H.B. No. 1317

RECEIVERSHIPS FOR THE ESTATES OF MISSING PERSONS

Effective Date: September 1, 1997

AN ACT

relating to the guardianship of missing persons and receiverships for the estate of certain missing persons.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Section 601(17), Texas Probate Code, is amended to read as follows:

(17)  "Missing person" has the meaning assigned by Section 79.001, Human Resources Code [means:

[(A)  a person reported by an executive department of the United States to be a prisoner of war or missing in the course of public service to the United States; or

[(B)  a person reported missing and there is good cause, as shown by a police or other law enforcement agency report or a peace officer's testimony in court, to believe that the person is missing].

SECTION 2.  Section 682, Texas Probate Code, is amended to read as follows:

Sec. 682.  APPLICATION; CONTENTS. Any person may commence a proceeding for the appointment of a guardian by filing a written application in a court having jurisdiction and venue. The application must be sworn to by the applicant and state:

(1)  the name, sex, date of birth, and address of the proposed ward;

(2)  the name, relationship, and address of the person the applicant desires to have appointed as guardian;

(3)  the social security number of the proposed ward and of the person the applicant desires to have appointed as guardian;

(4)  whether guardianship of the person or estate, or both, is sought;

(5)  the nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitation of rights requested to be included in the court's order of appointment;

(6)  the facts requiring that a guardian be appointed and the interest of the applicant in the appointment;

(7)  the nature and description of any guardianship of any kind existing for the proposed ward in this or any other state;

(8)  the name and address of any person or institution having the care and custody of the proposed ward;

(9)  the approximate value and description of the proposed ward's property, including any compensation, pension, insurance, or allowance to which the proposed ward may be entitled;

(10)  the requested term, if known, of the guardianship;

(11)  the name and address of any person whom the applicant knows to hold a power of attorney signed by the proposed ward and a description of the type of power of attorney;

(12)  if the proposed ward is a minor, the names of the parents and next of kin of the proposed ward and whether either or both of the parents are deceased;

(13)  if the proposed ward is a minor, whether the minor was the subject of a legal or conservatorship proceeding within the preceding two-year period and, if so, the court involved, the nature of the proceeding, and the final disposition, if any, of the proceeding;

(14)  if the proposed ward is 60 years of age or older, the names and addresses, to the best of the applicant's knowledge, of the proposed ward's spouse, siblings, and children, or, if there is no spouse, sibling, or child, the names and addresses of the proposed ward's next of kin;

(15)  [if the proposed ward is a missing person:

[(A)  the last known residence of the missing person;

[(B)  the name of the executive department of the United States reporting the proposed ward as a missing person, the date of the report, and the last known whereabouts of the missing person; and

[(C)  the names and addresses of the missing person's spouse, children, and parents, or, if there is no spouse, child, or parent, the names and addresses of the missing person's next of kin;

[(16)]  facts showing that the court has venue over the proceeding; and

(16) [(17)]  if applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who has complied with the requirements of Section 697 of this code.

SECTION 3.  Section 684(b), Texas Probate Code, is amended to read as follows:

(b)  Before appointing a guardian, the court must find by a preponderance of the evidence that:

(1)  the court has venue of the case;

(2)  the person to be appointed guardian is eligible to act as guardian and is entitled to appointment, or, if no eligible person entitled to appointment applies, the person appointed is a proper person to act as guardian;

(3)  if a guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school or school district for which the minor is not otherwise eligible for enrollment; and

(4)  [if the guardian is appointed for a missing person, the person was reported missing by an executive department of the United States at least six months earlier than the date of the filing of the application and currently is missing; and

[(5)]  the proposed ward is totally without capacity as provided by this code to care for himself or herself and to manage the individual's property, or the proposed ward lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage the individual's property.

SECTION 4.  Section 64.001(a), Civil Practice and Remedies Code, is amended to read as follows:

(a)  A court of competent jurisdiction may appoint a receiver:

(1)  in an action by a vendor to vacate a fraudulent purchase of property;

(2)  in an action by a creditor to subject any property or fund to his claim;

(3)  in an action between partners or others jointly owning or interested in any property or fund;

(4)  in an action by a mortgagee for the foreclosure of the mortgage and sale of the mortgaged property;

(5)  for a corporation that is insolvent, is in imminent danger of insolvency, has been dissolved, or has forfeited its corporate rights; [or]

(6)  for a missing person as prescribed by Chapter 79, Human Resources Code; or

(7)  in any other case in which a receiver may be appointed under the rules of equity.

SECTION 5.  Chapter 79, Human Resources Code, is amended by adding Sections 79.017 and 79.018 to read as follows:

Sec. 79.017.  RECEIVERSHIP FOR CERTAIN MISSING PERSONS. (a) Pursuant to Chapter 64, Civil Practice and Remedies Code, and on application filed with the court, a court of competent jurisdiction, after notice and hearing, may appoint a receiver for a missing person if the court determines the missing person's estate is in danger of being lost, removed, or materially harmed.

(b)  A proceeding instituted under this section must be brought in the county in which the missing person resides, or, if the missing person is not a resident of this state, the county in which the majority of the property of the missing person's estate is located.

(c)  Notice of a proceeding shall be issued and served as provided by Section 79.018.

(d)  The court shall appoint an attorney ad litem to represent the interests of the missing person. To be eligible for appointment as an attorney ad litem under this section, a person must be certified in the same manner and to the same extent as a person who is appointed as an attorney ad litem for a proposed ward under Section 646, Texas Probate Code.

(e)  The court may appoint a guardian ad litem for the missing person if the court determines that the appointment would be in the best interests of the missing person. A guardian ad litem appointed under this section is an officer of the court. The guardian ad litem shall protect the missing person in a manner that will enable the court to determine the appropriate action to take in relation to the best interests of the missing person.

(f)  An attorney ad litem or a guardian ad litem appointed under this section is entitled to reasonable compensation for services in an amount set by the court to be charged as costs in the proceeding.

(g)  The cost of a proceeding instituted under this section shall be paid from the receivership, if a receivership is created. If the court denies an application for appointment of a receiver, the applicant shall pay the costs of the proceeding.

(h)  The term of a receivership granted under this section may not exceed six months, unless, before the expiration of the term and for good cause shown, the court extends the receivership for another term not to exceed six months.

Sec. 79.018.  NOTICE AND CITATION FOR RECEIVERSHIP FOR CERTAIN MISSING PERSONS. (a) On the filing of an application under Section 79.017, the court clerk shall issue a citation that states that the application for receivership was filed and includes:

(1)  the name of the missing person; and

(2)  the name of the applicant.

(b)  The citation must cite all persons interested in the welfare of the missing person to appear at the time and place stated in the notice for purposes of contesting the application. The citation shall be posted.

(c)  The citation shall be published in a newspaper of general circulation:

(1)  once in the county in which the missing person resides; and

(2)  once in each county in which property of the missing person's estate is located.

SECTION 6.  This Act takes effect September 1, 1997, and applies only to a proceeding for receivership of the estate of a missing person that is instituted on or after that date. A proceeding for receivership of the estate of a missing person that is instituted before the effective date of this Act is governed by the law in effect on the date on which the proceeding was instituted, and the former law is continued in effect for that purpose.

SECTION 7.  The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.


Courtesy of Glenn M. Karisch, Ikard & Golden, P. C., Austin, Texas. This page was last revised on May 28, 1997.