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


Office of House Bill AnalysisH.B. 3343
By: Naishtat
Judicial Affairs
4/15/1999
Introduced

BACKGROUND AND PURPOSE 

In 1997, the 75th Texas Legislature transferred missing person guardianship
from the Probate Code to the Code of Criminal Procedure to group it with
other statutes addressing receivership.  That Act failed to change
references in the Family Code to reflect the transfer, failed to transfer
some provisions to the Civil Practices 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 Probate Code, although they were transferred during the 75th
Legislature. 

H.B. 3343 repeals sections of the 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 Chapter 62, Code of Criminal Procedure, as transferred
from Chapter 79, Human Resources Code, by Chapter 1427, Acts of the 75th
Texas Legislature, Regular Session, 1997, by adding Articles 62.025 through
62.031, as follows: 

Art. 62.025.  APPOINTMENT OF RECEIVER.  (a)  Authorizes a district judge to
appoint a guardian by order, with or without application, as receiver to
take care of the separate property of a person reported to be a prisoner of
war or missing in action by the United States Department of Defense, if
that property appears to be in danger of injury, loss, or waste and in need
of a representative.  Provides that the district judge must be a district
judge of the county in which the person reported missing in action or
prisoner of war (person) resides, the spouse of the person resides, or
where the property is located. 

(b)  Requires the order to appoint a receiver (order) to include a bond
requirement and to specify the powers and duties of the receiver. 

(c)  Requires the clerk of the court (clerk) to enter the order in the
minutes of the court, and the receiver to post bond for submission to the
judge.  Requires the bond, upon approval by the judge, to be filed with the
clerk. 

(d)  Requires the receiver to take charge of the endangered separate
property (estate) under the duties and powers provided by the order or
subsequent orders as the judge shall make. 

Art. 62.026.  EXPENDITURES BY RECEIVER.  Authorizes the judge 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 judge and approved and ordered to be paid. 

Art. 62.027.  INVESTMENTS, LOANS, AND CONTRIBUTIONS BY RECEIVER.
Authorizes the receiver, under direction of the judge, to invest, lend, or
contribute all or part of excess money as provided under Subpart L, Part 4,
Chapter XIII, Probate Code (Guardianship).  Requires the receiver to report
such transactions to the judge in the manner required of guardians. 

Art. 62.028.  RECEIVER'S EXPENSES, ACCOUNT, AND COMPENSATION.  (a) Provides
for a monthly report to the judge by sworn statement of account of expenses
incurred by the receiver.  Provides that this report includes 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. 

(b)  Provides for reimbursement of the receiver from the funds under the
receiver's control upon approval of the report. 

(c) Entitles the receiver to compensation under Chapter XIII, Probate Code
(Guardianship). 

Art. 62.029.  CLOSING RECEIVERSHIP.  Sets forth the procedure for closing
the receivership through a final report to the judge when the threatened
danger has abated and the property is no longer endangered.  

 Art. 62.030.  ACTION OF JUDGE.  (a)  Requires the judge, 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
person reported as missing in action or a prisoner of war, or to another
person the judge finds entitled to be in possession of the estate.
Provides for the issuance of a receipt for property delivered. 

(b)  Requires the order to discharge the receiver and the receiver's
sureties. 

(c)  Requires the judge, upon deciding that the threatened danger has not
abated, or upon dissatisfaction with the final report, to continue the
receivership. 

Art. 62.031.  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 2.  Amends Chapter 63, Code of Criminal Procedure, as added by the
Act of the 76th Legislature, Regular Session, 1999, relating to
nonsubstantive additions to and corrections in enacted codes, by adding
Articles 63.025 through 63.031, as follows: 

Art. 63.025.  APPOINTMENT OF RECEIVER.  (a)  Authorizes a district judge to
appoint a guardian by order, with or without application, as receiver to
take care of the separate property of a person reported to be a prisoner of
war or missing in action by the United States Department of Defense, if
that property appears to be in danger of injury, loss, or waste and in need
of a representative.  Provides that the district judge must be a district
judge of the county in which the person reported missing in action or
prisoner of war (person) resides, the spouse of the person resides, or
where the property is located. 

(b)  Requires the order to appoint a receiver (order) to include a bond
requirement and to specify the powers and duties of the receiver. 

(c)  Requires the clerk of the court (clerk) to enter the order in the
minutes of the court, and the receiver to post bond for submission to the
judge.  Requires the bond, upon approval by the judge, to be filed with the
clerk. 

(d)  Requires the receiver to take charge of the endangered separate
property (estate) under the duties and powers provided by the order or
subsequent orders as the judge shall make. 

 Art. 63.026.  EXPENDITURES BY RECEIVER.  Authorizes the judge 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 judge and approved and ordered to be paid. 

Art. 63.027.  INVESTMENTS, LOANS, AND CONTRIBUTIONS BY RECEIVER. Authorizes
the receiver, under direction of the judge, to invest, lend, or contribute
all or part of excess money as provided under Subpart L, Part 4, Chapter
XIII, Probate Code (Guardianship).  Requires the receiver to report such
transactions to the judge in the manner required of guardians. 

Art. 63.028.  RECEIVER'S EXPENSES, ACCOUNT, AND COMPENSATION.  (a) Provides
for a monthly report to the judge by sworn statement of account of expenses
incurred by the receiver.  Provides that this report includes 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. 

(b)  Provides for reimbursement of the receiver from the funds under the
receiver's control upon approval of the report. 

(c) Entitles the receiver to compensation under Chapter XIII, Probate Code
(Guardianship). 

Art. 63.029.  CLOSING RECEIVERSHIP.  Sets forth the procedure for closing
the receivership through a final report to the judge when the threatened
danger has abated and the property is no longer endangered.  

 Art. 63.030.  ACTION OF JUDGE.  (a)  Requires the judge, 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
person reported as missing in action or a prisoner of war, or to another
person the judge finds entitled to be in possession of the estate.
Provides for the issuance of a receipt for property delivered. 

(b)  Requires the order to discharge the receiver and the receiver's
sureties. 

(c)  Requires the judge, upon deciding that the threatened danger has not
abated, or upon dissatisfaction with the final report, to continue the
receivership. 

Art. 63.031.  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 3.  Amends Section 6.501(b), Family Code, to make conforming
changes. 

SECTION 4.  Amends Section 6.501(b), Family Code, to make conforming
changes. 

SECTION 5.  Repealer:  Sections 886 and 886A- F, Probate Code, to make
conforming changes. 

SECTION 6.  (a)  Effective date: September 1, 1999.

(b)  Provides that Sections 1 and 3 of this Act take 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 Sections 2 and 4 of this Act take 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 7.  Emergency clause.