.
SECTION 16. 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]. (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].
(c) A person who makes an application to the court under
this section shall mail notice of the application by certified
mail, return receipt requested, to all interested persons.
(d) Copies of the notices mailed under Subsection (c) must
be filed with the court with a copy of the certified mail return
receipt for each notice mailed.
SECTION 17. 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 18. 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 19. 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 20. 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 21. 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 in the manner provided under
Rule 21a, Texas Rules of Civil Procedure, on the proposed ward's
appointed attorney.
SECTION 22. Section 411.1386(d), Government Code, is
amended to read as follows:
(d) The criminal history record information obtained under
Subsection (a-4) is for the exclusive use of the court or
guardianship certification program of the Judicial Branch
Certification Commission, as appropriate, and is privileged and
confidential. The information may not be released or otherwise
disclosed to any person or agency except on court order, with the
consent of the person being investigated, or as authorized by
Subsection (a-6) [or Section 1104.404, Estates Code]. The county
clerk or guardianship certification program of the Judicial Branch
Certification Commission may destroy the criminal history record
information after the information is used for the purposes
authorized by this section.
SECTION 23. Section 411.1408(c), Government Code, is
amended to read as follows:
(c) Criminal history record information obtained by the
commission under Subsection (b):
(1) may be used by the commission for any purpose
related to the issuance, denial, suspension, revocation, or renewal
of a certificate, registration, or license issued by the commission
or otherwise under Subtitle L, Title 2;
(2) may not be released or disclosed to any person
except:
(A) on court order;
(B) with the consent of the person who is the
subject of the information; or
(C) as authorized by Section 411.1386(a-6) [of
this code or Section 1104.404, Estates Code], if applicable; and
(3) shall be destroyed by the commission after the
information is used for the authorized purposes.
SECTION 24. The following provisions of the Estates Code
are repealed:
(1) Section 1023.008;
(2) Section 1104.402;
(3) Section 1104.403; and
(4) Section 1104.404.
SECTION 25. (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) and (c), 1023.005(c),
1023.006, and 1023.007, 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.
(c) Sections 1023.006, 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 26. This Act takes effect September 1, 2023.
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