HBA-ATS, JRA, LCA H.B. 3343 76(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 3343
By: Naishtat
Judicial Affairs
6/21/1999
Enrolled

BACKGROUND AND PURPOSE 

In 1997, the 75th Texas Legislature transferred missing person guardianship
from the Texas Probate Code to the Code of Criminal Procedure to group it
with other statutes addressing receivership.  That legislation failed to
change references in the Family Code to reflect the transfer, failed to
transfer some provisions to the Civil Practice and Remedies Code, and
transferred receivership provisions to the Code of Criminal Procedure when
only a transfer of the definition was needed. Additionally, receivership
provisions for prisoners of war and persons missing in action still appear
in the Texas Probate Code, although they were transferred during the 75th
Legislature. 

H.B. 3343 repeals sections of the Texas Probate Code that relate to
guardianship, and provides for their inclusion in the appropriate code. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 64.001(a), Civil Practice and Remedies Code, to
make a conforming change. 

SECTION 2.  Amends Section 64.001, Civil Practice and Remedies Code, by
adding Subsection (d), as follows: 

(d)  Authorizes a court having family law jurisdiction or a probate court
located in the county in which a missing person, as defined by Article
62.001 (Definitions - Missing Children and Missing Persons), Code of
Criminal Procedure, resides or, if the missing person is not a resident of
this state, located in the county in which the majority of the property of
a missing person's estate is located, to appoint a receiver for the missing
person, with or without application, if it appears that the estate is in
danger of injury, loss, or waste, and is in need of a representative. 

SECTION 3.  Amends Section 64.001, Civil Practice and Remedies Code, by
adding Subsection (d), as follows: 

(d)  Authorizes a court having family law jurisdiction or a probate court
located in the county in which a missing person, as defined by Article
63.001, Code of Criminal Procedure, resides or, if the missing person is
not a resident of this state, located in the county in which the majority
of the property of a missing person's estate is located, to appoint a
receiver for the missing person, with or without application, if it appears
that the estate is in danger of injury, loss, or waste, and is in need of a
representative. 

SECTION 4.  Amends Section 64.034, Civil Practice and Remedies Code, as
follows: 

Sec. 64.034.  New title:  INVESTMENTS, LOANS, AND CONTRIBUTIONS OF FUNDS.
Authorizes a receiver appointed for the missing person to invest, lend, or
contribute all or part of any money in excess of the amount needed for
current necessities and expenses as provided under Subpart L (Investments
and Loans of Estates of Wards), Part 4  (Administration of Guardianship),
Chapter XIII (Guardianship), Texas Probate Code. Requires the receiver to
report such transactions to the court in the manner required of guardians. 

SECTION 5.  Amends Chapter 64, Civil Practice and Remedies Code, by adding
Subchapter G, as follows: 

SUBCHAPTER G.  RECEIVER FOR CERTAIN MISSING PERSONS

Sec. 64.101.  NOTICE AND CITATION FOR RECEIVERSHIP FOR CERTAIN MISSING
PERSONS.  Requires the court clerk, on filing an application of
receivership, to issue a citation that states that the application for
receivership was filed and includes the name of the missing person and the
name of the applicant.  Provides that the citation must cite all persons
interested in the welfare of the missing person to appear at the time and
place stated in the notice for purposes of contesting the application.
Requires the citation to be posted and published in a newspaper of general
circulation once in the county in which the missing person resides and once
in each county in which property of the missing person's estate is located. 

Sec. 64.102.  PROCEEDING TO APPOINT RECEIVER.  (a) Requires the court to
appoint an attorney ad litem for the missing person at a proceeding to
appoint a receiver for the missing person. Provides that such an attorney
ad litem must be certified in the same manner and to the same extent as an
attorney ad litem for a proposed ward under Section 646 (Appointment of
Attorney Ad Litem and Interpreter), Texas Probate Code.   

(b) Authorizes the court to appoint a guardian ad litem for a missing
person if the court determines the appointment would be in the best
interest of the missing person.  Provides that a guardian ad litem
appointed under this section is an officer of the court.  Requires the
guardian ad litem to protect the missing person in a manner that will
enable the court to determine the appropriate action to take in relation to
the best interest of the missing person. 

(c) Entitles an attorney ad litem or a guardian ad litem appointed under
this section to reasonable compensation for services in an amount set by
the court to be charged as costs in the proceeding. 

(d) Requires the cost of the proceeding to be paid from the receivership,
if one is created, or by the applicant if the court denies the application
for appointment of a receiver. 

(e) Prohibits the term of a receivership from exceeding six months unless
the court extends it for good cause shown. 

Sec. 64.103.  BOND.  Provides that the bond required to be executed by a
receiver must be set in an amount the court considers necessary to protect
the estate of the missing person. 

Sec. 64.104.  EXPENDITURES BY RECEIVER.  Authorizes the court to
appropriate an amount of the income or corpus of the estate if, during the
receivership, the needs of the spouse or dependent children of the person
require its use for education, clothing, or subsistence.  Requires the
receiver to use the income or corpus to pay claims that are presented to
the court and approved and ordered to be paid. 

Sec. 64.105.  RECEIVER'S EXPENSES, ACCOUNT, AND COMPENSATION.  Requires all
necessary expenses incurred by a receiver to be reported to the court by a
sworn statement of account at intervals not longer than six months in
length and annually by the 60th day after the end of each calendar year if
the court extends the receivership.   Provides that the report must include
the receiver's acts, the condition of the property, the status of the
threatened danger to the property, and the progress made toward abatement
of such danger.  Requires the court to authorize reimbursement of the
receiver from the funds under the receiver's control if the court is
satisfied with the statement.  Entitles the receiver to similar
compensation as provided guardians of estates under Chapter XIII, Texas
Probate Code. 

Sec. 64.106.  CLOSING RECEIVERSHIP.  Sets forth the procedure for closing
the receivership through a final report to the court when the threatened
danger has abated and the property is no longer endangered or when the
receivership terminates.  

Sec. 64.107.  ACTION OF COURT.  Requires the court, upon approving the
final report closing the receivership, to direct the receiver to the person
from whom the receiver took possession of the property, to the missing
person, or to another person the court finds entitled to be in possession
of the estate.  Provides for the issuance of a receipt for property
delivered. Requires the order to discharge the receiver and the receiver's
sureties.  Requires the court, upon deciding that the threatened danger has
not abated, or upon dissatisfaction with the final report, to continue the
receivership. 

Sec. 64.108.  RECORDATION OF PROCEEDINGS.  Requires all orders, bonds,
reports, accounts, and notices in the receivership proceedings to be
recorded in the minutes of the court. 

SECTION 6.  Amends Section 6.501(b), Family Code, to make conforming
changes. 

SECTION 7.  Repealer:  Sections 886 and 886A-F, Texas Probate Code.

SECTION 8.  Repealer:   Sections 79.017 and 79.018, Human Resources Code,
as added by Chapter 1376, Acts of the 75th Legislature, Regular Session,
1997, and editorially redesignated as Articles 62.023 and 62.024, Code of
Criminal Procedure.  

SECTION 9.  (a)  Effective date: September 1, 1999.

(b)  Provides that Section 2 of this Act takes effect only if the Act of
the 76th Legislature, Regular Session, 1999, relating to nonsubstantive
additions to and corrections in enacted codes, does not take effect. 

(c)  Provides that Section 3 of this Act takes effect only if the Act of
the 76th Legislature, Regular Session, 1999, relating to nonsubstantive
additions to and corrections in enacted codes, takes effect. 

SECTION 10.  Emergency clause.