H.B. No. 1438
 
 
 
 
AN ACT
  relating to probate matters, including guardianships and other
  matters related to incapacitated persons.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 1023.005, Estates Code, is amended to
  read as follows:
         Sec. 1023.005.  COURT ACTION. [(a)] On hearing an
  application under Section 1023.003, if good cause is not shown to
  deny the application and it appears that transfer of the
  guardianship is in the best interests of the ward, the court shall
  enter an order:
               (1)  authorizing the transfer on payment on behalf of
  the estate of all accrued costs; and
               (2)  requiring that any existing bond of the guardian
  must remain in effect until a new bond has been given or a rider has
  been filed in accordance with Section 1023.010.
         [(b)     In an order entered under Subsection (a), the court
  shall require the guardian, not later than the 20th day after the
  date the order is entered, to:
               [(1)     give a new bond payable to the judge of the court
  to which the guardianship is transferred; or
               [(2)     file a rider to an existing bond noting the court
  to which the guardianship is transferred.]
         SECTION 2.  Section 1023.010, Estates Code, is amended to
  read as follows:
         Sec. 1023.010.  REVIEW OF TRANSFERRED GUARDIANSHIP. (a)
  Not later than the 90th day after the date the transfer of the
  guardianship takes effect under Section 1023.007, the court to
  which the guardianship was transferred shall hold a hearing to
  consider modifying the rights, duties, and powers of the guardian
  or any other provisions of the transferred guardianship.
         (b)  After the hearing described by Subsection (a), the court
  to which the guardianship was transferred shall enter an order
  requiring the guardian to:
               (1)  give a new bond payable to the judge of the court
  to which the guardianship was transferred; or
               (2)  file a rider to an existing bond noting the court
  to which the guardianship was transferred.
         SECTION 3.  Section 1051.104(a), Estates Code, is amended to
  read as follows:
         (a)  The person filing an application for guardianship shall
  mail a copy of the application and a notice containing the
  information required in the citation issued under Section 1051.102
  by registered or certified mail, return receipt requested, or by
  any other form of mail that provides proof of delivery, to the
  following persons, if their whereabouts are known or can be
  reasonably ascertained:
               (1)  each adult child of the proposed ward;
               (2)  each adult sibling of the proposed ward;
               (3)  the administrator of a nursing home facility or
  similar facility in which the proposed ward resides;
               (4)  the operator of a residential facility in which
  the proposed ward resides;
               (5)  a person whom the applicant knows to hold a power
  of attorney signed by the proposed ward;
               (6)  a person designated to serve as guardian of the
  proposed ward by a written declaration under Subchapter E, Chapter
  1104, if the applicant knows of the existence of the declaration;
               (7)  a person designated to serve as guardian of the
  proposed ward in the probated will of the last surviving parent of
  the proposed ward;
               (8)  a person designated to serve as guardian of the
  proposed ward by a written declaration of the proposed ward's last
  surviving parent, if the declarant is deceased and the applicant
  knows of the existence of the declaration; and
               (9)  each adult [person] named [as another relative
  within the third degree by consanguinity] in the application as an
  "other living relative" of the proposed ward within the third
  degree by consanguinity, as required by Section 1101.001(b)(11) or
  (13), if the proposed ward's spouse and each of the proposed ward's
  parents, adult siblings, and adult children are deceased or there
  is no spouse, parent, adult sibling, or adult child.
         SECTION 4.  Section 1052.001(a), Estates Code, is amended to
  read as follows:
         (a)  The county clerk shall maintain a record book titled
  "Judge's Guardianship Docket" and shall record in the book:
               (1)  the name of each person with respect to whom, or
  with respect to whose estate, a proceeding is commenced or sought to
  be commenced;
               (2)  the name of the guardian of the estate or person or
  of the applicant for letters of guardianship;
               (3)  the date each original application for a
  guardianship proceeding is filed;
               (4)  a notation of each order, judgment, decree, and
  proceeding that occurs in each guardianship [estate], including the
  date it occurs; and
               (5)  the docket number of each guardianship as assigned
  under Subsection (b).
         SECTION 5.  Section 1053.052(a), Estates Code, is amended to
  read as follows:
         (a)  The clerk may require or may obtain from the court an
  order requiring a person who files an application, complaint, or
  opposition relating to a guardianship proceeding, other than a
  guardian, attorney ad litem, or guardian ad litem, to provide
  security for the probable costs of the proceeding before filing the
  application, complaint, or opposition.
         SECTION 6.  Subchapter D, Chapter 1054, Estates Code, is
  amended by adding Section 1054.155 to read as follows:
         Sec. 1054.155.  NOTICE REGARDING REQUEST TO FINANCIAL
  INSTITUTION FOR CUSTOMER RECORDS. If a request is made to a
  financial institution for a customer record in connection with an
  investigation conducted under Section 1054.151 or 1054.152, the
  court shall provide written notice of that fact to the ward or
  proposed ward with respect to whom the investigation is conducted
  not later than the fifth day after the date the financial
  institution produces the customer record.
         SECTION 7.  Subchapter A, Chapter 1055, Estates Code, is
  amended by adding Section 1055.003 to read as follows:
         Sec. 1055.003.  INTERVENTION BY INTERESTED PERSON. (a)
  Notwithstanding the Texas Rules of Civil Procedure, an interested
  person may intervene in a guardianship proceeding only by filing a
  timely motion to intervene that is served on the parties.
         (b)  The motion must state the grounds for intervention in
  the proceeding and be accompanied by a pleading that sets out the
  purpose for which intervention is sought.
         (c)  The court has the discretion to grant or deny the motion
  and, in exercising that discretion, must consider whether:
               (1)  the intervention will unduly delay or prejudice
  the adjudication of the original parties' rights; or
               (2)  the proposed intervenor has such an adverse
  relationship with the ward or proposed ward that the intervention
  would unduly prejudice the adjudication of the original parties'
  rights.
         SECTION 8.  Section 1101.001, Estates Code, is amended by
  adding Subsection (c) to read as follows:
         (c)  For purposes of this section, a proposed ward's
  relatives within the third degree by consanguinity include the
  proposed ward's:
               (1)  grandparent or grandchild; and
               (2)  great-grandparent, great-grandchild, aunt who is
  a sister of a parent of the proposed ward, uncle who is a brother of
  a parent of the proposed ward, nephew who is a child of a brother or
  sister of the proposed ward, or niece who is a child of a brother or
  sister of the proposed ward.
         SECTION 9.  Subchapter D, Chapter 1101, Estates Code, is
  amended by adding Section 1101.156 to read as follows:
         Sec. 1101.156.  DEPOSIT OF ESTATE ASSETS. (a)  At the time
  or after an order appointing a guardian is signed by the court but
  before letters of guardianship are issued, a court may, on the
  request of a party, require the deposit for safekeeping of cash,
  securities, or other assets of a ward or proposed ward in a
  financial institution described by Section 1105.155(b).
         (b)  The amount of the bond required to be given by the
  guardian under Section 1105.101 shall be reduced in proportion to
  the amount of the cash or the value of the securities or other
  assets deposited under this section.
         SECTION 10.  Section 1102.001, Estates Code, is amended to
  read as follows:
         Sec. 1102.001.  COURT-INITIATED INVESTIGATION.  (a)  If a
  court has probable cause to believe that a person domiciled or found
  in the county in which the court is located is an incapacitated
  person, and the person does not have a guardian in this state, the
  court shall appoint a guardian ad litem or court investigator to
  investigate the person's conditions and circumstances to determine
  whether:
               (1)  the person is an incapacitated person; and
               (2)  a guardianship is necessary.
         (b)  If a court appoints a guardian ad litem or court
  investigator under Subsection (a):
               (1)  the court's order appointing a guardian ad litem or
  court investigator must include a statement that the person
  believed to be incapacitated has the right to petition the court to
  have the appointment set aside;
               (2)  at the initial meeting between the guardian ad
  litem or court investigator and the person believed to be
  incapacitated, the guardian ad litem or court investigator, as
  appropriate, shall provide a copy of the information letter under
  Section 1102.003 and the order to, and discuss the contents of the
  letter and order with, the person believed to be incapacitated; and
               (3)  during the period beginning after the date of the
  initial meeting described by Subdivision (2) and ending on the date
  an application for the appointment of a guardian is filed, the
  person believed to be incapacitated may petition the court to have
  the appointment of the guardian ad litem or court investigator, as
  appropriate, set aside.
         SECTION 11.  Section 1102.003, Estates Code, is amended by
  adding Subsection (c) to read as follows:
         (c)  Any information provided by the Department of Family and
  Protective Services under this section that is confidential under
  Chapter 48, Human Resources Code, remains confidential and is not
  subject to disclosure under Chapter 552, Government Code.
         SECTION 12.  Section 1102.005, Estates Code, is amended to
  read as follows:
         Sec. 1102.005.  COMPENSATION OF GUARDIAN AD LITEM. (a)
  Regardless of whether a guardianship is created for a proposed ward
  and except as provided by Section 1155.151, a [A] court that
  appoints a guardian ad litem under Section 1102.001 may authorize
  compensation of the guardian ad litem from available funds of:
               (1)  the proposed ward's estate; or
               (2)  the management trust, if a management trust has
  been created for the benefit of the proposed ward under Chapter
  1301[, regardless of whether a guardianship is created for the
  proposed ward].
         (b)  Except as provided by Section 1155.151, after [After]
  examining the proposed ward's assets or the assets of any
  management trust created for the proposed ward's benefit under
  Chapter 1301, and determining that the proposed ward or the
  management trust is unable to pay for services provided by the
  guardian ad litem, the court may authorize compensation from the
  county treasury.
         SECTION 13.
    Chapter 1102, Estates Code, is amended by
  adding Section 1102.006 to read as follows:
         Sec. 1102.006.  NOTICE REGARDING REQUEST TO FINANCIAL
  INSTITUTION FOR CUSTOMER RECORDS. If a request is made to a
  financial institution for a customer record in connection with an
  investigation conducted under Section 1102.001, the court shall
  provide written notice of that fact to the proposed ward with
  respect to whom the investigation is conducted not later than the
  fifth day after the date the financial institution produces the
  customer record.
         SECTION 14.  Section 1104.154(a), Estates Code, is amended
  to read as follows:
         (a)  As an alternative to the self-proving affidavit
  authorized by Section 1104.153, a declaration of appointment of a
  guardian for the declarant's children in the event of the
  declarant's death or incapacity may be simultaneously executed,
  attested, and made self-proved by including the following in
  substantially the same form and with substantially the same
  contents:
         I, _________________________, as declarant, after being duly
  sworn, declare to the undersigned witnesses and to the undersigned
  authority that this instrument is my Declaration of Appointment of
  Guardian for My Children in the Event of My Death or Incapacity, and
  that I willingly make [have made] and execute [executed] it for the
  purposes expressed in the declaration. I now sign this declaration
  in the presence of the attesting witnesses and the undersigned
  authority on this ____ day of ________, 20__.
                                             ___________________________
                                             Declarant
         The undersigned, _____________________ and
  ___________________, each being 14 years of age or older, after
  being duly sworn, declare to the declarant and to the undersigned
  authority that the declarant declared to us that this instrument is
  the declarant's Declaration of Appointment of Guardian for the
  Declarant's Children in the Event of Declarant's Death or
  Incapacity and that the declarant executed it for the purposes
  expressed in the declaration. The declarant then signed this
  declaration and we believe the declarant to be of sound mind. We now
  sign our names as attesting witnesses on this _____ day of
  ___________, 20___.
                                             ___________________________
                                             Witness
                                             ___________________________
                                             Witness
         Subscribed and sworn to before me by the above named
  declarant, and affiants, this ____ day of __________________, 20__.
                                             ___________________________
                                             Notary Public in and for the
                                             State of Texas
                                             My Commission expires:
                                             ___________________________
         SECTION 15.  Section 1104.205(a), Estates Code, is amended
  to read as follows:
         (a)  As an alternative to the self-proving affidavit
  authorized by Section 1104.204, a declaration of guardian in the
  event of later incapacity or need of guardian may be simultaneously
  executed, attested, and made self-proved by including the following
  in substantially the same form and with substantially the same
  contents:
         I, _________________________, as declarant, after being duly
  sworn, declare to the undersigned witnesses and to the undersigned
  authority that this instrument is my Declaration of Guardian in the
  Event of Later Incapacity or Need of Guardian, and that I willingly
  make [have made] and execute [executed] it for the purposes
  expressed in the declaration. I now sign this declaration in the
  presence of the attesting witnesses and the undersigned authority
  on this ____ day of ________, 20__.
                                             ___________________________
                                             Declarant
         The undersigned, _____________________ and
  ___________________, each being 14 years of age or older, after
  being duly sworn, declare to the declarant and to the undersigned
  authority that the declarant declared to us that this instrument is
  the declarant's Declaration of Guardian in the Event of Later
  Incapacity or Need of Guardian and that the declarant executed it
  for the purposes expressed in the declaration. The declarant then
  signed this declaration and we believe the declarant to be of sound
  mind. We now sign our names as attesting witnesses on this _____ day
  of ___________, 20___.
                                             ___________________________
                                             Witness
                                             ___________________________
                                             Witness
         Subscribed and sworn to before me by the above named
  declarant, and affiants, this ____ day of __________________, 20__.
                                             __________________________
                                             Notary Public in and for the
                                             State of Texas
                                             My Commission expires:
                                             __________________________
         SECTION 16.  Section 1104.402(a), Estates Code, is amended
  to read as follows:
         (a)  Except as provided by Section 1104.403, 1104.404, or
  1104.406(a), the clerk of the county having venue of the proceeding
  for the appointment of a guardian shall obtain criminal history
  record information that is maintained by the Department of Public
  Safety or the Federal Bureau of Investigation identification
  division relating to:
               (1)  a private professional guardian;
               (2)  each person who represents or plans to represent
  the interests of a ward as a guardian on behalf of the private
  professional guardian;
               (3)  each person employed by a private professional
  guardian who will:
                     (A)  have personal contact with a ward or proposed
  ward;
                     (B)  exercise control over and manage a ward's
  estate; or
                     (C)  perform any duties with respect to the
  management of a ward's estate;
               (4)  each person employed by or volunteering or
  contracting with a guardianship program to provide guardianship
  services to a ward of the program on the program's behalf; or
               (5)  any other person proposed to serve as a guardian
  under this title, including a proposed temporary guardian and a
  proposed successor guardian, other than [the ward's or proposed
  ward's family member or] an attorney.
         SECTION 17.  Section 1104.409, Estates Code, is amended to
  read as follows:
         Sec. 1104.409.  USE OF INFORMATION BY COURT.  The court
  shall use the information obtained under this subchapter only in
  determining whether to:
               (1)  appoint, remove, or continue the appointment of a
  private professional guardian, a guardianship program, or the
  department; or
               (2)  appoint any other person proposed to serve as a
  guardian under this title, including a proposed temporary guardian
  and a proposed successor guardian, other than [the ward's or
  proposed ward's family member or] an attorney.
         SECTION 18.  Section 1155.151, Estates Code, is amended by
  amending Subsections (a) and (b) and adding Subsections (a-1),
  (a-2), (a-3), (a-4), (d), (e), and (f) to read as follows:
         (a)  In a guardianship proceeding, the court costs of the
  proceeding, including the costs described by Subsection (a-1) [cost
  of the guardians ad litem, attorneys ad litem, court visitor,
  mental health professionals, and interpreters appointed under this
  title, shall be set in an amount the court considers equitable and
  just and, except as provided by Subsection (c)], shall, except as
  provided by Subsection (c), be paid as follows [out of the
  guardianship estate, or the county treasury if the estate is
  insufficient to pay the cost], and the court shall issue the
  judgment accordingly:
               (1)  out of the guardianship estate;
               (2)  out of the management trust, if a management trust
  has been created for the benefit of the ward under Chapter 1301 and
  the court determines it is in the ward's best interest;
               (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)  there is no guardianship estate or no
  management trust has been created for the ward's benefit; or
                     (B)  the assets of the guardianship estate or
  management trust, as appropriate, are insufficient to pay the
  costs; or
               (4)  out of the county treasury if:
                     (A)  there is no guardianship estate or management
  trust or the assets of the guardianship 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.
         (a-1)  In a guardianship proceeding, the cost of any
  guardians ad litem, attorneys ad litem, court visitors, mental
  health professionals, and interpreters appointed under this title
  shall be set in an amount the court considers equitable and just.
         (a-2)  Notwithstanding any other law requiring the payment
  of court costs in a guardianship proceeding, the following are not
  required to pay court costs on the filing of or during a
  guardianship 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;
               (4)  a nonprofit guardianship program;
               (5)  a governmental entity; and
               (6)  a government agency or nonprofit agency providing
  guardianship services.
         (a-3)  For purposes of Subsections (a) and (a-2), 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 guardianship 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.
         (a-4)  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
  guardianship proceeding may be taken by a person or entity found
  able to afford costs until payment of those costs is made.
         (b)  The costs attributable to the services of a person
  described by Subsection (a-1) [(a)] shall be paid under this
  section at any time after the commencement of the proceeding as
  ordered by the court.
         (d)  If a guardianship of the estate or 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 guardianship 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 (c).
         (e)  If at any time after a guardianship of the estate 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 (a-2), the
  court shall require the guardian to pay out of the guardianship
  estate or management trust, as appropriate, to the court clerk for
  deposit in the county treasury the amount of any of those costs.
         (f)  To the extent that this section conflicts with the Texas
  Rules of Civil Procedure or other rules, this section controls.
         SECTION 19.  Section 1163.101(c), Estates Code, is amended
  to read as follows:
         (c)  The guardian of the person shall file a sworn affidavit
  that contains:
               (1)  the guardian's current name, address, and
  telephone number;
               (2)  the ward's date of birth and current name, address,
  telephone number, and age;
               (3)  a description of the type of home in which the ward
  resides, which shall be described as:
                     (A)  the ward's own home;
                     (B)  a nursing home;
                     (C)  a guardian's home;
                     (D)  a foster home;
                     (E)  a boarding home;
                     (F)  a relative's home, in which case the
  description must specify the relative's relationship to the ward;
                     (G)  a hospital or medical facility; or
                     (H)  another type of residence;
               (4)  statements indicating:
                     (A)  the length of time the ward has resided in the
  present home;
                     (B)  the reason for a change in the ward's
  residence, if a change in the ward's residence has occurred in the
  past year;
                     (C)  the date the guardian most recently saw the
  ward;
                     (D)  how frequently the guardian has seen the ward
  in the past year;
                     (E)  whether the guardian has possession or
  control of the ward's estate;
                     (F)  whether the ward's mental health has
  improved, deteriorated, or remained unchanged during the past year,
  including a description of the change if a change has occurred;
                     (G)  whether the ward's physical health has
  improved, deteriorated, or remained unchanged during the past year,
  including a description of the change if a change has occurred;
                     (H)  whether the ward has regular medical care;
  and
                     (I)  the ward's treatment or evaluation by any of
  the following persons during the past year, including the person's
  name and a description of the treatment:
                           (i)  a physician;
                           (ii)  a psychiatrist, psychologist, or other
  mental health care provider;
                           (iii)  a dentist;
                           (iv)  a social or other caseworker; or
                           (v)  any other individual who provided
  treatment;
               (5)  a description of the ward's activities during the
  past year, including recreational, educational, social, and
  occupational activities, or a statement that no activities were
  available or that the ward was unable or refused to participate in
  activities;
               (6)  the guardian's evaluation of:
                     (A)  the ward's living arrangements as excellent,
  average, or below average, including an explanation if the
  conditions are below average;
                     (B)  whether the ward is content or unhappy with
  the ward's living arrangements; and
                     (C)  unmet needs of the ward;
               (7)  a statement indicating whether the guardian's
  power should be increased, decreased, or unaltered, including an
  explanation if a change is recommended;
               (8)  a statement indicating that the guardian has paid
  the bond premium for the next reporting period;
               (9)  if the guardian is a private professional
  guardian, a guardianship program, or the Department of Aging and
  Disability Services, whether the guardian or an individual
  certified under Subchapter C, Chapter 155 [111], Government Code,
  who is providing guardianship services to the ward and who is filing
  [swearing to] the affidavit on the guardian's behalf, is or has been
  the subject of an investigation conducted by the Guardianship
  Certification Board during the preceding year; and
               (10)  any additional information the guardian desires
  to share with the court regarding the ward, including:
                     (A)  whether the guardian has filed for emergency
  detention of the ward under Subchapter A, Chapter 573, Health and
  Safety Code; and
                     (B)  if applicable, the number of times the
  guardian has filed for emergency detention and the dates of the
  applications for emergency detention.
         SECTION 20.  The heading to Section 1163.1011, Estates Code,
  is amended to read as follows:
         Sec. 1163.1011.  USE OF UNSWORN DECLARATION IN LIEU OF SWORN
  DECLARATION OR AFFIDAVIT FOR [ELECTRONIC] FILING [OF] ANNUAL
  REPORT.
         SECTION 21.  Section 1163.1011(a), Estates Code, is amended
  to read as follows:
         (a)  A guardian of the person who is required to file an
  [files the] annual report under [required by] Section 1163.101
  [electronically] with the court, including a guardian filing the
  annual report electronically, may use an unsworn declaration made
  as provided by this section instead of the [a written] sworn
  declaration or affidavit required by Section 1163.101.
         SECTION 22.  Section 1203.202(c), Estates Code, is amended
  to read as follows:
         (c)  A successor guardian may:
               (1)  make himself or herself, and be made, a party to a
  suit prosecuted by or against the successor's predecessor;
               (2)  settle with the predecessor and receive and give a
  receipt for any portion of the estate property that remains in the
  predecessor's [successor's] possession; or
               (3)  commence a suit on the bond or bonds of the
  predecessor, in the successor's own name and capacity, for all the
  estate property that:
                     (A)  came into the predecessor's possession; and
                     (B)  has not been accounted for by the
  predecessor.
         SECTION 23.  Section 1251.052(b), Estates Code, is amended
  to read as follows:
         (b)  The term of a temporary guardian appointed under Section
  1251.051 expires on the earliest of the following:
               (1)  [at] the conclusion of the hearing challenging or
  contesting the application; [or]
               (2)  [on] the date a permanent guardian appointed by
  the court for the proposed ward qualifies to serve as the ward's
  guardian; or
               (3)  the nine-month anniversary of the date the
  temporary guardian qualifies, unless the term is extended by court
  order issued after a motion to extend the term is filed and a
  hearing on the motion is held.
         SECTION 24.  Section 1253.051, Estates Code, is amended to
  read as follows:
         Sec. 1253.051.  APPLICATION FOR RECEIPT AND ACCEPTANCE OF
  FOREIGN GUARDIANSHIP.  A guardian appointed by a foreign court to
  represent an incapacitated person who is residing in this state or
  intends to move to this state may file an application with a court
  in the county in which the ward resides or in which it is intended
  that the ward will [intends to] reside to have the guardianship
  transferred to that [the] court.  The application must have
  attached a certified copy of all papers of the guardianship filed
  and recorded in the foreign court.
         SECTION 25.  Section 1301.1535, Estates Code, is amended to
  read as follows:
         Sec. 1301.1535.  INITIAL ACCOUNTING BY CERTAIN TRUSTEES
  REQUIRED. (a)  This section applies only to a trustee of a
  management trust created for a person who [for whom a guardianship
  proceeding is pending] on the date the trust is created is:
               (1)  a ward under an existing guardianship; or
               (2)  a proposed ward with respect to whom an
  application for guardianship has been filed and is pending.
         (b)  Not later than the 30th day after the date a trustee to
  which this section applies receives property into the trust, the
  trustee shall file with the court that created the guardianship or
  the court in which the application for guardianship was filed
  [proceeding is pending] a report describing all property held in
  the trust on the date of the report and specifying the value of the
  property on that date.
         SECTION 26.  Section 1351.001, Estates Code, is amended to
  read as follows:
         Sec. 1351.001.  AUTHORITY TO SELL MINOR'S INTEREST IN
  PROPERTY WITHOUT GUARDIANSHIP. (a)  A parent or managing
  conservator of a minor who is not a ward may apply to the court under
  this subchapter for an order to sell an interest of the minor in
  property without being appointed guardian if the net value of the
  interest does not exceed $100,000.
         (b)  If a minor who is not a ward does not have a parent or
  managing conservator willing or able to file an application under
  Subsection (a), the court may appoint an attorney ad litem or
  guardian ad litem to act on the minor's behalf for the limited
  purpose of applying for an order to sell the minor's interest in
  property under this subchapter.
         SECTION 27.  Sections 1351.002(a) and (b), Estates Code, are
  amended to read as follows:
         (a)  A parent, [or] managing conservator, or attorney ad
  litem or guardian ad litem appointed under Section 1351.001(b)  
  shall apply to the court under oath for the sale of property under
  this subchapter.
         (b)  An application must contain:
               (1)  the minor's name;
               (2)  a legal description of the real property or a
  description that identifies the personal property, as applicable;
               (3)  the minor's interest in the property;
               (4)  the purchaser's name;
               (5)  a statement that the sale of the minor's interest
  in the property is for cash; and
               (6)  a statement that all money received from the sale
  of the minor's interest in the property [by the parent or managing
  conservator] shall be used for the minor's use and benefit.
         SECTION 28.  Section 1351.051, Estates Code, is amended to
  read as follows:
         Sec. 1351.051.  APPLICABILITY OF SUBCHAPTER.  This
  subchapter applies only to a ward who has:
               (1)  a guardian of the person but does not have a
  guardian of the estate; or
               (2)  a guardian of the person or estate appointed by a
  foreign court.
         SECTION 29.  Section 1351.052, Estates Code, is amended to
  read as follows:
         Sec. 1351.052.  AUTHORITY TO SELL WARD'S INTEREST IN
  PROPERTY WITHOUT APPOINTMENT AS GUARDIAN OF THE ESTATE IN THIS
  STATE.  A guardian of the person of a ward or a guardian of the
  person or estate of a ward appointed by a foreign court may apply to
  the court under this subchapter for an order to sell an interest in
  property in the ward's estate without being appointed guardian of
  the ward's estate in this state if the net value of the interest
  does not exceed $100,000.
         SECTION 30.  Section 1351.053(b), Estates Code, is amended
  to read as follows:
         (b)  For purposes of Subsection (a)(2), references in
  Section 1351.002(b) to[:
               [(1)]  "minor" are replaced with references to "ward."
  ["ward"; and
               [(2)     "parent or managing conservator" are replaced
  with references to "guardian of the person."]
         SECTION 31.  Section 59.006(a), Finance Code, is amended to
  read as follows:
         (a)  This section provides the exclusive method for
  compelled discovery of a record of a financial institution relating
  to one or more customers but does not create a right of privacy in a
  record.  This section does not apply to and does not require or
  authorize a financial institution to give a customer notice of:
               (1)  a demand or inquiry from a state or federal
  government agency authorized by law to conduct an examination of
  the financial institution;
               (2)  a record request from a state or federal
  government agency or instrumentality under statutory or
  administrative authority that provides for, or is accompanied by, a
  specific mechanism for discovery and protection of a customer
  record of a financial institution, including a record request from
  a federal agency subject to the Right to Financial Privacy Act of
  1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
  Internal Revenue Service under Section 1205, Internal Revenue Code
  of 1986;
               (3)  a record request from or report to a government
  agency arising out of:
                     (A)  the investigation or prosecution of a
  criminal offense;
                     (B)  the investigation of alleged abuse, neglect,
  or exploitation of an elderly or disabled person in accordance with
  Chapter 48, Human Resources Code; or
                     (C)  the assessment for or provision of
  guardianship services under Subchapter E, Chapter 161, Human
  Resources Code;
               (4)  a record request in connection with a garnishment
  proceeding in which the financial institution is garnishee and the
  customer is debtor;
               (5)  a record request by a duly appointed receiver for
  the customer;
               (6)  an investigative demand or inquiry from a state
  legislative investigating committee;
               (7)  an investigative demand or inquiry from the
  attorney general of this state as authorized by law other than the
  procedural law governing discovery in civil cases; [or]
               (8)  the voluntary use or disclosure of a record by a
  financial institution subject to other applicable state or federal
  law; or
               (9)  a record request in connection with an
  investigation conducted under Section 1054.151, 1054.152, or
  1102.001, Estates Code.
         SECTION 32.  Sections 25.0022(d) and (h), Government Code,
  are amended to read as follows:
         (d)  The presiding judge shall:
               (1)  ensure the promulgation of local rules of
  administration in accordance with policies and guidelines set by
  the supreme court;
               (2)  advise local statutory probate court judges on
  case flow management practices and auxiliary court services;
               (3)  perform a duty of a local administrative statutory
  probate court judge if the local administrative judge does not
  perform that duty;
               (4)  appoint an assistant presiding judge of the
  statutory probate courts;
               (5)  call and preside over annual meetings of the
  judges of the statutory probate courts at a time and place in the
  state as designated by the presiding judge;
               (6)  call and convene other meetings of the judges of
  the statutory probate courts as considered necessary by the
  presiding judge to promote the orderly and efficient administration
  of justice in the statutory probate courts;
               (7)  study available statistics reflecting the
  condition of the dockets of the probate courts in the state to
  determine the need for the assignment of judges under this section;
               (8)  compare local rules of court to achieve uniformity
  of rules to the extent practical and consistent with local
  conditions; and
               (9)  assign or order the clerk who serves the statutory
  probate courts to randomly assign a judge or former or retired judge
  of a statutory probate court to hear a case under Section
  25.002201(a) or 25.00255, as applicable [the circumstances
  described by Section 25.002201(b)].
         (h)  Subject to Section 25.002201, a judge or a former or
  retired judge of a statutory probate court may be assigned by the
  presiding judge of the statutory probate courts to hold court in a
  statutory probate court, a county court, or any statutory court
  exercising probate jurisdiction when:
               (1)  a statutory probate judge requests assignment of
  another judge to the judge's court;
               (2)  a statutory probate judge is absent, disabled, or
  disqualified for any reason;
               (3)  a statutory probate judge is present or is trying
  cases as authorized by the constitution and laws of this state and
  the condition of the court's docket makes it necessary to appoint an
  additional judge;
               (4)  the office of a statutory probate judge is vacant;
               (5)  the presiding judge of an administrative judicial
  district requests the assignment of a statutory probate judge to
  hear a probate matter in a county court or statutory county court;
               (6)  the statutory probate [presiding] judge is [of the
  administrative judicial district fails to timely assign a judge to
  replace a] recused or disqualified [statutory probate court judge]
  as described by Section 25.002201(a) [Section 25.002201(b)];
               (7)  a county court judge requests the assignment of a
  statutory probate judge to hear a probate matter in the county
  court; or
               (8)  a local administrative statutory probate court
  judge requests the assignment of a statutory probate judge to hear a
  matter in a statutory probate court.
         SECTION 33.  Sections 25.002201(a) and (b), Government Code,
  are amended to read as follows:
         (a)  Except as provided by Subsection (b), not [Not] later
  than the 15th day after the date an order of recusal or
  disqualification of a statutory probate court judge is issued in a
  case, the presiding judge [of the administrative judicial district]
  shall assign a statutory probate court judge or a former or retired
  judge of a statutory probate court to hear the case if:
               (1)  the judge of the statutory probate court recused
  himself or herself under Section 25.00255(g)(1)(A);
               (2)  the judge of the statutory probate court
  disqualified himself or herself under Section 25.00255(g-1);
               (3)  the order was issued under Section
  25.00255(i-3)(1); or
               (4)  the presiding judge [of the administrative
  judicial district] receives notice and a request for assignment
  from the clerk of the statutory probate court under Section
  25.00255(l).
         (b)  If the [presiding] judge who is the subject of an order
  of recusal or disqualification is [of an administrative judicial
  district does not assign a judge under Subsection (a) within the
  time prescribed by that subsection,] the presiding judge of the
  statutory probate courts, the chief justice of the supreme court
  shall [may] assign a regional presiding judge, a statutory probate
  judge, or a former or retired judge of a statutory probate court to
  hear the case [instead of the presiding judge of the administrative
  judicial district making the assignment under that subsection].
         SECTION 34.  Section 25.00255, Government Code, is amended
  by amending Subsections (a), (g), (g-1), (i-2), (i-3), (i-5), and
  (l) and adding Subsection (a-1) to read as follows:
         (a)  Notwithstanding any conflicting provision in the Texas
  Rules of Civil Procedure, Rules 18a and 18b, Texas Rules of Civil
  Procedure, apply to the recusal and disqualification of a statutory
  probate court judge except as otherwise provided by this section or
  another provision of this subchapter. The presiding judge:
               (1)  has the authority and shall perform the functions
  and duties of the presiding judge of the administrative judicial
  region under the rules, including the duty to hear or rule on a
  referred motion of recusal or disqualification or, subject to
  Subdivisions (2) and (3) and to Section 25.002201, assign a judge to
  hear and rule on a referred motion of recusal or disqualification;
               (2)  may assign a presiding judge of the administrative
  judicial region to hear and rule on a referred motion of recusal or
  disqualification only with the consent of the presiding judge of
  the administrative judicial region; and
               (3)  may not assign a judge of a statutory probate court
  located in the same county as the statutory probate court served by
  the judge who is the subject of the motion of recusal or
  disqualification [A party in a hearing or trial in a statutory
  probate court may file with the clerk of the court a motion stating
  grounds for the recusal or disqualification of the judge. The
  grounds may include any disability of the judge to preside over the
  case].
         (a-1)  Notwithstanding Rule 18a(h), Texas Rules of Civil
  Procedure, or any other conflicting provision of the rules, the
  judge who hears a motion of recusal or disqualification, after
  notice and hearing, may:
               (1)  order the party or attorney who filed the motion,
  or both, to pay the reasonable attorney's fees and expenses
  incurred by another party if the judge determines that the motion
  was:
                     (A)  groundless and filed in bad faith or for the
  purpose of harassment; or
                     (B)  clearly brought for unnecessary delay and
  without sufficient cause; and
               (2)  enjoin the movant from filing other recusal
  motions in the case without the prior written consent of the
  presiding judge of the statutory probate courts.
         (g)  A judge who recuses himself or herself:
               (1)  shall enter an order of recusal and:
                     (A)  if the judge serves a statutory probate court
  located in a county with only one statutory probate court, request
  that the presiding judge [of the administrative judicial district]
  assign a judge under Section 25.002201 to hear the case; or
                     (B)  subject to Subsection (l), if the judge
  serves a statutory probate court located in a county with more than
  one statutory probate court, request that the presiding judge order 
  [request that] the clerk who serves the statutory probate courts in
  that county to randomly reassign the case to a judge of one of the
  other statutory probate courts located in the county; and
               (2)  may not take other action in the case except for
  good cause stated in the order in which the action is taken.
         (g-1)  A judge who disqualifies himself or herself:
               (1)  shall enter an order of disqualification and:
                     (A)  if the judge serves a statutory probate court
  located in a county with only one statutory probate court, request
  that the presiding judge [of the administrative judicial district]
  assign a judge under Section 25.002201 to hear the case; or
                     (B)  subject to Subsection (l), if the judge
  serves a statutory probate court located in a county with more than
  one statutory probate court, request that the presiding judge order
  the clerk who serves the statutory probate courts in that county to
  randomly reassign the case to a judge of one of the other statutory
  probate courts; and
               (2)  may not take other action in the case.
         (i-2)  A judge who hears a motion for recusal or
  disqualification [under Subsection (i) or (i-1)] may also hear any
  amended or supplemented motion for recusal or disqualification
  filed in the case.
         (i-3)  If a motion for recusal or disqualification is granted
  [after a hearing conducted as provided by Subsection (i) or (i-1)],
  the presiding judge [who heard the motion] shall transfer the case
  to another court or assign another judge to the case and:
               (1)  if the judge subject to recusal or
  disqualification serves a statutory probate court located in a
  county with only one statutory probate court, the presiding judge
  or judge assigned to decide the motion shall enter an order of
  recusal or disqualification, as appropriate, and request that the
  presiding judge [of the administrative judicial district] assign a
  judge under Section 25.002201 to hear the case; or
               (2)  subject to Subsection (l), if the judge subject to
  recusal or disqualification serves a statutory probate court
  located in a county with more than one statutory probate court, the
  presiding judge or judge assigned to decide the motion shall enter
  an order of recusal or disqualification, as appropriate, and
  request that the clerk who serves the statutory probate courts in
  that county randomly reassign the case to a judge of one of the
  other statutory probate courts located in the county.
         (i-5)  A judge assigned to hear a motion for recusal or
  disqualification [under Subsection (i)] is entitled to receive the
  same salary, compensation, and expenses, and to be paid in the same
  manner and from the same fund, as a judge otherwise assigned under
  Section 25.0022[, except that a judge assigned under Subsection (i)
  shall provide the information required by Section 25.0022(l) to the
  presiding judge of the administrative judicial district, who shall
  immediately forward the information to the presiding judge of the
  statutory probate courts].
         (l)  If a clerk of a statutory probate court is unable to
  reassign a case as requested under Subsection (g)(1)(B),
  (g-1)(1)(B), or (i-3)(2) because the other statutory probate court
  judges in the county have been recused or disqualified or are
  otherwise unavailable to hear the case, the clerk shall immediately
  notify the presiding judge [of the administrative judicial
  district] and request that the presiding judge [of the
  administrative judicial district] assign a judge under Section
  25.002201 to hear the case.
         SECTION 35.  Section 26.012, Government Code, is amended to
  read as follows:
         Sec. 26.012.  ASSIGNMENT OF VISITING JUDGE FOR PROBATE,
  GUARDIANSHIP, AND MENTAL HEALTH MATTERS. If the county judge is
  absent, incapacitated, recused, or disqualified to act in a
  probate, guardianship, or mental health matter, a visiting judge
  shall be assigned in accordance with Section 25.0022(h).
         SECTION 36.  Sections 411.1386(a) and (e), Government Code,
  are amended to read as follows:
         (a)  Except as provided by Subsections (a-1), (a-5), and
  (a-6), the clerk of the county having venue over a proceeding for
  the appointment of a guardian under Title 3, Estates [Chapter XIII,
  Texas Probate] Code, shall obtain from the department criminal
  history record information maintained by the department that
  relates to:
               (1)  a private professional guardian;
               (2)  each person who represents or plans to represent
  the interests of a ward as a guardian on behalf of the private
  professional guardian;
               (3)  each person employed by a private professional
  guardian who will:
                     (A)  have personal contact with a ward or proposed
  ward;
                     (B)  exercise control over and manage a ward's
  estate; or
                     (C)  perform any duties with respect to the
  management of a ward's estate;
               (4)  each person employed by or volunteering or
  contracting with a guardianship program to provide guardianship
  services to a ward of the program on the program's behalf; or
               (5)  any other person proposed to serve as a guardian
  under Title 3, Estates [Chapter XIII, Texas Probate] Code,
  including a proposed temporary guardian and a proposed successor
  guardian, other than [the ward's or proposed ward's family member
  or] an attorney.
         (e)  The court, as that term is defined by Section 1002.008,
  Estates [601, Texas Probate] Code, shall use the information
  obtained or provided under Subsection (a), (a-4)(1), (a-5), or
  (a-6) only in determining whether to:
               (1)  appoint, remove, or continue the appointment of a
  private professional guardian, a guardianship program, or the
  Department of Aging and Disability Services; or
               (2)  appoint any other person proposed to serve as a
  guardian under Title 3, Estates [Chapter XIII, Texas Probate] Code,
  including a proposed temporary guardian and a proposed successor
  guardian, other than [the ward's or proposed ward's family member
  or] an attorney.
         SECTION 37.  The following are repealed:
               (1)  Sections 1052.051(d), (e), and (f), Estates Code;
               (2)  Sections 25.00255(b), (c), (d), (e), (f), (h),
  (i), (i-1), (i-4), and (j), Government Code; and
               (3)  Section 25.002201(c), Government Code.
         SECTION 38.  (a) Except as otherwise provided by this
  section, the changes in law made by this Act apply to:
               (1)  a guardianship created before, on, or after the
  effective date of this Act; and
               (2)  an application for a guardianship pending on, or
  filed on or after, the effective date of this Act.
         (b)  The changes in law made by this Act to Sections 1023.005
  and 1023.010, Estates Code, apply only to an application for the
  transfer of a guardianship to another county filed on or after the
  effective date of this Act. An application for the transfer of a
  guardianship to another county filed before the effective date of
  this Act is governed by the law in effect on the date the
  application was filed, and the former law is continued in effect for
  that purpose.
         (c)  The changes in law made by this Act to Sections 1104.154
  and 1104.205, Estates Code, apply only to a declaration executed on
  or after the effective date of this Act. A declaration executed
  before the effective date of this Act is governed by the law in
  effect on the date the declaration was executed, and the former law
  is continued in effect for that purpose.
         (d)  The changes in law made by this Act to Section
  1301.1535, Estates Code, apply only to a management trust created
  on or after the effective date of this Act. A management trust
  created before the effective date of this Act is governed by the law
  in effect on the date the management trust was created, and the
  former law is continued in effect for that purpose.
         (e)  The changes in law made by this Act to Sections 1351.001
  and 1351.002, Estates Code, apply only to an application for the
  sale of an interest in property of a minor filed on or after the
  effective date of this Act. An application for the sale of an
  interest in property of a minor that is filed before the effective
  date of this Act is governed by the law in effect on the date the
  application was filed, and the former law is continued in effect for
  that purpose.
         (f)  The changes in law made by this Act to Sections
  1351.051, 1351.052, and 1351.053, Estates Code, apply only to an
  application for the sale of an interest in property of a ward filed
  on or after the effective date of this Act. An application for the
  sale of an interest in property of a ward that is filed before the
  effective date of this Act is governed by the law in effect on the
  date the application was filed, and the former law is continued in
  effect for that purpose.
         (g)  The changes in law made by this Act to Sections
  1052.051, 1102.001, and 1155.151, Estates Code, and Section
  1055.003, Estates Code, as added by this Act, apply only to a
  guardianship proceeding commenced on or after the effective date of
  this Act. A guardianship proceeding commenced before the effective
  date of this Act is governed by the law as it existed immediately
  before that date, and that law is continued in effect for that
  purpose.
         (h)  The change in law made by this Act to Section
  1251.052(b), Estates Code, applies only to a temporary guardian
  appointed on or after the effective date of this Act. A temporary
  guardian appointed before the effective date of this Act is
  governed by the law in effect when the guardian was appointed, and
  the former law is continued in effect for that purpose.
         (i)  Sections 25.0022, 25.002201, 25.00255, and 26.012,
  Government Code, as amended by this Act, apply only to a motion for
  recusal or disqualification of a judge that is filed on or after the
  effective date of this Act.  A motion for recusal or
  disqualification of a judge filed before the effective date of this
  Act is governed by the law in effect on the date the motion was
  filed, and the former law is continued in effect for that purpose.
         SECTION 39.  This Act takes effect September 1, 2015.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 1438 was passed by the House on May
  15, 2015, by the following vote:  Yeas 129, Nays 10, 2 present, not
  voting; and that the House concurred in Senate amendments to H.B.
  No. 1438 on May 28, 2015, by the following vote:  Yeas 132, Nays 9,
  2 present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 1438 was passed by the Senate, with
  amendments, on May 26, 2015, by the following vote:  Yeas 30, Nays
  1.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor