Bill Text: TX SB1096 | 2017-2018 | 85th Legislature | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to guardianships; authorizing a fee.
Spectrum: Bipartisan Bill
Status: (Passed) 2017-05-29 - Effective on 9/1/17 [SB1096 Detail]
Download: Texas-2017-SB1096-Comm_Sub.html
Bill Title: Relating to guardianships; authorizing a fee.
Spectrum: Bipartisan Bill
Status: (Passed) 2017-05-29 - Effective on 9/1/17 [SB1096 Detail]
Download: Texas-2017-SB1096-Comm_Sub.html
By: Zaffirini | S.B. No. 1096 | |
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relating to guardianships; authorizing a fee. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 14, Code of Criminal Procedure, is | ||
amended by adding Article 14.055 to read as follows: | ||
Art. 14.055. DUTY OF OFFICER TO NOTIFY PROBATE COURT. | ||
(a) In this article, "ward" has the meaning assigned by Section | ||
22.033, Estates Code. | ||
(b) As soon as practicable, but not later than the first | ||
working day after the date a peace officer detains or arrests a | ||
person who is a ward, the peace officer or the person having custody | ||
of the ward shall notify the court having jurisdiction over the | ||
ward's guardianship of the ward's detention or arrest. | ||
SECTION 2. Chapter 15, Code of Criminal Procedure, is | ||
amended by adding Article 15.171 to read as follows: | ||
Art. 15.171. DUTY OF OFFICER TO NOTIFY PROBATE COURT. | ||
(a) In this article, "ward" has the meaning assigned by Section | ||
22.033, Estates Code. | ||
(b) As soon as practicable, but not later than the first | ||
working day after the date a peace officer arrests a person who is a | ||
ward, the peace officer or the person having custody of the ward | ||
shall notify the court having jurisdiction over the ward's | ||
guardianship of the ward's arrest. | ||
SECTION 3. Subchapter A, Chapter 1104, Estates Code, is | ||
amended by adding Section 1104.003 to read as follows: | ||
Sec. 1104.003. TRAINING REQUIRED. A court may not appoint | ||
an individual to serve as guardian under this title if the | ||
individual has not received the training required under Section | ||
155.204, Government Code, unless waived by the court in accordance | ||
with rules adopted by the supreme court under Section 155.203, | ||
Government Code. | ||
SECTION 4. The heading to Section 1104.404, Estates Code, | ||
is amended to read as follows: | ||
Sec. 1104.404. EXCEPTION FOR INFORMATION CONCERNING | ||
CERTAIN PERSONS [ |
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SECTION 5. Section 1104.404(a), Estates Code, is amended to | ||
read as follows: | ||
(a) The clerk described by Section 1104.402 is not required | ||
to obtain criminal history record information for a person [ |
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history check on the person under Chapter 155, Government Code | ||
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SECTION 6. Subchapter B, Chapter 1253, Estates Code, is | ||
amended by adding Section 1253.0515 to read as follows: | ||
Sec. 1253.0515. CERTIFICATION OR TRAINING OF GUARDIAN. | ||
(a) A guardian filing an application under this subchapter must | ||
comply with Subchapter C or D, Chapter 155, Government Code, as | ||
applicable. | ||
(b) A court may not grant an application filed under this | ||
subchapter unless the guardian complies with Subsection (a). | ||
SECTION 7. Chapter 52, Family Code, is amended by adding | ||
Section 52.011 to read as follows: | ||
Sec. 52.011. DUTY OF LAW ENFORCEMENT OFFICER TO NOTIFY | ||
PROBATE COURT. (a) In this section, "ward" has the meaning | ||
assigned by Section 22.033, Estates Code. | ||
(b) As soon as practicable, but not later than the first | ||
working day after the date a law enforcement officer takes a child | ||
who is a ward into custody under Section 52.01(a)(2) or (3), the law | ||
enforcement officer or other person having custody of the child | ||
shall notify the court with jurisdiction over the child's | ||
guardianship of the child's detention or arrest. | ||
SECTION 8. The heading to Chapter 155, Government Code, is | ||
amended to read as follows: | ||
CHAPTER 155. DUTIES RESPECTING GUARDIANSHIP [ |
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SECTION 9. Section 155.001, Government Code, is amended by | ||
adding Subdivision (6-a) to read as follows: | ||
(6-a) Notwithstanding Section 151.001, "registration" | ||
means registration of a guardianship under this chapter. | ||
SECTION 10. The heading to Subchapter C, Chapter 155, | ||
Government Code, is amended to read as follows: | ||
SUBCHAPTER C. STANDARDS FOR AND CERTIFICATION [ |
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CERTAIN GUARDIANS | ||
SECTION 11. Chapter 155, Government Code, is amended by | ||
adding Subchapters D and E to read as follows: | ||
SUBCHAPTER D. GUARDIANSHIP REGISTRATION AND DATABASE | ||
Sec. 155.151. REGISTRATION OF GUARDIANSHIPS. (a) The | ||
supreme court, after consulting with the office and the commission, | ||
shall by rule establish a mandatory registration program for | ||
guardianships under which all guardianships in this state shall be | ||
required to register with the commission. | ||
(b) In establishing rules under this section, the supreme | ||
court shall ensure courts with jurisdiction over a guardianship | ||
immediately notify the commission of the removal of a guardian. | ||
Sec. 155.152. GUARDIANSHIP DATABASE. In cooperation with | ||
the commission and courts with jurisdiction over guardianship | ||
proceedings and by using the information obtained by the commission | ||
under this subchapter, the office shall establish and maintain a | ||
central database of all guardianships subject to the jurisdiction | ||
of this state. | ||
Sec. 155.153. ACCESS TO DATABASE. (a) The office shall | ||
ensure the database is accessible to the Department of Public | ||
Safety for law enforcement purposes. | ||
(b) Subject to Subsection (c), the Department of Public | ||
Safety shall make information from the database available to law | ||
enforcement personnel through the Texas Law Enforcement | ||
Telecommunications System or a successor system of | ||
telecommunication used by law enforcement agencies and operated by | ||
the department. | ||
(c) The only information that may be disclosed from the | ||
database to a law enforcement official inquiring into a | ||
guardianship is: | ||
(1) the name, sex, and date of birth of a ward; | ||
(2) the name, telephone number, and address of the | ||
guardian of a ward; and | ||
(3) the name of the court with jurisdiction over the | ||
guardianship. | ||
(d) The office shall limit access to the database to | ||
properly trained staff. | ||
Sec. 155.154. DATABASE DISCLAIMER. To the extent feasible, | ||
the following disclaimer shall be displayed when the database is | ||
accessed: "This database is for the limited purpose of determining | ||
whether an individual has a guardian and obtaining a guardian's | ||
contact information. The scope of a guardian's authority is | ||
determined by court order, and a guardian should not be presumed to | ||
have the authority to act for or on behalf of a ward until the extent | ||
of the guardian's authority is verified by the court with | ||
jurisdiction over the guardianship." | ||
Sec. 155.155. CONFIDENTIALITY OF INFORMATION IN DATABASE. | ||
(a) Information that is contained in the database required under | ||
Section 155.152, including personally identifying information of a | ||
guardian or a ward, is confidential and not subject to disclosure | ||
under Chapter 552 or any other law. | ||
(b) A law enforcement agency or officer that receives the | ||
information must maintain the confidentiality of the information, | ||
may not disclose the information under Chapter 552 or any other law, | ||
and may not use the information for a purpose that does not directly | ||
relate to the purpose for which it was obtained. | ||
SUBCHAPTER E. DUTY TO ASSIST IN QUALIFYING CERTAIN GUARDIANS | ||
Sec. 155.201. DEFINITION. In this subchapter, "probate | ||
court" has the meaning assigned by Section 1002.008, Estates Code. | ||
Sec. 155.202. APPLICABILITY. This subchapter does not | ||
apply with respect to the following persons who are or will be | ||
providing guardianship services to a proposed ward: | ||
(1) an attorney or corporate fiduciary; or | ||
(2) an individual subject to certification under | ||
Subchapter C. | ||
Sec. 155.203. DUTY TO PROVIDE ASSISTANCE IN QUALIFYING | ||
GUARDIANS; SUPREME COURT RULEMAKING. (a) The supreme court, after | ||
consulting with the commission, shall by rule establish a process | ||
by which the commission performs training and criminal history | ||
background checks for individuals seeking appointment as guardian. | ||
(b) In adopting rules under this section, the supreme court | ||
shall ensure that the commission is required to provide | ||
confirmation of a person's completion of training and a copy of the | ||
person's criminal history background check to the probate court not | ||
later than the 10th day before the date of the hearing to appoint a | ||
guardian. | ||
Sec. 155.204. TRAINING REQUIRED. (a) In adopting rules | ||
under Section 155.203, the supreme court shall: | ||
(1) subject to Subdivision (2), ensure that before a | ||
person is appointed guardian, the person completes a training | ||
course: | ||
(A) designed by the commission to educate | ||
proposed guardians about their responsibilities as guardians, | ||
alternatives to guardianships, supports and services available to | ||
the proposed ward, and a ward's bill of rights under Section | ||
1151.351, Estates Code; and | ||
(B) made available for free to proposed guardians | ||
by the commission online via the commission's Internet website and, | ||
on request, in a written format; and | ||
(2) identify the circumstances under which a court may | ||
waive the training required under this section. | ||
(b) Notwithstanding Section 155.203(b) or Section 1251.052, | ||
Estates Code, the training required under Subsection (a): | ||
(1) does not apply to the initial appointment of a | ||
temporary guardian under Chapter 1251, Estates Code; and | ||
(2) applies only if there is a motion to extend the | ||
term of a temporary guardian. | ||
(c) The commission may make the training required under this | ||
section available to court investigators and guardians ad litem. A | ||
court investigator or guardian ad litem is not required to receive | ||
training unless required to do so by a court. | ||
Sec. 155.205. DUTY TO OBTAIN CRIMINAL HISTORY RECORD | ||
INFORMATION. (a) In accordance with the rules adopted by the | ||
supreme court under Section 155.203, the commission 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 an individual seeking | ||
appointment as a guardian or temporary guardian. | ||
(b) The commission shall obtain: | ||
(1) fingerprint-based criminal history record | ||
information of an applicant if the liquid assets of the estate of a | ||
ward exceed $50,000; or | ||
(2) name-based criminal history record information of | ||
an applicant if the liquid assets of the estate of a ward are | ||
$50,000 or less. | ||
Sec. 155.206. INFORMATION FOR EXCLUSIVE USE OF COMMISSION | ||
AND COURT. (a) Criminal history record information obtained under | ||
this subchapter is privileged and confidential and is for the | ||
exclusive use of the commission and the court with jurisdiction | ||
over the guardianship. 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 individual being | ||
investigated. | ||
(b) The commission may destroy the criminal history record | ||
information after the information is used for the purposes | ||
authorized by this subchapter. | ||
Sec. 155.207. USE OF CRIMINAL HISTORY RECORD INFORMATION. | ||
(a) The commission shall use the criminal history record | ||
information obtained under this subchapter only for a purpose | ||
authorized by this subchapter or to maintain the registration of a | ||
guardianship under Subchapter D. | ||
(b) A court may use the criminal history record information | ||
obtained under this subchapter only in the same manner and only to | ||
the same extent a court is authorized to use the information under | ||
Section 1104.409, Estates Code. | ||
Sec. 155.208. CLARIFICATION OF AUTHORITY GRANTED. | ||
(a) This subchapter does not grant to the commission the authority | ||
to: | ||
(1) establish additional qualifications or a code of | ||
ethics for individuals subject to training or a background check | ||
under this subchapter, require those individuals to pass | ||
examinations or take continuing education courses, or otherwise | ||
regulate those individuals; or | ||
(2) interfere with a court's authority to ensure a | ||
guardian is performing all of the duties required of the guardian | ||
respecting a ward. | ||
(b) Individuals subject to training or a background check | ||
under this subchapter are not subject to enforcement action under | ||
Chapter 153. | ||
Sec. 155.209. FEE FOR OBTAINING CRIMINAL HISTORY RECORD | ||
INFORMATION. (a) Except as provided by Subsection (b), the | ||
commission may charge a fee to obtain criminal history record | ||
information under this subchapter, in an amount approved by the | ||
supreme court. | ||
(b) The supreme court may adopt rules excluding individuals | ||
who are indigent from having to pay the fee authorized by this | ||
section. | ||
(c) A guardian is entitled to reimbursement from the | ||
guardianship estate as provided by Subchapter C, Chapter 1155, | ||
Estates Code, for the fee authorized by this section. | ||
SECTION 12. Section 411.1386(a-6), Government Code, is | ||
amended to read as follows: | ||
(a-6) The clerk described by Subsection (a) is not required | ||
to obtain criminal history record information for a person [ |
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Commission conducted a criminal history check on the person under | ||
Chapter 155 [ |
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commission shall provide to the clerk at the court's request the | ||
criminal history record information that was obtained from the | ||
department or the Federal Bureau of Investigation. | ||
SECTION 13. Subchapter A, Chapter 573, Health and Safety | ||
Code, is amended by adding Section 573.0021 to read as follows: | ||
Sec. 573.0021. DUTY OF PEACE OFFICER TO NOTIFY PROBATE | ||
COURTS. As soon as practicable, but not later than the first | ||
working day after the date a peace officer takes a person who is a | ||
ward into custody, the peace officer shall notify the court having | ||
jurisdiction over the ward's guardianship of the ward's detention | ||
or transportation to a facility in accordance with Section 573.001. | ||
SECTION 14. (a) Not later than June 1, 2018, the Office of | ||
Court Administration of the Texas Judicial System shall establish | ||
the guardianship database required under Section 155.152, | ||
Government Code, as added by this Act, and provide access to the | ||
database to the Department of Public Safety in accordance with | ||
Section 155.153, Government Code, as added by this Act. | ||
(b) A law enforcement officer or other person with custody | ||
of a ward is not required to comply with Articles 14.055 and 15.171, | ||
Code of Criminal Procedure, Section 52.011, Family Code, or Section | ||
573.0021, Health and Safety Code, as added by this Act, as | ||
applicable, until July 1, 2018. | ||
SECTION 15. (a) As soon as practicable after the effective | ||
date of this Act, the Supreme Court of Texas, after consulting with | ||
the Judicial Branch Certification Commission, shall adopt rules | ||
necessary to implement Subchapter E, Chapter 155, Government Code, | ||
as added by this Act. | ||
(b) A proposed guardian is not required to comply with | ||
Section 155.204, Government Code, as added by this Act, until June | ||
1, 2018. | ||
SECTION 16. This Act takes effect September 1, 2017. |