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1999 Legislation:

1999 CHANGES TO THE TEXAS PROBATE CODE
Amendments Made By the 76th Texas Legislature (1999)
Explanation of Legislative Changes 1999 by Glenn M. Karisch

SECTIONS WHICH WERE AMENDED

Sec. 3. Definitions and Use of Terms.
Sec. 5. Jurisdiction of District Court and Other Courts of Record With Respect to Probate Proceedings and Appeals from Probate Orders.
Sec. 5A. Matters Appertaining and Incident to an Estate and Other Probate Court Jurisdiction.
Sec. 5B. Transfer of Proceeding.
Sec. 5C.  Actions to Collect Delinquent Property Taxes.
Sec. 10B. Communications or Records Relating to Decedent's Condition Before Death.
Sec. 15. Case Files.
Sec. 17.  Maintaining Records in Lieu of Record Books.
Sec. 17A.  Index
.
Sec. 18. Use of Records as Evidence.
Sec. 52. Recorded Instruments as Prima Facie Evidence.
Sec. 52A.  Form of Affidavit of Facts Concerning Identity of Heirs.

Sec. 95. Probate of Foreign Will Accomplished by Filing and Recording.
Sec. 105A. Appointment and Service of Foreign Banks and Trust Companies in Fiduciary Capacity.
Sec. 149A. Accounting.
Sec. 149B. Accounting and Distribution.
Sec. 149C. Removal of Independent Executor.
Sec. 149D.  Distribution of Remaining Estate Pending Judicial Discharge.
Sec. 149E.  Judicial Discharge of Independent Executor.
Sec. 149F.  Court Costs and Other Charges Related to Final Account in Judicial Discharge.
Sec. 149G.  Rights and Remedies Cumulative.
Sec. 194. Bonds of Personal Representatives of Estates.
Sec. 221A.  Change of Resident Agent.
Sec. 221B.  Resignation of Resident Agent.
Sec. 222. Removal.
Sec. 270. Liability of Homestead for Debts.
Sec. 322. Classification of Claims Against Estates of Decedent.
PART 10. INVESTMENTS, LOANS, AND CONTRIBUTIONS OF ESTATES OF WARDS
Sec. 389. Investments Without Court Order.
Sec. 404. Closing Administration of Estates of Decedents.
Sec. 406. Procedure in Case of Neglect or Failure to File Final Account; Payments Due Meantime.
Sec. 601. Definitions.
Sec. 606. District Court and Other Court of Record Jurisdiction.
Sec. 607. Matters Appertaining and Incident to an Estate.
Sec. 608. Transfer of Guardianship Proceeding.
Sec. 625. Case Files.
Sec. 627. Maintaining Records in Lieu of Record Books.
Sec. 627A.  Index.
Sec. 628.  Use of Records as Evidence.
Sec. 633. Notice and Citation.
Sec. 642. Standing to Commence or Contest Proceeding.
Sec. 646. Appointment of Attorney Ad Litem and Interpreter.
Sec. 647. Duties of Attorney Ad Litem.
Sec. 647A. Certification Requirement for Certain Court-appointed Attorneys.
Sec. 648A. Duties of Court Investigator.
Sec. 665. Compensation of Guardians and Temporary Guardians.
Sec. 665B. Compensation of Certain Attorneys.
Sec. 677A. Written Declarations by Certain Parents to Appoint Guardians for Their Children.
Sec. 682. Application; Contents.
Sec. 682A. Application for Appointment of Guardian for Certain Persons.
Sec. 683. Court's Initiation of Guardianship Proceedings.
Sec. 683A. Information Letter.
Sec. 694A. Complete Restoration of Ward's Capacity or Modification of Guardianship [Ward].

Sec. 694B. Contents of Application.
Sec. 694C. Appointment of Attorney Ad Litem.
Sec. 694D. Hearing.
Sec. 694E. Findings Required.
Sec. 694F. Examinations and Reports Relating to Complete Restoration of Ward's Capacity or Modification of Guardianship.
Sec. 694G. Order of Complete Restoration of Ward's Capacity.
Sec. 694H. Modification of Guardianship.
Sec. 694I. Dismissal of Application.
Sec. 694J. Contents of Order.
Sec. 694K. Attorney Retained on Ward's Behalf.
Sec. 697. Registration of Private Professional Guardians.
Sec. 698. Access to Criminal History Records.
Sec. 702. Bond Required of Guardian of the Person or Estate.
Sec. 743. Reports of Guardians of the Person.
Sec. 855. Investments Without Court Order.
Sec. 868. Terms of Management Trust.
Sec. 875. Temporary Guardian--Procedure.
Sec. 886. Appointment of Receiver.
Sec. 886A. Expenditures by Receiver.
Sec. 886B. Investments, Loans, and Contributions by Receiver.
Sec. 886C. Receiver's Expenses, Account, and Compensation.
Sec. 886D. Closing Receivership.
Sec. 886E. Action of Judge.
Sec. 886F. Recordation of Proceedings.

Sec. 3. Definitions and Use of Terms.

Except as otherwise provided by Chapter XIII of this Code, when used in this Code, unless otherwise apparent from the context:

(a) "Authorized corporate surety" means a domestic or foreign corporation authorized to do business in the State of Texas for the purpose of issuing surety, guaranty or indemnity bonds guaranteeing the fidelity of executors and administrators.

(b) "Child" includes an adopted child, whether adopted by any existing or former statutory procedure or by acts of estoppel, but, unless expressly so stated herein, does not include a child who has no presumed father.

(c) "Claims" include liabilities of a decedent which survive, including taxes, whether arising in contract or in tort or otherwise, funeral expenses, the expense of a tombstone, expenses of administration, estate and inheritance taxes, and debts due such estates.

(d) "Corporate fiduciary" means a financial institution as defined by Section 201.101, Finance Code, [trust company or bank] having trust powers, existing or doing business under the laws of this state, another state, or [of] the United States, which is authorized by law to act under the order or appointment of any court of record, without giving bond, as receiver, trustee, executor, administrator, or, although without general depository powers, depository for any moneys paid into court, or to become sole guarantor or surety in or upon any bond required to be given under the laws of this state.

(e) "County Court" and "Probate Court" are synonymous terms and denote county courts in the exercise of their probate jurisdiction, courts created by statute and authorized to exercise original probate jurisdiction, and district courts exercising probate jurisdiction in contested matters.

(f) "County Judge," "Probate Judge," and "Judge" denote the presiding judge of any court having original jurisdiction over probate proceedings, whether it be a county court in the exercise of its probate jurisdiction, a court created by statute and authorized to exercise probate jurisdiction, or a district court exercising probate jurisdiction in contested matters.

(g) "Court" denotes and includes both a county court in the exercise of its probate jurisdiction, a court created by statute and authorized to exercise original probate jurisdiction, or a district court exercising original probate jurisdiction in contested matters.

(h) "Devise," when used as a noun, includes a testamentary disposition of real or personal property, or of both. When used as a verb, "devise" means to dispose of real or personal property, or of both, by will.

(i) "Devisee" includes legatee.

(j) "Distributee" denotes a person entitled to the estate of a decedent under a lawful will, or under the statutes of descent and distribution.

(k) "Docket" means the probate docket.

(l) "Estate" denotes the real and personal property of a decedent , both as such property originally existed and as from time to time changed in form by sale, reinvestment, or otherwise, and as augmented by any accretions and additions thereto (including any property to be distributed to the representative of the decedent by the trustee of a trust which terminates upon the decedent's death) and substitutions therefor, and as diminished by any decreases therein and distributions therefrom.

(m) "Exempt property" refers to that property of a decedent's estate which is exempt from execution or forced sale by the Constitution or laws of this State, and to the allowance in lieu thereof.

(n) Repealed by Acts 1995, 74th Leg., ch. 1039, Sec. 73(1), eff. Sept. 1, 1995.

(o) "Heirs" denote those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate.

(p) "Incapacitated" or "Incapacitated person" means:

(1) a minor;

(2) an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs;

(3) a missing person; or

(4) a person who must have a guardian appointed to receive funds due the person from any governmental source.

(q) "Independent executor" means the personal representative of an estate under independent administration as provided in Section 145 of this Code. The term "independent executor" includes the term "independent administrator."

(r) "Interested persons" or "persons interested" means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered; and anyone interested in the welfare of a minor or incompetent ward.

(s) "Legacy" includes any gift or devise by will, whether of personalty or realty. "Legatee" includes any person entitled to a legacy under a will.

(t) "Minors" are all persons under eighteen years of age who have never been married or who have not had disabilities of minority removed for general purposes.

(u) "Minutes" means the probate minutes.

(v) "Mortgage" or "Lien" includes deed of trust, vendor's lien, chattel mortgage, mechanic's, materialman's or laborer's lien, judgment, attachment or garnishment lien, pledge by hypothecation, and Federal or State tax liens.

(w) "Net estate" means the real and personal property of a decedent, exclusive of homestead rights, exempt property, the family allowance and enforceable claims against the estate.

(x) "Person" includes natural persons and corporations.

(y) Repealed by Acts 1995, 74th Leg., ch. 1039, Sec. 73(1), eff. Sept. 1, 1995.

(z) "Personal property" includes interests in goods, money, choses in action, evidence of debts, and chattels real.

(aa) "Personal representative" or "Representative" includes executor, independent executor, administrator, independent administrator, temporary administrator, together with their successors. The inclusion of independent executors herein shall not be held to subject such representatives to control of the courts in probate matters with respect to settlement of estates except as expressly provided by law.

(bb) "Probate matter," "Probate proceedings," "Proceeding in probate," and "Proceedings for probate" are synonymous and include a matter or proceeding relating to the estate of a decedent.

(cc) "Property" includes both real and personal property.

(dd) "Real property" includes estates and interests in lands, corporeal or incorporeal, legal or equitable, other than chattels real.

(ee) "Surety" includes both personal and corporate sureties.

(ff) "Will" includes codicil; it also includes a testamentary instrument which merely:

(1) appoints an executor or guardian;

(2) directs how property may not be disposed of; or

(3) revokes another will.

(gg) The singular number includes the plural; the plural number includes the singular.

(hh) The masculine gender includes the feminine and neuter.

(ii) "Statutory probate court" means a statutory court designated as a statutory probate court under Chapter 25, Government Code. A county court at law exercising probate jurisdiction is not a statutory probate court under this Code unless the court is designated a statutory probate court under Chapter 25, Government Code.

(jj) "Next of kin" includes an adopted child or his or her descendents and the adoptive parent of the adopted child.

(kk) "Charitable organization" means:

(1) a nonprofit corporation, trust, community chest, fund, foundation, or other entity that is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code of 1986 because the entity is organized and operated exclusively for religious, charitable, scientific, educational, or literary purposes, testing for public safety, prevention of cruelty to children or animals, or promotion of amateur sports competition; or

(2) any other entity or organization that is organized and operated exclusively for the purposes listed in Section 501(c)(3) of the Internal Revenue Code of 1986.

(ll) "Governmental agency of the state" means:

(1) an incorporated city or town, a county, a public school district, a special-purpose district or authority, or a district, county, or justice of the peace court;

(2) a board, commission, department, office, or other agency in the executive branch of state government, including an institution of higher education as defined by Section 61.003, Education Code;

(3) the legislature or a legislative agency; and

(4) the supreme court, the court of criminal appeals, a court of appeals, or the State Bar of Texas or another judicial agency having statewide jurisdiction.

(mm) "Ward" is a person for whom a guardian has been appointed.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 2(a), eff. Aug. 22, 1957; Acts 1961, 57th Leg., p. 44, ch. 30, Sec. 2, eff. Aug. 28, 1961; Acts 1969, 61st Leg., p. 1703, ch. 556, Sec. 1, eff. June 10, 1969; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 1, eff. June 12, 1969; Acts 1975, 64th Leg., p. 104, ch. 45, Sec. 1, eff. Sept. 1, 1975; Acts 1975, 64th Leg., p. 2195, ch. 701, Sec. 1, eff. June 21, 1975; Acts 1977, 65th Leg., p. 1061, ch. 390, Secs. 1, 2, eff. Sept. 1, 1977; Acts 1979, 66th Leg., p. 1740, ch. 713, Sec. 1, eff. Aug. 27, 1979. Subsec. (n) amended by Acts 1985, 69th Leg., ch. 591, Sec. 1, eff. Sept. 1, 1985; Subsec. (p) amended by Acts 1985, 69th Leg., ch. 159, Sec. 1, eff. Sept. 1, 1985; Subsec. (y) amended by Acts 1985, 69th Leg., ch. 159, Sec. 2, eff. Sept. 1, 1985; Subsec. (b) amended by Acts 1989, 71st Leg., ch. 375, Sec. 33, eff. Sept. 1, 1989; Subsecs. (kk), (ll) added by Acts 1989, 71st Leg., ch. 1035, Sec. 1, eff. Sept. 1, 1989; subsec. (n) amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(96), eff. Sept. 1, 1991; Subsec. (ff) amended by Acts 1991, 72nd Leg., ch. 895, Sec. 1, eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 3, eff. Sept. 1, 1993; Subsec. (n) repealed by Acts 1995, 74th Leg., ch. 1039, Sec. 73(1), eff. Sept. 1, 1995; Subsec. (p) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 4, eff. Sept. 1, 1995; Subsec. (y) repealed by Acts 1995, 74th Leg., ch. 1039, Sec. 73(1), eff. Sept. 1, 1995; Subsec. (mm) added by Acts 1995, 74th Leg., ch. 1039, Sec. 4, eff. Sept. 1, 1995; Subsec. (ii) amended by Acts 1997, 75th Leg., ch. 52, Sec. 1, eff. Sept. 1, 1997. Subsec. (d) amended by Acts 1999, 76th Leg., ch. _____ [HB 2066], eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The Interstate Banking Act, HB 2066, amended subsection (d) -- the definition of "corporate fiduciary" -- to be consistent with the state's restructured banking laws.

Sec. 5. Jurisdiction of District Court and Other Courts of Record With Respect to Probate Proceedings and Appeals from Probate Orders.

(a) The district court shall have original control and jurisdiction over executors and administrators under such regulations as may be prescribed by law.

(b) In those counties where there is no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate and administrations shall be filed and heard in the county court, except that in contested probate matters, the judge of the county court may on his own motion (or shall on the motion of any party to the proceeding, according to the motion) request as provided by Section 25.0022, Government Code, the assignment of a statutory probate court judge to hear the contested portion of the proceeding, or transfer the contested portion of the proceeding to the district court, which may then hear contested matter as if originally filed in district court. If the judge of the county court has not transferred a contested probate matter to the district court at the time a party files a motion for assignment of a statutory probate court judge, the county judge shall grant the motion and may not transfer the matter to district court unless the party withdraws the motion. A statutory probate court judge assigned to a contested probate matter as provided by this subsection has for that matter the jurisdiction and authority granted to a statutory probate court by Sections 5A and 5B of this code. The county court shall continue to exercise jurisdiction over the management of the estate with the exception of the contested matter until final disposition of the contested matter is made by the assigned judge or the district court. In contested matters transferred to the district court in those counties, the district court, concurrently with the county court, shall have the general jurisdiction of a probate court. Upon resolution of all pending contested matters, the contested portion of the probate proceeding shall be transferred by the district court to the county court for further proceedings not inconsistent with the orders of the district court. If a contested portion of the proceeding is transferred to a district court under this subsection, the clerk of the district court may perform in relation to the transferred portion of the proceeding any function a county clerk may perform in that type of contested proceeding.

(c) In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate and administrations shall be filed and heard in such courts and the constitutional county court, rather than in the district courts, unless otherwise provided by the legislature, and the judges of such courts may hear any of such matters sitting for the judge of any of such courts. In contested probate matters, the judge of the constitutional county court may on his own motion, and shall on the motion of any party to the proceeding, transfer the proceeding to the statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, which may then hear the proceeding as if originally filed in such court.

(d) A statutory probate court has concurrent jurisdiction with the district court in all actions by or against a person in the person's capacity as a personal representative, in all actions involving an inter vivos trust, in all actions involving a charitable trust, and in all actions involving a testamentary trust.

(e) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate. When a surety is called on to perform in place of an administrator, all courts exercising original probate jurisdiction may award judgment against the personal representative in favor of his surety in the same suit.

(f) All final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.

(g) Notwithstanding any other law, a statutory county court created under Chapter 25, Government Code, that has the jurisdiction of a statutory probate court on August 31, 1997, retains that jurisdiction after that date. This subsection expires August 31, 1999.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1973, 63rd Leg., p. 1684, ch. 610, Sec. 1; Acts 1975, 64th Leg., p. 2195, ch. 701, Sec. 2, eff. June 21, 1975; Acts 1977, 65th Leg., p. 1170, ch. 448, Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1740, ch. 713, Sec. 2, eff. Aug. 27, 1979. Subsec. (b) amended by Acts 1983, 68th Leg., p. 5434, ch. 1015, Sec. 1, eff. Aug. 29, 1983; Subsecs. (b), (c) amended by Acts 1983, 68th Leg., p. 4122, ch. 647, Sec. 2, eff. Sept. 1, 1983; Subsec. (b) amended by Acts 1985, 69th Leg., ch. 159, Sec. 3, eff. Sept. 1, 1985; amended by Acts 1987, 70th Leg., ch. 459, Sec. 4, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1035, Sec. 2, eff. Sept. 1, 1989; Subsecs. (a), (b), (c), (e) amended by Acts 1993, 73rd Leg., ch. 957, Sec. 5, eff. Sept. 1, 1993; Subsec. (g) added by Acts 1997, 75th Leg., ch. 1435, Sec. 3, eff. Sept. 1, 1997. Subsec. (b) amended by Acts 1999, 76th Leg., ch. ____ (HB 1607), eff. Aug. 30, 1999.

Explanation of 1999 Amendment

So-called "constitutional" county courts cannot hear contested probate proceedings if any party objects or if the court decides not to hear the matter on its own motion. Prior to the 1999 change, the county court had two options for getting rid of the contested proceeding: it could either transfer it to the district court or ask the presiding statutory probate court judge to assign a statutory probate judge to hear the proceeding. Under prior law, there was no priority given to either option -- the county court was free either to transfer it to district court or ask for a statutory probate court judge. If a statutory probate court judge was assigned to hear the proceeding, under prior law he or she did not bring along the "jurisdictional toolbox" -- the broad "appertaining to" definition of statutory probate courts and the Section 5B transfer power.

The 1999 amendment to subsection (b) does two things: First, it gives a priority to the statutory probate court assignment option. If the county court has not transferred the case to district court prior to receiving a motion for assignment from either party, it must ask for the assignment of a statutory probate court judge to hear the case. Second, if a statutory probate court judge is assigned to hear the case, he or she brings the toolbox along -- including the Section 5B transfer power.

The 1999 amendment has no effective date provision, so it becomes effective 90 days after the legislative session ended, or on August 30, 1999. Because it has no effective date provision, it is unclear whether it applies to the estates of persons dying after August 30, 1999, proceedings filed after August 30, 1999, or motions for assignment filed after August 30, 1999, although the latter seems the most obvious construction.

Sec. 5A. Matters Appertaining and Incident to an Estate and Other Probate Court Jurisdiction.

(a) In proceedings in the constitutional county courts and statutory county courts at law, the phrases "appertaining to estates" and "incident to an estate" in this Code include the probate of wills, the issuance of letters testamentary and of administration, the determination of heirship, and also include, but are not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills, and generally all matters relating to the settlement, partition, and distribution of estates of deceased persons.

(b) In proceedings in the statutory probate courts and district [districts] courts, the phrases "appertaining to estates" and "incident to an estate" in this Code include the probate of wills, the issuance of letters testamentary and of administration, and the determination of heirship, and also include, but are not limited to, all claims by or against an estate, all actions for trial of title to land and for the enforcement of liens thereon, all actions for trial of the right of property, all actions to construe wills, the interpretation and administration of testamentary trusts and the applying of constructive trusts, and generally all matters relating to the settlement, partition, and distribution of estates of deceased

persons. All statutory probate courts may, in the exercise of their jurisdiction, notwithstanding any other provisions of this Code, hear all suits, actions, and applications filed against or on behalf of any heirship proceeding or decedent's estate, including estates administered by an independent executor; all such suits, actions, and applications are appertaining to and incident to an estate [for the purposes of this section]. This subsection shall be construed in conjunction with and in harmony with Section 145 and all other sections of this Code dealing with independent executors, but shall not be construed so as to increase permissible judicial control over independent executors. All statutory probate courts shall have the same powers over independent executors that are exercisable by the district courts. In situations where the jurisdiction of a statutory probate court is concurrent with that of a district court, any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court rather than in the district court.

(c) A statutory probate court has concurrent jurisdiction with the district court in all actions:

(1) by or against a person in the person's capacity as a personal representative;

(2) involving an inter vivos trust;

(3) involving a charitable trust; and

(4) involving a testamentary trust.

(d) A statutory probate court may exercise the pendent and ancillary jurisdiction necessary to promote judicial efficiency and economy.

(e) Subsections (c)(2), (3), and (4) [(c)] and Subsection (d) apply whether or not the matter is appertaining to or incident to an estate.

Added by Acts 1979, 66th Leg., p. 1741, ch. 713, Sec. 3, eff. Aug. 27, 1979. Subsec. (b) amended by Acts 1985, 69th Leg., ch. 875, Sec. 1, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 459, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1035, Sec. 3, eff. Sept. 1, 1989; Subsecs. (a), (b) amended by Acts 1993, 73rd Leg., ch. 957, Sec. 6, eff. Sept. 1, 1993; Subsec. (b) amended by Acts 1997, 75th Leg., ch. 1302, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. ____ (HB 778), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The 1999 amendment to Section 5B is a clean-up of the 1997 change. The 1997 change was a last-minute, on-the-floor-of-the-House amendment intended to make it clear that statutory probate courts can transfer any cause of action "against or on behalf of" a decedent's estate -- not just cases meet the Seay v. Hall "appertaining to" estates criteria. See Seay v. Hall, 677 S. W. 2d 19 (Tex. 1984). Thus, a wrongful death and survival action, which does not meet the Seay v. Hall test, is transferable under Section 5B if it is brought by the personal representative on behalf of the decedent's estate. The 1997 change accomplished this result by changing the definition of "appertaining to estates" -- now a proceeding in which the personal representative defends the estate or or which is brought by the personal representative on behalf of an estate is considered "appertaining to" estates.

The wording of the 1997 amendment left something to be desired. For example, while the primary reason for expanding the "appertaining to estates" definition was to broaden the Section 5B transfer power of statutory probate courts, the 1997 amendment stated that actions against or on behalf of an estate were "appertaining to and incident to an estate for the purposes of this section," arguably meaning Section 5A and not 5B.

The 1999 amendment cleans this up by deleting "for the purposes of this section" phrase. It also changes Subsection (e) so that it makes more sense, given the new, broader definition of "appertaining to estates."

The 1999 amendment takes effect September 1, 1999. HB 778 does not make clear whether or not it applies to persons dying after September 1, 1999, estates opened after September 1, 1999, or to any action pending on or after September 1, 1999, but the latter seems to be the most likely construction.

Sec. 5B. Transfer of Proceeding.

A judge of a statutory probate court on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to his court from a district, county, or statutory court a cause of action appertaining to or incident to an estate pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.

Added by Acts 1983, 68th Leg., p. 5228, ch. 958, Sec. 1, eff. Sept. 1, 1983. Amended by Acts 1999, 76th Leg., ch. ____ (HB 2580), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The 1999 change to Section 5B further clarifies that a statutory probate court may transfer to itself a proceeding in which the personal representative of an estate pending in such court is a party under the famous (or infamous, depending on one's point of view) Section 5B "reach out and touch" power. A 1997 amendment to Section 5A, clarified in 1999 (see the explanation following Section 5A above) indirectly made this the law by expanding the definition of "appertaining to estates." This amendment accomplishes the same thing in a more direct and easy to understand way.

In addition, the 1999 change to Section 5B enhances the power of the probate court to transfer related third-party actions. Take the example of an executor who sues a defendant in district court. If the defendant brings a third-party action against another person for contribution and indemnity, the third-party action is not "appertaining to an estate" under the Section 5A definition because it is not "against or on behalf of" the estate. The change to Section 5B makes it clear that the probate court nevertheless can transfer the whole case -- including the non-appertaining third-party action -- because the executor is a "party" to the cause of action.

HB 2580 provides that it takes effect September 1, 1999, "and applies only to a motion to transfer a cause of action filed on or after that date. A motion to transfer a cause of action filed before the effective date of this Act is governed by the law in effect on the date the motion was filed, and the former law is continued in effect for that purpose."

Sec. 5C.  Actions to Collect Delinquent Property Taxes.

(a) This section applies only to a decedent's estate that:

(1)  is being administered in a pending probate proceeding;

(2)  owns or claims an interest in property against which a taxing unit has imposed ad valorem taxes that are delinquent; and

(3)  is not being administered as an independent administration under Section 145 of this code.

(b)  Notwithstanding any provision of this code to the contrary, if the probate proceedings are pending in a foreign jurisdiction or in a county other than the county in which the taxes were imposed, a suit to foreclose the lien securing payment of the taxes or to enforce personal liability for the taxes must be brought under Section 33.41, Tax Code, in a court of competent jurisdiction in the county in which the taxes were imposed.

(c)  If the probate proceedings have been pending for four years or less in the county in which the taxes were imposed, the taxing unit may present a claim for the delinquent taxes against the estate to the personal representative of the estate in the probate proceedings.

(d)  If the taxing unit presents a claim against the estate under Subsection (c) of this section:

(1)  the claim of the taxing unit is subject to each applicable provision in Parts 4 and 5, Chapter VIII, of this code that relates to a claim or the enforcement of a claim in a probate proceeding; and

(2)  the taxing unit may not bring a suit in any other court to foreclose the lien securing payment of the taxes or to enforce personal liability for the delinquent taxes before the first day after the fourth anniversary of the date the application for the probate proceeding was filed.

(e)  To foreclose the lien securing payment of the delinquent taxes, the taxing unit must bring a suit under Section 33.41, Tax Code, in a court of competent jurisdiction for the county in which the taxes were imposed if:

(1)  the probate proceedings have been pending in that county for more than four years; and

(2)  the taxing unit did not present a delinquent tax claim under Subsection (c) of this section against the estate in the probate proceeding.

(f)  In a suit brought under Subsection (e) of this section, the taxing unit:

(1)  shall make the personal representative of the decedent's estate a party to the suit; and

(2)  may not seek to enforce personal liability for the taxes against the estate of the decedent.

Added by Acts 1999, 76th Leg., ch. _____ (HB 3549), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 3549 was a comprehensive bill dealing with many procedural issues regarding ad valorem taxation. This new section of the Probate Code is an outgrowth of recent cases addressing the potential jurisdictional and/or venue conflicts arising when a taxing authority seeks to collect ad valorem taxes from the personal representative or beneficiaries of an estate. See Bailey v. Cherokee County Appraisal District, 862 S. W. 2d 581 (Tex. 1993) and Crawford v. Town of Flower Mound, 933 S. W. 2d 727 (Tex. App. -- Fort Worth 1996, writ denied).

HB 3549 resolves this conflict by requiring a tax foreclosure suit to be brought in the county where the property is located, even if a probate proceeding is pending in another county.

This is one of those bills in which non-probate interests draft probate legislation. As is often the case, the drafters left us with a little confusion, especially over claims procedures. Also, while the drafters may have intended to trump Section 5B transfers, nothing in Section 5C appears to do that -- if a tax foreclosure suit is "brought" in the county where real property is located, nothing in Section 5C would appear to preclude a statutory probate court from transferring the case to itself under Section 5B.

The new Section 5C applies to the estates of all decedents, regardless of the date of death, and to all causes of action pending on September 1, 1999, or brought after that date.

Sec. 10B. Communications or Records Relating to Decedent's Condition Before Death.

Notwithstanding the Medical Practice Act (Article 4495b, Vernon's Texas Civil Statutes), a person who is a party to a will contest or a proceeding in which a party relies on the mental or testamentary capacity of a decedent before the decedent's death as part of the party's claim or defense is entitled to production of all communications or records relevant to the decedent's condition before the decedent's death. On receipt of a subpoena of communications or records under this section and proof of filing of the will contest or proceeding, by file-stamped [certified] copy, the appropriate physician, hospital, medical facility, custodian of records, or other person in possession of the communications or records shall release the communications or records to the party requesting the records without further authorization.

Added by Acts 1997, 75th Leg., ch. 1302, Sec. 2, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The 1999 change means that only a file-stamped copy (not a certified copy) of a document establishing a will contest must be presented in order to get medical records.

This change applies only to the estate of a person who dies on or after September 1, 1999.

Sec. 15. Case Files [Probate Minutes and Papers to Be Recorded Therein].

The county clerk shall maintain a case file for each decedent's estate in which a probate proceeding has been filed. The case file must contain [keep a record book styled "Probate Minutes," and shall enter therein in full] all orders, judgments, [decrees,] and proceedings of the court and any other probate filing with the court, including all [together with the following]:

(1) [(a)  All] applications for the probate of wills and for the granting of administration; [.]

(2) [(b)  All] citations and notices, whether published or posted, with the returns thereon; [.]

(3) [(c)  All] wills and the testimony upon which the same are admitted to probate, provided that the substance only of depositions shall be recorded; [.]

(4) [(d)  All] bonds and official oaths; [.]

(5) [(e)  All] inventories, appraisements, and lists of claims; [.]

(6) [(f)  All] exhibits and accounts; [.]

(7) [(g)  All] reports of hiring, renting, or sale; [.]

(8) [(h)  All] applications for sale or partition of real estate and reports of sale and of commissioners of partition;[.]

(9) [(i)  All] applications for authority to execute leases for mineral development, or for pooling or unitization of lands, royalty, or other interest in minerals, or to lend or invest money; and [.]

(10) [(j)  All] reports of lending or investing money.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 10, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1142), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 1142 makes changes to how the clerk keeps probate records and is a recognition of the changing world in which we live. Rather than keeping a "probate minutes" book and a "claims docket,' HB 1142 permits the clerk to keep probate information electronically. Also, every probate filing is to be kept in a case file, rather than selective information being recorded in the "probate minutes" (see Section 15 as amended). Does "probate filing" include claims? If so, HB 1142 appears to permit clerks to abandon the bifurcated claims docket/probate docket system and keep everything in the case file with one electronic index.

HB 1142 amends Section 15, 17 and 18 and adds new Section 17A. It makes corresponding changes to Sections 625, 627 and 628 and adds new Section 627A regarding guardianships. It takes effect September 1, 1999.

Sec. 17.  Maintaining Records in Lieu of Record Books.

In lieu of keeping the record books described by Sections 13, 14, and 16 of this code, the county clerk may maintain the information relating to a person's or estate's probate proceedings maintained in those record books on a computer file, on microfilm, in the form of a digitized optical image, or in another similar form of data compilation.

Sec. 17A.  Index.

The county clerk shall properly index the records [each record book,] and [shall] keep the index [it] open for public inspection, but may [shall] not release the index from the clerk's [let it out of his] custody.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1142), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See explanation following Section 15.

Sec. 18. Use of Records as Evidence.

The record books or individual case files, including records on a computer file, on microfilm, in the form of a digitized optical image, or in another similar form of data compilation described in preceding sections [Sections] of this code [Code], or certified copies or reproductions of the records [thereof], shall be evidence in any court of this state [State].

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. .Amended by Acts 1999, 76th Leg., ch. ___ (HB 1142), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See explanation following Section 15.

Sec. 52. Recorded Instruments as Prima Facie Evidence.

(a)  A [Any] statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent shall be received in a proceeding to declare heirship, or in a [any] suit involving title to real or personal property, as prima facie evidence of the facts therein stated, if the [when such] statement is contained in either an affidavit or any other instrument legally executed and acknowledged or sworn to before, and certified by, an officer authorized to take acknowledgments or oaths as applicable, or any judgment of a court of record, and if the [such] affidavit or instrument has been of record for five years or more in the deed records of any county in this state in which such real or personal property is located at the time the suit is instituted, or in the deed records of any county of this state in which the decedent had his domicile or fixed place of residence at the time of his death. If there is any error in the statement of facts in such recorded affidavit or instrument, the true facts may be proved by anyone interested in the proceeding in which said affidavit or instrument is offered in evidence.

(b)  An affidavit of facts concerning the identity of heirs of a decedent as to an interest in real property that is filed in a proceeding or suit described by Subsection (a) of this section may be in the form described by Section 52A of this code.

(c)  An affidavit of facts concerning the identity of heirs of a decedent does not affect the rights of an omitted heir or a creditor of the decedent as otherwise provided by law. This statute shall be cumulative of all other statutes on the same subject, and shall not be construed as abrogating any right to present evidence or to rely on an affidavit of facts conferred by any other statute or rule of law.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 4, eff. June 12, 1969. Amended by Acts 1991, 72nd Leg., ch. 895, Sec. 5, eff. Sept. 1, 1991. Amended by Acts 1999, 76th Leg., ch. ____ (SB 1106), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

SB 1106 adopted a legislatively-approved form for heirship affidavit (or, in the statute's vernacular, an "affidavit of facts concerning the identify of heirs"). This primarily will be a help to members of the general public who choose to prepare and record these affidavits without the assistance of a lawyer, but it also probably will become the form of choice for lawyers as well. Hopefully its use will assure that certain minimal heirship facts are included in the affidavit so that title examiners are faced with fewer hard choices due to marginal affidavits.

The amendments to Section 52 authorize the form and new Section 52A sets forth the terms of the form itself. The changes made by SB 1106 apply to affidavits made on or after September 1, 1999, regardless of the date of death of the decedent.

Sec. 52A.  Form of Affidavit of Facts Concerning Identity of Heirs.

An affidavit of facts concerning the identity of heirs of a decedent may be in substantially the following form:

AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS

Before me, the undersigned authority, on this day personally appeared _____________ ("Affiant") (insert name of affiant) who, being first duly sworn, upon his/her oath states:

1.  My name is ____________ (insert name of affiant), and I live at ______________ (insert address of affiant's residence). I am personally familiar with the family and marital history of _____________ ("Decedent") (insert name of decedent), and I have personal knowledge of the facts stated in this affidavit.

2.  I knew decedent from ___________ (insert date) until ___________ (insert date). Decedent died on __________ (insert date of death). Decedent's place of death was __________ (insert place of death). At the time of decedent's death, decedent's residence was __________ (insert address of decedent's residence).

3.  Decedent's marital history was as follows: _________ (insert marital history and, if decedent's spouse is deceased, insert date and place of spouse's death).

4.  Decedent had the following children: __________ (insert name, birth date, name of other parent, and current address of child or date of death of child and descendants of deceased child, as applicable, for each child).

5.  Decedent did not have or adopt any other children and did not take any other children into decedent's home or raise any other children, except: ___________ (insert name of child or names of children, or state "none").

6.  (Include if decedent was not survived by descendants.) Decedent's mother was: __________ (insert name, birth date, and current address or date of death of mother, as applicable).

7.  (Include if decedent was not survived by descendants.) Decedent's father was: __________ (insert name, birth date, and current address or date of death of father, as applicable).

8.  (Include if decedent was not survived by descendants or by both mother and father.) Decedent had the following siblings: ___________ (insert name, birth date, and current address or date of death of each sibling and parents of each sibling and descendants of each deceased sibling, as applicable, or state "none").

9.  (Optional.) The following persons have knowledge regarding the decedent, the identity of decedent's children, if any, parents, or siblings, if any: _____________ (insert names of persons with knowledge, or state "none").

10.  Decedent died without leaving a written will. (Modify statement if decedent left a written will.)

11.  There has been no administration of decedent's estate. (Modify statement if there has been administration of decedent's estate.)

12.  Decedent left no debts that are unpaid, except: ____________ (insert list of debts, or state "none").

13.  There are no unpaid estate or inheritance taxes, except: ______________ (insert list of unpaid taxes, or state "none").

14.  To the best of my knowledge, decedent owned an interest in the following real property: ________________ (insert list of real property in which decedent owned an interest, or state "none").

15.  (Optional.)  The following were the heirs of decedent: __________ (insert names of heirs).

16.  (Insert additional information as appropriate, such as size of the decedent's estate.)

Signed this ____ day of ____________, ______.

______________________

(signature of affiant)

State of ________________

County of _______________

Sworn to and subscribed to before me on ________________ (date) by _____________________ (insert name of affiant).

_______________________________

(signature of notarial officer)

(Seal, if any, of notary)  _______________________________

(printed name)

My commission expires:  ________

Added by Acts 1999, 76th Leg., ch. ____ (SB 1106), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 52.

Sec. 95. Probate of Foreign Will Accomplished by Filing and Recording.

(a) Foreign Will May Be Probated. The written will of a testator who was not domiciled in Texas at the time of his death which would affect any real or personal property in this State, may be admitted to probate upon proof that it stands probated or established in any of the United States, its territories, the District of Columbia, or any foreign nation.

(b) Application and Citation.

(1) Will probated in domiciliary jurisdiction. If a foreign will has been admitted to probate or established in the jurisdiction in which the testator was domiciled at the time of his death, the application need state only that probate is requested on the basis of the authenticated copy of the foreign proceedings in which the will was probated or established. No citation or notice is required.

(2) Will probated in non-domiciliary jurisdiction. If a foreign will has been admitted to probate or established in any jurisdiction other than the domicile of the testator at the time of his death, the application for its probate shall contain all of the information required in an application for the probate of a domestic will, and shall also set out the name and address of each devisee and each person who will be entitled to a portion of the estate as an heir in the absence of a will. Citations shall be issued and served on each such devisee and heir by registered or certified mail.

(c)  Copy of Will and Proceedings To Be Filed. A copy of the will and of the judgment, order, or decree by which it was admitted to probate or otherwise established, attested by and with the original signature of the clerk of the court or of [by] such other official as has custody of such will or is in charge of probate records, with the seal of the court affixed, if there is a seal, together with a certificate containing the original signature of the judge or presiding magistrate of such court that the said attestation is in due form, shall be filed with the application. Original signatures shall not be required for recordation in the deed records pursuant to Sections 96 through 99 or Section 107 of this code.

(d) Probate Accomplished by Recording.

(1) Will admitted in domiciliary jurisdiction. If the will has been probated or established in the jurisdiction in which the testator was domiciled at the time of his death, it shall be the ministerial duty of the clerk to record such will and the evidence of its probate or establishment in the minutes of the court. No order of the court is necessary. When so filed and recorded, the will shall be deemed to be admitted to probate, and shall have the same force and effect for all purposes as if the original will had been probated by order of the court, subject to contest in the manner and to the extent hereinafter provided.

(2) Will admitted in non-domiciliary jurisdiction. If the will has been probated or established in another jurisdiction not the domicile of the testator, its probate in this State may be contested in the same manner as if the testator had been domiciled in this State at the time of his death. If no contest is filed, the clerk shall record such will and the evidence of its probate or establishment in the minutes of the court, and no order of the court shall be necessary. When so filed and recorded, it shall be deemed to be admitted to probate, and shall have the same force and effect for all purposes as if the original will had been probated by order of the court, subject to contest in the manner and to the extent hereafter provided.

(e) Effect of Foreign Will on Local Property. If a foreign will has been admitted to probate or established in the jurisdiction in which the testator was domiciled at the time of his death, such will, when probated as herein provided, shall be effectual to dispose of both real and personal property in this State irrespective of whether such will was executed with the formalities required by this Code.

(f) Protection of Purchasers. When a foreign will has been probated in this State in accordance with the procedure prescribed in this section for a will that has been admitted to probate in the domicile of the testator, and it is later proved in a proceeding brought for that purpose that the foreign jurisdiction in which the will was admitted to probate was not in fact the domicile of the testator, the probate in this State shall be set aside. If any person has purchased property from the personal representative or any legatee or devisee, in good faith and for value, or otherwise dealt with any of them in good faith, prior to the commencement of the proceeding, his title or rights shall not be affected by the fact that the probate in this State is subsequently set aside.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 976, ch. 173, Sec. 9, eff. Jan. 1, 1972. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1176), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The impetus for HB 1176 was a problem that the Taylor County Clerk had with a foreign probate filing. The exemplified copies offered for filing included mechanical or computer-generated signatures for the clerk, or judge, or both. The clerk thought the exemplified copies should have original signatures, so HB 1176 was born.

Note that, as finally passed, HB 1176 requires original signatures when a foreign will is offered for probate, but apparently not when the exemplified copies merely are being recorded in the real property records. This is a little confusing, since Section 96 says that the certification, etc., required by Section 95 must be included, while Section 95 says original signatures are not required for Section 96 purposes. Nonetheless, the distinction between filings for probate (requiring original signatures) and real property filings (apparently not requiring original signatures) is fairly clear.

This change applies only to the application for the probate of a foreign will filed on or after September 1, 1999.

Sec. 105A. Appointment and Service of Foreign Banks and Trust Companies in Fiduciary Capacity.

(a)  A corporate fiduciary that does not have its main office or a branch office in this state, hereinafter called "foreign corporate fiduciaries" [Any bank or trust company organized under the laws of, and having its principal office in, the District of Columbia or any territory or state of the United States of America, other than the State of Texas, and any national bank having its principal office in the District of Columbia or such territory or other state (all such banks or trust companies being hereinafter sometimes called "foreign banks or trust companies")], having the corporate power to so act, may be appointed and may serve in the State of Texas as trustee (whether of a personal or corporate trust), executor, administrator, guardian of the estate, or in any other fiduciary capacity, whether the appointment be by will, deed, agreement, declaration, indenture, court order or decree, or otherwise, when and to the extent that the home state of the corporate fiduciary [District of Columbia or territory or other state in which such foreign bank or trust company is organized and has its principal office] grants authority to serve in like fiduciary capacity to a corporate fiduciary whose home state is this state [bank or trust company organized under the laws of, and having its principal office in, the State of Texas, or to a national bank having its principal office in the State of Texas].

(b)  Before qualifying or serving in the State of Texas in any fiduciary capacity, as aforesaid, such a foreign corporate fiduciary [bank or trust company] shall file in the office of the Secretary of the State of the State of Texas (1) a copy of its charter, articles of incorporation or of association, and all amendments thereto, certified by its secretary under its corporate seal; (2) a duly executed instrument in writing, by its terms of indefinite duration and irrevocable, appointing the Secretary of State and his successors its agent for service of process upon whom all notices and processes issued by any court of this state may be served in any action or proceeding relating to any trust, estate, fund or other matter within this state with respect to which such foreign corporate fiduciary [bank or trust company] is acting in any fiduciary capacity, including the acts or defaults of such foreign corporate fiduciary [bank or trust company] with respect to any such trust, estate or fund; and (3) a written certificate of designation, which may be changed from time to time thereafter by the filing of a new certificate of designation, specifying the name and address of the officer, agent or other person to whom such notice or process shall be forwarded by the Secretary of State. Upon receipt of such notice or process, it shall be the duty of the Secretary of State forthwith to forward same by registered or certified mail to the officer, agent or other person so designated. Service of notice or process upon the Secretary of State as agent for such a foreign corporate fiduciary [bank or trust company] shall in all ways and for all purposes have the same effect as if personal service had been had within this state upon such foreign corporate fiduciary [bank or trust company].

(c)  [No foreign bank or trust company shall establish or maintain any branch office, agency or other place of business within this state, or shall in any way solicit, directly or indirectly, any fiduciary business in this state of the types embraced by subdivision (a) hereof. Except as authorized herein or as may otherwise be authorized by the laws of this state, no foreign bank or trust company shall act in a fiduciary capacity in this state. Nothing in this Section shall be construed to authorize foreign banks and trust companies to issue or to sell or otherwise market or distribute in this state any investment certificates, trust certificates, or other types of securities (including without limiting the generality of the foregoing any securities of the types authorized by Chapter 7 of the Insurance Code of 1951 prior to the repeal thereof), or to conduct any activities or exercise any powers of the type embraced and regulated by the Texas Banking Act (Article 342-1.001 et seq., Vernon's Texas Civil Statutes) or the Texas Trust Company Act other than those conducted and exercised in a fiduciary capacity under the terms and conditions hereof.

[(d)]  Any foreign corporate fiduciary [bank or trust company] acting in a fiduciary capacity in this state in strict accordance with the provisions of this Section shall not be deemed to be doing business in the State of Texas within the meaning of Article 8.01 of the Texas Business Corporation Act; and shall be deemed qualified to serve in such capacity under the provisions of Section 105 of this Code. [; and notwithstanding other law shall not be prohibited from using in its name and stationery the terms "bank," "trust," or "bank and trust."]

(d) [(e)]  The provisions hereof are in addition to, and not a limitation on, the provisions of Subtitle G, Finance Code, and the Texas Trust Company Act (Article 342a-1.001 et seq., Vernon's Texas Civil Statutes) [Section 2 of Chapter 388, Acts of the 55th Legislature, Regular Session, 1957].

(e) [(f)]  Any foreign corporate fiduciary [bank or trust Company] which shall violate any provision of this Section 105a shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not exceeding Five Thousand Dollars ($5,000.00), and may, in the discretion of the court, be prohibited from thereafter serving in this state in any fiduciary capacity.

Added by Acts 1961, 57th Leg., p. 46, ch. 31, Sec. 1, eff. Aug. 28, 1961. Subsecs. (c), (d) amended by Acts 1995, 74th Leg., ch. 914, Sec. 10, eff. Sept. 1, 1995; Subsec. (c) amended by Acts 1997, 75th Leg., ch. 769, Sec. 5, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. ____ (HB 2066), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The Interstate Banking Act, HB 2066, amended Section 105A, regarding foreign corporate fiduciaries, to be consistent with the state's restructured banking laws.

Sec. 128B.  Notice When Will Probated after Four Years.

(a) Except as provided by Subsection (b) of this section, an applicant for the probate of a will under Section 73(a) of this code must give notice by service of process to each of the testator's heirs whose address can be ascertained by the applicant with reasonable diligence. The notice must be given before the probate of the testator's will.

(b)  Notice under Subsection (a) of this section is not required to be provided to an heir who has delivered to the court an affidavit signed by the heir stating that the heir does not object to the offer of the testator's will for probate.

(c)  The notice required by this section and an affidavit described by Subsection (b) of this section must also contain a statement that:

(1)  the testator's property will pass to the testator's heirs if the will is not admitted to probate; and

(2)  the person offering the testator's will for probate may not be in default for failing to present the will for probate during the four-year period immediately following the testator's death.

(d)  If the address of any of the testator's heirs cannot be ascertained by the applicant with reasonable diligence, the court shall appoint an attorney ad litem to protect the interests of the unknown heirs after an application for the probate of a will is made under Section 73(a) of this code.

(e)  In the case of an application for the probate of a will of a testator who has had another will admitted to probate, this section applies to a beneficiary of the testator's probated will instead of the testator's heirs.

Added by Acts 1999, 76th Leg., ch. _____ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

New Section 128A was added to HB 1852 -- the probate bill of the Real Estate, Probate and Trust Law Section of the State Bar of Texas -- as part of a compromise between the probate lawyers' group and some of the statutory probate judges. In 1997, legislation backed by the statutory probate judges enacted Sections 89A and 89B and renumbered Section 89C regarding probating a will as a muniment of title. While the legislative history of the 1997 legislation made it clear that no substantive change was intended, on its face the 1997 legislation called into question the ability to probate a will as a muniment of title more than four years after the testator's death. (Section 89B required proof that four years had not elapsed since the testator's death, even though Section 73 permits probate of a will as a muniment of title more than four years after death in some cases.)

In HB 1852 as originally introduced, the Real Estate, Probate and Trust Law Section tried to clear up the confusion caused by the 1997 legislation, but some probate judges opposed the clean-up effort, jeopardizing HB 1852. As a compromise, the probate lawyers group agreed to the addition of Section 128A to HB 1852 while dropping the Section 89A and 89B clean-up effort.

New Section 128A sets forth new citation rules when a will is to be probated more than four years after the testator's death. It requires notice to the testator's heirs (or, if a prior will was probated, to the beneficiaries under the prior will) of an attempt to probate a will more than four years after the testator's death. Section 128A makes no sense unless it is still possible to probate a will as a muniment of title more than four years after the testator's death, so the probate lawyers indirectly have accomplished one of their purposes -- assuring that the 1997 legislation did not take away that possibility. In so doing, however, the lawyers group had to accept this new citation requirement when probating stale wills.

Section 128A applies to the estates of persons dying on or after September 1, 1999. That means it will not apply to attempts to probate a stale will until at least September 1, 2003. The law in effect prior to the enactment of Section 128A (which did not include the new citation rules) applies to persons dying prior to September 1, 1999.

Sec. 149A. Accounting.

(a) Interested Person May Demand Accounting. At any time after the expiration of fifteen months from the date that an independent administration was created and the order appointing an independent executor was entered by the county court, any person interested in the estate may demand an accounting from the independent executor. The independent executor shall thereupon furnish to the person or persons making the demand an exhibit in writing, sworn and subscribed by the independent executor, setting forth in detail:

1. The property belonging to the estate which has come into his hands as executor.

2. The disposition that has been made of such property.

3. The debts that have been paid.

4. The debts and expenses, if any, still owing by the estate.

5. The property of the estate, if any, still remaining in his hands.

6. Such other facts as may be necessary to a full and definite understanding of the exact condition of the estate.

7. Such facts, if any, that show why the administration should not be closed and the estate distributed.

Any other interested person shall, upon demand, be entitled to a copy of any exhibit or accounting that has been made by an independent executor in compliance with this section.

(b)  Enforcement of Demand. Should the independent executor not comply with a demand for an accounting authorized by this section within sixty days after receipt of the demand, the person making the demand may compel compliance by an action in the county court, as that term is defined by Section 3 of this code [or by a suit in the district court]. After a hearing, the court shall enter an order requiring the accounting to be made at such time as it deems proper under the circumstances.

(c) Subsequent Demands. After an initial accounting has been given by an independent executor, any person interested in an estate may demand subsequent periodic accountings at intervals of not less than twelve months, and such subsequent demands may be enforced in the same manner as an initial demand.

(d) Remedies Cumulative. The right to an accounting accorded by this section is cumulative of any other remedies which persons interested in an estate may have against the independent executor thereof.

Added by Acts 1971, 62nd Leg., p. 980, ch. 173, Sec. 10, eff. Jan. 1, 1972. Amended by Acts 1973, 63rd Leg., p. 412, ch. 184, Sec. 1, eff. May 25, 1973; Acts 1977, 65th Leg., p. 1065, ch. 390, Sec. 6, eff. Sept. 1, 1977. Amended by Acts 1999, 76th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

In Section 3(e) "County Court" is defined to include all county and district courts exercising probate jurisdiction. HB 1852 amends Section 149A, 149B and 149C to be consistent with this definition.

Sec. 149B. Accounting and Distribution.

(a)  In addition to or in lieu of the right to an accounting provided by Section 149A of this code, at any time after the expiration of two years from the date that an independent administration was created and the order appointing an independent executor was entered, a person interested in the estate may petition the county court, as that term is defined by Section 3 of this code, for an accounting and distribution. [The proceeding for an accounting and distribution may be brought in the county court if the county judge is licensed to practice law in the State of Texas or may be brought in a statutory probate court, a county court at law with probate jurisdiction, or a district court of the county.] The court may order an accounting to be made with the court by the independent executor at such time as the court deems proper. The accounting shall include the information that the court deems necessary to determine whether any part of the estate should be distributed.

(b) On receipt of the accounting and, after notice to the independent executor and a hearing, unless the court finds a continued necessity for administration of the estate, the court shall order its distribution by the independent executor to the persons entitled to the property. If the court finds there is a continued necessity for administration of the estate, the court shall order the distribution of any portion of the estate that the court finds should not be subject to further administration by the independent executor. If any portion of the estate that is ordered to be distributed is incapable of distribution without prior partition or sale, the court shall order partition and distribution, or sale, in the manner provided for the partition and distribution of property incapable of division in estates administered under the direction of the county court.

(c) If all the property in the estate is ordered distributed by the executor and the estate is fully administered, the court also may order the independent executor to file a final account with the court and may enter an order closing the administration and terminating the power of the independent executor to act as executor.

Added by Acts 1979, 66th Leg., p. 1751, ch. 713, Sec. 18, eff. Aug. 27, 1979. Subsecs. (a) and (b) amended by Acts 1985, 69th Leg., ch. 882, Sec. 1, eff. Aug. 26, 1985; Subsec. (a) amended by Acts 1987, 70th Leg., ch. 760, Sec. 1, eff. Aug. 31, 1987; Subsec. (b) amended by Acts 1987, 70th Leg., ch. 565, Sec. 1, eff. June 18, 1987. Amended by Acts 1999, 76th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

In Section 3(e) "County Court" is defined to include all county and district courts exercising probate jurisdiction. HB 1852 amends Section 149A, 149B and 149C to be consistent with this definition.

Sec. 149C. Removal of Independent Executor.

(a)  The county court, as that term is defined by Section 3 of this code[, a statutory probate court, a county court at law with probate jurisdiction, or a district court of the county], on its own motion or on motion of any interested person, after the independent executor has been cited by personal service to answer at a time and place fixed in the notice, may remove an independent executor when:

(1) the independent executor fails to return within ninety days after qualification, unless such time is extended by order of the court, an inventory of the property of the estate and list of claims that have come to his knowledge;

(2) sufficient grounds appear to support belief that he has misapplied or embezzled, or that he is about to misapply or embezzle, all or any part of the property committed to his care;

(3) he fails to make an accounting which is required by law to be made;

(4) he fails to timely file the notice required by Section 128A of this code;

(5) he is proved to have been guilty of gross misconduct or gross mismanagement in the performance of his duties; or

(6) he becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing his fiduciary duties.

(b) The order of removal shall state the cause of removal and shall direct by order the disposition of the assets remaining in the name or under the control of the removed executor. The order of removal shall require that letters issued to the removed executor shall be surrendered and that all letters shall be canceled of record. If an independent executor is removed by the court under this section, the court may, on application, appoint a successor independent executor as provided by Section 154A of this code.

(c) An independent executor who defends an action for his removal in good faith, whether successful or not, shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney's fees, in the removal proceedings.

(d) Costs and expenses incurred by the party seeking removal incident to removal of an independent executor appointed without bond, including reasonable attorney's fees and expenses, may be paid out of the estate.

Added by Acts 1979, 66th Leg., p. 1751, ch. 713, Sec. 19, eff. Aug. 27, 1979. Subsec. (d) added by Acts 1987, 70th Leg., ch. 719, Sec. 1, eff. Aug. 31, 1987. Subsec. (a) amended by Acts 1989, 71st Leg., ch. 1035, Sec. 10, eff. Sept. 1, 1989; amended by Acts 1995, 74th Leg., ch. 1039, Sec. 10, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

In Section 3(e) "County Court" is defined to include all county and district courts exercising probate jurisdiction. HB 1852 amends Section 149A, 149B and 149C to be consistent with this definition.

Sec. 149D.  Distribution of Remaining Estate Pending Judicial Discharge.

(a) On or before filing an action under Section 149E of this code, the independent executor must distribute to the beneficiaries of the estate any of the remaining assets or property of the estate that remains in the hands of the independent executor after all of the estate's debts have been paid, except for a reasonable reserve of assets that the independent executor may retain in a fiduciary capacity pending court approval of the final account.

(b)  The court may review the amount of assets on reserve and may order the independent executor to make further distributions under this section.

Added by Acts 1999, 76th Leg., ch. ___ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

A major legislative objective in 1999 of the Real Estate, Probate and Trust Law Section of the State Bar of Texas was a procedure for the judicial discharge of independent executors. New Sections 149D, 149E, 149F and 149G are the realization of this objective.

Section 149D requires the independent executor to distribute all of the remaining estate property prior to filing a discharge action, but the independent executor is permitted to retain a "reasonable reserve" of assets pending court approval of the final account. This "reasonable reserve" is an amount of cash necessary to pay the independent executor's likely attorneys fees and expenses in the discharge action.

Section 149E permits an action under the Declaratory Judgments Act, Chapter 37 of the Civil Practices and Remedies Code, to discharge the independent executor from "any liability involving matters relating to the past administration of the estate that have been fully and fairly disclosed." Each estate beneficiary must be served with citation unless citation is waived. Presumably this includes beneficiaries of specific bequests who received their distributions early in the administration and not just residuary beneficiaries. Such beneficiaries have not real interest in the proceeding, but they probably will be willing to sign waivers.

Section 149E makes the requirement of filing a final account optional on the court -- the court may require the filing of such an account and may audit, settle or approve the account, but the court is not required to do so. This is part of the compromise struck with some statutory probate judges, who originally opposed the judicial discharge of independent executors. The compromise nature of Section 149E is obvious, since Section 149D apparently anticipates that a final account will be filed, but Section 149E does not require it. Whether or not required by the court, however, the independent executor will almost always wish to file a final account so that the "fully and fairly disclosed" requirement can be met.

Section 149F provides that the costs of a proceeding "in relation to a final account required under Section 149E" may be paid by the independent executor out of estate funds, but the independent executor must "refund" any amount not approved by the court as a proper charge against the estate. This section makes more sense if Section 149E required a final account in all cases. Of course, the cost of preparing a final account should be a proper cost of the estate even if no judicial discharge is sought, so presumably the independent executor can (and, in fact, should) incur the cost of the final account as an estate expense before filing the judicial discharge action and shouldn't delay the process by waiting for the court to order the final account.

Section 149G provides that the rights and remedies in the new judicial discharge procedure are cumulative.

HB 1852 applies to the estates of persons dying on or after September 1, 1999. It will be interesting to see if courts will permit the judicial discharge of independent executors of estates of persons who died prior to September 1, 1999, or if they will consider the new procedure to be unavailable in those cases.

Sec. 149E.  Judicial Discharge of Independent Executor.

(a) After an estate has been administered and if there is no further need for an independent administration of the estate, the independent executor of the estate may file an action for declaratory judgment under Chapter 37, Civil Practice and Remedies Code, seeking to discharge the independent executor from any liability involving matters relating to the past administration of the estate that have been fully and fairly disclosed.

(b)  On the filing of an action under this section, each beneficiary of the estate shall be personally served with citation, except for a beneficiary who has waived the issuance and service of citation.

(c)  In a proceeding under this section, the court may require the independent executor to file a final account that includes any information the court considers necessary to adjudicate the independent executor's request for a discharge of liability. The court may audit, settle, or approve a final account filed under this subsection.

Amended by Acts 1999, 76th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 149D.

Sec. 149F.  Court Costs and Other Charges Related to Final Account in Judicial Discharge.

(a)   Except as ordered by the court, the independent executor is entitled to pay from the estate legal fees, expenses, or other costs of a proceeding incurred in relation to a final account required under Section 149E of this code.

(b)  The independent executor shall be personally liable to refund any amount not approved by the court as a proper charge against the estate.

Amended by Acts 1999, 76th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 149D.

Sec. 149G.  Rights and Remedies Cumulative.

The rights and remedies conferred by Sections 149D, 149E, and 149F of this code are cumulative of other rights and remedies to which a person interested in the estate may be entitled under law.

Amended by Acts 1999, 76th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 149D.

Sec. 194. Bonds of Personal Representatives of Estates.

Except when bond is not required under the provisions of this Code, before the issuance of letters testamentary or of administration, the recipient of letters shall enter into bond conditioned as required by law, payable to the county judge or probate judge of the county in which the probate proceedings are pending and to his successors in office. Such bonds shall bear the written approval of either of such judges in his official capacity, and shall be executed and approved in accordance with the following rules:

1. Court to Fix Penalty. The penalty of the bond shall be fixed by the judge, in an amount deemed sufficient to protect the estate and its creditors, as hereinafter provided.

2. Bond to Protect Creditors Only, When. If the person to whom letters testamentary or of administration is granted is also entitled to all of the decedent's estate, after payment of debts, the bond shall be in an amount sufficient to protect creditors only, notwithstanding the rules applicable generally to bonds of personal representatives of estates.

3. Before Fixing Penalty, Court to Hear Evidence. In any case where a bond is, or shall be, required of a personal representative of an estate, the court shall, before fixing the penalty of the bond, hear evidence and determine:

(a) The amount of cash on hand and where deposited, and the amount of cash estimated to be needed for administrative purposes, including operation of a business, factory, farm or ranch owned by the estate, and expenses of administration for one (1) year; and

(b) The revenue anticipated to be received in the succeeding twelve (12) months from dividends, interest, rentals, or use of real or personal property belonging to the estate and the aggregate amount of any installments or periodical payments to be collected; and

(c) The estimated value of certificates of stock, bonds, notes, or securities of the estate or ward, the name of the depository, if any, in which said assets are held for safekeeping, the face value of life insurance or other policies payable to the person on whose estate administration is sought, or to such estate, and such other personal property as is owned by the estate, or by one under disability; and

(d) The estimated amount of debts due and owing by the estate or ward.

4. Penalty of Bond. The penalty of the bond shall be fixed by the judge in an amount equal to the estimated value of all personal property belonging to the estate, or to the person under disability, together with an additional amount to cover revenue anticipated to be derived during the succeeding twelve (12) months from interest, dividends, collectible claims, the aggregate amount of any installments or periodical payments exclusive of income derived or to be derived from federal social security payments, and rentals for use of real and personal property; provided, that the penalty of the original bond shall be reduced in proportion to the amount of cash or value of securities or other assets authorized or required to be deposited or placed in safekeeping by order of court, or voluntarily made by the representative or by his sureties as hereinafter provided in Subdivisions 6 and 7 hereof.

5.  Agreement as to Deposit of Assets. It shall be lawful, and the court may require such action when deemed in the best interest of an estate, for a personal representative to agree with the surety or sureties, either corporate or personal, for the deposit of any or all cash, and safekeeping of other assets of the estate in a financial institution as defined by Section 201.101, Finance Code, with its main office or a branch office in this state [domestic state or national bank, trust company, savings and loan association, or other domestic corporate depository, duly incorporated] and qualified to act as a depository in this State [such] under the laws of this State or of the United States, if such deposit is otherwise proper, in such manner as to prevent the withdrawal of such moneys or other assets without the written consent of the surety, or an order of the court made on such notice to the surety as the court shall direct. No such agreement shall in any manner release from or change the liability of the principal or sureties as established by the terms of the bond.

6. Deposits Authorized or Required, When. Cash or securities or other personal assets of an estate or which an estate is entitled to receive may, and if deemed by the court in the best interest of such estate shall, be deposited or placed in safekeeping as the case may be, in one or more of the depositories hereinabove described upon such terms as shall be prescribed by the court. The court in which the proceedings are pending, upon its own motion, or upon written application of the representative or of any other person interested in the estate may authorize or require additional assets of the estate then on hand or as they accrue during the pendency of the probate proceedings to be deposited or held in safekeeping as provided above. The amount of the bond of the personal representative shall be reduced in proportion to the cash so deposited, or the value of the securities or other assets placed in safekeeping. Such cash so deposited, or securities or other assets held in safekeeping, or portions thereof, may be withdrawn from a depository only upon order of the court, and the bond of the personal representative shall be increased in proportion to the amount of cash or the value of securities or other assets so authorized to be withdrawn.

7. Representative May Deposit Cash or Securities of His Own in Lieu of Bond. It shall be lawful for the personal representative of an estate, in lieu of giving surety or sureties on any bond which shall be required of him, or for the purpose of reducing the amount of such bond, to deposit out of his own assets cash or securities acceptable to the court, with a depository such as named above or with any other corporate depository approved by the court, if such deposit is otherwise proper, said deposit to be equal in amount or value to the amount of the bond required, or the bond reduced by the value of assets so deposited.

8. Rules Applicable to Making and Handling Deposits in Lieu of Bond or to Reduce Penal Sum of Bond.

(a) A receipt for a deposit in lieu of surety or sureties shall be issued by the depository, showing the amount of cash or, if securities, the amount and description thereof, and agreeing not to disburse or deliver the same except upon receipt of a certified copy of an order of the court in which the proceedings are pending, and such receipt shall be attached to the representative's bond and be delivered to and filed by the county clerk after approval by the judge.

(b) The amount of cash or securities on deposit may be increased or decreased, by order of the court from time to time, as the interest of the estate shall require.

(c) Deposits in lieu of sureties on bonds, whether of cash or securities, may be withdrawn or released only on order of a court having jurisdiction.

(d) Creditors shall have the same rights against the representative and such deposits as are

provided for recovery against sureties on a bond.

(e) The court may on its own motion, or upon written application by the representative or by any other person interested in the estate, require that adequate bond be given by the representative in lieu of such deposit, or authorize withdrawal of the deposit and substitution of a bond with sureties therefor. In either case, the representative shall file a sworn statement showing the condition of the estate, and unless the same be filed within twenty (20) days after being personally served with notice of the filing of an application by another, or entry of the court's motion, he shall be subject to removal as in other cases. The deposit may not be released or withdrawn until the court has been satisfied as to the condition of the estate, has determined the amount of bond, and has received and approved the bond.

9. Withdrawal of Deposits When Estate Closed. Upon the closing of an estate, any such deposit or portion thereof remaining on hand, whether of the assets of the representative, or of the assets of the estate, or of the surety, shall be released by order of court and paid over to the person or persons entitled thereto. No writ of attachment or garnishment shall lie against the deposit, except as to claims of creditors of the estate being administered, or persons interested therein, including distributees and wards, and then only in the event distribution has been ordered by the court, and to the extent only of such distribution as shall have been ordered.

10. Who May Act as Sureties. The surety or sureties on said bonds may be authorized corporate sureties, or personal sureties.

11. Procedure When Bond Exceeds Fifty Thousand Dollars ($50,000). When any such bond shall exceed Fifty Thousand Dollars ($50,000) in penal sum, the court may require that such bond be signed by two (2) or more authorized corporate sureties, or by one such surety and two (2) or more good and sufficient personal sureties. The estate shall pay the cost of a bond with corporate sureties.

12. Qualifications of Personal Sureties. If the sureties be natural persons, there shall not be less than two (2), each of whom shall make affidavit in the manner prescribed in this Code, and the judge shall be satisfied that he owns property within this State, over and above that exempt by law, sufficient to qualify as a surety as required by law. Except as provided by law, only one surety is required if the surety is an authorized corporate surety; provided, a personal surety, instead of making affidavit, or creating a lien on specific real estate when such is required, may, in the same manner as a personal representative, deposit his own cash or securities, in lieu of pledging real property as security, subject, so far as applicable, to the provisions covering such deposits when made by personal representatives.

13. Bonds of Temporary Appointees. In case of a temporary administrator, the bond shall be in such sum as the judge shall direct.

14. Increased or Additional Bonds When Property Sold, Rented, Leased for Mineral Development, or Money Borrowed or Invested. The provisions in this Section with respect to deposit of cash and safekeeping of securities shall cover, so far as they may be applicable, the orders to be entered by the court when real or personal property of an estate has been authorized to be sold or rented, or money borrowed thereon, or when real property, or an interest therein, has been authorized to be leased for mineral development or subjected to unitization, the general bond having been found insufficient.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 6(b), eff. Aug. 22, 1957; Acts 1971, 62nd Leg., p. 983, ch. 173, Sec. 14, eff. Jan. 1, 1972; Acts 1979, 66th Leg., p. 1754, ch. 713, Sec. 25, eff. Aug. 27, 1979. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 31, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ____ (HB 2066), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The Interstate Banking Act, HB 2066, amended Section 194(5), to be consistent with the state's restructured banking laws. Note that amended Section 194(5) permits the court to require safekept funds to be kept in a financial institution with a main or branch office in Texas.

Sec. 221A.  Change of Resident Agent.

(a) A personal representative may change its resident agent to accept service of process in a probate proceeding or other action relating to the estate by filing a statement of the change titled "Designation of Successor Resident Agent" with the court in which the probate proceeding is pending. The statement must contain the names and addresses of the:

(1)  personal representative;

(2)  resident agent; and

(3)  successor resident agent.

(b)  The designation of a successor resident agent made in a statement filed under this section takes effect on the date on which the statement is filed with the court.

Added by Acts 1999, 76th Leg., ch. ___ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The Probate Code long has required a nonresident personal representative to designate a resident agent. However, there has been no procedure for changing the resident agent or for the resident agent to resign.

HB 1852 enacts Section 221A, which sets forth a procedure for changing resident agents, and Section 221B, which sets forth a procedure for a resident agent to resign. It also amends Section 222, giving the court the power to remove a personal representative if a new resident agent is not appointed.

Sections 221A and 221B apply to changes of resident agents on or after September 1, 1999. The change to Section 222 applies to a motion for removal of a personal representative filed on or after September 1, 1999.

Sec. 221B.  Resignation of Resident Agent.

(a) A resident agent of a personal representative may resign as the resident agent by giving notice to the personal representative and filing with the court in which the probate proceeding is pending a statement titled "Resignation of Resident Agent" that:

(1)  contains the name of the personal representative;

(2)  contains the address of the personal representative most recently known by the resident agent;

(3)  states that notice of the resignation has been given to the personal representative and that the personal representative has not designated a successor resident agent; and

(4)  contains the date on which the notice of the resignation was given to the personal representative.

(b)  The resident agent shall send, by certified mail, return receipt requested, a copy of a resignation statement filed under Subsection (a) of this section to:

(1)  the personal representative at the address most recently known by the agent; and

(2)  each party in the case or the party's attorney or other designated representative of record.

(c)  The resignation of a resident agent takes effect on the date on which the court enters an order accepting the agent's resignation. A court may not enter an order accepting the agent's resignation unless the agent complies with the requirements of this section.

Added by Acts 1999, 76th Leg., ch. ___ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 221A.

Sec. 222. Removal.

(a)  Without Notice. (1) The court, on its own motion or on motion of any interested person, and without notice, may remove any personal representative, appointed under provisions of this Code, who:

(A)  Neglects to qualify in the manner and time required by law;

(B)  Fails to return within ninety days after qualification, unless such time is extended by order of the court, an inventory of the property of the estate and list of claims that have come to his knowledge;

(C)  Having been required to give a new bond, fails to do so within the time prescribed;

(D)  Absents himself from the State for a period of three months at one time without permission of the court, or removes from the State;

(E)  Cannot be served with notices or other processes because of the fact that the:

(i)  personal representative's [by reason of the fact that his] whereabouts are unknown;

(ii)  personal representative [, or by reason of the fact that he] is eluding service; or

(iii)  personal representative is a nonresident of this state who does not have a resident agent to accept service of process in any probate proceeding or other action relating to the estate; or

(F)  Has misapplied, embezzled, or removed from the State, or is about to misapply, embezzle, or remove from the State, all or any part of the property committed to the personal representative's care.

(2)  The court may remove a personal representative under Paragraph (F), Subdivision (1), of this subsection only on the presentation of clear and convincing evidence given under oath.

(b) With Notice. The court may remove a personal representative on its own motion, or on the complaint of any interested person, after the personal representative has been cited by personal service to answer at a time and place fixed in the notice, when:

(1) Sufficient grounds appear to support belief that he has misapplied, embezzled, or removed from the state, or that he is about to misapply, embezzle, or remove from the state, all or any part of the property committed to his care;

(2) He fails to return any account which is required by law to be made;

(3) He fails to obey any proper order of the court having jurisdiction with respect to the performance of his duties;

(4) He is proved to have been guilty of gross misconduct, or mismanagement in the performance of his duties;

(5) He becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes incapable of properly performing the duties of his trust;

(6) As executor or administrator, he fails to make a final settlement within three years after the grant of letters, unless the time be extended by the court upon a showing of sufficient cause supported by oath; or

(7) As executor or administrator, he fails to timely file the notice required by Section 128A of this code.

(c) Order of Removal. The order of removal shall state the cause thereof. It shall require that any letters issued to the one removed shall, if he has been personally served with citation, be surrendered, and that all such letters be cancelled of record, whether delivered or not. It shall further require, as to all the estate remaining in the hands of a removed person, delivery thereof to the person or persons entitled thereto, or to one who has been appointed and has qualified as successor representative.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 11, eff. June 12, 1969. Subsec. (b) amended by Acts 1989, 71st Leg., ch. 1035, Sec. 11, eff. Sept. 1, 1989; Subsecs. (a), (b)

amended by Acts 1993, 73rd Leg., ch. 905, Sec. 11, eff. Sept. 1, 1993; Subsecs. (b), (c) amended by Acts 1993, 73rd Leg., ch. 957, Sec. 37, eff. Sept. 1, 1993; Subsecs. (a), (b) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 13, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 221A.

Sec. 270. Liability of Homestead for Debts.

The homestead shall not be liable for the payment of any of the debts of the estate, except for:

(1)  the purchase money thereof; [,]

(2)  the taxes due thereon; [, or]

(3)  work and material used in constructing improvements thereon if the requirements of Section 50(a)(5), Article XVI, Texas Constitution, are met;

(4)  an owelty of partition imposed against the entirety of the property by court order or by a written agreement of the parties to the partition, including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family homestead in a divorce proceeding;

(5)  the refinance of a lien against a homestead, including a federal tax lien resulting from the tax debt of both spouses, if the homestead is a family homestead, or from the tax debt of the decedent;

(6)  an extension of credit on the homestead if the requirements of Section 50(a)(6), Article XVI, Texas Constitution, are met; or

(7)  a reverse mortgage [; and in this last case only when the work and material are contracted for in writing, with the consent of both spouses given in the same manner as required in making a sale and conveyance of the homestead].

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 35, ch. 24, Sec. 1, eff. Aug. 27, 1979. Amended by Acts 1999, 76th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 1852 amended Section 270 to make it consistent with recent constitutional amendments regarding homesteads and home equity lending in Texas.

Sec. 322. Classification of Claims Against Estates of Decedent.

Claims against an estate of a decedent shall be classified and have priority of payment, as follows:

Class 1.  Funeral expenses and expenses of last sickness for a reasonable amount to be approved by the court, not to exceed a total of Fifteen Thousand Dollars, with any excess to be classified and paid as other unsecured claims.

Class 2.  Expenses of administration and expenses incurred in the preservation, safekeeping, and management of the estate.

Class 3.  Secured claims for money under Section 306(a)(1), including tax liens, so far as the same can be paid out of the proceeds of the property subject to such mortgage or other lien, and when more than one mortgage, lien, or security interest shall exist upon the same property, they shall be paid in order of their priority.

Class 4.  Claims for the principal amount of and accrued interest on delinquent child support and child support arrearages that have been confirmed and reduced to money judgment, as determined under Subchapter F, Chapter 157, Family Code.

Class  5.  Claims for taxes, penalties, and interest due under Title 2, Tax Code; Chapter 8, Title 132, Revised Statutes; Section 81.111, Natural Resources Code; the Municipal Sales and Use Tax Act (Chapter 321, Tax Code); Section 451.404, Transportation Code; or Subchapter I, Chapter 452, Transportation Code.

Class 6 [5].  Claims for the cost of confinement established by the institutional division of the Texas Department of Criminal Justice under Section 501.017, Government Code.

Class 7 [6].  Claims for repayment of medical assistance payments made by the state under Chapter 32, Human Resources Code, to or for the benefit of the decedent.

Class 8 [7].  All other claims.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 2992, ch. 988, Sec. 3, eff. June 15, 1971; Acts 1979, 66th Leg., p. 869, ch. 394, Sec. 1, eff. Aug. 27, 1979. Amended by Acts 1981, 67th Leg., p. 242, ch. 102, Sec. 8, eff. Aug. 31, 1981; Acts 1981, 67th Leg., p. 1785, ch. 389, Secs. 38A, 39(l), eff. Jan. 1, 1982; Acts 1987, 70th Leg., ch. 1049, Sec. 51, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 1052, Sec. 2.07, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 2, Sec. 14.27(a)(6), eff. Aug. 28, 1989; Acts 1989, 71st Leg., ch. 1035, Sec. 13, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 1054, Sec. 24, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 165, Sec. 30.243, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1361, Sec. 2, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1348), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 1348 amended Section 322 to give a higher priority to child support claims against a decedent's estate. Note that it only applies to principal and accrued interest of such claims that have been confirmed and reduced to money judgment.

The changes to Section 322 apply to the estates of persons dying on or after September 1, 1999.

PART 10. INVESTMENTS, LOANS, AND CONTRIBUTIONS OF ESTATES OF WARDS

Sec. 389. Investments Without Court Order.

(a) The guardian of the estate may retain, without regard to diversification of investments and without liability for any depreciation or loss resulting from the retention, any property received into a guardianship estate at its inception or added to the estate by gift, devise, or inheritance or by mutation or increase. A guardian of the estate is not relieved from the duty to take care of and manage the estate as a person of ordinary prudence, discretion, and intelligence would exercise in the management of the person's own affairs.

(b) If, at any time, the guardian of the estate shall have on hand money belonging to the ward beyond that which may be necessary for the education and maintenance of such ward or wards, he shall invest such money as follows:

(1) In bonds or other obligations of the United States;

(2) In tax-supported bonds of the State of Texas;

(3) In tax-supported bonds of any county, district, political subdivision, or incorporated city or town in the State of Texas; provided, that the bonds of counties, districts, subdivisions, cities, and towns may be purchased only subject to the following restrictions: the net funded debt of said issuing unit shall not exceed ten per cent of the assessed value of taxable property therein, "net funded debt" meaning the total funded debt less sinking funds on hand; and further, in the case of cities or towns, less that part of the debt incurred for acquisition or improvement of revenue-producing utilities, the revenues of which are not pledged to support other obligations; provided, however, that these restrictions shall not apply to bonds issued for road purposes in this state under authority of Section 52 of Article III of the Constitution of Texas, which bonds are supported by a tax unlimited as to rate or amount;

(4) In shares or share accounts of any building and loan association organized under the laws of this state, provided the payment of such shares or share accounts is insured by the Federal Savings & Loan Insurance Corporation;

(5) In the shares or share accounts of any federal savings and loan association domiciled in this state, where the payment of such shares or share accounts is insured by the Federal Savings & Loan Insurance Corporation;

(6) In collateral bonds of companies incorporated under the laws of the State of Texas, having a paid-in capital of One Million Dollars or more, when such bonds are a direct obligation of the company issuing them, and are specifically secured by first mortgage real estate notes or other securities pledged with a trustee; or

(7) In interest-bearing time deposits which may be withdrawn on or before one year after demand in any bank doing business in Texas where the payment of such time deposits is insured by the Federal Deposit Insurance Corporation.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1961, 57th Leg., p. 42, ch. 28, Sec. 1, eff. March 25, 1961. Amended by Acts 1993, 73rd Leg., ch. 846, Sec. 22, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 2066), eff. Sept. 1, 1999. Repealed by Acts 1999, 76th Leg., ch. ____ (HB 1662), eff. June 19, 1999.

Explanation of 1999 Amendment

Part 10, Chapter VIII of the Probate Code, containing only Section 389, has been out-of-place and unnecessary since 1993, when the guardianship provisions of the Probate Code were recodified into Chapter 13 of the Code, Sections 601 et seq. The Interstate Banking Bill, HB 2066, amended Section 389 to make it consistent with the state's restructured banking laws. HB 1662 repealed Part 10, Chapter VIII altogether, effective June 19, 1999. Since HB 1662 was enacted after HB 2066, its repeal should take precedence over HB 2066's amendment. In the big picture, however, it doesn't matter -- Section 855 does what Section 389 was intended to do.

Sec. 404. Closing Administration of Estates of Decedents [and Guardianship of Wards or Their Estates].

[(a)] Administration of the estates of decedents [and guardianship of the persons and estates of wards] shall be settled and closed[:

[(1)]  when all the debts known to exist against the estate of a deceased person have been paid, or when they have been paid so far as the assets in the hands of an administrator or executor of such estate will permit, and when there is no further need for administration[;

[(2)  when a minor ward dies, or becomes an adult by becoming eighteen years of age, or by removal of disabilities of minority according to the law of this state, or by marriage, or when the necessity for guardianship no longer exists for other reasons;

[(3)  when an incompetent ward dies, or is decreed as provided by law to have been restored to sound mind or sober habits, or, being married, when his or her spouse has qualified as survivor in community;

[(4)  when a ward entitled to funds from a governmental source dies, or when the court finds that the necessity for the guardianship of that person has ended;

[(5)  when the estate of a ward becomes exhausted;

[(6)  when the foreseeable income accruing to a ward or to his estate is so negligible that maintaining the guardianship in force would be burdensome; or

[(7)  when:

[(A)  a guardianship of the estate does not exist;

[(B)  a natural parent of the ward requests the settlement and closing of the guardianship; and

[(C)  the court finds it is in the best interest of the ward to settle and close the guardianship.

[(b)  In a case arising under Subsection (a)(6) of this section, the court may authorize the income to be paid to a parent, or some other person who has acted as guardian, to assist as far as possible in the maintenance of the ward, and without liability to account to the court for the income.

[(c)  When the estate of a minor ward consists only of cash or cash equivalents in an amount of not more than $25,000, the guardianship of the estate may be terminated and the assets paid to the county clerk of the county in which the guardianship proceeding is pending, and the clerk shall manage the funds as provided by Section 144(a) of this code].

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1975, 64th Leg., p. 104, ch. 45, Sec. 2, eff. Sept. 1, 1975. Amended by Acts 1985, 69th Leg., ch. 881, Sec. 2, eff. Aug. 26, 1985; Subsec. (c) amended by Acts 1989, 71st Leg., ch. 1035, Sec. 15, eff. Sept. 1, 1989; Subsec. (a) amended by Acts 1993, 73rd Leg., ch. 712, Sec. 5, eff. Sept. 1, 1993. Amended by Acts 1993, 73rd Leg., ch. 57, Sec. 68, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1660), eff. June 19, 1999.

Explanation of 1999 Amendment

HB 1660 was yet another housecleaning bill, cleaning up lost references to guardianships in the non-guardianship part of the Probate Code.

Sec. 406. Procedure in Case of Neglect or Failure to File Final Account; Payments Due Meantime.

(a) If a personal representative charged with the duty of filing a final account fails or neglects so to do at the proper time, the court shall [may], upon its own motion, or [shall,] upon the written complaint of any one interested in the decedent's [or ward's] estate which has been administered, cause such representative to be cited to appear and present such account within the time specified in the citation.

(b)  [If a written complaint has not been filed by anyone interested in the guardianship of a person or estate of a minor or deceased ward, the court may, on or after the third anniversary after the date of the death of the ward or after the date the minor reaches the age of majority, remove the estate from the court's active docket without a final accounting and without appointing a successor personal representative.

[(c)  If a complaint has not been filed by anyone interested in the estate of a ward whose whereabouts are unknown to the court, the court may, on or after the fourth anniversary after the ward's whereabouts became unknown to the court, remove the estate from the court's active docket without a final accounting and without appointing a successor personal representative.

[(d)]  If the whereabouts of the personal representative and heirs of a decedent are unknown and a complaint has not been filed by anyone interested in the decedent's estate, the court may, on or after the fourth anniversary after the last date on which letters testamentary or of administration are issued by the court clerk, close the estate without a final accounting and without appointing a successor personal representative.

[(e)  Rentals or other payments becoming due to the ward, his estate, or his guardian, between the date the ward's disability terminates or the date of the ward's death and the effective date of the guardian's discharge may be paid or tendered to the emancipated ward, his guardian, or the personal representative of the ward's estate, at obligor's option, and such payment or tender shall constitute and be an absolute discharge of such matured obligation for all purposes to the extent of the amount thus paid or tendered.]

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan 1, 1956. Amended by Acts 1979, 66th Leg., p. 1876, ch. 758, Sec. 3, eff. Aug. 27, 1979. Amended by Acts 1993, 73rd Leg., ch. 898, Sec. 1, eff. June 19, 1993. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 70, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1661), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 1661 was yet another housecleaning bill, cleaning up lost references to guardianships in the non-guardianship part of the Probate Code.

Sec. 601. Definitions.

In this chapter:

(1) "Attorney ad litem" means an attorney who is appointed by a court to represent and advocate on behalf of a proposed ward, an incapacitated person, or an unborn person in a guardianship proceeding.

(2) "Authorized corporate surety" means a domestic or foreign corporation authorized to do business in this state to issue surety, guaranty, or indemnity bonds guaranteeing the fidelity of guardians.

(3) "Child" includes a biological or adopted child, whether adopted by a parent under a statutory procedure or by acts of estoppel.

(4) "Claims" includes a liability against the estate of a minor or an incapacitated person and debts due to the estate of a minor or an incapacitated person.

(5)  "Corporate fiduciary" means a financial institution as defined by Section 201.101, Finance Code, [trust company or bank] having trust powers, existing or doing business under the laws of this state, another state, or [of] the United States, that is authorized by law to act under the order or appointment of any court of record, without giving bond, as a guardian, receiver, trustee, executor, or administrator, or, although without general depository powers, as a depository for any money paid into court, or to become sole guarantor or surety in or on any bond required to be given under the laws of this state.

(6) "Court investigator" means a person appointed by a statutory probate court under Section 25.0025, Government Code.

(7) "Court" or "probate court" means a county court in the exercise of its probate jurisdiction, a court created by statute and authorized to exercise original probate jurisdiction, or a district court exercising original probate jurisdiction in contested matters.

(8) "Estate" or "guardianship estate" means the real and personal property of a ward or deceased ward, both as the property originally existed and as has from time to time changed in form by sale, reinvestment, or otherwise, and as augmented by any accretions and additions to (including any property to be distributed to the representative of the deceased ward by the trustee of a trust that terminates on the ward's death) or substitutions for the property, and as diminished by any decreases to or distributions from the property.

(9) "Exempt property" refers to that property of a deceased ward's estate that is exempt from execution or forced sale by the constitution or laws of this state, and to the allowance in lieu of the property.

(10) "Guardian" means a person who is appointed guardian under Section 693 of this code, or a temporary or successor guardian. Except as expressly provided otherwise, "guardian" includes the guardian of the estate and the guardian of the person of an incapacitated person.

(11) "Guardian ad litem" means a person who is appointed by a court to represent the best interests of an incapacitated person in a guardianship proceeding.

(12) "Guardianship program" means a local, county, or regional program that provides guardianship and related services to an incapacitated person or other person who needs assistance in making decisions concerning the person's own welfare or financial affairs.

(13) "Incapacitated person" means:

(A) a minor;

(B) an adult individual who, because of a physical or mental condition, is substantially unable to

provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs;

(C) a missing person; or

(D) a person who must have a guardian appointed to receive funds due the person from any governmental source.

(14) "Interested persons" or "persons interested" means an heir, devisee, spouse, creditor, or any other person having a property right in, or claim against, the estate being administered or a person interested in the welfare of an incapacitated person, including a minor.

(15) "Minor" means a person who is younger than 18 years of age and who has never been married or who has not had the person's disabilities of minority removed for general purposes.

(16) "Minutes" means the guardianship minutes.

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

(18) "Mortgage" or "lien" includes a deed of trust; vendor's lien; chattel mortgage; mechanic's, materialman's, or laborer's lien; judgment, attachment, or garnishment lien; pledge by hypothecation; and a federal or state tax lien.

(19) "Next of kin" includes an adopted child, the descendants of an adopted child, and the adoptive parent of an adopted child.

(20) "Parent" means the mother of a child, a man presumed to be the biological father of a child, a man who has been adjudicated to be the biological father of a child by a court of competent jurisdiction, or an adoptive mother or father of a child, but does not include a parent as to whom the parent-child relationship has been terminated.

(21) "Person" includes natural persons, corporations, and guardianship programs.

(22) "Personal property" includes an interest in goods, money, choses in action, evidence of debts, and chattels real.

(23) "Personal representative" or "representative" includes a guardian, and a successor guardian.

(24) "Private professional guardian" means a person, other than an attorney or a corporate fiduciary, who is engaged in the business of providing guardianship services.

(25) "Proceedings in guardianship," "guardianship matter," "guardianship matters," "guardianship proceeding," and "proceedings for guardianship" are synonymous and include a matter or proceeding relating to a guardianship or any other matter addressed by this chapter.

(26) "Property" includes both real and personal property.

(27) "Proposed ward" means a person alleged to be incapacitated in a guardianship proceeding.

(28) "Real property" includes estates and interests in lands, corporeal or incorporeal, legal or equitable, other than chattels real.

(29) "Statutory probate court" means a statutory court designated as a statutory probate court under Chapter 25, Government Code. A county court at law exercising probate jurisdiction is not a statutory probate court under this chapter unless the court is designated a statutory probate court under Chapter 25, Government Code.

(30) "Surety" includes a personal and a corporate surety.

(31) "Ward" is a person for whom a guardian has been appointed.

(32) The singular number includes the plural; the plural number includes the singular.

(33) The masculine gender includes the feminine and neuter.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 1039, Sec. 15, eff. Sept. 1, 1995; Subsec. (17) amended by Acts 1997, 75th Leg., ch. 1376, Sec. 1, eff. Sept. 1, 1997; Subsec. (29) amended by Acts 1997, 75th Leg., ch. 52, Sec. 2, eff. Sept. 1, 1997. Subsec. (5) amended by Acts 1999, 76th Leg., ch. _____ [HB 2066], eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The Interstate Banking Act, HB 2066, amended subsection (5) -- the definition of "corporate fiduciary" -- to be consistent with the state's restructured banking laws.

Sec. 606. District Court and Other Court of Record Jurisdiction.

(a) The district court has original control and jurisdiction over guardians and wards under regulations as may be prescribed by law.

(b)  In those counties in which there is no statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding guardianships, mental health matters, and other matters covered by this chapter shall be filed and heard in the county court, except that in contested guardianship matters, the judge of the county court may on the judge's own motion, or shall on the motion of any party to the proceeding, according to the motion, request as provided by Section 25.0022, Government Code, the assignment of a statutory probate court judge to hear the contested portion of the proceeding, or transfer the contested portion of the proceeding to the district court, which may hear the transferred contested matters as if originally filed in the district court. If the judge of the county court has not transferred a contested guardianship matter to the district court at the time a party files a motion for assignment of a statutory probate court judge, the county judge shall grant the motion and may not transfer the matter to district court unless the party withdraws the motion. A statutory probate court judge assigned to a contested probate matter as provided by this subsection has for that matter the jurisdiction and authority granted to a statutory probate court by Sections 607 and 608 of this code. The county court continues to exercise jurisdiction over the management of the guardianship with the exception of the contested matter until final disposition of the contested matter is made by the assigned judge or the district court. In contested matters transferred to the district court as provided by this subsection, the district court, concurrently with the county court, has the general jurisdiction of a probate court. On resolution of all pending contested matters, the district court shall transfer the contested portion of the guardianship proceeding to the county court for further proceedings not inconsistent with the orders of the district court. If a contested portion of the proceeding is transferred to a district court under this subsection, the clerk of the district court may perform in relation to the transferred portion of the proceeding any function a county clerk may perform in that type of contested proceeding.

(c) In those counties in which there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding guardianships, mental illness matters, or other matters addressed by this chapter shall be filed and heard in those courts and the constitutional county court, rather than in the district courts, unless otherwise provided by the legislature, and the judge of a county court may hear any of those matters sitting for the judge of any other county court. Except as provided by Section 608 of this code, in contested guardianship matters, the judge of the constitutional county court may on the judge's own motion, and shall on the motion of a party to the proceeding, transfer the proceeding to the statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court. The court to which the proceeding is transferred may hear the proceeding as if originally filed in the court.

(d) A statutory probate court has concurrent jurisdiction with the district court in all actions by or against a person in the person's capacity as guardian.

(e) A court that exercises original probate jurisdiction has the power to hear all matters incident to an estate. When a surety is called on to perform in place of a guardian or former guardian, a court exercising original probate jurisdiction may award judgment against the guardian or former guardian in favor of the surety of the guardian or former guardian in the same suit, even if the ward has died, regained capacity, or the ward's disabilities of minority have been removed.

(f) A final order of a court that exercises original probate jurisdiction is appealable to a court of appeals.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Subsec. (b) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 16, eff. Sept. 1, 1995; Subsec. (e) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 17, eff. Sept. 1, 1995.1997. Subsec. (b) amended by Acts 1999, 76th Leg., ch. ____ (HB 1607), eff. Aug. 30, 1999.

Explanation of 1999 Amendment

So-called "constitutional" county courts cannot hear contested guardianship proceedings if any party objects or if the court decides not to hear the matter on its own motion. Prior to the 1999 change, the county court had two options for getting rid of the contested proceeding: it could either transfer it to the district court or ask the presiding statutory probate court judge to assign a statutory probate judge to hear the proceeding. Under prior law, there was no priority given to either option -- the county court was free either to transfer it to district court or ask for a statutory probate court judge. If a statutory probate court judge was assigned to hear the proceeding, under prior law he or she did not bring along the "jurisdictional toolbox" -- the broad "appertaining to" definition of statutory probate courts and the Section 608 transfer power.

The 1999 amendment to subsection (b) does two things: First, it gives a priority to the statutory probate court assignment option. If the county court has not transferred the case to district court prior to receiving a motion for assignment from either party, it must ask for the assignment of a statutory probate court judge to hear the case. Second, if a statutory probate court judge is assigned to hear the case, he or she brings the toolbox along -- including the Section 608 transfer power.

The 1999 amendment has no effective date provision, so it becomes effective 90 days after the legislative session ended, or on August 30, 1999. Because it has no effective date provision, it is unclear whether it applies to guardianships created after August 30, 1999, proceedings filed after August 30, 1999, or motions for assignment filed after August 30, 1999, although the latter seems the most obvious construction.

Sec. 607. Matters Appertaining and Incident to an Estate.

(a) In a proceeding in a constitutional county court or a statutory county court at law, the phrases "appertaining to estates" and "incident to an estate" in this chapter include the appointment of guardians, the issuance of letters of guardianship, a claim by or against a guardianship estate, all actions for trial of title to land incident to a guardianship estate and for the enforcement of liens incident to a guardianship estate, all actions for trial of the right of property incident to a guardianship estate, and generally all matters relating to the settlement, partition, and distribution of a guardianship estate.

(b)  In a proceeding in a statutory probate court or district court, the phrases "appertaining to estates" and "incident to an estate" in this chapter include the appointment of guardians, the issuance of letters of guardianship, all claims by or against a guardianship estate, all actions for trial of title to land and for the enforcement of liens on the land, all actions for trial of the right of property, and generally all matters relating to the settlement, partition, and distribution of a guardianship estate. A statutory probate court, in the exercise of its jurisdiction and notwithstanding any other provision of this chapter, may hear all suits, actions, and applications filed against or on behalf of any guardianship; all such suits, actions, and applications are appertaining to and incident to an estate. In a situation in which the jurisdiction of a statutory probate court is concurrent with that of a district court, a cause of action appertaining to or incident to a guardianship estate shall be brought in a statutory probate court rather than in the district court.

(c) In all actions by or against a person in the person's capacity as a guardian, a statutory probate court has concurrent jurisdiction with a district court.

(d) A statutory probate court may exercise the pendent and ancillary jurisdiction necessary to promote judicial efficiency and economy.

(e)  Subsection [Subsections (c) and] (d) of this section applies [apply] whether or not the matter is appertaining to or incident to a guardianship estate.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ____(HB 777), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 777 amends Section 607 to make a parallel change to the one made to Section 5A (regarding decedent's estates) in 1997. In addition, HB 777 makes the same clean-up changes that HB 778 makes to Section 5A this session.

The 1997 change to Section 5A was a last-minute, on-the-floor-of-the-House amendment intended to make it clear that statutory probate courts can transfer any cause of action "against or on behalf of" a decedent's estate -- not just cases meet the Seay v. Hall "appertaining to" estates criteria. See Seay v. Hall, 677 S. W. 2d 19 (Tex. 1984). Thus, a wrongful death and survival action, which does not meet the Seay v. Hall test, is transferable under Section 5B if it is brought by the personal representative on behalf of the decedent's estate. The 1997 change accomplished this result by changing the definition of "appertaining to estates" -- now a proceeding in which the personal representative defends the estate or or which is brought by the personal representative on behalf of an estate is considered "appertaining to" estates.

The 1997 change to Section 5A did not affect guardianships. HB 777 makes the same change to the guardianship equivalent to Section 5A -- Section 607 -- and cleans up the awkward language from the hurried 1997 amendment to Section 5A.

The 1999 amendment takes effect September 1, 1999. HB 777 does not make clear whether or not it applies to guardianships created after September 1, 1999, proceedings filed after September 1, 1999, or to any action pending on or after September 1, 1999, but the latter seems to be the most likely construction.

Sec. 608. Transfer of Guardianship Proceeding.

A judge of a statutory probate court, on the motion of a party to the action or of a person interested in a guardianship, may transfer to the judge's court from a district, county, or statutory court a cause of action appertaining to or incident to a guardianship estate that is pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to the guardianship estate.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ____ (HB 2580), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The 1999 change to Section 608 further clarifies that a statutory probate court may transfer to itself a proceeding in which the guardian of an estate pending in such court is a party under the famous (or infamous, depending on one's point of view) Section 608 "reach out and touch" power.

In addition, the 1999 change to Section 608 enhances the power of the probate court to transfer related third-party actions. Take the example of a guardian who sues a defendant in district court. If the defendant brings a third-party action against another person for contribution and indemnity, the third-party action is not "appertaining to a guardianship estate" under the Section 607 definition because it is not "against or on behalf of" the guardianship estate. The change to Section 608 makes it clear that the probate court nevertheless can transfer the whole case -- including the non-appertaining third-party action -- because the guardian is a "party" to the cause of action.

HB 2580 provides that it takes effect September 1, 1999, "and applies only to a motion to transfer a cause of action filed on or after that date. A motion to transfer a cause of action filed before the effective date of this Act is governed by the law in effect on the date the motion was filed, and the former law is continued in effect for that purpose."

Sec. 625. Case Files [Guardianship Minutes and Papers to be Recorded Therein].

The county clerk shall maintain a case file for each person's filed guardianship proceedings. The case file must contain [keep a record book styled "Guardianship Minutes" and shall enter in the guardianship minutes] all orders [in full], judgments, [decrees,] and proceedings of the court and any other guardianship filing with the court, including [in addition to] all:

(1)  applications for the granting of guardianship;

(2)  citations and notices, whether published or posted, with the returns on the citations and notices;

(3)  bonds and official oaths;

(4)  inventories, appraisements, and lists of claims;

(5)  exhibits and accounts;

(6)  reports of hiring, renting, or sale;

(7)  applications for sale or partition of real estate and reports of sale and of commissioners of partition;

(8)  applications for authority to execute leases for mineral development, or for pooling or unitization of lands, royalty, or other interest in minerals, or to lend or invest money;

(9)  reports of lending or investing money; and

(10)  reports of guardians of the persons.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1142), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 1142 makes changes to how the clerk keeps probate records and is a recognition of the changing world in which we live. Rather than keeping a "guardianship minutes" book and a "claims docket,' HB 1142 permits the clerk to keep probate information electronically. Also, every guardianship filing is to be kept in a case file, rather than selective information being recorded in the "guardianship minutes" (see Section 625 as amended). Does "guardianship filing" include claims? If so, HB 1142 appears to permit clerks to abandon the bifurcated claims docket/probate docket system and keep everything in the case file with one electronic index.

HB 1142 amends Section 15, 17 and 18 and adds new Section 17A. It makes corresponding changes to Sections 625, 627 and 628 and adds new Section 627A regarding guardianships. It takes effect September 1, 1999.

Sec. 627. Maintaining Records in Lieu of Record Books.

In lieu of keeping the record books described by Sections 623, 624, and 626 of this code, the county clerk may maintain the information relating to a person's guardianship proceeding maintained in those record books on a computer file, on microfilm, in the form of a digitized optical image, or in another similar form of data compilation.

Sec. 627A.  Index.

The county clerk shall properly index the records [each record book] and keep the index [it] open for public inspection but may not release the index [it] from the clerk's custody.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1142), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See explanation following Section 625.

Sec. 628.  Use of Records as Evidence.

The record books or individual case files, including records on a computer file, on microfilm, in the form of a digitized optical image, or in another similar form of data compilation described in other sections of this chapter, or certified copies or reproductions of the records, shall be [record books are] evidence in any court of this state.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1142), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See explanation following Section 625.

Sec. 633. Notice and Citation.

(a) On the filing of an application for guardianship, notice shall be issued and served as provided by this section.

(b)  The court clerk shall issue a citation stating that the application for guardianship was filed, the name of the proposed ward, [and] the name of the applicant, and the name of the person to be appointed guardian as provided in the application, if that person is not the applicant. The citation must cite all persons interested in the welfare of the proposed ward to appear at the time and place stated in the notice if they wish to contest the application. The citation shall be posted.

(c)  The sheriff or other officer shall personally serve citation to appear and answer the application for guardianship on:

(1)  a proposed ward who is 12 years of age or older;

(2)  the parents of a proposed ward if the whereabouts of the parents are known or can be reasonably ascertained;

(3)  any court-appointed conservator or person having control of the care and welfare of the proposed ward;

(4)  a proposed ward's spouse; [and]

(5)  an attorney ad litem or guardian ad litem appointed to represent the interests of a missing person; and

(6)  the person named in the application to be appointed guardian, if that person is not the applicant.

(d) The court clerk, at the applicant's request, or the applicant shall mail a copy of the notice by registered or certified mail, return receipt requested, to the following persons if their whereabouts are known or can be reasonably ascertained:

(1) all adult siblings and all adult children of a proposed ward;

(2) the administrator of a nursing home facility or similar facility in which the proposed ward resides;

(3) the operator of a residential facility in which the proposed ward resides;

(4) a person whom the applicant knows to hold a power of attorney signed by the proposed ward;

(5) a person designated to serve as guardian of the proposed ward by a written declaration under Section 679 of this code, if the applicant knows of the existence of the declaration;

(6) a person designated to serve as guardian of the proposed ward in the probated will of the last surviving parent of the ward; and

(7) a person designated to serve as guardian of the proposed ward by a written declaration of the proposed ward's last surviving parent, if the declarant is deceased and the applicant knows of the existence of the declaration.

(e) A person other than the proposed ward who is entitled to receive notice or personal service of citation under Subsections (c) and (d) of this section may choose, in person or by attorney ad litem, by writing filed with the clerk, to waive the receipt of notice or the issuance and personal service of citation.

(f) The court may not act on an application for the creation of a guardianship until the Monday following the expiration of the 10-day period beginning the date service of notice and citation has been made as provided by Subsections (b), (c), and (d)(1) of this section. The validity of a guardianship created under this chapter is not affected by the failure of the clerk or applicant to comply with the requirements of Subsections (d)(2)-(7) of this section.

(g) It is not necessary for a person who files an application for the creation of a guardianship under this chapter to be served with citation or waive the issuance and personal service of citation under this section.

Added by Acts 1995, 74th Leg., ch. 1039, Sec. 18, eff. Sept. 1, 1995. Subsecs. (d), (f) amended by Acts 1997, 75th Leg., ch. 77, Sec. 2, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. ____ (HB 2795), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

Typically the applicant for a guardianship seeks to have himself or herself named as guardian, but occasionally the applicant seeks the appointment of someone else. Apparently, the applicant does not always tell the intended guardian that he, she or it has been named. HB 2795 addresses this potential problem by requiring the person named as prospective guardian in a guardianship application to be served with citation.

HB 2795 takes effect September 1, 1999, and applies to a proceeding for the appointment of a guardian instituted on or after that date.

Sec. 642. Standing to Commence or Contest Proceeding.

(a)  Except as provided by Subsection (b) of this section, any person has the right to commence any guardianship proceeding, including a proceeding for complete restoration of a ward's capacity or modification of a ward's guardianship, or to appear and contest any guardianship proceeding or the appointment of a particular person as guardian.

(b)  A person who has an interest that is adverse to a proposed ward or incapacitated person may not:

(1)  file an application to create a guardianship for the proposed ward or incapacitated person;

(2)  contest the creation of a guardianship for the proposed ward or incapacitated person; [or]

(3)  contest the appointment of a person as a guardian of the person or estate, or both, of the proposed ward or incapacitated person; or

(4)  contest an application for complete restoration of a ward's capacity or modification of a ward's guardianship.

(c) The court shall determine by motion in limine the standing of a person who has an interest that is adverse to a proposed ward or incapacitated person.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Subsec. (c) added by Acts 1995, 74th Leg., ch. 1039, Sec. 20, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. ___ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

Prior to 1999, the Probate Code provided for the possibility of the restoration of the ward's capacity, but it offered few answers regarding important procedural points, such as who had the burden of proof, what was the standard of proof, etc. HB 1663 was enacted to fill in these procedural gaps.

Unfortunately (at least in my opinion), the drafters of HB 1663 got carried away and made this amendment to Section 642. This section was intended to prohibit persons with conflicting claims against a prospective ward or his or her estate from participating in a hearing to appoint a guardian for the prospective ward. By including restoration proceedings in this standing statute, the Legislature runs the risk of having the one person who knows the most about a ward and whether or not his or her capacity should be restored -- the guardian -- kicked out of the restoration proceeding. Judge Guy Herman, Probate Court No. 1 of Travis County, who was an advocate of this bill, assured me that this result was not intended -- that the guardian is not to be denied the right to participate in a restoration proceeding simply because, as guardian, he or she is in several inherent conflict of interest positions with respect to the ward. I testified in the Senate Jurisprudence Committee on this bill, and the Senators indicated that it was not the Legislature's intent to deny the guardian standing to participate in a restoration proceeding simply because of his or her status as guardian. Still, no doubt every guardian in a well-litigated case will have to withstand a standing challenge thanks to this amendment.

This change applies to an application for restoration filed on or after September 1, 1999, and even to applications pending on September 1, 1999, if the application is amended to conform to the requirements of HB 1663.

Sec. 646. Appointment of Attorney Ad Litem and Interpreter.

(a)  In a proceeding under this chapter for the appointment of a guardian [for a person other than a missing person], the court shall appoint an attorney ad litem to represent the interests of the proposed ward. The attorney shall be supplied with copies of all of the current records in the case and may have access to all of the proposed ward's relevant medical, psychological, and intellectual testing records.

(b)  To be eligible for appointment as an attorney ad litem, a person must have the certification required by Section 647A of this code [be certified by the State Bar of Texas or a person or other entity designated by the state bar as having successfully completed a course of study in guardianship law and procedure sponsored by the state bar or its designee].

(c)  [For certification under Subsection (b) of this section, the state bar shall require four hours of credit.

[(d)  A certificate issued under Subsection (b) of this section expires on the second anniversary of the date the certificate was issued.] A person whose certificate has expired must obtain a new certificate to be eligible for appointment as an attorney ad litem.

(d) [(f)]  At the time of the appointment of the attorney ad litem, the court shall also appoint a language interpreter or a sign interpreter if necessary to ensure effective communication between the proposed ward and the attorney.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Subsecs. (b) to (d) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 22, eff. Sept. 1, 1995; Subsec. (e) repealed by Acts 1995, 74th Leg., ch. 1039, Sec. 74, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. ___ (HB 919, eff. Sept. 1, 1999.

Explanation of 1999 Amendment

Since 1995 attorneys wishing to serve as attorneys ad litem in proceedings for the appointment of a guardian had to to complete a four-hour certification course of study in guardianship law. After completing the course, an attorney was certified for a two-year period, at which time the course had to be repeated to maintain certification.

HB 919 amends Section 646 and adds Section 647A, changing the rules regarding attorney certification in these respects:

1. Now an attorney seeking appointment by the court in any capacity in any guardianship proceeding must be certified, not just attorneys ad litem in proceedings for the appointment of a guardian. (Section 647A(a)).

2. The certification course drops from four hours to three hours. (Section 647A(3)).

3. If an attorney has been certified for each of the four preceding years, his or her renewal certificate is good for four years, not just two years. (Section 647A(e)). For everyone else, a certificate remains good for two years.

The new requirements take effect on September 1, 1999.

Sec. 647. Duties of Attorney Ad Litem.

(a) An attorney ad litem appointed under Section 646 of this code to represent a proposed ward shall, within a reasonable time before the hearing, interview the proposed ward. To the greatest extent possible, the attorney shall discuss with the proposed ward the law and facts of the case, the proposed ward's legal options regarding disposition of the case, and the grounds on which guardianship is sought.

(b) Before the hearing, the attorney shall review the application for guardianship, certificates of current physical, medical, and intellectual examinations, and all of the proposed ward's relevant medical, psychological, and intellectual testing records.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993.

Sec. 647A. Certification Requirement For Certain Court-appointed Attorneys.

(a) A court-appointed attorney in any guardianship proceeding must be certified by the State Bar of Texas or a person or other entity designated by the state bar as having successfully completed a course of study in guardianship law and procedure sponsored by the state bar or its designee.

(b)  For certification under this section, the state bar shall require three hours of credit.

(c)  Except as provided by Subsection (e) of this section, a certificate issued under this section expires on the second anniversary of the date the certificate is issued.

(d)  To be eligible to be appointed by a court to represent a person at a guardianship proceeding, an attorney whose certificate has expired must obtain a new certificate.

(e)  A new certificate obtained by a person who previously has been issued a certificate under this section expires on the fourth anniversary of the date the new certificate is issued if the person has been certified each of the four years immediately preceding the date the new certificate is issued.

Added by Acts 1999, 76th Leg., ch. ___ (HB 919, eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 646.

Sec. 648A. Duties of Court Investigator.

(a) On the filing of an application for guardianship under Section 682 of this code, a court investigator shall investigate the circumstances alleged in the application to determine whether a less restrictive alternative than guardianship is appropriate.

(b) A court investigator shall:

(1) supervise the court visitor program established under Section 648 of this code and in that capacity serve as the chief court visitor;

(2) investigate a complaint received from any person about a guardianship and report to the judge, if necessary; and

(3) perform other duties as assigned by the judge or required by this code.

(c) After making an investigation under Subsection (a) or (b) of this section, a court investigator shall file with the court a report of the court investigator's findings and conclusions. Disclosure to a jury of the contents of a court investigator's report is subject to the Texas Rules of Civil Evidence. In a contested case, the court investigator shall provide copies of the report to the attorneys for the parties before the earlier of:

(1) the seventh day after the day the report is completed; or

(2) the 10th day before the day the trial is scheduled to begin.

(d) Nothing in this section supersedes any duty or obligation of another to report or investigate abuse or neglect under any statute of this state.

Added by Acts 1995, 74th Leg., ch. 1039, Sec. 24, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 1663, which established new procedures for restoration of a ward's capacity, also stuck this expansion of the court investigator's powers into the statute.

Sec. 665. Compensation of Guardians and Temporary Guardians.

(a) The court may authorize compensation for a guardian or a temporary guardian serving as a guardian of the person alone from available funds of the ward's estate. The court shall set the compensation in an amount not exceeding five percent of the ward's gross income. In determining whether to authorize compensation for a guardian under this section, the court shall consider the ward's monthly income from all sources and whether the ward receives medical assistance under the state Medicaid program.

(b) The guardian or temporary guardian of an estate is entitled to a fee of five percent of the gross income of the ward's estate and five percent of all money paid out of the estate on a court finding that the guardian or temporary guardian has taken care of and managed the estate in compliance with the standards of this chapter. In this section, the term "money paid out" does not include any money loaned, invested, or paid over on the settlement of the guardianship or a tax-motivated gift made by the ward. If the fee is an unreasonably low amount, the court may authorize reasonable compensation to a guardian or temporary guardian for services as guardian or temporary guardian

of the estate. The court, on application of an interested person or on its own motion, may deny a fee authorized under this section in whole, or in part, if:

(1) the court finds that the guardian or temporary guardian has not adequately performed the duties required of a guardian or temporary guardian under this chapter; or

(2) the guardian or temporary guardian has been removed for cause.

(c) Except as provided by Subsection (b) of this section for a fee that is determined by the court to be unreasonably low, the aggregate fee of the guardian of the person and guardian of the estate may not exceed an amount equal to five percent of the gross income of the ward's estate plus five percent of all money paid out of the estate.

(d)  If the estate of a ward is insufficient to pay for the services of a private professional guardian or a licensed attorney serving as guardian of the ward's person, the court may authorize compensation for that guardian if funds in the county treasury are budgeted for that purpose.

(e)  In this section "gross income" does not include Department of Veterans Affairs or Social Security benefits received by a ward.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 1039, Sec. 27, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. ___ (HB 2165), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 2165 amended Sections 665 and 665B regarding payment of guardians and the attorneys for applicants for guardianship from the county treasury if the ward's estate is insufficient for this purpose. Note that the change to Section 665B clarifies that even unsuccessful applicants can have their attorneys fees reimbursed. The changes apply to court-authorized guardianship compensation on or after September 1, 1999.

Sec. 665B. Compensation of Certain Attorneys.

(a)  A court that creates a guardianship for a ward under this chapter, on request of a person who filed an application to be appointed guardian of the proposed ward, may authorize compensation of an attorney who represents the person at the application hearing, regardless of whether the person is appointed the ward's guardian, from:

(1)  available funds of the ward's estate; or

(2)  the county treasury if:

(A)  the ward's estate is insufficient to pay for the services provided by the attorney; and

(B)  funds in the county treasury are budgeted for that purpose [regardless of whether that person is appointed the ward's guardian].

(b) The court may not authorize compensation under this section unless the court finds that the applicant acted in good faith and for just cause in the filing and prosecution of the application.

Added by Acts 1995, 74th Leg., ch. 1039, Sec. 28, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. ___ (HB 2165), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 665.

Sec. 677A. Written Declarations by Certain Parents to Appoint Guardians for Their Children.

(a) A written declaration appointing an eligible person to be guardian of the person of the parent's child under Section 677(b) of this code must be attested to by at least two credible witnesses 14 years of age or older who are not named as guardian or alternate guardian in the declaration.

(b) The declaration must have attached a self-proving affidavit signed by the declarant and the witnesses attesting to the competence of the declarant and the execution of the declaration. A properly executed and witnessed declaration and affidavit are prima facie evidence that the declarant was competent at the time the declarant executed the declaration and that the guardian named in the declaration would serve the best interests of the ward.

(c) The declaration and affidavit may be filed with the court at any time after the application for appointment of a guardian is filed and before a guardian is appointed. If the designated guardian does not qualify, is dead, refuses to serve, resigns, or dies after being appointed guardian, or is otherwise unavailable to serve as guardian, the court shall appoint the next eligible designated alternate guardian named in the declaration. If the guardian and all alternate guardians do not qualify, are dead, refuse to serve, or later die or resign, the court shall appoint another person to serve as otherwise provided by this code.

(d) The declarant may revoke a declaration in any manner provided for the revocation of a will under Section 63 of this code, including the subsequent reexecution of the declaration in the manner required for the original declaration.

(e)  A declaration and affidavit may be in any form adequate to clearly indicate the declarant's intention to designate a guardian for the declarant's child. The following form may, but need not, be used:

DECLARATION OF APPOINTMENT OF GUARDIAN FOR
MY CHILDREN IN THE EVENT OF MY DEATH

I, __________, make this Declaration to appoint as guardian for my child or children, listed as follows, in the event of my death:

________________________________ ________________________________

________________________________ ________________________________

________________________________ ________________________________

(add blanks as appropriate)

I designate __________ to serve as guardian of the person of my (child or children), __________ as first alternate guardian of the person of my (child or children), __________ as second alternate guardian of the person of my (child or children), and __________ as third alternate guardian of the person of my (child or children).

I direct that the guardian of the person of my (child or children) serve (with or without) bond.

(If applicable) I designate __________ to serve as guardian of the estate of my (child or children), __________ as first alternate guardian of the estate of my (child or children), __________ as second alternate guardian of the estate of my (child or children), and __________ as third alternate guardian of the estate of my (child or children).

If any guardian or alternate guardian dies, does not qualify, or resigns, the next named alternate guardian becomes guardian of my (child or children).

Signed this __________ day of __________, 19___.

________________________________
Declarant

________________________________
Witness

________________________________
Witness

SELF-PROVING AFFIDAVIT

Before me, the undersigned authority, on this date personally appeared the declarant, and ____________ and ____________ as witnesses, and all being duly sworn, the declarant said that the above instrument was his or her Declaration of Appointment of Guardian for the Declarant's Children in the Event of Declarant's Death and that the declarant had made and executed it for the purposes expressed in the declaration. The witnesses declared to me that they are each 14 years of age or older, that they saw the declarant sign the declaration, that they signed the declaration as witnesses, and that the declarant appeared to them to be of sound mind.

______________________________

Declarant

________________________________
Affiant

________________________________
Affiant

Subscribed and sworn to before me by the above named declarant and affiants on this ____ day of __________, 19___.

___________________________________________
Notary Public in and for the State of Texas

My Commission expires: ___________________________________________

Added by Acts 1995, 74th Leg., ch. 304, Sec. 3, eff. Sept. 1, 1995. Subsec. (a) amended by Acts 1997, 75th Leg., ch. 77, Sec. 4, eff. Sept 1, 1997. Amended by Acts 1999, 76th Leg., ch. ___ (HB 3338), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 3338 changes the form parents can use to designate a guardian of a person for their minor children to include an express statement about whether or not the parents wish for bond to be waived. It also amends Section 702 to make clear that a court may waive the bond if the surviving parent so directs in his or her will or in a Section 677A designation of guardian. The waiver of bond applies to guardians of the persons only, not to guardians of the estate.

The changes made by HB 3338 take effect September 1, 1999, and apply to designations of guardian executed on or after that date.

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

(4) 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;

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

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

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

(8)  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;

(9) [the requested term, if known, of the guardianship;

[(10)]  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;

(10) [(11)]  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;

(11) [(12)]  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;

(12) [(13)]  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;

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

(14) [(16)]  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.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 77, Sec. 5, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1376, Sec. 2, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 1663, which established new procedures for restoration of a ward's capacity, also made these changes to the application requirements for a guardianship. Apparently it is assumed that no one will file an application for a guardianship who already is the ward of another court in the state because the requirement of pleading the nature and extent of any guardianship pending in "this state" was deleted. The bill also deletes the pleading requirement for the requested term of the guardianship. Presumably the court will determine the term based on the facts and does not need the applicant's requested term.

This new application requirement applies to applications for guardians filed on or after September 1, 1999. It also permits, but does not require, applicants to modify applications pending on September 1, 1999, to comply with the new requirements.

Sec. 682A. Application for Appointment of Guardian for Certain Persons.

(a) If a minor is a person who, because of incapacity, will require a guardianship after the ward is no longer a minor, a person may file an application under Section 682 of this code for the appointment of a guardian of the person and/or the estate of the proposed ward not earlier than the 60th day before the proposed ward's 18th birthday.

(b)  Notwithstanding Section 694(b) of this code, the guardianship of the person of a minor who is the subject of an application for the appointment of a guardian of the person filed under Subsection (a) of this section is settled and closed when:

(1)  the court, after a hearing on the application, determines that the appointment of a guardian of the person for the proposed ward is not necessary; or

(2)  the guardian appointed by the court after a hearing on the application has qualified under Section 699 of this code.

Added by Acts 1999, 76th Leg., ch. ___ (HB 2164), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

New Section 682A permits parents and/or other interested persons to jump the gun on an incapacitated person who is about to turn age 18 by filing the application for guardianship prior to his or her 18th birthday.

This change takes effect September 1, 1999, and applies to applications for guardianship filed on or after that date.

Sec. 683. Court's Initiation of Guardianship Proceedings.

(a) If a court has probable cause to believe that a person domiciled or found in the county in which the court is located is an incapacitated person, and the person does not have a guardian in this state, the court shall appoint a guardian ad litem or court investigator to investigate and file an application for the appointment of a guardian of the person or estate, or both, of the person believed to be incapacitated.

(b)  To establish probable cause under this section, the court may require:

(1)  an information letter about the person believed to be incapacitated that is submitted by an interested person and satisfies the requirements of Section 683A of this code; or

(2)  a written letter or certificate from a physician who has examined the person believed to be incapacitated that satisfies the requirements of Section 687(a) of this code, except that the letter must be dated not earlier than the 120th day before the date of the filing of an application under Subsection (a) of this section and be based on an examination the physician performed not earlier than the 120th day before that date.

(c)  A court that creates a guardianship for a ward under this chapter may authorize compensation of a guardian ad litem who files an application under Subsection (a) of this section from available funds of the ward's estate. If after examining the ward's assets the court determines the ward is unable to pay for services provided by the guardian ad litem, the court may authorize compensation from the county treasury.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 2165), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

Prior to its amendment, Section 683 authorized the court to initiate a guardianship proceeding without the filing of an application by a family member or other interested party. HB 2165, backed by the Guardianship Advisory Board, was intended to address a problem the Board encountered in meeting with judges and others interested in guardianships around the state -- what should a judge do if he or she is notified that someone needs a guardian without any supporting documentation. As amended, Section 683 still permits the court to determine it has probable cause to investigate even without the information described in subsection (b), but now the court can require this additional information, including an "information letter" under new Section 683A, prior to committing a court investigator or guardian ad litem to investigate the need for a guardianship. This gives the judge a way to avoid invading someone's privacy merely because a nosy neighbor does not like someone's lifestyle.

Sec. 683A. Information Letter.

An information letter under Section 683(b)(1) of this code about a person believed to be incapacitated may:

(1)  include the name, address, telephone number, county of residence, and date of birth of the person;

(2)  state whether the residence of the person is a private residence, health care facility, or other type of residence;

(3)  describe the relationship between the interested person and the person;

(4)  contain the names and telephone numbers of any known friends and relatives of the person;

(5)  state whether a guardian of the person or estate of the person has been appointed in this state;

(6)  state whether the person has executed a power of attorney and, if so, the designee's name, address, and telephone number;

(7)  describe any property of the person, including the estimated value of that property;

(8)  list any amount and source of monthly income of the person; and

(9)  describe the nature and degree of the person's alleged incapacity and include a statement of whether the person is in imminent danger of serious impairment to the person's physical health, safety, or estate.

Added by Acts 1999, 76th Leg., ch. ___ (HB 2165), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 683.

Sec. 694A. Complete Restoration of Ward's Capacity or Modification of Guardianship [Ward].

(a)  A ward or any person interested in the ward's welfare may file a written application with [petition] the court for an order:

(1)  finding that the ward is no longer an incapacitated person [needs the guardianship] and ordering the settlement and closing of the guardianship;

(2)  finding that the ward lacks the capacity to do some or all of the tasks necessary to provide food, clothing, or shelter [care] for himself or herself, to care for the ward's own physical health, or to manage the ward's own financial affairs [property] and granting additional powers or duties to the guardian [with respect to the care of the ward or the management of the ward's property by the guardian]; or

(3)  finding that the ward has [regained] the capacity to do some, but not all, of the tasks necessary to provide food, clothing, or shelter [care] for himself or herself, to care for the ward's own physical health, or to manage the ward's own financial affairs [property] and:

(A)  limiting the powers or duties of the guardian [with respect to the care of the ward or the management of the ward's property by the guardian]; and

(B)  permitting the ward to care for himself or herself or to manage the ward's own financial affairs [property] commensurate with the ward's ability.

(b)  A ward may make a [A] request for an order under this section [may be made] by informal letter to the court. A person who knowingly interferes with the transmission of the request to the court may be adjudged guilty of contempt of court.

(c)  On receipt of an informal letter under Subsection (b) of this section, the court shall appoint the court investigator or a guardian ad litem to file an application under Subsection (a) of this section on the ward's behalf. A guardian ad litem appointed under this subsection may also be appointed by the court to serve as attorney ad litem under Section 694C of this code.

(d)  When an application is filed under this section, citation shall be served on the ward's guardian and on the ward if the ward is not the applicant.

(e)  Except as otherwise provided by the court, on good cause shown by the applicant, a person may not reapply for complete restoration of a ward's capacity or modification of a ward's guardianship before the first anniversary of the date of the hearing on the last preceding application.

Added by Acts 1995, 74th Leg., ch. 1039, Sec. 41, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The Legislature added Section 694A in 1995 to address the issue of restoration of a ward's capacity. Since that time, courts and litigants addressing this issue have found the statutes to be deficient in addressing the many procedural issues which arise in restoration proceedings.

HB 1663 addresses these issues. It amends Section 694A and adds Sections 694B-K, setting for the pleading requirements, procedure for appointment of ad litems, burden of proof, standard of proof and various other issues.

These new rules apply to applications for restoration filed on or after September 1, 1999. It also permits, but does not require, applicants to modify applications pending on September 1, 1999, to conform with the new requirements, so long as a final determination has not been made on the application.

Sec. 694B. Contents of Application.

An application filed under Section 694A of this code must be sworn to by the applicant and must:

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

(2)  contain the name and address of any person serving as guardian of the person of the ward on the date the application is filed;

(3)  contain the name and address of any person serving as guardian of the estate of the ward on the date the application is filed;

(4)  state the nature and description of the ward's guardianship;

(5)  state the specific areas of protection and assistance and any limitation of rights that exist;

(6)  state whether the relief being sought is:

(A)  a restoration of the ward's capacity because the ward is no longer an incapacitated person;

(B)  the granting of additional powers or duties to the guardian; or

(C)  the limitation of powers granted to or duties performed by the guardian;

(7)  if the relief being sought under the application is described by Subdivision (6)(B) or (C) of this section, state:

(A)  the nature and degree of the ward's incapacity;

(B)  the specific areas of protection and assistance to be provided to the ward and requested to be included in the court's order; and

(C)  any limitation of the ward's rights requested to be included in the court's order;

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

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

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 694C. Appointment of Attorney Ad Litem.

(a) The court shall appoint an attorney ad litem to represent a ward in a proceeding for the complete restoration of the ward's capacity or for the modification of the ward's guardianship.

(b)  Unless otherwise provided by the court, an attorney ad litem appointed under this section shall represent the ward only for purposes of the restoration or modification proceeding.

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 694D. Hearing.

(a) At a hearing on an application for complete restoration of a ward's capacity or modification of a ward's guardianship, the court shall consider only evidence regarding the ward's mental or physical capacity at the time of the hearing that is relevant to the restoration of capacity or modification of the guardianship, as appropriate.

(b)  The party who filed the application has the burden of proof at the hearing.

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 694E. Findings Required.

(a) Before ordering the settlement and closing of the guardianship under an application filed under Section 694A of this code, the court must find by a preponderance of the evidence that the ward is no longer partially or fully incapacitated.

(b)  Before granting additional powers to the guardian or requiring the guardian to perform additional duties under an application filed under Section 694A of this code, the court must find by a preponderance of the evidence that the current nature and degree of the ward's incapacity warrants a modification of the guardianship and that some or all of the ward's rights need to be further restricted.

(c)  Before limiting the powers granted to or duties required to be performed by the guardian under an application filed under Section 694A of this code, the court must find by a preponderance of the evidence that the current nature and degree of the ward's incapacity warrants a modification of the guardianship and that some of the ward's rights need to be restored.

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 694F. Examinations and Reports Relating to Complete Restoration of Ward's Capacity or Modification of Guardianship.

(a) The court may not grant an order completely restoring a ward's capacity or modifying a ward's guardianship under an application filed under Section 694A of this code unless, in addition to other requirements prescribed by this code, the applicant presents to the court a written letter or certificate from a physician licensed in this state that is dated not earlier than the 120th day before the date of the filing of the application or dated after the date on which the application was filed but before the date of the hearing. The letter or certificate must:

(1)  describe the nature and degree of incapacity, including the medical history if reasonably available, or state that, in the physician's opinion, the ward has the capacity to provide food, clothing, and shelter for himself or herself, to care for the ward's own physical health, and to manage the financial affairs of the ward;

(2)  provide a medical prognosis specifying the estimated severity of any incapacity;

(3)  state how or in what manner the ward's ability to make or communicate responsible decisions concerning himself or herself is affected by the person's physical or mental health;

(4)  state whether any current medication affects the demeanor of the ward or the ward's ability to participate fully in a court proceeding;

(5)  describe the precise physical and mental conditions underlying a diagnosis of senility, if applicable; and

(6)  include any other information required by the court.

(b)  If the court determines it is necessary, the court may appoint the necessary physicians to examine the ward in the same manner and to the same extent as a ward is examined by a physician under Section 687 of this code.

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 694G. Order of Complete Restoration of Ward's Capacity.

If the court finds that a ward is no longer an incapacitated person, the order completely restoring the ward's capacity must contain findings of fact and specify:

(1)  the information required by Section 694J of this code;

(2)  that the ward is no longer an incapacitated person;

(3)  that there is no further need for a guardianship of the person or estate of the ward;

(4)  that the guardian is required to:

(A)  immediately settle and close the guardianship in accordance with Section 745 of this code; and

(B)  deliver all of the remaining guardianship estate to the ward; and

(5)  that the clerk shall revoke letters of guardianship when the guardianship is finally settled and closed.

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 694H. Modification of Guardianship.

If the court finds that a guardian's powers or duties should be expanded or limited, the order modifying the guardianship must contain findings of fact and specify:

(1)  the information required by Section 694J of this code;

(2)  the specific powers, limitations, or duties of the guardian with respect to the care of the ward or the management of the property of the ward, as appropriate;

(3)  the specific areas of protection and assistance to be provided to the ward;

(4)  any limitation of the ward's rights; and

(5)  that the clerk shall modify the letters of guardianship to the extent applicable to conform to the order.

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 694I. Dismissal of Application.

If the court finds that a modification of the ward's guardianship is not necessary, including that the ward's capacity has not been restored, the court shall dismiss the application and enter an order that contains findings of fact and specifies:

(1)  the information required by Section 694J of this code; and

(2)  that the powers, limitations, or duties of the guardian with respect to the care of the ward or the management of the ward's property will remain unchanged.

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 694J. Contents of Order.

(a) A court order entered with respect to a request made under Section 694A of this code to completely restore a ward's capacity or modify a ward's guardianship must:

(1)  contain the name of the guardian;

(2)  contain the name of the ward; and

(3)  state whether the type of guardianship being addressed at the proceeding is a:

(A)  guardianship of the person;

(B)  guardianship of the estate; or

(C)  guardianship of both the person and the estate.

(b)  In an order described by this section, the court may not grant a power to a guardian or require the guardian to perform a duty that is a power granted to or a duty required to be performed by another guardian.

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 694K. Attorney Retained on Ward's Behalf.

(a) A ward may retain an attorney for a proceeding involving the complete restoration of the ward's capacity or modification of the ward's guardianship.

(b)  The court may order that compensation for services provided by an attorney retained under this section be paid from funds in the ward's estate only if the court finds that the attorney had a good-faith belief that the ward had the capacity necessary to retain the attorney's services.

Added by Acts 1999, 76th Leg., ch. ____ (HB 1663), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 694A.

Sec. 695A. Successor Guardians for Wards of Guardianship Programs or Governmental Entities.

(a) If a guardianship program or governmental entity serving as a guardian for a ward under this chapter becomes aware of a family member or friend of the ward or any other interested person who is willing and able to serve as the ward's successor guardian, the program or entity shall notify the court in which the guardianship is pending of the individual's willingness and ability.

(b)  When the court is notified of the existence of a proposed successor guardian under Subsection (a) of this section or the court otherwise becomes aware of a family member, friend, or any other interested person who is willing and able to serve as a successor guardian for a ward of a guardianship program or governmental entity, the court shall determine whether the proposed successor guardian is qualified to serve under this chapter as the ward's successor guardian.

(c)  If the court finds under Subsection (b) of this section that the proposed successor guardian for a ward is not disqualified from being appointed as the ward's successor guardian under Section 681 of this code and that the appointment is in the ward's best interests, the guardianship program or governmental entity serving as the ward's guardian or the court, on the court's own motion, may file an application to appoint the individual as the ward's successor guardian. Service of notice on an application filed under this subsection shall be made as directed by the court.

Added by Acts 1999, 76th Leg., ch. ___ (HB 2166), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 2166 added Section 695A, which is intended to make it easier for guardianship programs or governmental entities serving as guardians because no one else was available to be replaced by family members or others who become willing to serve as guardian.

Sec. 697. Registration of Private Professional Guardians.

(a)  A private professional guardian must apply annually to the clerk of the county having venue over the proceeding for the appointment of a guardian for certification. The application must include a sworn statement containing the following information concerning a private professional guardian or each [a] person who represents or plans to represent the interests of a ward as a guardian on behalf of the private professional guardian:

(1)  educational background and professional experience;

(2)  three or more professional references;

(3)  the names of all of the wards the private professional guardian or person is or will be serving as a guardian;

(4)  the aggregate fair market value of the property of all wards that is being or will be managed by the private professional guardian or person;

(5)  place of residence, business address, and business telephone number; and

(6)  whether the private professional guardian or person has ever been removed as a guardian by the court or resigned as a guardian in a particular case, and, if so, a description of the circumstances causing the removal or resignation, and the style of the suit, the docket number, and the court having jurisdiction over the proceeding.

(b) The application must be accompanied by a nonrefundable fee set by the clerk in an amount necessary to cover the cost of administering this section.

(c) The term of the certification begins on the date that the requirements are met and extends through December 31 of the initial year. After the initial year of certification, the term of the certification begins on January 1 and ends on December 31 of each year. A renewal application must be completed during December of the year preceding the year for which the renewal is requested.

(d) The clerk shall bring the information received under this section to the judge's attention for review. The judge shall use the information only in determining whether to appoint, remove, or continue the appointment of a private professional guardian.

(e)  Not later than February 1 of each year, the clerk shall submit to the Health and Human Services Commission the names and business addresses of private professional guardians who have satisfied the certification requirements under this section during the preceding year.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 3630), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 3630 increases the scope of the clerk's responsibility to investigate the criminal history record information of private professional guardians to include each person who represents or plans to represent the interests of a ward as a guardian on behalf of a private professional guardian as well as each person employed by a private professional guardian who will have contact with a ward, exercise control over a ward or a ward's estate or perform any duties with respect to the management of a ward's estate. HB 3630 does this by amended Sections 697 and 698.

The changes made by HB 3630 apply to applications for certification applied on or after September 1, 1999.

Sec. 698. Access to Criminal History Records.

(a)  The clerk of the county having venue over the proceeding for the appointment of a guardian shall obtain criminal history record information that is maintained by the Department of Public Safety or the Federal Bureau of Investigation identification division relating to:

(1)  a private professional guardian;

(2)  each [or a] person who represents or plans to represent the interests of a ward as a guardian on behalf of the private professional guardian; or

(3)  each person employed by a private professional guardian who will:

(A)  have personal contact with a ward or proposed ward;

(B)  exercise control over and manage a ward's estate; or

(C)  perform any duties with respect to the management of a ward's estate.

(b) The criminal history record information obtained under this section is for the exclusive use of the court and is privileged and confidential. 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. The clerk may destroy the criminal history information records after the records are used for the purposes authorized by this section.

(c) The court shall use the information obtained under this section only in determining whether to appoint, remove, or continue the appointment of a private professional guardian.

(d) A person commits an offense if the person releases or discloses any information received under this section without the authorization prescribed by Subsection (b) of this section. An offense under this subsection is a Class A misdemeanor.

(e) The clerk may charge a reasonable fee sufficient to recover the costs of obtaining criminal history information records authorized by Subsection (a) of this section.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. ___ (HB 3630), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 697.

Sec. 702. Bond Required of Guardian of the Person or Estate.

(a) Except as provided by Subsections (b) and (c) of this section, a guardian of the person or of the estate of a ward is required to give bond.

(b) A bond is not required to be given by a guardian that is:

(1) a corporate fiduciary, as defined by Section 601(5) of this code; or

(2) a guardianship program operated by a county.

(c)  When a will that is made by a surviving parent and is probated in a court in this state or a written declaration that is made by a surviving parent directs that the guardian appointed in the will or declaration serve without bond, the court finding that the person is qualified shall issue letters of guardianship of the person to the person named to be appointed guardian in the will or declaration without requirement of bond. The court may not waive the requirement of a bond for the guardian of the estate of a ward, regardless of whether a surviving parent's will or declaration directs the court to waive the bond.

(c) When a will that is made by a surviving parent and is probated in a court in this state directs that the guardian appointed in the will serve without bond, the court finding that the person is qualified shall issue letters of guardianship of the person to the person named to be appointed guardian in the will without requirement of bond. The court may not waive the requirement of a bond for the guardian of the estate of a ward, regardless of whether a surviving parent's will directs the court to waive the bond.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Subsec. (b) amended by Acts 1995, 74th Leg., ch. 642, Sec. 13, eff. Sept. 1, 1995. Amended by Acts 1995, 74th Leg., ch. 1039, Sec. 42, eff. Sept. 1, 1995; Subsec. (b) amended by Acts 1997, 75th Leg., ch. 924, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. ___ (HB 3338), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

HB 3338 changes the form parents can use to designate a guardian of a person for their minor children to include an express statement about whether or not the parents wish for bond to be waived. It also amends Section 702 to make clear that a court may waive the bond if the surviving parent so directs in his or her will or in a Section 677A designation of guardian. The waiver of bond applies to guardians of the persons only, not to guardians of the estate.

The changes made by HB 3338 take effect September 1, 1999, and apply to designations of guardian executed on or after that date.

Sec. 743. Reports of Guardians of the Person.

(a) The guardian of the person of a ward shall return to the court a sworn, written report showing each item of receipts and disbursements for the support and maintenance of the ward, the education of the ward when necessary, and support and maintenance of the ward's dependents, when authorized by order of court.

(b) The guardian of the person, whether or not there is a separate guardian of the estate, shall submit to the court an annual report by sworn affidavit that contains the following information:

(1) the guardian's current name, address, and phone number;

(2) the ward's current:

(A) name, address, and phone number; and

(B) age and date of birth;

(3) the type of home in which the ward resides, described as the ward's own; a nursing, guardian's, foster, or boarding home; a relative's home, and the ward's relationship to the relative; a hospital or medical facility; or other type of residence;

(4) the length of time the ward has resided in the present home and, if there has been a change in the ward's residence in the past year, the reason for the change;

(5) the date the guardian most recently saw the ward, and how frequently the guardian has seen the ward in the past year;

(6) a statement indicating whether or not the guardian has possession or control of the ward's estate;

(7) the following statements concerning the ward's health during the past year:

(A) whether the ward's mental health has improved, deteriorated, or remained unchanged, and a description if there has been a change; and

(B) whether the ward's physical health has improved, deteriorated, or remained unchanged, and a description if there has been a change;

(8) a statement concerning whether or not the ward has regular medical care, and the ward's treatment or evaluation by any of the following persons during the last year, including the name of that person, and the treatment involved:

(A) a physician;

(B) a psychiatrist, psychologist, or other mental health care provider;

(C) a dentist;

(D) a social or other caseworker; or

(E) another individual who provided treatment;

(9) a description of the ward's activities during the past year, including recreational, educational, social, and occupational activities, or if no activities are available or if the ward is unable or has refused to participate in them, a statement to that effect;

(10) the guardian's evaluation of the ward's living arrangements as excellent, average, or below average, including an explanation if the conditions are below average;

(11) the guardian's evaluation of whether the ward is content or unhappy with the ward's living arrangements;

(12) the guardian's evaluation of unmet needs of the ward;

(13) a statement of whether or not the guardian's power should be increased, decreased, or unaltered, including an explanation if a change is recommended;

(14) a statement that the guardian has paid the bond premium for the next reporting period; and

(15) any additional information the guardian desires to share with the court regarding the ward.

(c) If the ward is deceased, the guardian shall provide the court with the date and place of death, if known, in lieu of the information about the ward otherwise required to be provided in the annual report.

(d) Unless the judge is satisfied that the facts stated are true, he shall issue orders as are necessary for the best interests of the ward.

(e) If the judge is satisfied that the facts stated in the report are true, the court shall approve the report.

(f) The court on the court's own motion may waive the costs and fees related to the filing of a report approved under Subsection (e) of this section.

(g) Once each year for the duration of the guardianship, a guardian of the person shall file the report that contains the information required by Subsections (a) and (b) of this section. Except as provided by Subsection (h) of this section, the report must cover a 12-month reporting period that begins on the date the guardian qualifies to serve.

(h) The court may change a reporting period for purposes of this section but may not extend a reporting period so that it covers more than 12 months.

(i) Each report is due not later than the 60th day after the date on which the reporting period ends.

(j)  A guardian of the person may complete and file the report required under this section without the assistance of an attorney.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Subsec. (a) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 44, eff. Sept. 1, 1995; Subsecs. (e) to (i) added by Acts 1995, 74th Leg., ch. 1039, Sec. 45, eff. Sept. 1, 1995; Subsec. (b) amended by Acts 1997, 75th Leg., ch. 1403, Sec. 3, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. ___ (HB 2165), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

Even if a court normally would not permit a guardian to appear pro se, HB 2165 makes clear that guardians of the person may complete and file annual reports without the assistance of an attorney.

HB 2165 takes effect September 1, 1999, and the change to Section 743 applies to reports filed on or after that date.

Sec. 855. Investments Without Court Order.

(a) The guardian of the estate may retain, without regard to diversification of investments and without liability for any depreciation or loss resulting from the retention, any property received into a guardianship estate at its inception or added to the estate by gift, devise, or inheritance or by mutation or increase. A guardian of the estate is not relieved from the duty to take care of and manage the estate as a person of ordinary prudence, discretion, and intelligence would exercise in the management of the person's own affairs.

(b)  If the guardian of the estate has on hand money that belongs to the ward that exceeds that amount of money that may be necessary for the education and maintenance of the ward, the guardian shall invest the money as follows:

(1)  in bonds or other obligations of the United States;

(2)  in tax-supported bonds of this state;

(3)  except as limited by Subsections (c) and (d) of this section, in tax-supported bonds of a county, district, political subdivision, or incorporated city or town in this state;

(4)  in shares or share accounts of a state savings [building] and loan association or savings bank with its main office or a branch office in [organized under the laws of] this state if the payment of the shares or share accounts is insured by the Federal Deposit [Savings and Loan] Insurance Corporation;

(5)  in the shares or share accounts of a federal savings and loan association or savings bank with its main office or a branch office [domiciled] in this state if the payment of the shares or share accounts is insured by the Federal Deposit [Savings and Loan] Insurance Corporation;

(6)  in collateral bonds of companies incorporated under the laws of this state, having a paid-in capital of $1,000,000 or more, when the bonds are a direct obligation of the company that issues the bonds and are specifically secured by first mortgage real estate notes or other securities pledged with a trustee; or

(7)  in interest-bearing time deposits that may be withdrawn on or before one year after demand in a bank that does business in this state where the payment of the time deposits is insured by the Federal Deposit Insurance Corporation.

(c) The bonds of a county, district, or subdivision may be purchased only if the net funded debt of the county, district, or subdivision that issues the bonds does not exceed 10 percent of the assessed value of taxable property in the county, district, or subdivision.

(d) The bonds of a city or town may be purchased only if the net funded debt of the city or town does not exceed 10 percent of the assessed value of taxable property in the city or town less that part of the debt incurred for acquisition or improvement of revenue-producing utilities, the revenues of which are not pledged to support other obligations of the city or town.

(e) The limitations in Subsections (c) and (d) of this section do not apply to bonds issued for road purposes in this state under Section 52, Article III, of the Texas Constitution that are supported by a tax unlimited as to rate or amount.

(f) In this section, "net funded debt" means the total funded debt less sinking funds on hand.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. _____ [HB 2066], eff. Sept. 1, 1999.

Explanation of 1999 Amendment

The Interstate Banking Act, HB 2066, amended subsections (b) to be consistent with the state's restructured banking laws.

Sec. 868. Terms of Management Trust.

(a) Except as provided by Subsection (d) of this section, a trust created under Section 867 of this code must provide that:

(1) the ward is the sole beneficiary of the trust;

(2) the trustee may disburse an amount of the trust's principal or income as the trustee determines is necessary to expend for the health, education, support, or maintenance of the ward;

(3) the income of the trust that the trustee does not disburse under Subdivision (2) of this subsection must be added to the principal of the trust;

(4) the trustee serves without giving a bond; and

(5) the trustee, on annual application to the court and subject to the court's approval, is entitled to receive reasonable compensation for services that the trustee provided to the ward as the ward's trustee that is:

(A) to be paid from the trust's income, principal, or both; and

(B) determined in the same manner as compensation of a guardian of an estate under Section 665 of this code.

(b) The trust may provide that a trustee make a distribution, payment, use, or application of trust funds for the health, education, support, or maintenance of the ward or of another person whom the ward is legally obligated to support, as necessary and without the intervention of a guardian or other representative of the ward, to:

(1) the ward's guardian;

(2) a person who has physical custody of the ward or another person whom the ward is legally obligated to support; or

(3) a person providing a good or service to the ward or another person whom the ward is legally obligated to support.

(c) Repealed by Acts 1997, 75th Leg., ch. 1375, Sec. 6, eff. Sept. 1, 1997.

(d) When creating or modifying a trust, the court may omit or modify terms required by Subsection (a)(1) or (2) of this section only if the court determines that the omission or modification:

(1) is necessary and appropriate for the ward to be eligible to receive public benefits or assistance under a state or federal program that is not otherwise available to the ward; and

(2) is in the ward's best interests.

(e) The court may include additional provisions in a trust created or modified under this section if the court determines an addition does not conflict with Subsection (a) and, if appropriate, Subsection (d) of this section.

(f) If the trustee determines that it is in the best interest of the ward, the trustee may invest funds of the trust in the Texas tomorrow fund established by Subchapter F, Chapter 54, Education Code.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Subsec. (b) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 58, eff. Sept. 1, 1995. Subsec. (c) added by Acts 1995, 74th Leg., ch. 1039, Sec. 59, eff. Sept. 1, 1995; Subsecs. (a), (b) amended by Acts 1997, 75th Leg., ch. 1375, Sec. 2, eff. Sept. 1, 1997; Subsec. (c) repealed by Acts 1997, 75th Leg., ch. 1375, Sec. 6, eff. Sept. 1, 1997; Subsecs. (d), (e) added by Acts 1997, 75th Leg., ch. 1375, Sec. 2, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. ____ (SB 112), eff. May 17, 1999.

Explanation of 1999 Amendment

SB 112 added subsection (j), making it clear that the trustee of a guardianship management trust may invest in the Texas Tomorrow Fund college tuition payment program.

Sec. 875. Temporary Guardian--Procedure.

(a) If a court is presented with substantial evidence that a person may be a minor or other incapacitated person, and the court has probable cause to believe that the person or person's estate, or both, requires the immediate appointment of a guardian, the court shall appoint a temporary guardian with limited powers as the circumstances of the case require.

(b) A person for whom a temporary guardian has been appointed may not be presumed to be incapacitated. The person retains all rights and powers that are not specifically granted to the person's temporary guardian by court order.

(c) A sworn, written application for the appointment of a temporary guardian may be filed before the court appoints a temporary guardian. The application must be filed not later than the end of the next business day of the court after the date of appointment of the temporary guardian. The application must state:

(1) the name and address of the person who is the subject of the guardianship proceeding;

(2) the danger to the person or property alleged to be imminent;

(3) the type of appointment and the particular protection and assistance being requested;

(4) the facts and reasons supporting the allegations and requests;

(5) the name, address, and qualification of the proposed temporary guardian;

(6) the name, address, and interest of the applicant;

(7) the social security numbers of the applicant and proposed ward; and

(8) if applicable, that the proposed temporary guardian is a private professional guardian who has complied with the requirements of Section 697 of this code.

(d) At the earliest of the filing of an application for temporary guardianship or the appointment of a temporary guardian, the court shall appoint an attorney to represent the proposed ward in all guardianship proceedings in which independent counsel has not been retained by or on behalf of the proposed ward.

(e)  On the filing of an application for temporary guardianship, the clerk shall issue notice that shall be served on the respondent, [and] the respondent's appointed attorney, and the proposed temporary guardian named in the application, if that person is not the applicant. The notice must describe the rights of the parties and the date, time, place, purpose, and possible consequences of a hearing on the application. A copy of the application and, if applicable, a copy of the order appointing the temporary guardian must be attached to the notice.

(f)(1)  A hearing shall be held not later than the 10th day after the date of the filing of the application for temporary guardianship unless the hearing date is extended as provided by Subdivision (2) of this subsection. At a hearing under this section, the respondent has the right to:

(A)  receive prior notice;

(B)  have representation by counsel;

(C)  be present;

(D)  present evidence and confront and cross-examine witnesses; and

(E)  a closed hearing if requested by the respondent or the respondent's attorney.

(2)  Every temporary guardianship granted before a hearing on the application required by Subdivision (1) of this subsection expires on its own terms at the conclusion of the hearing unless the respondent or the respondent's attorney consents that the order appointing the temporary guardian may be extended for a longer period not to exceed 60 days after the date of the filing of the application for temporary guardianship.

(3)  Every temporary guardianship granted before a hearing on the application required by Subdivision (1) of this subsection shall be set for hearing at the earliest possible date and takes precedence over all matters except older matters of the same character.

(4)  Every temporary guardianship granted before a hearing on the application required by Subdivision (1) of this subsection must include an order that sets a certain date for hearing on the application for temporary guardianship.

(5)  On one day's notice to the party who obtained a temporary guardianship before a hearing on the application required by Subdivision (1) of this subsection, the respondent or the respondent's attorney may appear and move for the dissolution or modification of the temporary guardianship. If a motion is made for dissolution or modification of the temporary guardianship, the court shall hear and determine the motion as expeditiously as the ends of justice require.

(6)  If the applicant is not the proposed temporary guardian, a temporary guardianship may not be granted before a hearing on the application required by Subdivision (1) of this subsection unless the proposed temporary guardian appears in court.

(g) If at the conclusion of the hearing required by Subsection (f)(1) of this section the court determines that the applicant has established that there is substantial evidence that the person is a minor or other incapacitated person, that there is imminent danger that the physical health or safety of the respondent will be seriously impaired, or that the respondent's estate will be seriously damaged or dissipated unless immediate action is taken, the court shall appoint a temporary guardian by written order. The court shall assign to the temporary guardian only those powers and duties that are necessary to protect the respondent against the imminent danger shown. The powers and duties must be described in the order of appointment.

(h) Except as provided by Subsection (k) of this section, a temporary guardianship may not remain in effect for more than 60 days.

(i) If the court appoints a temporary guardian after the hearing required by Subsection (f)(1) of this section, all court costs, including attorney's fees, may be assessed as provided in Section 665A, 665B, or 669 of this code.

(j) The court may not customarily or ordinarily appoint the Department of Protective and Regulatory Services as a temporary guardian under this section. The appointment of the department as a temporary guardian under this section should be made only as a last resort.

(k) If an application for a temporary guardianship, for the conversion of a temporary guardianship to a permanent guardianship, or for a permanent guardianship is challenged or contested, the court, on the court's own motion or on the motion of any interested party, may appoint a new temporary guardian without issuing additional citation if the court finds that the appointment is necessary to protect the proposed ward or the proposed ward's estate. A temporary guardian appointed under this subsection must qualify in the same form and manner required of a guardian under this code. The term of the temporary guardian expires at the conclusion of the hearing challenging or contesting the application or on the date a permanent guardian the court appoints for the proposed ward qualifies to serve as the ward's guardian.

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Subsecs. (c), (i) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 64, eff. Sept. 1, 1995; Subsec. (j) amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.074, eff. Sept. 1, 1995; Subsecs. (j), (k) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 64, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. ____ (HB 2795), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

Typically the applicant for a temporary guardianship seeks to have himself or herself named as temporary guardian, but occasionally the applicant seeks the appointment of someone else. Apparently, the applicant does not always tell the intended guardian that he, she or it has been named. HB 2795 addresses this potential problem by requiring the person named as prospective temporary guardian in a temporary guardianship application to be served with citation. In addition, the proposed temporary guardian must appear at the hearing on the application in order to be appointed.

HB 2795 takes effect September 1, 1999, and applies to a proceeding for the appointment of a guardian instituted on or after that date.

Sec. 886. Appointment of Receiver.

(a) If any of the separate property of a person reported to be a prisoner of war or missing in action by the United States Department of Defense appears to be in danger of injury, loss, or waste and in need of a representative, a district judge of the county in which the person reported to be a prisoner of war or missing in action or the spouse of the person resides or where the endangered separate property is located may by order, with or without application, appoint a suitable person as receiver to take charge of the endangered separate property.

(b) The order must include a requirement that the receiver post bond as in ordinary receiverships in a sum the judge considers necessary to protect the separate property and shall specify the duties and powers of the receiver as the judge considers necessary for the protection, conservation, and preservation of the separate property.

(c) The clerk shall enter the order in the minutes of the court, and the person appointed shall post bond for submission to the judge for approval. On approval by the judge, the bond shall be filed with the clerk.

(d) The receiver shall take charge of the endangered separate property under the duties and powers provided by the order of appointment and by subsequent orders as the judge shall make.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 2, eff. April 17, 1997. Repealed by Acts 1999, 76th Leg., ch. ___ (HB 3343), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

In this continuing saga of unwanted statutes trying to find a home, HB 3630 repealed the provisions of the Probate Code having to do with a receivership for prisoners of war and persons missing in action (POWs/MIAs). In 1997, these provisions were removed from the Family Code and moved to the Probate Code. Apparently the probate judges decided they didn't want them either, so now the procedure for receiverships for POWs/MIAs has been moved to Subchapter G of Chapter 64 of the Civil Practices and Remedies Code.

Sec. 886A. Expenditures by Receiver.

If during the receivership under Section 886 of this code the needs of the spouse or dependent children of the person reported to be a prisoner of war or missing in action require the use of the income or corpus of the estate for education, clothing, or subsistence, the judge may, with or without application, by order entered in the minutes of the court, appropriate an amount of the income or corpus sufficient for that purpose. The income or corpus shall be used by the receiver to pay claims for education, clothing, or subsistence that are presented to the judge and approved and ordered to be paid.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 2, eff. April 17, 1997. Repealed by Acts 1999, 76th Leg., ch. ___ (HB 3343), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 886.

Sec. 886B. Investments, Loans, and Contributions by Receiver.

If during the receivership under Section 886 of this code the receiver has on hand an amount of money belonging to the person reported to be a prisoner of war or missing in action in excess of the amount needed for current necessities and expenses, the receiver may, under direction of the judge, invest, lend, or contribute all or a part of the excess money in the manner provided by this chapter for investments, loans, or contributions by guardians. The receiver shall report to the judge all transactions involving excess money in the manner that reports are required of guardians.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 2, eff. April 17, 1997. Repealed by Acts 1999, 76th Leg., ch. ___ (HB 3343), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 886.

Sec. 886C. Receiver's Expenses, Account, and Compensation.

(a) All necessary expenses incurred by the receiver in administering the property may be reported monthly to the judge by a sworn statement of account, including a report of:

(1) the receiver's acts;

(2) the condition of the property;

(3) the status of the threatened danger to the property; and

(4) the progress made toward abatement of the threatened danger.

(b) If the judge is satisfied that the statement is correct and reasonable in all respects, the judge shall promptly by order approve the report and authorize the reimbursement of the receiver from the funds under the receiver's control.

(c) For official services rendered, the receiver is entitled to be compensated in the same manner and amount as is provided by this chapter for similar services rendered by guardians of estates.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 2, eff. April 17, 1997. Repealed by Acts 1999, 76th Leg., ch. ___ (HB 3343), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 886.

Sec. 886D. Closing Receivership.

When the threatened danger has abated and the separate property is no longer liable to injury, loss, or waste for the lack of a representative, the receiver shall:

(1) report to the judge; and

(2) file with the clerk a full and final sworn account of:

(A) all property received by the receiver;

(B) all sums paid out;

(C) all acts performed by the receiver with respect to the property; and

(D) all property remaining in the receiver's control.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 2, eff. April 17, 1997. Repealed by Acts 1999, 76th Leg., ch. ___ (HB 3343), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 886.

Sec. 886E. Action of Judge.

(a) If on hearing the report and account the judge is satisfied that the danger of injury, loss, or waste has abated and that the report and account are correct, the judge shall render an order so finding and shall direct the receiver to deliver the property to the person from whom the receiver took possession as receiver, to the person who was reported to be a prisoner of war or missing in action, or to another person the judge finds to be entitled to possession of the estate. The person to whom the property is delivered shall execute and file with the clerk an appropriate receipt for the property delivered.

(b) The order of the judge shall discharge the receiver and the receiver's sureties.

(c) If the judge is not satisfied that the danger has abated, or is not satisfied with the report and account, the judge shall render an order continuing the receivership in effect until the judge is so satisfied.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 2, eff. April 17, 1997. Repealed by Acts 1999, 76th Leg., ch. ___ (HB 3343), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 886.

Sec. 886F. Recordation of Proceedings.

All orders, bonds, reports, accounts, and notices in the receivership proceedings shall be recorded in the minutes of the court.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 2, eff. April 17, 1997. Repealed by Acts 1999, 76th Leg., ch. ___ (HB 3343), eff. Sept. 1, 1999.

Explanation of 1999 Amendment

See comment following Section 886.

 

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