Bill Text: TX HB1837 | 2011-2012 | 82nd Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to guardianships and alternatives to guardianship for persons who have physical disabilities or who are incapacitated.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-04-27 - Comm. report sent to Local & Consent Calendar [HB1837 Detail]
Download: Texas-2011-HB1837-Introduced.html
Bill Title: Relating to guardianships and alternatives to guardianship for persons who have physical disabilities or who are incapacitated.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-04-27 - Comm. report sent to Local & Consent Calendar [HB1837 Detail]
Download: Texas-2011-HB1837-Introduced.html
82R11565 KLA-F | ||
By: Hartnett | H.B. No. 1837 |
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relating to guardianships and alternatives to guardianship for | ||
persons who have physical disabilities or who are incapacitated. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 601(25), Texas Probate Code, is amended | ||
to read as follows: | ||
(25) The term [ |
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proceeding" means [ |
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(A) the appointment of a guardian of a minor or | ||
other incapacitated person, including an incapacitated adult for | ||
whom another court obtained continuing, exclusive jurisdiction in a | ||
suit affecting the parent-child relationship when the person was a | ||
child; | ||
(B) an application, petition, or motion | ||
regarding guardianship or an alternative to guardianship under this | ||
chapter; | ||
(C) a mental health action; and | ||
(D) an application, petition, or motion | ||
regarding a trust created under Section 867 of this code. | ||
SECTION 2. Section 605, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 605. GENERAL PROBATE [ |
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GUARDIANSHIP PROCEEDINGS; APPEALS. (a) All guardianship | ||
proceedings must be filed and heard in a court exercising original | ||
probate jurisdiction. The court exercising original probate | ||
jurisdiction also has jurisdiction of all matters related to the | ||
guardianship proceeding as specified in Section 606A of this code | ||
for that type of court. | ||
(b) A probate court may exercise pendent and ancillary | ||
jurisdiction as necessary to promote judicial efficiency and | ||
economy. | ||
(c) A final order issued by a probate court is appealable to | ||
the court of appeals. [ |
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SECTION 3. Subpart A, Part 2, Chapter XIII, Texas Probate | ||
Code, is amended by adding Sections 606A, 607A, 607B, 607C, 607D, | ||
and 607E to read as follows: | ||
Sec. 606A. MATTERS RELATED TO GUARDIANSHIP PROCEEDING. | ||
(a) For purposes of this code, in a county in which there is no | ||
statutory probate court, a matter related to a guardianship | ||
proceeding includes: | ||
(1) the granting of letters of guardianship; | ||
(2) the settling of an account of a guardian and all | ||
other matters relating to the settlement, partition, or | ||
distribution of a ward's estate; | ||
(3) a claim brought by or against a guardianship | ||
estate; | ||
(4) an action for trial of title to real property that | ||
is guardianship estate property, including the enforcement of a | ||
lien against the property; | ||
(5) an action for trial of the right of property that | ||
is guardianship estate property; | ||
(6) after a guardianship of the estate of a ward is | ||
required to be settled as provided by Section 745 of this code: | ||
(A) an action brought by or on behalf of the | ||
former ward against a former guardian of the ward for alleged | ||
misconduct arising from the performance of the person's duties as | ||
guardian; | ||
(B) an action calling on the surety of a guardian | ||
or former guardian to perform in place of the guardian or former | ||
guardian, which may include the award of a judgment against the | ||
guardian or former guardian in favor of the surety; | ||
(C) an action against a former guardian of the | ||
former ward that is brought by a surety that is called on to perform | ||
in place of the former guardian; | ||
(D) a claim for the payment of compensation, | ||
expenses, and court costs, and any other matter authorized under | ||
Subpart H, Part 2, of this chapter; and | ||
(E) a matter related to an authorization made or | ||
duty performed by a guardian under Subpart C, Part 4, of this | ||
chapter; and | ||
(7) the appointment of a trustee for a trust created | ||
under Section 867 of this code, the settling of an account of the | ||
trustee, and all other matters relating to the trust. | ||
(b) For purposes of this code, in a county in which there is | ||
a statutory probate court, a matter related to a guardianship | ||
proceeding includes: | ||
(1) all matters and actions described in Subsection | ||
(a) of this section; | ||
(2) a suit, action, or application filed against or on | ||
behalf of a guardianship or a trustee of a trust created under | ||
Section 867 of this code; and | ||
(3) a cause of action in which a guardian in a | ||
guardianship pending in the statutory probate court is a party. | ||
Sec. 607A. ORIGINAL JURISDICTION FOR GUARDIANSHIP | ||
PROCEEDINGS. (a) In a county in which there is no statutory | ||
probate court or county court at law exercising original probate | ||
jurisdiction, the county court has original jurisdiction of | ||
guardianship proceedings. | ||
(b) In a county in which there is no statutory probate | ||
court, but in which there is a county court at law exercising | ||
original probate jurisdiction, the county court at law exercising | ||
original probate jurisdiction and the county court have concurrent | ||
original jurisdiction of guardianship proceedings, unless | ||
otherwise provided by law. The judge of a county court may hear | ||
guardianship proceedings while sitting for the judge of any other | ||
county court. | ||
(c) In a county in which there is a statutory probate court, | ||
the statutory probate court has original jurisdiction of | ||
guardianship proceedings. | ||
Sec. 607B. JURISDICTION OF CONTESTED GUARDIANSHIP | ||
PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT OR COUNTY | ||
COURT AT LAW. (a) In a county in which there is no statutory | ||
probate court or county court at law exercising original probate | ||
jurisdiction, when a matter in a guardianship proceeding is | ||
contested, 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: | ||
(1) request the assignment of a statutory probate | ||
court judge to hear the contested matter, as provided by Section | ||
25.0022, Government Code; or | ||
(2) transfer the contested matter to the district | ||
court, which may then hear the contested matter as if originally | ||
filed in the district court. | ||
(b) If a party to a guardianship proceeding files a motion | ||
for the assignment of a statutory probate court judge to hear a | ||
contested matter in the proceeding before the judge of the county | ||
court transfers the contested matter to a district court under this | ||
section, the county judge shall grant the motion for the assignment | ||
of a statutory probate court judge and may not transfer the matter | ||
to the district court unless the party withdraws the motion. | ||
(c) If a judge of a county court requests the assignment of a | ||
statutory probate court judge to hear a contested matter in a | ||
guardianship proceeding on the judge's own motion or on the motion | ||
of a party to the proceeding as provided by this section, the judge | ||
may request that the statutory probate court judge be assigned to | ||
the entire proceeding on the judge's own motion or on the motion of | ||
a party. | ||
(d) If a judge of a county court transfers a contested | ||
matter in a guardianship proceeding to a district court on the | ||
judge's own motion or on the motion of a party to the proceeding as | ||
provided by this section, the judge may transfer the entire | ||
proceeding to that court on the judge's own motion or on the motion | ||
of a party. A district court to which an entire guardianship | ||
proceeding is transferred as provided by this subsection may hear | ||
the proceeding as if originally filed in that court. | ||
(e) A party to a guardianship proceeding may file a motion | ||
for the assignment of a statutory probate court judge under this | ||
section before a matter in the proceeding becomes contested, and | ||
the motion is given effect as a motion for assignment of a statutory | ||
probate court judge under Subsection (a) of this section if the | ||
matter later becomes contested. | ||
(f) Notwithstanding any other law, a transfer of a contested | ||
matter in a guardianship proceeding to a district court under any | ||
authority other than the authority provided by this section: | ||
(1) is disregarded for purposes of this section; and | ||
(2) does not defeat the right of a party to the | ||
proceeding to have the matter assigned to a statutory probate court | ||
judge in accordance with this section. | ||
(g) A statutory probate court judge assigned to a contested | ||
matter in a guardianship proceeding or to the entire proceeding | ||
under this section has the jurisdiction and authority granted to a | ||
statutory probate court by this code. A statutory probate court | ||
judge assigned to hear only the contested matter in a guardianship | ||
proceeding shall, on resolution of the matter, including an appeal | ||
of the matter, return the matter to the county court for further | ||
proceedings not inconsistent with the orders of the statutory | ||
probate court or court of appeals, as applicable. A statutory | ||
probate court judge assigned to the entire guardianship proceeding | ||
as provided by Subsection (c) of this section shall, on resolution | ||
of the contested matter in the proceeding, including an appeal of | ||
the matter, return the entire proceeding to the county court for | ||
further proceedings not inconsistent with the orders of the | ||
statutory probate court or court of appeals, as applicable. | ||
(h) A district court to which a contested matter in a | ||
guardianship proceeding or the entire proceeding is transferred | ||
under this section has the jurisdiction and authority granted to a | ||
statutory probate court by this code. A district court to which | ||
only the contested matter is transferred shall, on resolution of | ||
the matter, including an appeal of the matter, return the matter to | ||
the county court for further proceedings not inconsistent with the | ||
orders of the district court or court of appeals, as applicable. A | ||
district court to which an entire guardianship proceeding is | ||
transferred as provided by Subsection (d) of this section shall, on | ||
resolution of the contested matter in the proceeding, including an | ||
appeal of the matter, return the entire proceeding to the county | ||
court for further proceedings not inconsistent with the orders of | ||
the district court or court of appeals, as applicable. | ||
(i) If only the contested matter in a guardianship | ||
proceeding is assigned to a statutory probate court judge or | ||
transferred to a district court under this section, the county | ||
court shall continue to exercise jurisdiction over the management | ||
of the guardianship, other than a contested matter, until final | ||
disposition of the contested matter is made in accordance with this | ||
section. Any matter related to a guardianship proceeding in which | ||
only a contested matter is transferred to a district court may be | ||
brought in the district court. The district court in which a | ||
matter related to the proceeding is filed may, on the court's own | ||
motion or on the motion of any party, find that the matter is not a | ||
contested matter and transfer the matter to the county court with | ||
jurisdiction of the management of the guardianship. | ||
(j) If a contested matter in a guardianship proceeding is | ||
transferred to a district court under this section, the district | ||
court has jurisdiction of any contested matter in the proceeding | ||
that is subsequently filed, and the county court shall transfer | ||
those contested matters to the district court. If a statutory | ||
probate court judge is assigned under this section to hear a | ||
contested matter in a guardianship proceeding, the statutory | ||
probate court judge shall be assigned to hear any contested matter | ||
in the proceeding that is subsequently filed. | ||
(k) The clerk of a district court to which a contested | ||
matter in a guardianship proceeding or the entire proceeding is | ||
transferred under this section may perform in relation to the | ||
transferred matter or proceeding, as applicable, any function a | ||
county clerk may perform with respect to that type of matter or | ||
proceeding. | ||
Sec. 607C. JURISDICTION OF CONTESTED GUARDIANSHIP | ||
PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT. (a) In a | ||
county in which there is no statutory probate court, but in which | ||
there is a county court at law exercising original probate | ||
jurisdiction, when a matter in a guardianship proceeding is | ||
contested, the judge of the county court may, on the judge's own | ||
motion, or shall, on the motion of any party to the proceeding, | ||
transfer the contested matter to the county court at law. In | ||
addition, the judge of the county court, on the judge's own motion | ||
or on the motion of a party to the proceeding, may transfer the | ||
entire proceeding to the county court at law. | ||
(b) A county court at law to which a proceeding is | ||
transferred under this section may hear the proceeding as if | ||
originally filed in that court. If only a contested matter in the | ||
proceeding is transferred, on the resolution of the matter, the | ||
matter shall be returned to the county court for further | ||
proceedings not inconsistent with the orders of the county court at | ||
law. | ||
Sec. 607D. EXCLUSIVE JURISDICTION OF GUARDIANSHIP | ||
PROCEEDING IN COUNTY WITH STATUTORY PROBATE COURT. (a) In a | ||
county in which there is a statutory probate court, the statutory | ||
probate court has exclusive jurisdiction of all guardianship | ||
proceedings, regardless of whether contested or uncontested. | ||
(b) A cause of action related to a guardianship proceeding | ||
of which the statutory probate court has exclusive jurisdiction as | ||
provided by Subsection (a) of this section must be brought in the | ||
statutory probate court unless the jurisdiction of the statutory | ||
probate court is concurrent with the jurisdiction of a district | ||
court as provided by Section 607E of this code or with the | ||
jurisdiction of any other court. | ||
Sec. 607E. CONCURRENT JURISDICTION WITH DISTRICT COURT. A | ||
statutory probate court has concurrent jurisdiction with the | ||
district court in: | ||
(1) a personal injury, survival, or wrongful death | ||
action by or against a person in the person's capacity as a | ||
guardian; and | ||
(2) an action involving a guardian in which each other | ||
party aligned with the guardian is not an interested person in the | ||
guardianship. | ||
SECTION 4. Section 608, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 608. TRANSFER OF [ |
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STATUTORY PROBATE COURT. (a) A judge of a statutory probate court, | ||
on the motion of a party to the action or of a person interested in | ||
the [ |
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(1) transfer to the judge's court from a district, | ||
county, or statutory court a cause of action that is a matter | ||
related [ |
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guardianship proceeding pending in the statutory probate court and | ||
in which the [ |
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(2) [ |
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with the guardianship proceeding to which it relates and any other | ||
proceedings in the statutory probate court that are related | ||
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(b) Notwithstanding any other provision of this chapter, | ||
the proper venue for an action by or against a guardian, ward, or | ||
proposed ward for personal injury, death, or property damages is | ||
determined under Section 15.007, Civil Practice and Remedies Code. | ||
SECTION 5. The heading to Section 609, Texas Probate Code, | ||
is amended to read as follows: | ||
Sec. 609. TRANSFER OF CONTESTED GUARDIANSHIP OF THE PERSON | ||
OF A MINOR. | ||
SECTION 6. Section 609(a), Texas Probate Code, is amended | ||
to read as follows: | ||
(a) If an interested person contests an application for the | ||
appointment of a guardian of the person of a minor or an interested | ||
person seeks the removal of a guardian of the person of a minor, the | ||
judge, on the judge's own motion, may transfer all matters related | ||
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affecting the parent-child relationship under the Family Code is | ||
pending. | ||
SECTION 7. Section 611(a), Texas Probate Code, is amended | ||
to read as follows: | ||
(a) If two or more courts have concurrent venue of a | ||
guardianship proceeding [ |
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for a guardianship proceeding is initially filed has and retains | ||
jurisdiction of the proceeding [ |
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is considered commenced by the filing of an application alleging | ||
facts sufficient to confer venue, and the proceeding initially | ||
legally commenced extends to all of the property of the | ||
guardianship estate. | ||
SECTION 8. Section 621(a), Texas Probate Code, is amended | ||
to read as follows: | ||
(a) An application for a guardianship proceeding or[ |
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complaint, petition, or other paper permitted or required by law to | ||
be filed in the court in a guardianship proceeding [ |
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be filed with the county clerk of the proper county. | ||
SECTION 9. Sections 622(a) and (b), Texas Probate Code, are | ||
amended to read as follows: | ||
(a) The laws regulating costs in ordinary civil cases apply | ||
to a guardianship proceeding [ |
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provided by this chapter. | ||
(b) When a person other than the guardian, attorney ad | ||
litem, or guardian ad litem files an application, complaint, or | ||
opposition in relation to a guardianship proceeding [ |
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clerk may require the person to give security for the probable costs | ||
of the [ |
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interested in the guardianship or in the welfare of the ward, or an | ||
officer of the court, at any time before the trial of an | ||
application, complaint, or opposition in relation to a guardianship | ||
proceeding [ |
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an order requiring the person who filed the application, complaint, | ||
or opposition to give security for the probable costs of the | ||
proceeding. The rules governing civil suits in the county court | ||
relating to this subject control in these cases. | ||
SECTION 10. Section 629, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 629. CALL OF THE DOCKETS. The judge of the court in | ||
which a guardianship proceeding is pending, as the judge | ||
determines, shall call guardianship proceedings [ |
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regular order on both the guardianship and claim dockets and shall | ||
make necessary orders. | ||
SECTION 11. Section 630, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 630. CLERK MAY SET HEARINGS. If the [ |
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absent from the county seat or is on vacation, disqualified, ill, or | ||
deceased and is unable to designate the time and place for hearing a | ||
guardianship proceeding [ |
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county clerk of the county in which the proceeding [ |
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pending may designate the time and place for hearing, entering the | ||
setting on the judge's docket and certifying on the docket the | ||
reason that the judge is not acting to set the hearing. If a | ||
qualified judge is not present for the hearing, after service of the | ||
notices and citations required by law with reference to the time and | ||
place of hearing has been perfected, the hearing is automatically | ||
continued from day to day until a qualified judge is present to hear | ||
and make a determination in the proceeding [ |
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SECTION 12. The heading to Section 632, Texas Probate Code, | ||
is amended to read as follows: | ||
Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF | ||
CITATION, NOTICES, AND WRITS IN GUARDIANSHIP PROCEEDINGS | ||
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SECTION 13. Sections 632(a), (b), and (h), Texas Probate | ||
Code, are amended to read as follows: | ||
(a) A person does not need to be cited or otherwise given | ||
notice in a guardianship proceeding [ |
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in which this chapter expressly provides for citation or the giving | ||
of notice. If this chapter does not expressly provide for citation | ||
or the issuance or return of notice in a guardianship proceeding | ||
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requires that notice be given, the court shall prescribe the form | ||
and manner of service and return of service. | ||
(b) Unless a court order is required by a provision of this | ||
chapter, the county clerk shall issue without a court order | ||
necessary citations, writs, and process in guardianship | ||
proceedings [ |
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guardians. | ||
(h) In a guardianship proceeding [ |
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or notice is required to be served by posting and issued in | ||
conformity with the applicable provision of this code, the citation | ||
or notice and the service of and return of the citation or notice is | ||
sufficient and valid if a sheriff or constable posts a copy of the | ||
citation or notice at the place or places prescribed by this chapter | ||
on a day that is sufficiently before the return day contained in the | ||
citation or notice for the period of time for which the citation or | ||
notice is required to be posted to elapse before the return day of | ||
the citation or notice. The sufficiency or validity of the citation | ||
or notice or the service of or return of the service of the citation | ||
or notice is not affected by the fact that the sheriff or constable | ||
makes the [ |
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citation or notice to the court before the period elapses for which | ||
the citation or notice is required to be posted, even though the | ||
return is made, and the citation or notice is returned to the court, | ||
on the same day it is issued. | ||
SECTION 14. Section 641, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 641. DEFECTS IN PLEADING. A court may not invalidate a | ||
pleading in a guardianship proceeding [ |
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the pleading based on a defect of form or substance in the pleading, | ||
unless the defect has been timely objected to and called to the | ||
attention of the court in which the proceeding was or is pending. | ||
SECTION 15. Section 646, Texas Probate Code, is amended by | ||
amending Subsection (e) and adding Subsection (f) to read as | ||
follows: | ||
(e) The term of appointment of an attorney ad litem | ||
appointed under this section expires, without a court order, on the | ||
date the court [ |
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Section 693 of this code, appoints a successor guardian, or denies | ||
the application for appointment of a guardian, unless the court | ||
determines that the continued appointment of the attorney ad litem | ||
is in the ward's best interest. | ||
(f) The term of appointment of an attorney ad litem | ||
appointed under this section continues after the court appoints a | ||
temporary guardian under Section 875 of this code unless a court | ||
order provides for the termination or expiration of the attorney ad | ||
litem's appointment. | ||
SECTION 16. Section 650, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 650. DECREES. A decision, order, decree, or judgment | ||
of the court in a guardianship proceeding [ |
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in open court, except in a case in which it is otherwise expressly | ||
provided. | ||
SECTION 17. Section 653, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 653. EXECUTION. An execution in a guardianship | ||
proceeding [ |
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constable within the State of Texas," made returnable in 60 days, | ||
and attested and signed by the clerk officially under the seal of | ||
the court. A proceeding under an execution in a guardianship | ||
proceeding [ |
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regulating a proceeding under an execution issued from the district | ||
court. An execution directed to the sheriff or a constable of a | ||
specific county in this state may not be held defective if the | ||
execution was properly executed within the county by the officer to | ||
whom the direction for execution was given. | ||
SECTION 18. Sections 665(a), (a-1), and (c), Texas Probate | ||
Code, are amended to read as follows: | ||
(a) The guardian or temporary guardian is entitled to | ||
reasonable compensation on application to the court if the court | ||
finds that the guardian or temporary guardian has taken care of the | ||
ward's person or managed the ward's estate in compliance with the | ||
standards of this chapter. The court may authorize the amount of | ||
this compensation and the payment [ |
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purpose. [ |
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(a-1) In determining whether to authorize compensation for | ||
a guardian under this section from the ward's estate, the court | ||
shall consider the ward's monthly income from all sources and | ||
whether the ward receives medical assistance under the state | ||
Medicaid program. | ||
(c) On application of an interested person or on its own | ||
motion, the court may: | ||
(1) review and modify at any time the amount of | ||
compensation authorized for a guardian or temporary guardian [ |
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amount is unreasonably high or low when considering the services | ||
rendered as guardian or temporary guardian; and | ||
(2) authorize compensation for the guardian or | ||
temporary guardian in an estimated amount the court finds | ||
reasonable that is to be paid on a quarterly basis before the | ||
guardian or temporary guardian files an annual or final accounting | ||
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SECTION 19. Section 666, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 666. EXPENSES ALLOWED. A guardian is entitled to be | ||
reimbursed from the guardianship estate for all necessary and | ||
reasonable expenses incurred in performing any duty as a guardian, | ||
including reimbursement for the payment of reasonable attorney's | ||
fees necessarily incurred by the guardian in connection with the | ||
management of the estate or any other [ |
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guardianship. | ||
SECTION 20. Section 669(a), Texas Probate Code, is amended | ||
to read as follows: | ||
(a) Except as provided by Subsection (b) of this section, in | ||
a guardianship proceeding [ |
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including the cost of the guardian ad litem or court visitor, shall | ||
be paid out of the guardianship estate, or, if the estate is | ||
insufficient to pay for the cost of the proceeding, the cost of the | ||
proceeding shall be paid out of the county treasury, and the | ||
judgment of the court shall be issued accordingly. | ||
SECTION 21. Sections 682A(a-1) and (a-2), Texas Probate | ||
Code, are amended to read as follows: | ||
(a-1) Notwithstanding any other law, if the applicant who | ||
files an application under Subsection (a) of this section or | ||
Section 682 of this code is a person who was appointed conservator | ||
of a disabled child and the proceeding is a guardianship proceeding | ||
described by Section 601(25)(A) of this code in which the proposed | ||
ward is the incapacitated adult with respect to whom another court | ||
obtained continuing, exclusive jurisdiction in a suit affecting the | ||
parent-child relationship when the person was a child [ |
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applicant may present to the court a written letter or certificate | ||
that meets the requirements of Section 687(a) of this code. | ||
(a-2) If, on receipt of the letter or certificate described | ||
by Subsection (a-1) of this section, the court is able to make the | ||
findings required by Section 684 of this code, the court, | ||
notwithstanding Section 677 of this code, shall appoint the | ||
conservator as guardian without conducting a hearing and shall, to | ||
the extent possible, preserve the terms of possession and access to | ||
the ward that applied before the court obtained jurisdiction of the | ||
guardianship proceeding [ |
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SECTION 22. Section 687(c), Texas Probate Code, is amended | ||
to read as follows: | ||
(c) If the basis of the proposed ward's alleged incapacity | ||
is mental retardation, the court may not grant an application to | ||
create a guardianship for the proposed ward unless the applicant | ||
presents to the court a written letter or certificate that: | ||
(1) [ |
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section; [ |
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[ |
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(2) shows that [ |
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(A) [ |
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earlier than 24 months before the date of the hearing, the proposed | ||
ward has been examined by a physician or psychologist licensed in | ||
this state or certified by the Department of Aging and Disability | ||
Services to perform the examination, in accordance with rules of | ||
the executive commissioner of the Health and Human Services | ||
Commission governing examinations of that kind; and | ||
(B) the physician's or psychologist's written | ||
findings and recommendations to the court include [ |
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statement as to whether the physician or psychologist has made a | ||
determination of mental retardation in accordance with Section | ||
593.005, Health and Safety Code. | ||
SECTION 23. Section 729(c), Texas Probate Code, is amended | ||
to read as follows: | ||
(c) An inventory made under this section must specify: | ||
(1) what portion of the property is separate property | ||
and what portion is community property; and | ||
(2) if [ |
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with other persons, the interest owned by the ward [ |
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SECTION 24. Section 730, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 730. LIST OF CLAIMS. The guardian shall make and | ||
attach to an inventory under Section 729 of this code a full and | ||
complete list of all claims due or owing to the ward that must | ||
state: | ||
(1) the name of each person indebted to the ward and | ||
the address of the person if known; | ||
(2) the nature of the debt, whether it is a note, bill, | ||
bond, or other written obligation or whether it is an account or | ||
verbal contract; | ||
(3) the date of the indebtedness and the date when the | ||
debt is or was due; | ||
(4) the amount of each claim, the rate of interest on | ||
each claim, and time for which the claim bears interest; and | ||
(5) what portion of the claim is held in common with | ||
others[ |
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SECTION 25. Sections 745(a) and (d), Texas Probate Code, | ||
are amended to read as follows: | ||
(a) A guardianship of the estate of a ward shall be settled | ||
when: | ||
(1) a minor ward dies or becomes an adult by becoming | ||
18 years of age, or by removal of disabilities of minority according | ||
to the law of this state, or by marriage; | ||
(2) an incapacitated ward dies, or is decreed as | ||
provided by law to have been restored to full legal capacity; | ||
(3) the spouse of a married ward has qualified as | ||
survivor in community and the ward owns no separate property; | ||
(4) the estate of a ward becomes exhausted; | ||
(5) the foreseeable income accruing to a ward or to the | ||
ward's [ |
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guardianship in force would be burdensome; | ||
(6) all of the assets of the estate have been placed in | ||
a management trust under Subpart N[ |
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been transferred to a pooled trust subaccount in accordance with a | ||
court order issued as provided by Subpart I, Part 5, of this | ||
chapter, [ |
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[ |
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(7) the court determines for any other reason that a | ||
guardianship for the ward is no longer necessary. | ||
(d) In the settlement of a guardianship, the court may | ||
appoint an attorney ad litem to represent the interests of the ward, | ||
and may allow the attorney ad litem reasonable compensation to be | ||
taxed as costs [ |
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SECTION 26. Section 770(c), Texas Probate Code, is amended | ||
to read as follows: | ||
(c) A guardian of a person younger than 18 [ |
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may voluntarily admit the ward [ |
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public or private inpatient psychiatric facility for care and | ||
treatment. | ||
SECTION 27. The heading to Subpart M, Part 4, Chapter XIII, | ||
Texas Probate Code, is amended to read as follows: | ||
SUBPART M. TAX-MOTIVATED, [ |
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OTHER GIFTS | ||
SECTION 28. The heading to Section 865, Texas Probate Code, | ||
is amended to read as follows: | ||
Sec. 865. POWER TO MAKE CERTAIN [ |
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TRANSFERS. | ||
SECTION 29. Sections 865(a) and (b), Texas Probate Code, | ||
are amended to read as follows: | ||
(a) On application of the guardian of the estate or any | ||
interested person [ |
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court, after hearing, may enter an order that authorizes the | ||
guardian to apply the principal or income of the ward's estate that | ||
is not required for the support of the ward or the ward's family | ||
during the ward's lifetime toward the establishment of an estate | ||
plan for the purpose of minimizing income, estate, inheritance, or | ||
other taxes payable out of the ward's estate, or to transfer a | ||
portion of the ward's estate as necessary to qualify the ward for | ||
government benefits, on a showing that the ward will probably | ||
remain incapacitated during the ward's lifetime. On the ward's | ||
behalf, the court may authorize the guardian to make gifts or | ||
transfers described by this subsection, outright or in trust, of | ||
the ward's [ |
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benefit of: | ||
(1) an organization to which charitable contributions | ||
may be made under the Internal Revenue Code and in which it is shown | ||
the ward would reasonably have an interest; | ||
(2) the ward's spouse, descendant, or other person | ||
related to the ward by blood or marriage who are identifiable at the | ||
time of the order; | ||
(3) a devisee under the ward's last validly executed | ||
will, trust, or other beneficial instrument if the instrument | ||
exists; and | ||
(4) a person serving as guardian of the ward if the | ||
person is eligible under either Subdivision (2) or (3) of this | ||
subsection. | ||
(b) The person making an application to the court under this | ||
section shall outline the proposed estate or other transfer plan | ||
and set forth all the benefits that are to be derived from the | ||
[ |
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disposition is consistent with the ward's intentions if the ward's | ||
intentions can be ascertained. If the ward's intentions cannot be | ||
ascertained, the ward will be presumed to favor reduction in the | ||
incidence of the various forms of taxation, the qualification for | ||
government benefits, and the partial distribution of the ward's | ||
estate as provided by this section. | ||
SECTION 30. Sections 867(a-1), (b), (c), and (f), Texas | ||
Probate Code, are amended to read as follows: | ||
(a-1) The following persons may apply for the creation of a | ||
trust under this section: | ||
(1) the guardian of the estate of a ward; | ||
(2) the guardian of the person of a ward; | ||
(3) the guardian of both the person of and estate of a | ||
ward; | ||
(4) an attorney ad litem or guardian ad litem | ||
appointed to represent a ward or the ward's interests; | ||
(5) a person interested in the welfare of an alleged | ||
incapacitated person who does not have a guardian [ |
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[ |
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(6) an attorney ad litem or guardian ad litem | ||
appointed to represent an alleged incapacitated person who does not | ||
have a guardian; or | ||
(7) a person who has only a physical disability [ |
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(b) On application by an appropriate person as provided by | ||
Subsection (a-1) of this section and subject to Subsection (b-1) of | ||
this section, if applicable, the court with jurisdiction over the | ||
proceedings [ |
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funds of the person with respect to whom the application is filed if | ||
the court finds that the creation of the trust is in the person's | ||
[ |
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(c) Subject to Subsection (d) of this section, if the court | ||
finds that it is in the [ |
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interests of the person for whom a trust is created under this | ||
section, the court may appoint a person or entity that meets the | ||
requirements of Subsection (e) of this section to serve as trustee | ||
of the trust instead of appointing a financial institution to serve | ||
in that capacity. | ||
(f) If a trust is created for a person [ |
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shall direct any [ |
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the person for whom the trust is created [ |
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person [ |
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to a person or corporate fiduciary appointed by the court as trustee | ||
of the trust. [ |
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and limitations placed on the trust. The court shall maintain the | ||
trust under the same cause number as the guardianship proceeding, | ||
if the person for whom the trust is created is a ward or proposed | ||
ward [ |
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SECTION 31. Sections 868(a), (b), and (d), Texas Probate | ||
Code, are amended to read as follows: | ||
(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, [ |
||
has only a physical disability 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 | ||
[ |
||
(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) if the trustee is a corporate fiduciary, the | ||
trustee serves without giving a bond; and | ||
(5) the trustee, subject to the court's approval, is | ||
entitled to receive reasonable compensation for services that the | ||
trustee provided to the [ |
||
trust is created as the [ |
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that is: | ||
(A) to be paid from the trust's income, | ||
principal, or both; and | ||
(B) determined, paid, reduced, and eliminated in | ||
the same manner as compensation of a guardian [ |
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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 [ |
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person whom the [ |
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created is legally obligated to support, as necessary and without | ||
the intervention of a guardian or other representative of the ward | ||
or of a representative of the incapacitated person or person who has | ||
only a physical disability, to: | ||
(1) the ward's guardian; | ||
(2) a person who has physical custody of the [ |
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person whom the [ |
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created is legally obligated to support; or | ||
(3) a person providing a good or service to the [ |
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person whom the [ |
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created is legally obligated to support. | ||
(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 [ |
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to receive public benefits or assistance under a state or federal | ||
program that is not otherwise available to the [ |
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(2) is in the [ |
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interests of the person for whom the trust is created. | ||
SECTION 32. Section 868C(a), Texas Probate Code, is amended | ||
to read as follows: | ||
(a) If the court determines that it is in the [ |
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|
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trust is created under Section 867 of this code, the court may order | ||
the transfer of all property in the [ |
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established in accordance with Subpart I, Part 5, of this chapter. | ||
The transfer of property from the management trust to the | ||
subaccount of the pooled trust shall be treated as a continuation of | ||
the management trust and may not be treated as the establishment of | ||
a new trust for purposes of 42 U.S.C. Section 1396p(d)(4)(A) or (C) | ||
or otherwise for purposes of the management trust beneficiary's | ||
[ |
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assistance under Chapter 32, Human Resources Code. | ||
SECTION 33. Section 869(b), Texas Probate Code, is amended | ||
to read as follows: | ||
(b) The following may not revoke the trust: | ||
(1) the ward for whom the trust is created or the | ||
guardian of the ward's estate; | ||
(2) [ |
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is created; or | ||
(3) the person who has only a physical disability for | ||
whom the trust is created[ |
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SECTION 34. Section 870, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 870. TERMINATION OF TRUST. (a) If the [ |
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of this code is a minor, the trust terminates: | ||
(1) on the person's death [ |
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whichever is earlier; or | ||
(2) on the date provided by court order, which may not | ||
be later than the [ |
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(b) If the [ |
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is created under Section 867 of this code is not a minor, the trust | ||
terminates: | ||
(1) according to the terms of the trust; | ||
(2) on the date the court determines that continuing | ||
the trust is no longer in the [ |
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best interests, subject to Section 868C(b) of this code; [ |
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(3) on the person's death [ |
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SECTION 35. Subpart N, Part 4, Chapter XIII, Texas Probate | ||
Code, is amended by adding Section 870A to read as follows: | ||
Sec. 870A. INITIAL ACCOUNTING BY CERTAIN TRUSTEES REQUIRED. | ||
(a) This section applies only to a trustee of a trust created under | ||
Section 867 of this code for a person for whom a guardianship | ||
proceeding is pending on the date the trust is created. | ||
(b) Not later than the 30th day after the date a trustee to | ||
which this section applies receives property into the trust, the | ||
trustee shall file with the court in which the guardianship | ||
proceeding is pending a report describing all property held in the | ||
trust on the date of the report and specifying the value of the | ||
property on that date. | ||
SECTION 36. Section 871, Texas Probate Code, is amended by | ||
amending Subsection (a) and adding Subsection (d) to read as | ||
follows: | ||
(a) Except as provided by Subsection (d) of this section, | ||
the [ |
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accounting of transactions in the trust in the same manner and form | ||
that is required of a guardian under this chapter. | ||
(d) The court may not require a trustee of a trust created | ||
for a person who has only a physical disability to prepare and file | ||
with the court the annual accounting as described by Subsection (a) | ||
of this section. | ||
SECTION 37. Section 873, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 873. DISTRIBUTION OF TRUST PROPERTY. (a) Unless | ||
otherwise provided by the court and except as provided by | ||
Subsection (b) of this section, the trustee shall: | ||
(1) prepare a final account in the same form and manner | ||
that is required of a guardian under Section 749 of this code; and | ||
(2) on court approval, distribute the principal or any | ||
undistributed income of the trust: | ||
(A) to the ward or incapacitated person when the | ||
trust terminates on its own terms; | ||
(B) to the successor trustee on appointment of a | ||
successor trustee; or | ||
(C) to the representative of the deceased ward's | ||
or incapacitated person's estate on the ward's or incapacitated | ||
person's death. | ||
(b) The court may not require a trustee of a trust created | ||
for a person who has only a physical disability to prepare and file | ||
with the court a final account as described by Subsection (a)(1) of | ||
this section. The trustee shall distribute the principal and any | ||
undistributed income of the trust in the manner provided by | ||
Subsection (a)(2) of this section for a trust the beneficiary of | ||
which is a ward or incapacitated person. | ||
SECTION 38. Section 910(1), Texas Probate Code, is amended | ||
to read as follows: | ||
(1) "Beneficiary" means a minor or other incapacitated | ||
person, an alleged incapacitated person, or a disabled person who | ||
is not an [ |
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subaccount is established. | ||
SECTION 39. Section 911, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 911. APPLICATION. The following persons [ |
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establishment of a subaccount for the benefit of a [ |
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|
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incapacitated person, or a disabled person who is not an | ||
incapacitated person: | ||
(1) the guardian of the incapacitated person; | ||
(2) a person who has filed an application for the | ||
appointment of a guardian for the alleged incapacitated person; | ||
(3) an attorney ad litem or guardian ad litem | ||
appointed to represent: | ||
(A) the incapacitated person who is a ward or | ||
that person's interests; or | ||
(B) the alleged incapacitated person who does not | ||
have a guardian; or | ||
(4) the disabled person [ |
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SECTION 40. Section 25.0022(i), Government Code, is amended | ||
to read as follows: | ||
(i) A judge assigned under this section has the | ||
jurisdiction, powers, and duties given by Sections 4A, 4C, 4F, 4G, | ||
4H, 5B, 605, 607A, 607B, 607D, 607E [ |
||
Probate Code, to statutory probate court judges by general law. | ||
SECTION 41. Section 25.1132(c), Government Code, is amended | ||
to read as follows: | ||
(c) A county court at law in Hood County has concurrent | ||
jurisdiction with the district court in: | ||
(1) civil cases in which the matter in controversy | ||
exceeds $500 but does not exceed $250,000, excluding interest; | ||
(2) family law cases and related proceedings; | ||
(3) contested probate matters under Section 4D(a), | ||
Texas Probate Code; and | ||
(4) contested [ |
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proceedings under Section 607B(a) [ |
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SECTION 42. Notwithstanding the transfer of Sections 606, | ||
607, and 665(b), (f), and (h), Texas Probate Code, to the Estates | ||
Code and redesignation as Sections 606, 607, and 665(b), (f), and | ||
(h) of that code effective January 1, 2014, by Section 5, Chapter | ||
680 (H.B. 2502), Acts of the 81st Legislature, Regular Session, | ||
2009, Sections 606, 607, and 665(b), (f), and (h), Texas Probate | ||
Code, are repealed. | ||
SECTION 43. (a) Except as otherwise provided by this | ||
section, the changes in law made by this Act apply to: | ||
(1) a guardianship created before, on, or after the | ||
effective date of this Act; and | ||
(2) an application for a guardianship pending on, or | ||
filed on or after, the effective date of this Act. | ||
(b) Sections 605, 608, and 609, Texas Probate Code, as | ||
amended by this Act, and Sections 606A, 607A, 607B, 607C, 607D, and | ||
607E, Texas Probate Code, as added by this Act, apply only to an | ||
action filed or a proceeding commenced on or after the effective | ||
date of this Act. An action filed or proceeding commenced before | ||
the effective date of this Act is governed by the law in effect on | ||
the date the action was filed or the proceeding was commenced, and | ||
the former law is continued in effect for that purpose. | ||
(c) Section 665, Texas Probate Code, as amended by this Act, | ||
applies to the payment, reduction, or elimination of compensation | ||
for services performed on or after the effective date of this Act. | ||
Payment, reduction, or elimination of compensation for services | ||
performed before the effective date of this Act is governed by the | ||
law in effect on the date the services were performed, and the | ||
former law is continued in effect for that purpose. | ||
(d) Sections 867, 868, 868C, 869, 870, 871, and 873, Texas | ||
Probate Code, as amended by this Act, and Section 870A, Texas | ||
Probate Code, as added by this Act, apply only to an application for | ||
the creation, modification, or termination of a management trust | ||
under Subpart N, Part 4, Chapter XIII, Texas Probate Code, that is | ||
filed on or after the effective date of this Act. An application | ||
described by this subsection that is filed before the effective | ||
date of this Act is governed by the law in effect on the date the | ||
application was filed, and the former law is continued in effect for | ||
that purpose. | ||
(e) Sections 910 and 911, Texas Probate Code, as amended by | ||
this Act, apply only to an application for the creation of a pooled | ||
trust subaccount under Subpart I, Part 5, Chapter XIII, Texas | ||
Probate Code, that is filed on or after the effective date of this | ||
Act. An application described by this subsection that is filed | ||
before the effective date of this Act is governed by the law in | ||
effect on the date the application was filed, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 44. This Act takes effect September 1, 2011. |