Bill Text: TX HB4562 | 2019-2020 | 86th Legislature | Introduced

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Bill Title: Relating to parental administrations for certain incapacitated adults; authorizing a fee; creating a criminal offense.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2019-04-23 - Withdrawn from schedule [HB4562 Detail]

Download: Texas-2019-HB4562-Introduced.html

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86R538 KFF-F
By: Metcalf H.B. No. 4562

A BILL TO BE ENTITLED
AN ACT
relating to parental administrations for certain incapacitated
adults; authorizing a fee; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. PARENTAL ADMINISTRATION
SECTION 1.01. Section 1002.0015, Estates Code, is amended
to read as follows:
Sec. 1002.0015. ALTERNATIVES TO GUARDIANSHIP.
"Alternatives to guardianship" includes the:
(1) execution of a medical power of attorney under
Chapter 166, Health and Safety Code;
(2) appointment of an attorney in fact or agent under a
durable power of attorney as provided by Subtitle P, Title 2;
(3) execution of a declaration for mental health
treatment under Chapter 137, Civil Practice and Remedies Code;
(4) appointment of a representative payee to manage
public benefits;
(5) establishment of a joint bank account;
(6) creation of a management trust under Chapter 1301;
(7) creation of a special needs trust;
(8) designation of a guardian before the need arises
under Subchapter E, Chapter 1104; [and]
(9) establishment of alternate forms of
decision-making based on person-centered planning; and
(10) appointment of a parental administrator under
Chapter 1359.
SECTION 1.02. Section 1002.002, Estates Code, is amended to
read as follows:
Sec. 1002.002. ATTORNEY AD LITEM. "Attorney ad litem"
means an attorney appointed by a court to represent and advocate on
behalf of:
(1) a proposed ward, an incapacitated person, an
unborn person, or another person described by Section 1054.007 in a
guardianship proceeding; or
(2) a proposed incapacitated adult, as defined by
Section 1359.0001, in a proceeding for a parental administration
under Chapter 1359.
SECTION 1.03. Subchapter A, Chapter 1202, Estates Code, is
amended by adding Section 1202.004 to read as follows:
Sec. 1202.004. TERMINATION OF GUARDIANSHIP OF THE PERSON ON
CREATION OF PARENTAL ADMINISTRATION. (a) On the application of a
parent, as defined by Section 1359.0001, a court with jurisdiction
over a guardianship of the person may:
(1) terminate the guardianship if the court finds that
it is in the best interests of the ward to be treated as a proposed
incapacitated adult under Chapter 1359; and
(2) appoint a parental administrator of the
incapacitated adult under that chapter.
(b) The ward's legal and civil rights and powers are
restored on termination of the guardianship and creation of a
parental administration under this section.
SECTION 1.04. Section 1002.013, Estates Code, is amended to
read as follows:
Sec. 1002.013. GUARDIAN AD LITEM. "Guardian ad litem"
means a person appointed by a court to represent the best interests
of an incapacitated person in a guardianship or parental
administration proceeding.
SECTION 1.05. Section 1002.017, Estates Code, is amended to
read as follows:
Sec. 1002.017. INCAPACITATED PERSON. "Incapacitated
person" means:
(1) a minor;
(2) an adult who, because of a physical or mental
condition, is substantially unable to:
(A) provide food, clothing, or shelter for
himself or herself;
(B) care for the person's own physical health; or
(C) manage the person's own financial affairs; or
(3) a person who must have a guardian or parental
administrator, as defined by Section 1359.0001, appointed for the
person to receive funds due the person from a governmental source.
SECTION 1.06. Subtitle I, Title 3, Estates Code, is amended
by adding Chapter 1359 to read as follows:
CHAPTER 1359. PARENTAL ADMINISTRATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1359.0001. DEFINITIONS. (a) In this chapter:
(1) "Incapacitated adult" means a person who is 18
years of age or older and who is an incapacitated person as that
term is defined by Section 1002.017.
(2) "Parent" has the meaning assigned by Section
1002.022, except that the term includes a person who was appointed
the conservator of a child under Chapter 153, Family Code.
(3) "Parental administrator" means a person appointed
as a parental administrator under Section 1359.0108.
(4) "Proposed incapacitated adult" means a person
alleged in a parental administration proceeding under this chapter
to be an incapacitated adult.
(b) To the extent a definition of a term provided by this
chapter conflicts with the definition of that term provided by
Chapter 1002, the definition provided by this chapter prevails in
this chapter.
Sec. 1359.0002. JURISDICTION AND VENUE. (a) Except as
otherwise provided by this section, a proceeding for the
appointment of a parental administrator must be brought in the
county in which the proposed incapacitated adult resides or is
located on the date the application is filed.
(b) Subject to Subsection (d) or (e), if two or more courts
have concurrent venue of a parental administration proceeding or if
at least one court has venue of a guardianship proceeding and
another court has venue of a parental administration proceeding
respecting the same incapacitated adult or proposed incapacitated
adult, the court in which an application for parental
administration or guardianship, as applicable, is initially filed,
has and retains venue over the proceeding.
(c) If a parental administration proceeding is commenced in
more than one county or if a parental administration proceeding is
commenced in one county and a guardianship proceeding is commenced
in another county respecting the same incapacitated adult or
proposed incapacitated adult, the proceeding shall be stayed except
in the county in which a proceeding was initially commenced until
final determination of proper venue is made by the court in the
county in which a proceeding was initially commenced. A proceeding
is considered commenced by the filing of an application alleging
facts sufficient to confer venue.
(d) If a guardianship exists for a proposed incapacitated
adult, the court in the county in which the guardianship is pending
has jurisdiction and venue of the parental administration
application to the exclusion of any other court.
(e) Notwithstanding Sections 1023.001 and 1023.002, if a
parental administration proceeding exists for a proposed ward, the
court in the county in which the parental administration is pending
has venue and jurisdiction of the guardianship proceeding to the
exclusion of any other court.
Sec. 1359.0003. TRANSFER OF PARENTAL ADMINISTRATION TO
ANOTHER COUNTY. (a) When a parental administrator or any other
person desires to transfer the parental administration from one
county to another, the person shall file a written application in
the court in which the parental administration is pending stating
the reason for the transfer.
(b) With notice as provided by Section 1359.0004, the court
in which a parental administration is pending, on the court's own
motion, may transfer the parental administration to another county
if the incapacitated adult resides in the county to which the
parental administration is to be transferred.
Sec. 1359.0004. NOTICE. If an application is filed by a
person other than the parental administrator or if a court made a
motion to transfer a parental administration, the parental
administrator shall be cited by personal service to appear and show
cause why the parental administration should not be transferred.
Sec. 1359.0005. COURT ACTION. On hearing of an application
or motion under this subchapter, if good cause is not shown to deny
the transfer and it appears that transfer of the parental
administration is in the best interests of the incapacitated adult,
the court shall enter an order authorizing the transfer on payment
of all accrued costs of court.
Sec. 1359.0006. PRO SE REPRESENTATION. Notwithstanding any
other law, the applicant who files a parental administration
application may appear pro se before the court in all parental
administration proceedings.
SUBCHAPTER B. FILING AND RECORDKEEPING
Sec. 1359.0051. RECORDKEEPING REQUIREMENTS. (a) The
county clerk shall maintain a record book titled "Judge's Parental
Administration Docket" and shall record in the book:
(1) the name of each person with respect to whom a
proceeding is commenced or sought to be commenced;
(2) the name of the parental administrator or of each
applicant for parental administration;
(3) the date each original application for a parental
administration proceeding is filed;
(4) a notation of each order, judgment, decree, and
proceeding that occurs in each parental administration, including
the date it occurs; and
(5) the docket number of each parental administration
as assigned under Subsection (b).
(b) The county clerk shall assign a docket number to each
parental administration in the order a proceeding is commenced.
(c) The county clerk shall maintain a record book titled
"Parental Administration Fee Book" and shall record in the book
each item of cost that accrues to the officers of the court and any
witness fees. Each record entry must include:
(1) the party to whom the cost or fee is due;
(2) the date the cost or fee accrued;
(3) the party liable for the cost or fee; and
(4) the date the cost or fee is paid.
Sec. 1359.0052. ALTERNATE RECORDKEEPING. Instead of
maintaining the record books described by Section 1359.0051, the
county clerk may maintain the information described by that section
relating to a person's parental administration proceeding:
(1) on a computer file;
(2) on microfilm;
(3) in the form of a digitized optical image; or
(4) in another similar form of data compilation.
Sec. 1359.0053. FILING PROCEDURES. (a) An application for
a parental administration proceeding or a complaint, petition, or
other paper permitted or required by law to be filed with a court in
a parental administration proceeding must be filed with the county
clerk of the appropriate county.
(b) Each paper filed in a parental administration
proceeding must be given the docket number assigned to the parental
administration.
(c) On receipt of a paper described by Subsection (a), the
county clerk shall:
(1) file the paper; and
(2) endorse on the paper:
(A) the date the paper is filed;
(B) the docket number; and
(C) the clerk's official signature.
Sec. 1359.0054. CASE FILES. (a) The county clerk shall
maintain a case file for each person's filed parental
administration proceeding.
(b) Each case file must contain each order, judgment,
decree, and proceeding of the court and any other parental
administration filing with the court, including each:
(1) application for the granting of parental
administration;
(2) citation and notice, whether published or posted,
including the return on the citation or notice;
(3) exhibit; and
(4) report.
Sec. 1359.0055. INDEX. (a) The county clerk shall properly
index the records required under this chapter.
(b) The county clerk shall keep the index open for public
inspection but may not release the index from the clerk's custody.
SUBCHAPTER C. APPOINTMENT OF PARENTAL ADMINISTRATOR
Sec. 1359.0101. PARENTAL ADMINISTRATOR. One or both
parents of a proposed incapacitated adult may in accordance with
this chapter seek appointment as a parental administrator of that
adult with the rights and duties granted under this chapter.
Sec. 1359.0102. APPLICATION. (a) One or both parents of a
proposed incapacitated adult may commence a proceeding for the
appointment of a parental administrator by filing a written
application in a court having jurisdiction and venue.
(b) Subject to Section 1359.0103, the application must be
sworn to by the applicant and must state:
(1) the proposed incapacitated adult's name, sex, date
of birth, and address;
(2) the name, relationship, and address of the
applicant seeking to be appointed as parental administrator;
(3) a description of the nature of the proposed
incapacitated adult's alleged incapacity;
(4) whether the proposed incapacitated adult is
totally or partially without capacity to care for himself or
herself;
(5) the facts requiring the appointment of a parental
administrator;
(6) the nature and description of any existing
guardianship of the proposed incapacitated adult;
(7) whether the proposed incapacitated adult was the
subject of a guardianship proceeding and, if so, the name of the
guardian;
(8) the name of the proposed incapacitated adult's
spouse, if any, and the spouse's address or a statement that the
spouse is deceased;
(9) the names of the proposed incapacitated adult's
other parent if that parent is not an applicant and that parent's
address or a statement that the parent is deceased;
(10) the name and age of each of the proposed
incapacitated adult's siblings, if any, and, for each sibling, the
sibling's address or a statement that the sibling is deceased; and
(11) a statement of facts showing that the proposed
incapacitated adult is a resident of the county in which the
proceeding is brought.
Sec. 1359.0103. CONFIDENTIALITY OF CERTAIN ADDRESSES. An
application filed under Section 1359.0102 or 1359.0552 may omit the
address of a person named in the application if:
(1) the application states that the person is
protected by a protective order issued under Chapter 85, Family
Code;
(2) a copy of the protective order is attached to the
application as an exhibit;
(3) the application states the county in which the
person resides;
(4) the application indicates the place where notice
to or the issuance and service of citation on the person may be made
or sent; and
(5) the application is accompanied by a request for an
order under Section 1051.201 specifying the manner of issuance,
service, and return of citation or notice on the person.
Sec. 1359.0104. SERVICE AND NOTICE. (a) The citation and
the application filed under this chapter shall be personally served
on the proposed incapacitated adult by a sheriff, a constable, or a
process server certified under Chapter 156, Government Code.
(b) Notice shall be given by certified mail, return receipt
requested, to:
(1) a guardian of the proposed incapacitated adult, if
applicable, unless the guardian is the applicant; and
(2) each other person named under Section
1359.0102(b)(8), (9), or (10).
(c) The applicant shall file with the court:
(1) a copy of any notice required by Subsection (b) and
the proof of delivery of the notice; and
(2) for each notice, an affidavit sworn to by the
applicant or the applicant's attorney stating:
(A) that the notice was mailed as required by
Subsection (b); and
(B) the name of the person to whom the notice was
mailed, if the person's name is not shown on the proof of delivery.
(d) A person who is entitled to receive notice under
Subsection (b) may, by writing filed with the clerk, waive the
receipt of notice either in person or through an attorney ad litem.
Sec. 1359.0105. CHANGE OR RESIGNATION OF RESIDENT AGENT. A
resident agent for a parental administrator may be declared or
changed or may resign in the same manner as a resident agent for a
guardian under Chapter 1057.
Sec. 1359.0106. SUBMISSION OF CRIMINAL HISTORY RECORD
INFORMATION BY PROPOSED PARENTAL ADMINISTRATOR. (a) Not later than
the 10th day before the date of the hearing to appoint a parental
administrator, the applicant shall submit to the clerk a copy of the
person's criminal history record information that the person
obtains not earlier than the 30th day before the date of the hearing
from:
(1) the Department of Public Safety; or
(2) the Federal Bureau of Investigation.
(b) Criminal history record information obtained or
provided under this section is privileged and confidential and is
for the exclusive use of the court. The criminal history record
information may not be released or otherwise disclosed to any
person or agency except on court order or consent of the person
being investigated.
(c) The court shall use the information obtained under this
section only in determining whether to appoint the applicant to
serve as a parental administrator.
(d) The county clerk may destroy the criminal history record
information after the information is used for the purposes
authorized by this section.
Sec. 1359.0107. GROUNDS FOR DISQUALIFICATION. A person may
not be appointed or act as a parental administrator if the person:
(1) is a minor or other incapacitated person;
(2) is incapable of properly and prudently managing
and controlling the proposed incapacitated adult because of
inexperience, lack of education, or other good reason;
(3) is found by the court to be unsuitable;
(4) has engaged in conduct that is notoriously bad,
including having been finally convicted of:
(A) any sexual offense, including sexual
assault, aggravated sexual assault, and prohibited sexual conduct;
(B) aggravated assault;
(C) injury to a child, elderly individual, or
individual with a disability;
(D) abandoning or endangering a child;
(E) terroristic threat; or
(F) continuous violence against the family of the
proposed incapacitated adult;
(5) is a party or the child of a parent who is a party
to a suit concerning or affecting the welfare of the proposed
incapacitated adult, unless the court:
(A) determines that the claim of the person who
has applied to be appointed parental administrator is not in
conflict with the claim of the proposed incapacitated adult; or
(B) appoints a guardian ad litem to represent the
interests of the proposed incapacitated adult while the suit is
pending;
(6) is indebted to the proposed incapacitated adult,
unless the person pays the debt before appointment;
(7) asserts a claim adverse to the proposed
incapacitated adult or the proposed incapacitated adult's
property;
(8) is disqualified in a written and signed
declaration made by the proposed incapacitated adult at a time
during which the proposed incapacitated adult had capacity; or
(9) is a nonresident who has failed to file with the
court the name of a resident agent to accept service of process in
all actions or proceedings relating to the parental administration.
Sec. 1359.0108. ORDER APPOINTING PARENTAL ADMINISTRATOR.
(a) If it is found that the proposed incapacitated adult lacks the
capacity to do some, but not all, of the tasks necessary to care for
himself or herself or to manage his or her property with or without
supports and services, the court may appoint one or more parental
administrators. The court may, subject to Section 1359.0401,
assign the parental administrator only those powers and duties
necessary to promote and protect the well-being of the
incapacitated adult.
(b) The order appointing a parental administrator must:
(1) specify the specific powers, limitations, and
duties of the parental administrator, which may include:
(A) the right to have physical possession of the
incapacitated adult and to establish the incapacitated adult's
legal domicile;
(B) the duty to provide care, supervision, and
protection for the incapacitated adult;
(C) the duty to provide the incapacitated adult
with clothing, food, medical care, and shelter;
(D) the power to consent to medical, psychiatric,
and surgical treatment of the incapacitated adult;
(E) the power to establish a trust in accordance
with 42 U.S.C. Section 1396p(d)(4)(B) and direct that the income of
the incapacitated adult as defined by that section be paid directly
to the trust, solely for the purpose of the incapacitated adult's
eligibility for medical assistance under Chapter 32, Human
Resources Code;
(F) the power to sign documents necessary or
appropriate to facilitate employment of the incapacitated adult;
(G) the power to receive funds for the
incapacitated adult from a government source;
(H) the power to obtain insurance and communicate
with insurance issuers on behalf of the incapacitated adult;
(I) the power to file suit on behalf of the
incapacitated adult; and
(J) other powers as determined necessary by the
court;
(2) specify that the specific powers, limitations, and
duties of the parental administrator are subordinate to the rights
and powers of the incapacitated adult;
(3) state the name of each parent appointed;
(4) state the name of the incapacitated adult; and
(5) if in response to an application filed under
Section 1202.004, terminate the existing guardianship of the
incapacitated adult.
(c) If the order appointing a parental administrator under
this section includes the right of the parental administrator to
have physical possession of the incapacitated adult or to establish
the incapacitated adult's legal domicile, the order must also
contain the following prominently displayed statement in boldfaced
type, in capital letters, or underlined:
"NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE
REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A PARENTAL ADMINISTRATOR
OF AN INCAPACITATED ADULT TO HAVE PHYSICAL POSSESSION OF THE
INCAPACITATED ADULT OR TO ESTABLISH THE INCAPACITATED ADULT'S LEGAL
DOMICILE AS SPECIFIED IN THIS ORDER UNLESS OBJECTED TO BY THE
INCAPACITATED ADULT. A PEACE OFFICER WHO RELIES ON THE TERMS OF A
COURT ORDER AND THE OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE
IMMUNITY AGAINST ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S
GOOD FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN
ENFORCING THE TERMS OF THIS ORDER THAT RELATE TO THE
ABOVE-MENTIONED RIGHTS OF THE COURT-APPOINTED PARENTAL
ADMINISTRATOR OF THE INCAPACITATED ADULT. ANY PERSON WHO KNOWINGLY
PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN
EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT IN
JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000."
(d) The order appointing the parental administrator may
not:
(1) remove the rights of the incapacitated adult; or
(2) grant a power related to an incapacitated adult's
right to manage his or her property or financial affairs beyond the
powers specifically authorized under Subsection (b).
Sec. 1359.0109. POWERS AND DUTIES OF PARENTAL ADMINISTRATOR
APPOINTED AS NECESSARY FOR INCAPACITATED ADULT TO RECEIVE
GOVERNMENT FUNDS. (a) A parental administrator appointed to
receive funds from a governmental source may:
(1) administer only:
(A) the funds received from the governmental
source;
(B) all earnings, interest, or profits derived
from the funds; and
(C) all property acquired with the funds; and
(2) receive the funds and pay the expenses for the
support, maintenance, or education of the incapacitated adult or
the incapacitated adult's dependents.
(b) Expenditures under Subsection (a)(2) for the support,
maintenance, or education of the incapacitated adult or the
incapacitated adult's dependents may not exceed $12,000 during any
12-month period without the court's approval.
Sec. 1359.0110. AUTHORITY AND TREATMENT OF CERTAIN PARENTAL
ADMINISTRATORS AS GUARDIAN UNDER LAW. If the order appointing a
parental administrator under Section 1359.0108 includes the right
of the parental administrator to have physical possession of the
incapacitated adult or to establish the incapacitated adult's legal
domicile, to the extent not in conflict with this chapter,
including Section 1359.0401, a parental administrator has the same
authority and is entitled to the same treatment respecting the
incapacitated adult as a guardian of the person respecting a ward
under law.
Sec. 1359.0111. DISMISSAL OF APPLICATION. If it is found
that a proposed incapacitated adult possesses the capacity to care
for himself or herself and manage his or her property as would a
reasonably prudent person, the court shall dismiss an application
for parental administration.
SUBCHAPTER D. ATTORNEYS AD LITEM AND INTERPRETERS
Sec. 1359.0151. APPOINTMENT OF ATTORNEY AD LITEM IN
PROCEEDING FOR APPOINTMENT OF PARENTAL ADMINISTRATOR. (a) In a
proceeding for the appointment of a parental administrator, the
court shall appoint an attorney ad litem to represent the proposed
incapacitated adult's interests.
(b) The attorney ad litem must have the certification
required by Section 1054.201.
(c) Unless the court determines that the continued
appointment of an attorney ad litem appointed under this subchapter
is in the proposed incapacitated adult's best interests, the
attorney's term of appointment expires, without a court order, on
the date the court appoints a parental administrator or denies the
application for appointment of a parental administrator.
Sec. 1359.0152. ACCESS TO RECORDS. An attorney ad litem
appointed under this subchapter:
(1) shall be provided copies of all of the current
records in the parental administration case; and
(2) may have access to all of the proposed
incapacitated adult's relevant medical, psychological, and
intellectual testing records.
Sec. 1359.0153. DUTIES. (a) An attorney ad litem appointed
under this subchapter shall interview the proposed incapacitated
adult within a reasonable time before the hearing in the proceeding
for the appointment of a parental administrator. To the greatest
extent possible, the attorney shall discuss with the proposed
incapacitated adult:
(1) the law and facts of the case;
(2) the proposed incapacitated adult's legal options
regarding disposition of the case;
(3) the grounds on which parental administration is
sought; and
(4) whether other less restrictive alternatives to
guardianship, other than parental administration, would meet the
needs of the proposed incapacitated adult and avoid the need for the
appointment of a parental administrator.
(b) Before the hearing, the attorney ad litem shall review:
(1) the application for parental administration;
(2) certificates of current physical, medical, and
intellectual examinations; and
(3) all of the proposed incapacitated adult's relevant
medical, psychological, and intellectual testing records.
(c) Before the hearing, the attorney ad litem shall discuss
with the proposed incapacitated adult the attorney ad litem's
opinion regarding:
(1) whether a parental administration is necessary for
the proposed incapacitated adult; and
(2) if a parental administration is necessary, the
specific powers or duties of the parental administration that
should be limited if the proposed incapacitated adult receives
supports and services.
Sec. 1359.0154. COMPENSATION AND EXPENSES. An attorney ad
litem appointed under this subchapter is entitled to reasonable
compensation for services and expenses provided in the amount set
by the court, to be taxed as costs in the proceeding.
Sec. 1359.0155. APPOINTMENT OF INTERPRETER. At the time
the court appoints the attorney ad litem under this subchapter, the
court shall appoint a language interpreter or sign interpreter if
necessary to ensure effective communication between the proposed
incapacitated adult and the attorney ad litem.
Sec. 1359.0156. APPOINTMENT OF EXISTING AD LITEM. In the
interest of judicial economy, the court may appoint as an attorney
ad litem under this subchapter a person who is serving as an ad
litem for the proposed incapacitated adult's benefit in any other
proceeding.
SUBCHAPTER E. GUARDIANS AD LITEM
Sec. 1359.0201. APPOINTMENT OF GUARDIAN AD LITEM IN
PARENTAL ADMINISTRATION PROCEEDING. (a) The judge may appoint a
guardian ad litem to represent the interests of a proposed
incapacitated adult in a parental administration proceeding.
(b) A guardian ad litem must have the certification required
by Section 1054.201.
Sec. 1359.0202. APPOINTMENT OF EXISTING AD LITEM. In the
interest of judicial economy, the court may appoint as guardian ad
litem under this subchapter a person who is serving as an ad litem
for the proposed incapacitated adult's benefit in any other
proceeding.
Sec. 1359.0203. TERM OF CERTAIN APPOINTMENTS. Unless the
court determines that the continued appointment of a guardian ad
litem appointed under this subchapter is in the proposed
incapacitated adult's best interests, the guardian ad litem's term
of appointment expires, without a court order, on the date the court
appoints a parental administrator or denies the application for
appointment of a parental administrator.
Sec. 1359.0204. DUTIES. (a) A guardian ad litem appointed
under this subchapter is an officer of the court.
(b) A guardian ad litem shall protect the proposed
incapacitated adult whose interests the guardian has been appointed
to represent in a manner that will enable the court to determine the
action that will be in that person's best interests.
(c) The guardian ad litem shall:
(1) investigate whether a parental administration is
necessary for the proposed incapacitated adult; and
(2) evaluate alternatives and supports and services
available to the proposed incapacitated adult that would avoid the
need for appointment of a parental administrator.
(d) The information gathered by the guardian ad litem under
Subsection (c) is subject to examination by the court.
Sec. 1359.0205. COMPENSATION AND EXPENSES. (a) A guardian
ad litem appointed under this subchapter is entitled to reasonable
compensation for services and expenses provided in the amount set
by the court, to be taxed as costs in the proceeding.
(b) The fees and expenses of a guardian ad litem appointed
under this subchapter are costs of the litigation proceeding that
made the appointment necessary.
Sec. 1359.0206. IMMUNITY. (a) Subject to Subsection (b), a
guardian ad litem appointed under this subchapter to represent the
interests of a proposed incapacitated adult is not liable for civil
damages arising from a recommendation made or an opinion given in
the capacity of guardian ad litem.
(b) This section does not apply to a recommendation or
opinion that is:
(1) wilfully wrongful;
(2) given:
(A) with conscious indifference to or reckless
disregard for the safety of another;
(B) with malice; or
(C) in bad faith; or
(3) grossly negligent.
SUBCHAPTER F. COURT INVESTIGATION
Sec. 1359.0251. INVESTIGATION OF PARENTAL ADMINISTRATION
APPLICATION. On the filing of an application for parental
administration under this chapter, a court investigator shall
investigate the circumstances alleged in the application to
determine whether any other less restrictive alternative to
guardianship other than parental administration is appropriate.
Sec. 1359.0252. GENERAL DUTIES OF COURT INVESTIGATOR. A
court investigator shall:
(1) investigate a complaint received from any person
about a parental administration and report to the judge, if
necessary; and
(2) perform other duties as assigned by the judge or
required by this title.
Sec. 1359.0253. INVESTIGATION REPORT. (a) A court
investigator shall file with the court a report containing the
court investigator's findings and conclusions after conducting an
investigation under this subchapter.
(b) In a contested case, the court investigator shall
provide copies of the report of the court investigator's findings
and conclusions to the attorneys for the parties before the earlier
of:
(1) the seventh day after the date the court
investigator completes the report; or
(2) the 10th day before the date the trial is scheduled
to begin.
(c) Disclosure to a jury of the contents of a court
investigator's report is subject to the Texas Rules of Evidence.
Sec. 1359.0254. EFFECT OF SUBCHAPTER ON OTHER LAW. Nothing
in this subchapter supersedes any duty or obligation of another to
report or investigate abuse or neglect under any statute of this
state.
SUBCHAPTER G. HEARING; JURY TRIAL
Sec. 1359.0301. HEARING. (a) At a hearing for the
appointment of a parental administrator, the court shall inquire
into:
(1) the ability of the proposed incapacitated adult
to:
(A) feed, clothe, and shelter himself or herself;
(B) care for his or her own physical health; and
(C) manage his or her property or financial
affairs; and
(2) whether the applicant is the parent of the
proposed incapacitated adult.
(b) A proposed incapacitated adult must be present at the
hearing unless the court, on the record or in the order, determines
that a personal appearance is not necessary.
(c) The court may close the hearing at the request of the
proposed incapacitated adult.
Sec. 1359.0302. JURY TRIAL. A proposed incapacitated adult
is entitled to a jury trial on timely request.
Sec. 1359.0303. USE OF RECORDS. Current medical,
psychological, and intellectual testing records are a sufficient
basis for an appointment of a parental administrator, but the
findings and recommendations contained in those records are not
binding on the court.
SUBCHAPTER H. DETERMINATION OF NECESSITY OF PARENTAL
ADMINISTRATION; FINDINGS AND PROOF
Sec. 1359.0351. FINDINGS AND PROOF REQUIRED. (a) Before
appointing a parental administrator for a proposed incapacitated
adult, the court must find by a preponderance of the evidence that:
(1) the proposed incapacitated adult is an
incapacitated person as defined by Section 22.016(2);
(2) the person to be appointed parental administrator
is not disqualified from acting and is suitable to act as parental
administrator;
(3) a necessity exists for the parental
administration;
(4) it is in the proposed incapacitated adult's best
interests to have the court appoint a parental administrator;
(5) other less restrictive alternatives to
guardianship, other than parental administration, that would avoid
the need for the appointment of a parental administrator have been
considered and determined not to be feasible;
(6) supports and services available to the proposed
incapacitated adult that would avoid the need for the appointment
of a parental administrator have been considered and determined not
to be feasible;
(7) it is in the best interests of the incapacitated
adult to have more than one parental administrator if more than one
parent has made application; and
(8) the court has venue of the case.
(b) The court may not grant an application to create a
parental administration unless the applicant proves each element
required by this section.
Sec. 1359.0352. DETERMINATION OF INCAPACITY: PHYSICIAN
EXAMINATION. (a) The court may not grant an application for the
appointment of a parental administrator for a proposed
incapacitated adult unless the applicant presents to the court:
(1) a written letter or certificate from a physician
licensed in this state that:
(A) is dated not earlier than the 120th day
before the date the application is filed;
(B) is based on an examination the physician
performed not earlier than the 120th day before the date the
application is filed; and
(C) complies with Subsection (b); or
(2) a written letter or certificate that:
(A) shows that not earlier than 24 months before
the date of a hearing on the application:
(i) the proposed incapacitated adult has
been examined by a physician or psychologist licensed in this state
or certified by the Health and Human Services Commission 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 the physician's or psychologist's
written findings and recommendations include a determination of an
intellectual disability; or
(ii) a physician or psychologist licensed
in this state or certified by the Health and Human Services
Commission to perform examinations described by Subparagraph (i)
updated or endorsed in writing a prior determination of an
intellectual disability for the proposed incapacitated adult made
by a physician or psychologist licensed in this state or certified
by the commission; and
(B) complies with Subsection (b).
(b) A letter or certificate under Subsection (a)(1) or (2)
must:
(1) describe the nature, degree, and severity of the
proposed incapacitated adult's incapacity, including any
functional deficits regarding the proposed incapacitated adult's
ability to consent to medical, dental, psychological, or
psychiatric treatment;
(2) provide an evaluation of the proposed
incapacitated adult's physical condition and mental functioning
and summarize the proposed incapacitated adult's medical history if
reasonably available;
(3) state how or in what manner the proposed
incapacitated adult's ability to make or communicate responsible
decisions concerning himself or herself is affected by the proposed
incapacitated adult's physical or mental health, including the
proposed incapacitated adult's ability to:
(A) understand or communicate;
(B) recognize familiar objects and individuals;
(C) solve problems;
(D) reason logically; and
(E) administer to daily life activities with and
without supports and services;
(4) state whether any current medication affects the
proposed incapacitated adult's demeanor or the proposed
incapacitated adult's ability to participate fully in a court
proceeding;
(5) if applicable, describe the precise physical and
mental conditions underlying a diagnosis of an intellectual
disability;
(6) state whether a parental administration is
necessary for the proposed incapacitated adult; and
(7) include any other information required by the
court.
(c) If the court determines it is necessary, the court may
appoint a physician to examine the proposed incapacitated adult.
The court must make a determination with respect to the necessity
for a physician's examination of the proposed incapacitated adult
at a hearing held for that purpose. Not later than the fourth day
before the date of the hearing, the applicant shall give to the
proposed incapacitated adult and the proposed incapacitated
adult's attorney ad litem written notice specifying the purpose and
the date and time of the hearing.
(d) A physician who examines the proposed incapacitated
adult for purposes of Subsection (a)(1) shall file with the court
and provide to the attorney ad litem appointed to represent the
proposed incapacitated adult a written letter or certificate from
the physician that complies with the requirements of Subsections
(a)(1) and (b).
SUBCHAPTER I. RIGHTS, POWERS, AND DUTIES UNDER PARENTAL
ADMINISTRATION
Sec. 1359.0401. RIGHTS RETAINED BY INCAPACITATED ADULT.
(a) An incapacitated adult for whom a parental administrator is
appointed retains all legal and civil rights and powers.
(b) The powers, limitations, and duties of a parental
administrator appointed under this chapter are subordinate to the
rights and powers of the incapacitated adult.
Sec. 1359.0402. FIDUCIARY DUTY. A parental administrator
owes a fiduciary duty to the incapacitated adult.
Sec. 1359.0403. COMMITMENT OF INCAPACITATED ADULT. (a)
Except as provided by Subsection (b), a parental administrator may
not voluntarily admit an incapacitated adult to a public or private
inpatient psychiatric facility operated by the Health and Human
Services Commission for care and treatment or to a residential
facility operated by the commission for care and treatment. If care
and treatment in a psychiatric or residential facility is
necessary, the incapacitated adult or the parental administrator
may:
(1) apply for services under Section 593.027 or
593.028, Health and Safety Code;
(2) apply to a court to commit the incapacitated adult
under Subtitle C or D, Title 7, Health and Safety Code, or Chapter
462, Health and Safety Code; or
(3) transport the incapacitated adult to an inpatient
mental health facility for a preliminary examination in accordance
with Subchapters A and C, Chapter 573, Health and Safety Code.
(b) A parental administrator may voluntarily admit an
incapacitated adult to a residential care facility for emergency
care or respite care under Section 593.027 or 593.028, Health and
Safety Code, if the order appointing the parental administrator
grants the parental administrator the duty to provide the
incapacitated adult with medical care.
Sec. 1359.0404. ADMINISTRATION OF MEDICATION. (a) In this
section, "psychoactive medication" has the meaning assigned by
Section 574.101, Health and Safety Code.
(b) A parental administrator of an incapacitated adult who
is under a protective custody order as provided by Subchapter B,
Chapter 574, Health and Safety Code, may consent to the
administration of psychoactive medication as prescribed by the
incapacitated adult's treating physician regardless of the
incapacitated adult's expressed preferences regarding treatment
with psychoactive medication, if the order appointing the parental
administrator grants the parental administrator the duty to provide
the incapacitated adult with medical care.
Sec. 1359.0405. APPLICATION BY CERTAIN RELATIVES FOR ACCESS
TO INCAPACITATED ADULT; HEARING AND COURT ORDER. A relative of an
incapacitated adult may file an application with the court
requesting access to the incapacitated adult, including the
opportunity to establish visitation or communication with the
incapacitated adult in the same manner as a ward's relative may file
such an application under Section 1151.055. The court shall act on
the application in the same manner as the court is required to act
on the application for a ward under that section.
SUBCHAPTER J. REPORTING
Sec. 1359.0451. REPORT OF PARENTAL ADMINISTRATOR. At any
time after a parental administrator is appointed, the court, on its
own motion or on the motion of a person interested in the welfare of
the incapacitated adult and for good cause shown, may order the
parental administrator to submit to the court a sworn report on the
condition of the incapacitated adult. The report must include the
same information for the incapacitated adult as is required by
Section 1163.101 for a ward.
SUBCHAPTER K. INVESTIGATION OF ALLEGED ABUSE, NEGLECT, OR
EXPLOITATION CONCERNING INCAPACITATED ADULT
Sec. 1359.0501. INTERFERENCE WITH INVESTIGATION OR
SERVICES PROHIBITED. A parental administrator may not interfere
with:
(1) an investigation by the Department of Family and
Protective Services, another state agency, or a law enforcement
agency of alleged abuse, neglect, or exploitation of the
incapacitated adult; or
(2) the provision of protective services by the
Department of Family and Protective Services or another state
agency to the incapacitated adult.
Sec. 1359.0502. REPORT TO COURT OF INVESTIGATION OF ALLEGED
ABUSE, NEGLECT, OR EXPLOITATION. Subject to rules adopted under
Section 48.101, Human Resources Code, the Department of Family and
Protective Services or another state agency that conducts an
investigation of alleged abuse, neglect, or exploitation of an
incapacitated adult for whom a parental administrator is appointed
shall report the results of the investigation to the court with
jurisdiction of the parental administration.
SUBCHAPTER L. RESIGNATION, REMOVAL, OR DEATH OF PARENTAL
ADMINISTRATOR; CONVERSION TO GUARDIANSHIP
Sec. 1359.0551. GROUNDS FOR REMOVAL OF PARENTAL
ADMINISTRATOR. A court may remove a parental administrator if the
parental administrator:
(1) fails to comply with a court order for a report
under Section 1359.0451;
(2) is proven to have been guilty of gross misconduct
or gross mismanagement in the performance of duties as parental
administrator;
(3) is disqualified to act as a parental administrator
under Section 1359.0107;
(4) is no longer necessary because the court finds
that the incapacitated adult is no longer incapacitated;
(5) is convicted of an offense and subsequently
confined or imprisoned; or
(6) for any other reason becomes unable to properly
perform the parental administrator's duties.
Sec. 1359.0552. DETERMINATION REGARDING PARENTAL
ADMINISTRATOR'S INCAPACITY. (a) The court on its own motion may or
on the written application of an interested person shall order an
investigation into whether a parental administrator appointed by
the court under this chapter is an incapacitated person for
purposes of Sections 1359.0551(3) and 1359.0107(1).
(b) Subject to Section 1359.0103, an application filed
under this section must be sworn to by the applicant and state:
(1) the incapacitated adult's name, sex, date of
birth, and address;
(2) the parental administrator's name, sex, date of
birth, and address;
(3) the nature and degree of the parental
administrator's alleged incapacity;
(4) the facts requiring an investigation into the
parental administrator's capacity; and
(5) the applicant's interest in the incapacitated
adult.
(c) The court on its own motion may or on receipt of an
application under this section shall appoint a guardian ad litem or
court investigator to investigate the conditions and circumstances
of the parental administrator, including any facts alleged in the
application that would give rise to a finding of incapacity, to
determine whether there is probable cause to believe the parental
administrator is an incapacitated person. The court's order
appointing the guardian ad litem or court investigator must include
a statement that the parental administrator has the right to
petition the court to have the appointment set aside.
(d) The guardian ad litem or court investigator shall file
with the court a report of the findings and conclusions of the
investigation conducted under Subsection (c).
(e) If a guardian ad litem or court investigator, after an
investigation as prescribed by this section, determines that
probable cause exists to believe the parental administrator is an
incapacitated person, the guardian ad litem or court investigator,
as applicable, shall file with the court an application
recommending an independent examination of the parental
administrator's capacity by a physician licensed in this state.
(f) If the court determines it is necessary, the court may
appoint one or more physicians licensed in this state to examine the
parental administrator. The court must make its determination with
respect to the necessity for a physician's examination of the
parental administrator at a hearing held for that purpose. Not
later than the fourth day before the date of the hearing, the court
shall give to the parental administrator written notice specifying
the purpose, date, and time of the hearing.
(g) A physician who examines the parental administrator
under this section shall return to the court a written letter or
certificate from the physician that describes the nature, degree,
and severity of the parental administrator's incapacity, if any,
including any functional deficits regarding the parental
administrator's ability to perform the duties the parental
administrator owes to the incapacitated adult. A written letter or
certificate by a physician finding incapacity under this subsection
may be relied on by the court only for purposes of making a
determination of incapacity under Sections 1359.0551(3) and
1359.0107(1).
(h) Notwithstanding Section 1359.0603 and except as
provided by Subsection (i), the court may order court costs
associated with making a determination relating to incapacity under
this section to be paid by the applicant who requested the
investigation under this section if:
(1) the parental administrator is determined not to be
an incapacitated person; and
(2) the incapacitated adult has no guardianship estate
or management trust or the assets of the estate or management trust,
as appropriate, are insufficient to pay the court costs.
(i) If the applicant ordered to pay court costs under
Subsection (h) files, on the applicant's own behalf, an affidavit
of inability to pay court costs under Rule 145, Texas Rules of Civil
Procedure, that shows the applicant is unable to afford the costs,
the court shall order costs be paid out of the county treasury.
Sec. 1359.0553. PROCEDURE FOR REMOVAL OF PARENTAL
ADMINISTRATOR OR CONVERSION OF PARENTAL ADMINISTRATION TO
GUARDIANSHIP. (a) The court on the court's own motion or on the
application of any person may initiate a proceeding to:
(1) subject to Subsection (b), remove a parental
administrator on proof of a ground for removal described by Section
1359.0551; or
(2) subject to Subsection (d), convert a parental
administration for an incapacitated adult to a guardianship.
(b) In a proceeding for the removal of a parental
administrator initiated under Subsection (a)(1), the court shall:
(1) have the parental administrator cited by personal
service to appear before the court; and
(2) appoint to represent the proposed incapacitated
adult's interests an attorney ad litem who has the certification
required by Section 1054.201.
(c) A citation under this section must state:
(1) the time and place of a hearing on the matter at
which the parental administrator is to appear; and
(2) the alleged ground for removal of the parental
administrator.
(d) In a proceeding for the conversion of a parental
administration to a guardianship under Subsection (a)(2),
notwithstanding any other law, all requirements necessary to create
a guardianship are required to convert a parental administration to
a guardianship, except:
(1) a procedural requirement the court determines was
fulfilled when the parental administration was initially
established; and
(2) a requirement for a written letter or certificate
from a physician licensed in this state.
(e) Notwithstanding the discretion provided by Subsection
(d), the court shall:
(1) provide notice of the conversion of a parental
administration to a guardianship in the manner required by Chapter
1051; and
(2) appoint to represent the proposed incapacitated
adult's interests an attorney ad litem who has the certification
required by Section 1054.201.
(f) The authority to appear pro se in a parental
administration proceeding does not extend to a proceeding to
convert a parental administration to a guardianship.
Sec. 1359.0554. INFORMAL REQUEST FOR ORDER BY INCAPACITATED
ADULT; INVESTIGATION AND REPORT. (a) Subject to Subsection (e), an
incapacitated adult may request by informal letter to the court an
order under Section 1359.0551(4) finding that the incapacitated
adult is no longer incapacitated. A person who knowingly
interferes with the transmission of the request to the court may be
adjudged guilty of contempt of court.
(b) On receipt of an informal letter under Subsection (a),
the court shall appoint the court investigator or a guardian ad
litem to investigate the incapacitated adult's circumstances,
including any circumstances alleged in the letter, to determine
whether:
(1) the incapacitated adult is no longer
incapacitated; or
(2) a modification of the parental administration is
necessary.
(c) The guardian ad litem or court investigator shall file
with the court a report of the investigation's findings and
conclusions. If the guardian ad litem or court investigator
determines that it is in the best interests of the incapacitated
adult to terminate or modify the parental administration, the
guardian ad litem or court investigator shall file an application
on the incapacitated adult's behalf.
(d) A guardian ad litem appointed under this section may
also be appointed by the court to serve as attorney ad litem under
Section 1359.0553.
(e) A person may not reapply for termination or modification
of the parental administration before the first anniversary of the
date of the hearing on the last preceding application, except as
otherwise provided by the court on good cause shown by the
applicant.
Sec. 1359.0555. TERMINATION OF PARENTAL ADMINISTRATOR'S
RIGHTS AND POWERS ON REMOVAL OR CONVERSION TO GUARDIANSHIP. The
rights and powers of a parental administrator terminate when a
court orders the parental administrator removed or a parental
administration converted into a guardianship.
Sec. 1359.0556. APPOINTMENT BECAUSE OF RESIGNATION,
REMOVAL, OR DEATH. (a) Except as provided by Subsection (b), if a
parental administrator resigns, is removed, or dies, the court may
appoint a successor parental administrator on application and on
service of notice as directed by the court.
(b) The court may appoint a successor parental
administrator under this section without citation or notice if the
court finds that a necessity exists for the immediate appointment.
Subject to an order of the court, a successor parental
administrator has the same rights and powers previously granted to
the former parental administrator.
SUBCHAPTER M. COMPENSATION, EXPENSES, AND COURT COSTS
Sec. 1359.0601. COMPENSATION FOR CERTAIN PARENTAL
ADMINISTRATORS. The court may authorize compensation for a
parental administrator from available funds of the incapacitated
adult's estate or other funds available for that purpose. The court
may set the compensation in an amount not to exceed five percent of
the incapacitated adult's gross income. For purposes of this
section, "gross income" does not include United States Department
of Veterans Affairs or social security benefits received by an
incapacitated adult.
Sec. 1359.0602. EXPENSES. A parental administrator is
entitled to reimbursement of expenses to the same extent as a
guardian is entitled to reimbursement of expenses under Subchapter
C, Chapter 1155.
Sec. 1359.0603. COSTS IN PARENTAL ADMINISTRATION
PROCEEDING GENERALLY. (a) In a parental administration
proceeding, the court costs of the proceeding, including the costs
described by Subsection (b), shall, except as provided by
Subsection (c), be paid as follows, and the court shall issue the
judgment accordingly:
(1) out of the incapacitated adult's estate, if any;
(2) out of the management trust, if a management trust
has been created for the benefit of the incapacitated adult under
Chapter 1301 and the court determines it is in the incapacitated
adult's best interests;
(3) by the party to the proceeding who incurred the
costs, unless that party filed, on the party's own behalf, an
affidavit of inability to pay the costs under Rule 145, Texas Rules
of Civil Procedure, that shows the party is unable to afford the
costs, if:
(A) the incapacitated adult has no estate or no
management trust has been created for the incapacitated adult's
benefit; or
(B) the assets of the incapacitated adult's
estate or management trust, as appropriate, are insufficient to pay
the costs; or
(4) out of the county treasury if:
(A) the incapacitated adult has no estate or
management trust or the assets of the incapacitated adult's estate
or management trust, as appropriate, are insufficient to pay the
costs; and
(B) the party to the proceeding who incurred the
costs filed, on the party's own behalf, an affidavit of inability to
pay the costs under Rule 145, Texas Rules of Civil Procedure, that
shows the party is unable to afford the costs.
(b) In a parental administration proceeding, the cost of any
guardians ad litem, attorneys ad litem, health professionals, and
interpreters appointed under this chapter shall be set in an amount
the court considers equitable and just.
(c) Notwithstanding any other law requiring the payment of
court costs in a parental administration proceeding, the following
are not required to pay court costs on the filing of or during a
parental administration proceeding:
(1) an attorney ad litem;
(2) a guardian ad litem;
(3) a person or entity who files an affidavit of
inability to pay the costs under Rule 145, Texas Rules of Civil
Procedure, that shows the person or entity is unable to afford the
costs; and
(4) a governmental entity.
(d) For purposes of Subsections (a) and (c), a person or
entity who files an affidavit of inability to pay the costs under
Rule 145, Texas Rules of Civil Procedure, is unable to afford the
costs if the affidavit shows that the person or entity:
(1) is currently receiving assistance or other
benefits from a government program under which assistance or other
benefits are provided to individuals on a means-tested basis;
(2) is eligible for and currently receiving free legal
services in the parental administration proceeding through the
following:
(A) a legal services provider funded partly by
the Texas Access to Justice Foundation;
(B) a legal services provider funded partly by
the Legal Services Corporation; or
(C) a nonprofit corporation formed under the laws
of this state that provides legal services to low-income
individuals whose household income is at or below 200 percent of the
federal poverty guidelines as determined by the United States
Department of Health and Human Services;
(3) applied and was eligible for free legal services
through a person or entity listed in Subdivision (2) but was
declined representation; or
(4) has a household income that is at or below 200
percent of the federal poverty guidelines as determined by the
United States Department of Health and Human Services and has money
or other available assets, excluding any homestead and exempt
property under Chapter 42, Property Code, in an amount that does not
exceed $2,000.
(e) If an affidavit of inability to pay costs filed under
Rule 145, Texas Rules of Civil Procedure, is contested, the court,
at a hearing, shall review the contents of and attachments to the
affidavit and any other evidence offered at the hearing and make a
determination as to whether the person or entity is unable to afford
the costs. If the court finds that the person or entity is able to
afford the costs, the person or entity must pay the court costs.
Except with leave of court, no further action in the parental
administration proceeding may be taken by a person or entity found
able to afford costs until payment of those costs is made.
(f) The costs attributable to the services of a person
described by Subsection (b) shall be paid under this section at any
time after the commencement of the proceeding as ordered by the
court.
(g) If the court finds that a party in a parental
administration proceeding acted in bad faith or without just cause
in prosecuting or objecting to an application in the proceeding,
the court may order the party to pay all or part of the costs of the
proceeding.
(h) If the incapacitated adult has an estate or a management
trust under Chapter 1301 is created, a person or entity who paid any
costs on the filing of or during the proceeding is entitled to be
reimbursed out of assets of the incapacitated adult's estate or
management trust, as appropriate, for the costs if:
(1) the assets of the estate or trust, as appropriate,
are sufficient to cover the reimbursement of the costs; and
(2) the person or entity has not been ordered by the
court to pay the costs as all or part of the payment of court costs
under Subsection (g).
(i) If at any time after a parental administration or
management trust under Chapter 1301 is created there are sufficient
assets of the estate or trust, as appropriate, to pay the amount of
any of the costs exempt from payment under Subsection (c), the court
shall require the parental administrator to pay out of the parental
administration or management trust, as appropriate, to the court
clerk for deposit in the county treasury the amount of any of those
costs.
(j) To the extent that this section conflicts with the Texas
Rules of Civil Procedure or other rules, this section controls.
ARTICLE 2. CONFORMING AMENDMENTS
SECTION 2.01. Article 14.055, Code of Criminal Procedure,
is amended to read as follows:
Art. 14.055. DUTY OF OFFICER TO NOTIFY PROBATE COURT. (a)
In this article:
(1) "Guardian" has the meaning assigned by Section
1002.012, Estates Code.
(2) "Incapacitated adult" has the meaning assigned by
Section 1359.0001, Estates Code.
(3) "Parental administrator" has the meaning assigned
by Section 1359.0001, Estates Code.
(4) "Ward"[, "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:
(1) a ward, the peace officer or the person having
custody of the ward shall notify the ward's guardian and the court
having jurisdiction over the ward's guardianship of the ward's
detention or arrest; or
(2) an incapacitated adult for whom a parental
administrator has been appointed, the peace officer or the person
having custody of the incapacitated adult shall notify the
incapacitated adult's parental administrator and the court having
jurisdiction over the incapacitated adult's parental
administration of the incapacitated adult's detention or arrest.
SECTION 2.02. Article 15.171, Code of Criminal Procedure,
is amended to read as follows:
Art. 15.171. DUTY OF OFFICER TO NOTIFY PROBATE COURT. (a)
In this article:
(1) "Guardian" has the meaning assigned by Section
1002.012, Estates Code.
(2) "Incapacitated adult" has the meaning assigned by
Section 1359.0001, Estates Code.
(3) "Parental administrator" has the meaning assigned
by Section 1359.0001, Estates Code.
(4) "Ward"[, "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:
(1) a ward, the peace officer or the person having
custody of the ward shall notify the ward's guardian and the court
having jurisdiction over the ward's guardianship of the ward's
detention or arrest; or
(2) an incapacitated adult for whom a parental
administrator has been appointed, the peace officer or the person
having custody of the incapacitated adult shall notify the
incapacitated adult's parental administrator and the court having
jurisdiction over the incapacitated adult's parental
administration of the incapacitated adult's detention or arrest.
SECTION 2.03. Article 26.041, Code of Criminal Procedure,
is amended to read as follows:
Art. 26.041. PROCEDURES RELATED TO GUARDIANSHIPS AND
PARENTAL ADMINISTRATIONS. (a) In this article:
(1) "Guardian" has the meaning assigned by Section
1002.012, Estates Code.
(2) "Incapacitated adult" has the meaning assigned by
Section 1359.0001, Estates Code.
(3) "Letters of guardianship" means a certificate
issued under Section 1106.001(a), Estates Code.
(4) "Parental administrator" has the meaning assigned
by Section 1359.0001, Estates Code.
(b) A guardian who provides a court with letters of
guardianship or a parental administrator who provides a court with
an order of parental administration for a defendant may:
(1) provide information relevant to the determination
of indigence [indigency]; and
(2) request that counsel be appointed in accordance
with this chapter.
SECTION 2.04. The heading to Chapter 155, Government Code,
is amended to read as follows:
CHAPTER 155. DUTIES RESPECTING GUARDIANSHIP AND PARENTAL
ADMINISTRATION
SECTION 2.05. Section 155.001, Government Code, is amended
by adding Subdivisions (4-a) and (5-a) to read as follows:
(4-a) "Incapacitated adult" has the meaning assigned
by Section 1359.0001, Estates Code.
(5-a) "Parental administrator" has the meaning
assigned by Section 1359.0001, Estates Code.
SECTION 2.06. The heading to Subchapter D, Chapter 155,
Government Code, as added by Chapter 313 (S.B. 1096), Acts of the
85th Legislature, Regular Session, 2017, is amended to read as
follows:
SUBCHAPTER D. GUARDIANSHIP AND PARENTAL ADMINISTRATION
REGISTRATION AND DATABASE
SECTION 2.07. Section 155.151, Government Code, as added by
Chapter 313 (S.B. 1096), Acts of the 85th Legislature, Regular
Session, 2017, is amended to read as follows:
Sec. 155.151. REGISTRATION OF GUARDIANSHIPS AND PARENTAL
ADMINISTRATIONS. (a) The supreme court, after consulting with the
office and the commission, shall by rule establish a mandatory
registration program for guardianships and parental
administrations under which all guardianships or parental
administrations, as applicable, 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 or
parental administration, as applicable, immediately notify the
commission of the removal of a guardian or parental administrator.
SECTION 2.08. Section 155.152, Government Code, as added by
Chapter 313 (S.B. 1096), Acts of the 85th Legislature, Regular
Session, 2017, is amended to read as follows:
Sec. 155.152. GUARDIANSHIP AND PARENTAL ADMINISTRATION
DATABASE. In cooperation with the commission and courts with
jurisdiction over guardianship or parental administration
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 and parental administrations
subject to the jurisdiction of this state.
SECTION 2.09. Section 155.153(c), Government Code, as added
by Chapter 313 (S.B. 1096), Acts of the 85th Legislature, Regular
Session, 2017, is amended to read as follows:
(c) The only information that may be disclosed from the
database to a law enforcement official inquiring into a
guardianship or parental administration is:
(1) the name, sex, and date of birth of a ward or
incapacitated adult, as applicable;
(2) the name, telephone number, and address of the
guardian of a ward or the parental administrator of an
incapacitated adult, as applicable; and
(3) the name of the court with jurisdiction over the
guardianship or parental administration, as applicable,
proceeding.
SECTION 2.10. Section 155.154, Government Code, as added by
Chapter 313 (S.B. 1096), Acts of the 85th Legislature, Regular
Session, 2017, is amended to read as follows:
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 or parental administrator and
obtaining a guardian's or parental administrator's contact
information. The scope of a guardian's or parental administrator's
authority is determined by court order, and a guardian or parental
administrator should not be presumed to have the authority to act
for or on behalf of a ward or incapacitated adult until the extent
of the guardian's or parental administrator's authority is verified
by the court with jurisdiction over the guardianship or parental
administration."
SECTION 2.11. Section 155.155(a), Government Code, is
amended to read as follows:
(a) Information that is contained in the database required
under Section 155.152, including personally identifying
information of a guardian, [or a] ward, incapacitated adult, or
parental administrator is confidential and not subject to
disclosure under Chapter 552 or any other law.
SECTION 2.12. Section 313.004(f), Health and Safety Code,
is amended to read as follows:
(f) A person who is an available adult surrogate, as
described by Subsection (a), may consent to medical treatment on
behalf of a patient who is an adult inmate of a county or municipal
jail only for a period that expires on the earlier of the 120th day
after the date the person agrees to act as an adult surrogate for
the patient or the date the inmate is released from jail. At the
conclusion of the period, a successor surrogate may not be
appointed and only the following persons may consent to medical
treatment:
(1) the patient;
(2) [or] the patient's appointed guardian of the
person, if the patient is a ward under Title 3, Estates Code; or
(3) the patient's parental administrator appointed
under Chapter 1359, Estates Code, if the order appointing the
parental administrator grants the parental administrator the duty
to provide the incapacitated adult with medical care[, may consent
to medical treatment].
SECTION 2.13. Section 48.211, Human Resources Code, is
amended to read as follows:
Sec. 48.211. REPORT TO PROBATE [GUARDIANSHIP] COURT. If
the elderly person or person with a disability has a guardian or a
parental administrator, as defined by Section 1359.0001, Estates
Code, a written notification of the findings of the investigation
shall be sent to the court to which the guardian or parental
administrator is accountable.
SECTION 2.14. Section 118.052, Local Government Code, is
amended to read as follows:
Sec. 118.052. FEE SCHEDULE. Each clerk of a county court
shall collect the following fees for services rendered to any
person:
(1) CIVIL COURT ACTIONS
(A) Filing of Original Action (Sec. 118.053):
(i) Garnishment after judgment . . . $15.00
(ii) All others . . . $40.00
(B) Filing of Action Other than Original (Sec.
118.054) . . . $30.00
(C) Services Rendered After Judgment in Original
Action (Sec. 118.0545):
(i) Abstract of judgment . . . $ 5.00
(ii) Execution, order of sale, writ, or
other process . . . $ 5.00
(2) PROBATE COURT ACTIONS
(A) Probate Original Action (Sec. 118.055):
(i) Probate of a will with independent
executor, administration with will attached, administration of an
estate, guardianship or receivership of an estate, parental
administration, or muniment of title . . . $40.00
(ii) Community survivors . . . $40.00
(iii) Small estates . . . $40.00
(iv) Declarations of heirship . . . $40.00
(v) Mental health or chemical dependency
services . . . $40.00
(vi) Additional, special fee (Sec. 118.064)
. . . $ 5.00
(B) Services in Pending Probate Action (Sec.
118.056):
(i) Filing an inventory and appraisement as
provided by Section 118.056(d) . . . $25.00
(ii) Approving and recording bond . . . $
3.00
(iii) Administering oath . . . $ 2.00
(iv) Filing annual or final account of
estate . . . $25.00
(v) Filing application for sale of real or
personal property . . . $25.00
(vi) Filing annual or final report of
guardian of a person . . . $10.00
(vii) Filing a document not listed under
this paragraph after the filing of an order approving the inventory
and appraisement or after the 120th day after the date of the
initial filing of the action, whichever occurs first, if more than
25 pages . . . $25.00
(C) Adverse Probate Action (Sec. 118.057) . . .
$40.00
(D) Claim Against Estate (Sec. 118.058) . . .
$10.00
(E) Supplemental Court-Initiated Guardianship
Fee in Probate Original Actions and Adverse Probate Actions (Sec.
118.067) . . . $20.00
(F) Supplemental Public Probate Administrator
Fee For Counties That Have Appointed a Public Probate Administrator
(Sec. 118.068) . . . $10.00
(3) OTHER FEES
(A) Issuing Document (Sec. 118.059):
original document and one copy . . . $ 4.00
each additional set of an original and one copy . . . $ 4.00
(B) Certified Papers (Sec. 118.060):
for the clerk's certificate . . . $ 5.00
plus a fee per page or part of a page of . . . $ 1.00
(C) Noncertified Papers (Sec. 118.0605):
for each page or part of a page . . . $ 1.00
(D) Letters Testamentary, Letter of
Guardianship, Letter of Administration, or Abstract of Judgment
(Sec. 118.061) . . . $ 2.00
(E) Deposit and Safekeeping of Wills (Sec.
118.062) . . . $ 5.00
(F) Mail Service of Process (Sec. 118.063) . . .
same as sheriff
(G) Records Management and Preservation Fee
. . . $ 5.00
(H) Records Technology and Infrastructure Fee if
authorized by the commissioners court of the county (Sec. 118.026)
. . . $ 2.00
SECTION 2.15. The heading to Section 25.10, Penal Code, is
amended to read as follows:
Sec. 25.10. INTERFERENCE WITH CERTAIN POSSESSORY RIGHTS [OF
GUARDIAN OF THE PERSON].
SECTION 2.16. Section 25.10(a), Penal Code, is amended by
amending Subdivision (1) and adding Subdivision (1-a) to read as
follows:
(a) In this section:
(1) "Incapacitated adult" and "parental
administrator" have the meanings assigned by Section 1359.0001,
Estates Code.
(1-a) "Possessory right" means:
(A) the right of a guardian of the person to have
physical possession of a ward and to establish the ward's legal
domicile, as provided by Section 1151.051(c)(1), Estates Code; or
(B) the right of a parental administrator to have
physical possession of an incapacitated adult and to establish the
incapacitated adult's legal domicile, as provided by Section
1359.0108, Estates Code.
SECTION 2.17. Section 25.10, Penal Code, is amended by
adding Subsection (b-1) and amending Subsection (d) to read as
follows:
(b-1) A person commits an offense if the person takes,
retains, or conceals an incapacitated adult when the person knows
that the person's taking, retention, or concealment interferes with
a possessory right with respect to the incapacitated adult that is
established in the order appointing a parental administrator by
including the right of the parental administrator to:
(1) have physical possession of the incapacitated
adult; or
(2) establish the incapacitated adult's legal
domicile.
(d) This section does not apply to a governmental entity
where the taking, retention, or concealment of the individual
[ward] was authorized by Subtitle E, Title 5, Family Code, or
Chapter 48, Human Resources Code.
SECTION 2.18. The changes in law made by this Act to Section
25.10, Penal Code, apply only to an offense committed on or after
the effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense occurred before that date.
ARTICLE 3. EFFECTIVE DATE
SECTION 3.01. This Act takes effect September 1, 2019.