2005 Pending Legislation

2005 Pending Legislation

Here is Glenn Karisch's subjective list of pending legislation affecting decedents' estates, guardianship and trust law. It is arranged by subject and listed roughly in order of importance within each heading. Click on the bill number to get information of the bill (bill status, text of bill, etc.) from Texas Legislature Online. References to "REPTL" are to the Real Estate, Probate and Trust Law Section of the State Bar of Texas, which sponsors legislation relating to guardianship, probate and trust law.

Contents

Guardianship Legislation
Decedents' Estates Legislation
Trust Legislation
Power of Attorney/Disability Planning Legislation
Marital Property Legislation
Jurisdictional Legislation
Medicaid/Elder Law Legislation
Other Legislation

Guardianship Legislation

Neglect of Ward Grounds for Removal Without Notice. Currently, a guardian who "cruelly treats" a ward may be removed without notice. HB 230 (Hartnett) amends Probate Code §761 to authorize the court to remove a guardian without notice who "cruelly treats or neglects" a ward.

Guardians Ad Litem and Court Investigators in Restoration/Modification Proceedings. Section 694A of the Probate Code permits a ward to provide an informal letter to the court supervising the guardianship requesting a modification of the guardianship or full restoration of the ward's capacity. Currently, Section 694A(c) provides that, upon receipt of such a letter, the court shall appoint the court investigator or a guardian ad litem, who is then required to file an application for modification or restoration. HB 1191 (Hartnett) is REPTL legislation that changes this section so that the court investigator or guardian ad litem is required to investigate the situation and report to the court, but the court investigator or guardian ad litem is required to file an application for restoration or modification only if he or she determines that such filing is in the best interest of the ward. HB 1191 also makes a corresponding change to Section 672.

Buying and Selling Securities Pursuant to Investment Plan. Section 855B of the Probate Code was amended in 2003 to require guardians of the estate to submit an investment plan for approval to the court. If the investment plan approved by the court calls for the buying and selling of securities along the guidelines set in the plan, then there is no reason that the guardian should have to follow the sale of personal property provisions (which may require issuing citation) in the guardianship chapter of the Code. HB 1191 (Hartnett) is REPTL legislation that amends Section 855B to make it clear that a guardian may sell securities pursuant to a court-approved investment plan without having to meet the citation requirements for sales of personal property. (If the court wants the guardian to be subject to those rules, it can so order in the investment plan.)

Application of the Monthly Allowance. Section 776 of the Probate Code currently states that a guardian of the estate shall pay to the guardian of the person the monthly allowance set by the court. In those situations in which the guardian of the estate and guardian of the person are different, it should not be required that all of the monthly allowance be delivered to the guardian of the person as opposed to service providers, such as nursing home, etc. This should be determined by the court when setting the monthly allowance. HB 1191 (Hartnett) is REPTL legislation that amends Section 776 to permit the court to provide for a different application of the monthly allowance.

Presumption of Incapacity in Temporary Guardianships. In 2003, Section 875 of the Probate Code was amended to delete this sentence: "A person for whom a temporary guardian has been appointed may not be presumed to be incapacitated." Deleting this sentence called into question whether the appointment of a temporary guardian, which may occur without all of the safeguards of a full guardianship proceeding, constitutes a finding of incapacity that could have adverse consequences for the ward, even though he or she may later be found not to be incapacitated. HB 1191 (Hartnett) is REPTL legislation that, in effect, replaces the sentence deleted in 2003 by adding new Section 874 to the Probate Code.

Home Equity Loans When Minor Owns Interest in Residence Homestead. HB 637 (Goolsby) adds Sections 889A and 890A to the Probate Code to permit certain persons to apply to the probate court for a home equity loan in cases where a minor owns an interest in a residence homestead. The minor's interest must be worth less than $100,000. The loan is subject to court approval. The minor may not "disaffirm" the mortgage. Under Section 889A, a natural or adoptive parent (so long as he or she has an interest in the residence homestead) or a managing conservator may apply for the loan without the need for a guardianship. Under Section 890A, the guardian of the estate of a ward may apply for the loan. In both cases, the loan proceeds "attributable to the minor's interest" may only be used to make improvements to the property, pay for education or medical expenses of the minor or pay the outstanding balance on the loan.

Cleaning Up the Code. Each year there are bills which clean up mistaken cross-references, change outdated terminology or correct similar minor problems in the statutes. In 2003, the deadline for a guardian of the estate to file his or her inventory, appraisement and list of claims was shortened from 90 days to 30 days. HB 1191 (Hartnett) and SB 346 (Wentworth) amend Section 761 of the Probate Code to provide that the court may remove a guardian who fails to file an inventory within 30 days of qualification, rather than 90 days. HB 1191 (Hartnett) amends Sections 615 and 616 of the Probate Code to clarify what happens to the file when a guardianship case is transferred. HB 1191 (Hartnett) also cleans up a mistaken cross-reference in Section 788 and deletes superfluous references to a decedent's estate in Section 831.

Decedents' Estates Legislation

Effect of Divorce on Living Trusts, etc. HB 1186 (Hartnett) is REPTL legislation that creates a new Chapter XI-A of the Probate Code (new Sections 471 through 475) to have a more universal rule about the effect of a divorce on prior estate planning devices. While Texas has several specific statutes on this subject regarding wills, powers of attorney, life insurance and retirement plans, no such statute covers living trusts or other types of nontestamentary transfers. HB 1186 provides that trusts, etc., which are revocable by the decedent spouse that benefit the former spouse or name the former spouse in a fiduciary capacity treat the former spouse as having disclaimed or predeceased the decedent spouse, unless the instrument is re-executed or unless a court order or contract provides otherwise. Similarly, accounts with right of survivorship or POD designations are are severed into tenants in common accounts.

Nonexoneration of Liens. HB 1186 (Hartnett) is REPTL legislation that would reverse the common law exoneration of liens doctrine in Texas. HB 1186 would add new Section 71A to the Probate Code to provide that, unless the will provides to the contrary, a specific devise of property passes to the devisee subject to any liens securing debt. Creditors' rights are protected, and there is a procedure for paying the debt if a creditor elects matured secured status. The bill also makes a corresponding change to Section 306 of the Probate Code.

Good Cause Required for Appointment of Appraisers. SB 347 (Wentworth) would amend Probate Code Sections 248 and 727 to require a good cause showing before the court is required to appoint appraisers for estate property in decedents' estates and guardianships.

Inheritance Rights of Adopted Adults. Probate Code §40 now provides that an adopted child retains the right to inherit (as an intestate heir) from his or her natural (birth) parents. HB 204 (Goodman) amends Probate Code §40 and Family Code §162.507 to provide that a person who is adopted when he or she is an adult does not retain the right to inherit from his or her birth parents.

Estate Tax/State Inheritance Tax. SB 73 (Shapleigh) would change Texas's "soak up" inheritance tax (which goes away when the state death tax credit for federal estate tax goes away) with a tax which is tied to what the state death tax credit was on December 31, 2000, before the state death tax phaseout.

Death Certificate Delay? HB 929 (Dutton) may delay the availability of death certificates, since it gives the person required to file the death certificate 10 days from the receipt of certain information, rather than 10 days from the date of death, to file the certificate. This may make it harder to have the death certificate available in time for the probate hearing.

Cleaning Up the Code. Each year there are bills which clean up mistaken cross-references, change outdated terminology or correct similar minor problems in the statutes. HB 1186 (Hartnett) is REPTL legislation which clarifies Section 58b of the Probate Code. Currently, a testamentary gift to an "heir or employee" of the attorney who prepared the will is void (with some exceptions). HB 1186 removes the word "heir" and replaces it with a description of the family members of the lawyer who are within the group of prohibited devisees. HB 1186 also cleans up Section 271 and 272 by removing references to the homestead rights of unmarried adult children living at home, since they do not have those rights.

Trust Legislation

UTC Concepts into Texas Trust Code. REPTL conducted a multiyear study of the new Uniform Trust Code, adopted by the National Council of Commissioners on Uniform State Laws (NCCUSL) in 2000, and concluded that the Texas Trust Code is familiar to Texans, is superior to the UTC in many ways and should be retained. However, REPTL concluded that Texas should: (1) adopt the two UPIAs -- the Uniform Prudent Investor Act and the Uniform Principal and Income Act -- which were enacted in 2003; and (2) pick up some of the better UTC provisions and incorporate them into the Texas Trust Code. HB 1190 (Hartnett) is REPTL legislation which picks up many UTC provisions and incorporates them in the Texas Trust Code.

Default and Mandatory Rules. It is hornbook trust law that there are limits on what a settlor can do in a trust instrument and still have a trust. For example, in order for a trust to be a trust, the trustee must have some duty to account to someone. The UTC recognizes this principle and contains a section listing default and mandatory rules -- mandatory rules being rules which applied notwithstanding contrary terms in the trust instrument. The Texas Supreme Court decision in Texas Commerce Bank, N. A. v. Grizzle, 96 S. W. 3d 240 (Tex. 2002), was a wakeup call on this point in Texas. Currently, Section 111.002 of the Trust Code provides that the terms of the trust control over the Trust Code except for two corporate self-dealing rules (Sections 113.052 and 113.053). In Grizzle, the Supreme Court cited this section and stated, or at least implied, that those two sections were the only limits in Texas on a settlor's ability to alter the terms of a trust. Grizzle was an exculpatory clause case, and in 2003 the Texas Legislature responded with HB 3503, which made it clear that, notwithstanding Grizzle, a settlor can't exculpate the trustee from liability for breaches of trust committed in bad faith, intentionally or with reckless indifference to the interest of the beneficiary. However, HB 3503 did not address the other "mandatory" rules of a trust. HB 1190 does that. It amends Section 111.002 and adds Section 111.0035 to the Trust Code, which contains a laundry list of things which cannot be overridden in the trust instrument, including the duty to account to first-tier beneficiaries and the authority of a court to act with respect to the trust.
Judicial Modification and Termination of Trusts. HB 1190 follows the UTC's lead in expanding the bases for modifying or terminating an irrevocable trust by court action. Changes to Section 112.054 should make it easier to modify or terminate a trust in appropriate cases.
Trust for Care of Animal. HB 1190 follows the UTC's lead by adding Section 112.037 to the Trust Code, which permits trusts for the care of animals. The statute permits such trusts only for animals that are alive during the settlor's lifetime. The statute addresses issues such as who may enforce the trust and what happens to the trust property when the animal or animals die.
Division and Combination of Trusts. Most well-drafted trusts permit division of one trust into two or more trusts or the combination of two or more trusts into one trust in various circumstances. Currently, Section 112.057 of the Trust Code permits division or combination in cases where the trust instrument is silent only for tax reasons. HB 1190 amends this section to permit division or combination of trusts for any reason, so long as the rights of beneficiaries are not impaired and the achievement of the purposes of the trust is not adversely affected.
Another Option for Distributions to Minor and Incapacitated Beneficiaries. Most well-drafted trusts contain a "facility of payment" provision giving the trustee various options iin making distributions to or for the benefit of a beneficiary. Section 113.021 of the Trust Code is a default provision for trusts with no specific facility of payment provision. Currently it gives the trustee various options when making distributions to or for the benefit of a minor or incapacitated beneficiary, including making the distribution to a Uniform Transfers for Minors Act (UTMA) account. HB 1190 adds one more distribution option -- it permits the trustee to manage the distribution as a separate fund for the beneficiary, subject to the beneficiary's continuing right to withdraw the distribution. This will permit the trustee in the appropriate case to hold onto the money until the beneficiary obtains majority or regains capacity.
Non Pro Rata Trust Distributions. HB 1190 adds Section 113.027 to the Trust Code, which permits a trustee to make non pro rata distributions and divisions of trust property.
Other UTC-Inspired Changes. HB 1190 also makes the following changes based on similar UTC provisions:
- Section 111.004 -- Definition of "settlor" revised; "breach of trust" defined.
- Section 112.009 -- Permits a person named as trustee to take limited actions to preserve or investigate trust property without accepting the trust.
- Section 113.003 -- Authorizes granting, acquiring and exercising options.
- Section 113.051 -- Adds "good faith" to the trustee's general duty.
- Section 113.058 -- Makes it clear that a court may order a trustee to post a bond in an appropriate case even if the trust instrument does not require a bond.
- Sections 113.085 and 114.006 -- Clarifies rules for multiple trustees.
- Section 114.003 -- Clarifies rules when someone other than the trustee is given power to modify or terminate a trust (such as so-called "trust protectors"), and makes it clear that someone in that capacity owes fiduciary duties to the beneficiaries.
- Section 114.008 -- Lists the remedies for breach of trust.
- Section 115.014 -- Permits a guardian ad litem to consider the general benefit accruing to the living members of his client's family.

Clarifying Spendthrift Rules. HB 1190 (Hartnett) is REPTL legislation which amends Section 112.035 to clarify how spendthrift trusts work in Texas in light of the publication in 2003 of Volumes 1 and 2 of the Restatement, Third, of Trusts, by the American Law Institute. HB 1190 clarifies, for example, that spendthrift protection is not lost if the surviving spouse is made the trustee of a bypass trust, so long as his or her power as trustee to make distributions to himself or herself is limited by an ascertainable standard such as health, education, maintenance and support.

Uniform Principal and Income Act Fixes. HB 1190 (Hartnett) is REPTL legislation which fixes two provisions of the Uniform Principal and Income Act enacted in 2003. First, it fixes the garbled language in Section 116.172 regarding deferred compensation plans that made that section almost impossible to administer. The change clarifies what was intended in 2003. Second, it eliminates Section 116.005(c)(1). When it was enacted, Section 116.005(c)(1) was necessary because a power to adjust that could reduce income jeopardized the qualified terminable interest property (QTIP) status of a marital trust for federal estate tax purposes. Since enactment, Treasury Regulation 1.643(b)-1 (effective January 2, 2004) makes it clear that an adjustment meeting the regulation's requirements that reduces income in a QTIP trust does not disqualify the trust. Repeal of subsection (c)(1) gives the trustee greater flexibility in administering QTIP trusts.

Authority of Court in Trust Cases. HB 1190 (Hartnett) is REPTL legislation which amends Section 115.001 of the Trust Code to clarify that a court may intervene in the administration of a trust to the extent its jurisdiction is properly invoked, but that a trust is not subject to continuing judicial supervision unless the court orders such supervision.

Increasing the Notice Required to be Given to the Attorney General in Charitable Trust Litigation. Currently, under Tex. Prop. Code §123.003, the attorney general must be given notice of litigation involving a charitable trust within 30 days of filing and at least 10 days prior to a hearing in the proceeding. HB 934 (Taylor) increases the 10 days to 15 business days, so litigants cannot have a hearing in the proceeding until 15 business days had elapsed from the time the attorney general is given notice.

Cleaning Up the Code. Each year there are bills which clean up mistaken cross-references, change outdated terminology or correct similar minor problems in the statutes. HB 1190 (Hartnett) is REPTL legislation that cleans up references to the Uniform Transfers to Minors Act in Sections 113.021 and 113.171 of the Trust Code, cleans up language regarding trustee removal in Section 113.082, moves the statute on exculpation provisions from the "Duties of Trustee" part of the Code (Section 113.059) to the "Liability of Trustee" part (Section 114.007), combines the two Trust Code sections which permit beneficiaries to waive or release trustee liability (Sections 114.005 and 114.032) into one (Section 114.032), and fixes a reference to the Texas Trust Code in Property Code Section 121.003.

Power of Attorney/Disability Planning Legislation

Marital Property Legislation

Can a Premarital Agreement Deny Spousal Maintenance? Currently Section 4.003 of the Family Code permits parties in a premarital agreement to contract regarding a number of issues, including the modification or elimination of spousal support. HB 1175 (Dutton) would amend that section to prohibit the parties to a premarital agreement from agreeing to modify or eliminate spousal support as may be ordered as maintenance under Subchapter B, Chapter 8 of the Family Code.

Effect of Divorce on Survivorship and POD Accounts. HB 1176 (Dutton) would add Section 9.303 to the Family Code to provide that pre-divorce survivorship or POD designations in favor of a spouse are not effective if the spouses divorce, unless the divorce decree so orders or the account holder re-executes the account agreement with the same designation after the divorce. HB 1176 may be inconsistent with HB 1186 (Hartnett), since under HB 1176 the property in the account passes to the other survivorship parties or POD beneficiaries, while under HB 1186 the property interest is severed and is then held as tenants in common.

Income from Partitioned Property. Family Code §4.102 now provides that a spousal partition of community property into separate property includes the income from the property "unless the spouses agree in a record that the future earnings and income will be community property after the partition or exchange." HB 202 (Goodman) in effect reverses the presumption, providing that the partition agreement "may also provide that future earnings and income arising from the transferred property shall be the separate property of the owning spouse."

Determining Separate/Community Interests in Retirement Plans, Options and Insurance Proceeds. HB 206 (Goodman) and HB 410 (Goodman) add Family Code §§3.007 and 3.008, which attempt to specify how to calculate the separate and community property shares of retirement plans, stock options and certain insurance proceeds when a person marries while such plans, options and policies are in effect.

Jurisdictional Legislation

Jurisdiction over Testamentary Trusts. Amendments to Probate Code Sections 5 and 5A in 2003 called into question which courts have jurisdiction to hear cases involving testamentary trusts. (Click here to read 2003's legislative update for more information.) SB 349 (Wentworth) would solve that question by amending Section 5 of the Probate Code to add new subsection (e-1), which provides that, in counties with a statutory probate court, the statutory probate court has exclusive jurisdiction over testamentary trusts, while in counties with no statutory probate court, the district court has exclusive jurisdiction over testamentary trusts. HB 1190 (Hartnett) is REPTL legislation which solves the same problem in another way -- by going back to the pre-2003 language that statutory probate courts and district courts have concurrent jurisdiction over charitable, inter vivos and testamentary trusts. The HB 1190 approach gives litigants more flexibility and eliminates the possible trap of filing the case in the wrong court. (Section 115.001 of the Trust Code gives district courts exclusive jurisdiction over trusts, except for jurisdiction conferred by law on statutory probate courts, so it is easy to see how someone unfamiliar with the problem could file his or her testamentary trust case in district court notwithstanding SB 349's change to Section 5 of the Probate Code.) SB 349 would force all testamentary trust litigation in the most populous counties into probate court, while inter vivos trust litigation and charitable trust litigation still could go either to district court or probate court. Under the SB 349 approach, a statutory probate judge assigned to hear a contested probate proceeding in a small county under Section 5(b) would not have jurisdiction over a testamentary trust, so he or she could not, for example, modify a testamentary trust in connection with settling a will contest or breach of fiduciary duty lawsuit.

Jurisdiction over 142 Trusts. The decision of the Texas Supreme Court in Texas Commerce Bank, N. A. v. Grizzle, 96 S. W. 3d 240 (Tex. 2002), and the enactment of HB 3503 in 2003 made it clear that the Trust Code applied to trusts created under Section 142.005 of the Property Code. Unfortunately, this called into question the authority of courts other than district courts and statutory probate courts to create, modify and terminate so-called "142 Trusts." This is because Section 115.001(d) of the Trust Code currently says that district courts have exclusive jurisdiction over trust matters, except for the jurisdiction given to statutory probate courts. HB 1190 (Hartnett) amends Section 142.005 of the Property Code and Section 115.001 of the Trust Code to clarify that any court of record with jurisdiction to hear the suit in which the 142 Trust is created may create, modify, terminate and otherwise deal with the 142 Trust so created.

Trial by Special Judge. HB 231 (Hartnett) amends Civ. Prac. and Rem. Code §§151.001 to make clear that a civil or family matter pending in a district court, statutory probate court or statutory county court may be referred for trial to a special judge with the agreement of the parties. Though the act mentions statutory probate courts, it does not specifically refer to probate matters, just civil and family matters.

New Courts with Probate Jurisdiction. These bills would lead to the creation of additional courts with probate jurisdiction in the counties in question:

HB 564 (Gattis) -- Relating to the creation of an additional county court at law in Williamson County.
HB 597 (Smithee) -- Relating to the creation of an additional county court at law in Randall County.
HB 782 (Haggerty) and SB 367 (Shapleigh) -- Relating to the statutory probate courts of El Paso County (creates the Probate Court No. 2 of El Paso County, Texas, which has primary responsibility for mental illness proceedings).

Medicaid/Elder Law Legislation

This site doesn't attempt to follow Medicaid and elder law bills in detail, but here are some bills that affect Medicaid and elder law:

HB 6 (Hupp) -- Relating to protective services; providing penalties.
HB 24 (Thompson) HB 288 (Chavez) and SB 199 (Gallegos) -- Relating to the personal needs allowance for certain Medicaid recipients who are residents of long-term care facilities.
HB 69 (McClendon) -- Relating to the imposition of a lien on property to recover certain medical assistance.
HB 114 (Wong) -- Relating to the rate at which interest accrues in connection with the deferral or abatement of the collection of ad valorem taxes on the residence homestead of an elderly or disabled person.
HB 122 (Naishtat) -- Relating to services provided by certain mental health professionals under the Medicaid program.
HB 124 (Naishtat) and HB 194 (Uresti)-- Relating to an increase in the cigarette tax and to the use of that increase for certain health and human services programs.
HB 343 (Deshotel) -- Relating to the regulation of convalescent homes, nursing homes, and related institutions.
HB 385 (Naishtat) -- Relating to administrative and judicial review of certain decisions about public assistance benefits.
HB 405 (Villarreal) -- Relating to providing supplemental financial assistance to certain primary caretakers of a child receiving financial assistance.
HB 420 (Naishtat) -- Relating to the eligibility of certain persons for the temporary assistance for needy families and food stamp programs.
HB 445 (Chavez) -- Relating to reimbursement rates for ambulance services under the medical assistance program.
HB 470 (Davis, J) and SB 194 (Nelson) -- Relating to local delivery of aging, disability, behavioral health, and mental retardation services.
HB 478 (Goodman) -- Relating to the operation of the child protective services and foster care system.
HB 545 (Naishtat) -- Relating to services provided by podiatrists under the Medicaid program.
HB 636 (Brown, Fred) -- Relating to county responsibility for indigent health care services.
HB 660 (Chavez) -- Relating to training in gerontology for certain health care practitioners.
HB 669 (Jones, Jesse) -- Relating to the registration of certain assisted living facilities.
HB 671 (Jones, Jesse) -- Relating to the prosecution of an offense involving injury to certain individuals.
HB 709 (Naishtat) -- Relating to the exclusion of certain resources in determining eligibility for financial assistance.
HB 710 (Naishtat) -- Relating to provision of certain optional services for adults and operation of the medically needy program under the state Medicaid program.
HB 711 (Naishtat) -- Relating to the eligibility of certain financial assistance recipients for medical assistance.
HB 713 (Quintanilla) -- Relating to the punishment for forgery committed against an elderly person.
HB 714 (Quintanilla) -- Relating to the punishment for criminal simulation committed against an elderly person.
HB 715 (Quintanilla) -- Relating to the punishment for credit card or debit card abuse committed against an elderly person.
HB 716 (Quintanilla) -- Relating to the punishment for false statements to obtain property or credit committed against an elderly person.
HB 717 (Quintanilla) -- Relating to the punishment for fraudulent use or possession of an elderly person's identifying information.
HB 725 (Pena) -- Relating to restoring services under the Medicaid and children's health insurance programs; making an appropriation.
HB 778 (Quintanilla) -- Relating to the punishment for the crime of issuance of a bad check committed against an elderly person.
HB 800 (Uresti) -- Relating to protective services.
HB 801 (Uresti) -- Relating to training for Department of Family and Protective Services personnel receiving reports of child abuse and neglect.
HB 802 (Uresti) -- Relating to the investigation of certain reports of child abuse and neglect.
HB 920 (Uresti) -- Relating to protective and guardianship services for elderly and disabled persons.
HB 921 (Uresti) -- Relating to the personal needs allowance for certain Medicaid recipients who are residents of long-term care facilities.
HB 930 (Branch) and SB 230 (West, Royce) -- Relating to regional funding of indigent health care services.
HB 1061 (Naishtat) -- Relating to penalties and sanctions imposed on recipients of financial assistance.
HB 1218 (Uresti) -- Relating to reporting requirements concerning investigations of alleged abuse, neglect, or exploitation of elderly or disabled persons; providing a criminal penalty.
HJR 21 (Hochberg) and SJR 7 (Carona) -- Proposing a constitutional amendment authorizing line-of-credit advances under a reverse mortgage.
SB 6 (Nelson) -- Relating to protective services; providing penalties.
SB 46 (Nelson) -- Relating to a universal benefits issuance and identification card for health and human services programs.
SB 48 (Nelson) -- Relating to reporting requirements for licensed nursing homes.
SB 69 (Shapleigh) -- Relating to restoring services under the Medicaid and children's health insurance programs; making an appropriation.
SB 563 (Janek) -- Relating to the prevention of Medicaid fraud; providing penalties.
SB 566 (Deuell) -- Relating to a Medicaid buy-in program for employed persons with disabilities.

Other Legislation

Making Health Savings Accounts Exempt from Creditors' Claims. HB 330 (Berman) amends Property Code §42.0021 to give health savings accounts established under Section 223 of the Internal Revenue Code the same creditor-exempt status as individual retirement accounts.

Franchise Tax. This site doesn't attempt to follow franchise tax legislation in detail, but here are some bills that would change the application of franchise tax, including changes which may affect limited liability companies and limited partnerships used in estate planning:

HB 28 (Eissler) -- Relating to state taxes; imposing penalties.
HB 117 (Davis, Y) -- Relating to the application of the franchise tax to certain entities.
HB 118 (Davis, Y) -- Relating to the repeal of certain tax exemptions and deductions.
HB 176 (Mowery) -- Relating to the imposition of a minimum franchise tax.
HB 1005 (Miller) -- Relating to the repeal of the franchise tax.

Life Insurance/Long Term Care Insurance. This site doesn't attempt to follow insurance legislation in detail, but here are some bills that might affect life insurance, including changes which may affect insurance used in estate planning:

HB 128 and HB 526 (Berman) -- Relating to limits placed on coverage amounts of certain group life insurance policies.
HB 579 (Campbell) -- Relating to regulation of long-term care benefit plans.
HB 935 (Taylor) and SB 88 (Averitt) -- Relating to minimum enrollment in certain group life insurance policies.

Mental Health. This site doesn't attempt to follow mental health legislation in detail, but here are some bills that relate to mental health:

HB 224 (Corte) -- Relating to the treatment of certain persons younger than 18 years of age admitted for voluntary inpatient mental health services and discharge from that treatment for those persons.
HB 315 (Olivo) and SB 361 (Carona) -- Relating to criteria for voluntary admission to state schools for persons with mental retardation.
HB 339 (Naishtat) -- Relating to the administration of psychoactive medication to foster children.
HB 470 (Davis, J) and SB 194 (Nelson) -- Relating to local delivery of aging, disability, behavioral health, and mental retardation services.
HB 1220 (Talton) -- Relating to the appointment of mental health masters.
SB 273 (Shapleigh) -- Relating to referring a child with mental illness to an appropriate local mental health authority before completion of probation.
SB 325 (Zaffirini) -- Relating to the management of behavior of residents of certain facilities.
SB 396 (Seliger) -- Relating to the interagency exchange of information regarding certain offenders with special needs.
SB 465 (West, Royce) -- Relating to the administration of psychoactive medication to certain patients.

Privacy Issues/Public Information. HB 223 (Gattis) and SB 121 (Duncan) add Section 552.030 to the Government Code, requiring a "governmental body" to disclose certain information about its investments to members of the public requesting it. "Governmental body" is broadly defined in Section 552.003, but it excludes the judiciary. Could this legislation be applied to funds held in court registries, guardianship funds, etc.? Does it matter if it does? SB 71 (Shapleigh) and SB 76 (Shapleigh) prohibit disclosure of certain consumer financial information by financial institutions to any person "for marketing purposes." SB 71 apparently prohibits the disclosure even if the consumer consents, while SB 76 has a mechanism for obtaining consumer consent to the disclosure. Could this affect working relationships between attorneys and other professionals and financial institutions? Probably legitimate referral-type contact would not be "marketing purposes" prohibited by the act. HB 698 (McCall) requires a business that disposes of a business record to shred or otherwise modify the record so that it is unreadable. This may apply to law firms throwing away drafts of estate planning documents. HB 770 (Goolsby) and SB 364 (Lucio) protect birth records of adopted persons. The bills may limit the access that attorneys ad litem and guardians ad litem now have to birth information in determination of heirship proceedings. HB 971 (Talton) has to do with privacy of certain records filed with district clerks. HB 1204 (Raymond) would place all "personal information" in a divorce decree in a separate document and would require the Supreme Court to determine rules for accessing this information.

The Uniform Real Property Electronic Recording Act. HB 1187 (Hartnett) and SB 335 (Carona) would enact the Uniform Real Property Electronic Recording Act, which apparently would permit "electronic" versions of real property documents to be recorded electronically, instead of old fashioned paper documents. (I'm getting too old for this.)

Funeral Services. This site doesn't attempt to follow legislation regarding funeral services in detail, but here are some bills that relate to funeral services:

HB 572 (Flynn) and SB 237 (Carona) -- Relating to requirements applicable to purchase agreements for certain funeral, cemetery, and crematory services (would require less detailed disclosure in purchase agreements).
HB 1086 (Chisum) and SB 385 (Carona) --Relating to the regulation of funeral homes, cemeteries, and crematories.

Judicial Salaries. HB 1158 (Goodman) raises the salaries of district judges, courts of appeal judges and supreme court judges and imposes certain fees to pay for part or all of the increase. It sets the salary of district judges at a minimum of $125,000. Since, under Section 25.0023 of the Government Code, counties are required to pay statutory probate judges a minimum salary equal to what district judges in the county are paid, this would mean a raise for statutory probate judges, too. HB 1180 (Dutton) also raises salaries, but leaves district judges at a minimum of $107,000.

Appointing Judges/Retention Elections. SB 553 (Duncan/Ellis) and SJR 16 (Duncan/Ellis) would provide for appointment of judges to fill judicial vacancies and nonpartisan retention election of judges.

Court Fees/Filing Fees. SB 241 (Wentworth) would create an appellate judicial system for the Third Court of Appeals District and would require counties to impose a $5 fee for each "civil suit" filed in courts in the district, including probate courts. Are probate proceedings "civil suits"? SB 291 (West) makes a number of changes to the index of fees clerks can charge. It appears that the changes in this 59-page bill are meant to reflect other statutes which already provide for fees rather than new, substantive fees. One of the fees added is the obligation to post a security deposit under Sections 12 and 622 of the Probate Code in proceedings in statutory probate courts. HB 950 (Casteel) would raise the filing fee for real estate documents to $5 for the first page and $4 for each additional page (up from $3 and $2, respectively).

Nudist Youth Camps. HB 772 (Hughes) prohibits nudist youth camps. (I don't make this stuff up.)

The bill descriptions and analyses in this document are those of Glenn M. Karisch and do not reflect the views of any group or organization.

Last Updated on February 17, 2005.

HB 1; HB 6; HB 11 - HB 1240
HJR 11 - HJR 45
SB 1; SB 5 - 6; SB 14; SB 21 - 414; SB 465 - 569
SJR 5 - 16