HBA-JRA, LCA C.S.H.B. 3343 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 3343 By: Naishtat Judicial Affairs 4/30/1999 Committee Report (Substituted) 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. C.S.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 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, Part 4, Chapter XIII, Probate Code (Guardianship). 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. Requires such an attorney ad litem to 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), 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, Probate Code (Guardianship). 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. 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 person reported as missing in action or a prisoner of war, 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, 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 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 10. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute deletes SECTIONS 1, 2, and 3 of the original which amended Chapters 62 and 63, Code of Criminal Procedure, and Section 6.501(b), Family Code, but includes several of the provisions contained in these sections. SECTIONS 1 and 2 of the original contained identical provisions. The substitute adds a new SECTION 1 to amend Section 64.001(a), Civil Practice and Remedies Code, to make a conforming change. The substitute adds a new SECTION 2 (Section 64.001, Civil Practice and Remedies Code), by adding Subsection (d), to authorize 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. The substitute adds a new SECTION 3 to add the same provision but using the definition of "missing person" from Article 63.001. The substitute provides in SECTION 9 that if the Act of the 76th Legislature, Regular Session, 1999, relating to nonsubstantive additions to and corrections in enacted codes does not pass SECTION 2 takes effect and if such an Act does pass SECTION 3 takes effect. The substitute adds a new SECTION 4 to amend Section 64.034, Civil Practice and Remedies Code, which contains the same provisions as proposed Sections 62.027 and 63.027, Code of Criminal Procedure, of the original. The substitute adds a new SECTION 5 to amend Chapter 64, Civil Practice and Remedies Code, by adding Subchapter G. The substitute adds new provisions in Section 64.101 to set forth the requirements for notice and citation for receivership for certain missing persons. The substitute adds new provisions in Section 64.102 to provide for a proceeding to appoint a receiver. The substitute deletes the provisions for appointing a receiver in the original, which would have authorized 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 representation; required the order to appoint a receiver (order) to include a bond requirement and to specify the powers and duties of the receiver; set forth the action to be taken by the clerk of the court; and required the receiver to take charge of the endangered separate property under the duties and powers provided by the order or subsequent orders as the judge shall make. The substitute adds new provisions in Section 64.103 to provide for the amount of a bond to be executed by a receiver. Section 64.104 of the substitute contains the same provisions as proposed Sections 62.026 and 63.026. Section 64.105 of the substitute contains substantially the same provisions as proposed Sections 62.028 and 63.028. The substitute requires the report to be submitted 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, rather than monthly. Section 64.106 of the substitute contains the same provisions as proposed Sections 62.029 and 63.029. Section 64.107 of the substitute contains the same provisions as proposed Sections 62.030 and 63.030. Section 64.108 of the substitute contains the same provisions as proposed Sections 62.031 and 63.031. The substitute adds a new SECTION 8 to repeal 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. The substitute redesignates SECTIONS 4, 5, 6, and 7 of the original as SECTIONS 6, 7, 9, and 10 and makes conforming changes.