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.