Bill Text: TX SB1457 | 2023-2024 | 88th Legislature | Enrolled
Bill Title: Relating to guardianships and the delivery of certain notices or other communications in connection with guardianship proceedings.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Passed) 2023-05-24 - Effective on 9/1/23 [SB1457 Detail]
Download: Texas-2023-SB1457-Enrolled.html
S.B. No. 1457 |
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relating to guardianships and the delivery of certain notices or | ||
other communications in connection with guardianship proceedings. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 1002, Estates Code, is amended by adding | ||
Section 1002.0265 to read as follows: | ||
Sec. 1002.0265. QUALIFIED DELIVERY METHOD. "Qualified | ||
delivery method" means delivery by: | ||
(1) hand delivery by courier, with courier's proof of | ||
delivery receipt; | ||
(2) certified or registered mail, return receipt | ||
requested, with return receipt; or | ||
(3) a private delivery service designated as a | ||
designated delivery service by the United States Secretary of the | ||
Treasury under Section 7502(f)(2), Internal Revenue Code of 1986, | ||
with proof of delivery receipt. | ||
SECTION 2. Section 1023.004(c), Estates Code, is amended to | ||
read as follows: | ||
(c) If a court made a motion to transfer a guardianship, the | ||
guardian shall be given notice by a qualified delivery method | ||
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should not be transferred. | ||
SECTION 3. The heading to Section 1051.052, Estates Code, | ||
is amended to read as follows: | ||
Sec. 1051.052. SERVICE BY MAIL OR QUALIFIED DELIVERY | ||
METHOD. | ||
SECTION 4. Section 1051.052, Estates Code, is amended by | ||
amending Subsections (b), (c), (d), (e), and (f) and adding | ||
Subsection (h) to read as follows: | ||
(b) Except as provided by Subsection (c), the county clerk | ||
shall issue a citation or notice required or permitted to be served | ||
by a qualified delivery method [ |
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shall serve the citation or notice by sending [ |
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original citation or notice by a qualified delivery method | ||
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(c) A guardian shall issue a notice required to be given by | ||
the guardian by a qualified delivery method [ |
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original notice by a qualified delivery method [ |
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(d) The county clerk or guardian, as applicable, shall send | ||
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instruction to deliver the citation or notice to the addressee only | ||
and with return receipt or other proof of delivery requiring | ||
recipient signature requested. The clerk or guardian, as | ||
applicable, shall address the envelope containing the citation or | ||
notice to: | ||
(1) the attorney of record in the proceeding for the | ||
person to be cited or notified; or | ||
(2) the person to be cited or notified, if the citation | ||
or notice to the attorney is returned undelivered or the person to | ||
be cited or notified has no attorney of record in the proceeding. | ||
(e) Service by a qualified delivery method [ |
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made at least 20 days before the return day of the citation or | ||
notice, excluding the date of service. The date of service [ |
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delivery service, or the date of delivery by courier, as | ||
applicable. | ||
(f) A copy of a citation or notice served under Subsection | ||
(a), (b), or (c) and a certificate of the person serving the | ||
citation or notice showing that the citation or notice was sent | ||
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private delivery service, or the date of delivery by courier, as | ||
applicable, shall be filed and recorded. A returned receipt or | ||
other proof of delivery receipt for a citation or notice served | ||
under Subsection (b) or (c) shall be attached to the certificate. | ||
(h) The applicant or movant in a guardianship proceeding | ||
shall pay the cost of delivery of a citation or notice under this | ||
section. | ||
SECTION 5. Sections 1051.055(a) and (b), Estates Code, are | ||
amended to read as follows: | ||
(a) If a party is represented by an attorney of record in a | ||
guardianship proceeding, including a proposed ward who has been | ||
personally served with notice of the proceeding and is represented | ||
by an attorney ad litem, a citation or notice required to be served | ||
on the party shall be served instead on that attorney. | ||
(b) A notice served on an attorney under this section may be | ||
served by[ |
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qualified delivery method[ |
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SECTION 6. Section 1051.056, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1051.056. SERVICE ON GUARDIAN OR RECEIVER. Unless | ||
this title expressly provides for another method of service, the | ||
county clerk who issues a citation or notice required to be served | ||
on a guardian or receiver shall serve the citation or notice by | ||
sending [ |
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delivery method [ |
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(1) the guardian's or receiver's attorney of record; | ||
or | ||
(2) the guardian or receiver, if the guardian or | ||
receiver does not have an attorney of record. | ||
SECTION 7. Sections 1051.104(a) and (b), Estates Code, are | ||
amended to read as follows: | ||
(a) The person filing an application for guardianship shall | ||
send [ |
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information required in the citation issued under Section 1051.102 | ||
by a qualified delivery method [ |
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are known or can be reasonably ascertained: | ||
(1) each adult child of the proposed ward; | ||
(2) each adult sibling of the proposed ward; | ||
(3) the administrator of a nursing home facility or | ||
similar facility in which the proposed ward resides; | ||
(4) the operator of a residential facility in which | ||
the proposed ward resides; | ||
(5) a person whom the applicant knows to hold a power | ||
of attorney signed by the proposed ward; | ||
(6) a person designated to serve as guardian of the | ||
proposed ward by a written declaration under Subchapter E, Chapter | ||
1104, if the applicant knows of the existence of the declaration; | ||
(7) a person designated to serve as guardian of the | ||
proposed ward in the probated will of the last surviving parent of | ||
the proposed ward; | ||
(8) 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; and | ||
(9) each adult named in the application as an "other | ||
living relative" of the proposed ward within the third degree by | ||
consanguinity, as required by Section 1101.001(b)(11) or (13), if | ||
the proposed ward's spouse and each of the proposed ward's parents, | ||
adult siblings, and adult children are deceased or there is no | ||
spouse, parent, adult sibling, or adult child. | ||
(b) The applicant shall file with the court: | ||
(1) a copy of any notice required by Subsection (a) and | ||
the return receipts or other proofs of delivery of the notice; and | ||
(2) an affidavit sworn to by the applicant or the | ||
applicant's attorney stating: | ||
(A) that the notice was sent [ |
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by Subsection (a); and | ||
(B) the name of each person to whom the notice was | ||
sent [ |
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receipt or other proof of delivery. | ||
SECTION 8. Section 1051.153(b), Estates Code, is amended to | ||
read as follows: | ||
(b) Proof of service consists of: | ||
(1) if the service is made by a sheriff or constable, | ||
the return of service; | ||
(2) if the service is made by a private person, the | ||
person's affidavit; | ||
(3) if the service is made by mail or by a qualified | ||
delivery method: | ||
(A) the certificate of the county clerk making | ||
the service, or the affidavit of the guardian or other person making | ||
the service that states that the citation or notice was mailed or | ||
sent by a qualified delivery method and the date of the mailing, the | ||
date of deposit with the private delivery service, or the date of | ||
delivery by courier, as applicable; and | ||
(B) the return receipt or other proof of delivery | ||
receipt attached to the certificate or affidavit, as applicable, if | ||
the service [ |
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(4) if the service is made by publication: | ||
(A) a statement that: | ||
(i) is made by the Office of Court | ||
Administration of the Texas Judicial System or an employee of the | ||
office; | ||
(ii) contains or to which is attached a copy | ||
of the published citation or notice; and | ||
(iii) states the date of publication on the | ||
public information Internet website maintained as required by | ||
Section 72.034, Government Code [ |
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(B) an affidavit that: | ||
(i) is made by the publisher of the | ||
newspaper in which the citation or notice was published or an | ||
employee of the publisher; | ||
(ii) contains or to which is attached a copy | ||
of the published citation or notice; and | ||
(iii) states the date of publication | ||
printed on the newspaper in which the citation or notice was | ||
published. | ||
SECTION 9. Section 1057.002(b), Estates Code, is amended to | ||
read as follows: | ||
(b) The resident agent shall send, by a qualified delivery | ||
method [ |
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resignation statement filed under Subsection (a) to: | ||
(1) the guardian at the address most recently known by | ||
the resident agent; and | ||
(2) each party in the case or the party's attorney or | ||
other designated representative of record. | ||
SECTION 10. Section 1104.103, Estates Code, is amended by | ||
amending Subsections (a) and (b) and adding Subsection (a-1) to | ||
read as follows: | ||
(a) The surviving parent of an adult individual who is an | ||
incapacitated person may, if the parent is the guardian of the | ||
person or estate of the adult individual, by will or written | ||
declaration appoint an eligible person to serve as guardian of the | ||
person or estate, as applicable, of the adult individual: | ||
(1) after the parent dies; | ||
(2) in the event the parent resigns as guardian of the | ||
person or estate; or | ||
(3) in the event of the parent's incapacity. | ||
(a-1) If the surviving parent is both the guardian of the | ||
person and estate of the adult individual, the surviving parent may | ||
by will or written declaration appoint different eligible persons | ||
to serve as guardian of the person and guardian of the estate. | ||
(b) After the surviving parent dies or resigns as guardian, | ||
or if the court finds the surviving parent has become an | ||
incapacitated person after being appointed the adult individual's | ||
guardian, the court shall appoint the person or persons designated | ||
in the will or declaration to serve as guardian of the person, | ||
guardian of the estate, or both, in preference to any other person | ||
otherwise entitled to serve as guardian under this title, unless | ||
the court finds that the person designated to serve as guardian: | ||
(1) is disqualified; | ||
(2) is deceased; | ||
(3) refuses to serve; or | ||
(4) would not serve the adult individual's best | ||
interests. | ||
SECTION 11. Section 1105.002(a), Estates Code, is amended | ||
to read as follows: | ||
(a) Except as provided by Subsection (b), a guardian is | ||
considered to have qualified when the guardian has: | ||
(1) taken and filed the oath, or made and filed the | ||
declaration, required under Section 1105.051; | ||
(2) given the required bond; | ||
(3) [ |
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(4) filed the bond with the clerk. | ||
SECTION 12. Section 1106.001(a), Estates Code, is amended | ||
to read as follows: | ||
(a) When a person who is appointed guardian has qualified | ||
under Section 1105.002, the clerk shall issue to the guardian a | ||
certificate under the court's seal stating: | ||
(1) the fact of the appointment and of the | ||
qualification; | ||
(2) the date of the appointment and of the | ||
qualification; and | ||
(3) the date the letters of guardianship expire. | ||
SECTION 13. Section 1106.005, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1106.005. EFFECT OF LETTERS [ |
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issued as prescribed by [ |
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seal by [ |
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(1) the appointment and qualification of the guardian; | ||
and | ||
(2) the date of qualification. | ||
(b) The court order that appoints the guardian is evidence | ||
of the authority granted to the guardian and of the scope of the | ||
powers and duties that the guardian may exercise only after the date | ||
letters of guardianship [ |
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under Section 1106.001. | ||
SECTION 14. Subchapter B, Chapter 1151, Estates Code, is | ||
amended by adding Section 1151.0525 to read as follows: | ||
Sec. 1151.0525. ACCESS AND MANAGEMENT OF WARD'S FUNDS BY | ||
GUARDIAN OF PERSON. (a) This section applies only to the guardian | ||
of the person of a ward for whom the court has not appointed a | ||
guardian of the estate. | ||
(b) On application to and order from the court, the guardian | ||
of the person of a ward may access, manage, and spend the ward's | ||
funds in an amount not to exceed $20,000 per year for the ward's | ||
benefit. The court shall require the guardian to file a new bond or | ||
a rider to an existing bond that meets the surety requirements for a | ||
guardian of the estate's bond under Section 1105.160. | ||
(c) A guardian of the person shall include any expenditures | ||
made for the benefit of the ward if authorized by court order under | ||
Subsection (b) in the annual report required by Section 1163.101. | ||
(d) When there is no longer a need for the guardian of the | ||
person to access, manage, or spend the ward's funds, the guardian of | ||
the person shall file a sworn affidavit of fulfillment with the | ||
court. After the filing of the affidavit, the court, on motion | ||
filed with the court, may authorize the guardian to file a new bond | ||
or a rider to an existing bond that meets the requirements for a | ||
guardian of the person's bond under Section 1105.102, and may | ||
discharge the guardian of the person and the guardian's sureties on | ||
a bond required by Subsection (b). | ||
SECTION 15. Section 1153.001(a), Estates Code, is amended | ||
to read as follows: | ||
(a) Within one month after receiving letters of | ||
guardianship, a guardian of an estate shall provide notice | ||
requiring each person who has a claim against the estate to present | ||
the claim within the period prescribed by law. The notice must be: | ||
(1) published in a newspaper of general circulation in | ||
the county in which the letters were issued; and | ||
(2) sent to the comptroller by a qualified delivery | ||
method [ |
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should have remitted taxes administered by the comptroller. | ||
SECTION 16. Sections 1153.003(b) and (c), Estates Code, are | ||
amended to read as follows: | ||
(b) Notice provided under this section must be: | ||
(1) sent by a qualified delivery method [ |
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(2) addressed to the record holder of the claim at the | ||
record holder's last known post office address. | ||
(c) The following shall be filed in the court from which the | ||
letters of guardianship were issued: | ||
(1) a copy of each notice required by Subsection | ||
(a)(1) with the return receipt or other proof of delivery, if | ||
available; and | ||
(2) the guardian's affidavit stating: | ||
(A) that the notice was sent [ |
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by law; and | ||
(B) the name of the person to whom the notice was | ||
sent [ |
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SECTION 17. Section 1153.005(a), Estates Code, is amended | ||
to read as follows: | ||
(a) A guardian of an estate is not required to give a notice | ||
required by Section 1153.001 or 1153.003 if another person also | ||
appointed as guardian or a former guardian has given that notice. | ||
SECTION 18. Section 1155.002(a), Estates Code, is amended | ||
to read as follows: | ||
(a) The court may authorize compensation for a guardian | ||
serving as a guardian of the person alone from available funds of | ||
the ward's estate or other funds available for that purpose. The | ||
court may set the compensation in an amount not to exceed the | ||
greater of $3,000 per year or five percent of the ward's gross | ||
income. | ||
SECTION 19. Section 1156.052(c), Estates Code, is amended | ||
to read as follows: | ||
(c) A person who makes an application to the court under | ||
this section shall send [ |
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qualified delivery method [ |
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persons. | ||
SECTION 20. Section 1162.003, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1162.003. NOTICE OF APPLICATION FOR ESTABLISHMENT OF | ||
ESTATE OR OTHER TRANSFER PLAN. A person who makes an application | ||
to the court under Section 1162.001 shall send [ |
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application by a qualified delivery method [ |
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(1) all devisees under a will, trust, or other | ||
beneficial instrument relating to the ward's estate; | ||
(2) the ward's spouse; | ||
(3) the ward's dependents; and | ||
(4) any other person as directed by the court. | ||
SECTION 21. Section 1162.006(b), Estates Code, is amended | ||
to read as follows: | ||
(b) Notice required by Subsection (a) must be sent | ||
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SECTION 22. Section 1202.054(b-2), Estates Code, is amended | ||
to read as follows: | ||
(b-2) Not later than the 30th day after the date the court | ||
receives an informal letter from a ward under Subsection (a), the | ||
court shall send the ward a letter by a qualified delivery method | ||
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(1) acknowledging receipt of the informal letter; and | ||
(2) advising the ward of the date on which the court | ||
appointed the court investigator or guardian ad litem as required | ||
under Subsection (b) and the contact information for the court | ||
investigator or guardian ad litem. | ||
SECTION 23. Sections 1203.052(a-1) and (b), Estates Code, | ||
are amended to read as follows: | ||
(a-1) The court may remove a guardian for a reason listed in | ||
Subsection (a) on the: | ||
(1) court's own motion, after the guardian has been | ||
notified[ |
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or | ||
(2) complaint of an interested person, after the | ||
guardian has been cited by personal service to answer at a time and | ||
place set in the notice. | ||
(b) In addition to the authority granted to the court under | ||
Subsection (a), the court may, on the complaint of the guardianship | ||
certification program of the Judicial Branch Certification | ||
Commission, remove a guardian who would be ineligible for | ||
appointment under Subchapter H, Chapter 1104, because of the | ||
guardian's failure to maintain the certification required under | ||
Subchapter F, Chapter 1104. The guardian shall be given notice[ |
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by a qualified delivery method [ |
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this subsection at a time and place set in the notice. | ||
SECTION 24. Section 1351.001(a), Estates Code, is amended | ||
to read as follows: | ||
(a) A parent or managing conservator of a minor who is not a | ||
ward may apply to the court under this subchapter for an order to | ||
sell an interest of the minor in property without being appointed | ||
guardian if the net value of the interest does not exceed $250,000 | ||
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SECTION 25. Section 1351.052, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1351.052. AUTHORITY TO SELL WARD'S INTEREST IN | ||
PROPERTY WITHOUT APPOINTMENT AS GUARDIAN OF THE ESTATE IN THIS | ||
STATE. A guardian of the person of a ward or a guardian of the | ||
person or estate of a ward appointed by a foreign court may apply to | ||
the court under this subchapter for an order to sell an interest in | ||
property in the ward's estate without being appointed guardian of | ||
the ward's estate in this state if the net value of the interest | ||
does not exceed $250,000 [ |
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SECTION 26. Section 1352.052(a), Estates Code, is amended | ||
to read as follows: | ||
(a) If the net value of a minor's interest in a residence | ||
homestead does not exceed $250,000 [ |
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Subsection (b), or managing conservator of the minor may apply to | ||
the court under this subchapter for an order authorizing the parent | ||
or managing conservator to receive on the minor's behalf, without | ||
being appointed guardian, an extension of credit that is secured | ||
wholly or partly by a lien on the homestead. | ||
SECTION 27. Section 1352.102, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1352.102. AUTHORITY TO MORTGAGE MINOR WARD'S INTEREST | ||
WITHOUT GUARDIANSHIP OF THE ESTATE. If the net value of a minor | ||
ward's interest in a residence homestead does not exceed $250,000 | ||
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court under this subchapter for an order authorizing the guardian | ||
to receive on the ward's behalf an extension of credit that is | ||
secured wholly or partly by a lien on the homestead. | ||
SECTION 28. Section 1353.004, Estates Code, is amended by | ||
adding Subsection (c-1) to read as follows: | ||
(c-1) If the court finds that the ward's spouse fails to | ||
comply with an order described by Subsection (c), the court may, | ||
after notice and a hearing, order any third party or entity in | ||
possession to deliver to the incapacitated spouse's guardian of the | ||
estate the community property described by Subsection (c). | ||
SECTION 29. Section 1355.001(a), Estates Code, is amended | ||
to read as follows: | ||
(a) In this section, "resident creditor" means a person who: | ||
(1) is a resident of this state; and | ||
(2) is entitled to money in an amount that is $250,000 | ||
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uncontested in any pending lawsuit. | ||
SECTION 30. Sections 1355.002(a) and (b), Estates Code, are | ||
amended to read as follows: | ||
(a) In this section, "creditor" means a person who is | ||
entitled to money in an amount that is not more than $250,000 | ||
[ |
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right to which is liquidated and is uncontested in any pending | ||
lawsuit in this state. | ||
(b) This section applies only to a nonresident creditor who | ||
is: | ||
(1) a nonresident minor [ |
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(2) a nonresident person who is adjudged by a foreign | ||
court to be incapacitated [ |
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(3) the nonresident former ward of a guardianship | ||
terminated under Chapter 1204 who has no legal guardian qualified | ||
in this state. | ||
SECTION 31. Section 1104.103(c), Estates Code, is repealed. | ||
SECTION 32. (a) The changes in law made by this Act to the | ||
following provisions of the Estates Code apply only to an action | ||
filed or a guardianship proceeding commenced on or after the | ||
effective date of this Act: | ||
(1) Sections 1023.004(c), 1051.153(b), 1057.002(b), | ||
1153.001(a), 1153.005(a), 1156.052(c), 1162.006(b), | ||
1202.054(b-2), and 1353.004; | ||
(2) Sections 1051.052(b), (c), (d), (e), (f), and (h); | ||
(3) Sections 1051.055(a) and (b); | ||
(4) Sections 1051.056 and 1162.003; | ||
(5) Sections 1051.104(a) and (b); | ||
(6) Sections 1153.003(b) and (c); and | ||
(7) Sections 1203.052(a-1) and (b). | ||
(b) Sections 1105.002(a), 1106.001(a), 1106.005, and | ||
1155.002(a), Estates Code, as amended by this Act, and Section | ||
1151.0525, Estates Code, as added by this Act, apply to a | ||
guardianship created before, on, or after the effective date of | ||
this Act. | ||
(c) Sections 1351.001(a), 1351.052, 1352.052(a), and | ||
1352.102, Estates Code, as amended by this Act, apply only to an | ||
application for a court order filed on or after the effective date | ||
of this Act. An application for a court order 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. | ||
(d) Sections 1355.001(a) and 1355.002(a) and (b), Estates | ||
Code, as amended by this Act, apply only to a payment made by a | ||
debtor on or after the effective date of this Act. A payment made by | ||
a debtor before the effective date of this Act is governed by the | ||
law in effect on the date the payment was made, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 33. This Act takes effect September 1, 2023. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I hereby certify that S.B. No. 1457 passed the Senate on | ||
April 12, 2023, by the following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
I hereby certify that S.B. No. 1457 passed the House on | ||
May 11, 2023, by the following vote: Yeas 136, Nays 3, one | ||
present not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
Approved: | ||
______________________________ | ||
Date | ||
______________________________ | ||
Governor |