2011 Bills

2011 Legislation

The 82nd Texas Legislature ended its regular session May 30, 2011. All probate, guardianship and trust bills passed during the session have been signed by the Governor, and most become effective September 1, 2011. One bill in the first called session (SB 1) contains guardianship changes and, as of July 8, 2011, was awaiting the Governor's signature. Each bill affecting probate, guardianship and trust law is listed below. Click here to search for a particular bill, or use the list of topics and key words to the right to find legislation.

Useful links: 

All bills are labeled "Awaiting Governor's Signature," "Enacted," or "Did Not Pass."


x-Did Not Pass: SB 286 -- Costs in guardianships

Caption:  Relating to attorney's fees and other amounts taxed as costs in guardianship proceedings.
Author:  Harris
Bill History
Bill Text 

Relevance:  This bill would amend Probate Code Sections 665A and 665B to permit the court to allocate costs in a guardianship proceeding among the parties as the court finds is fair and just.  Costs include compensation of attorneys ad litem, guardians ad litem, mental health professionals and interpreters.

See "Ad litem fees and attorneys' fees in guardianships: who pays?" on texasprobate.com.


x-Did Not Pass: SB 342 -- Authority of attorney general to make inquiries of charitable entities

Caption:  Relating to the power of the office of the attorney general to make certain examinations and inquiries.
Author:  Carona
Bill History
Bill Text 

Relevance:  This bill would add Section 123.007 to the Property Code, which would permit the attorney general to inspect any record of a charitable entity or trust to require a person suspected of engaging in unlawful acts to file sworn statements and reports or submit to an examination under oath.


x-Did Not Pass: SB 473 -- Adverse possession by cotenant heir

Caption:  Relating to adverse possession of real property by a cotenant heir against other cotenant heirs.
Author:  West
Bill History
Bill Text 

Relevance:  This permits a "cotenant heir" -- one of two or more persons who simultaneously acquire ownership in the same real property through intestacy, or a successor in interest to one of those persons -- to obtain clear title through adverse possesion if procedural steps are followed.

Sen. West also authored SB 1368, which would permit a cotenant to create a mechanic's and materialman's lien on residential property as "agent" for unknown or unresponsive cotenants.


x-Did Not Pass: SB 817 -- Fraud on the community in divorce cases

Caption:  Relating to the division of community property on dissolution of marriage.
Author:  Harris
Bill History
Bill Text

Note:  While SB 817 did not pass, its companion, HB 908 passed both houses and, as of May 19, 2011, was awaiting Governor Perry's signature.

Relevance:  This bill applies only to suits for dissolution of a marriage.  It defines "fraud on the community" and requires the court to determine if a spouse has committed fraud on the community. If the court finds that a spouse has committed fraud on the community, it is required to calculate the "reconstituted" community estate and divide the reconstituted estate based on the fraud.

See "Bill may codify 'fraud on the community,' at least in divorces" on texasprobate.com.


x-Did Not Pass: SB 960 -- Convicted felon as independent executor

Caption: Relating to the waiver of the disqualification of a convicted felon from serving as independent executor of a decedent's estate.
Author: Wentworth
Bill History
Bill Text

Relevance: This bill would permit a convicted felon to serve as independent executor if the decedent appointed the felon and waived the disqualification of felons from service, so long as the felon otherwise qualifies as personal representative. 


x-Did Not Pass: SB 1027 -- Attorney/guardians can't provide legal services

Caption: Relating to the provision of legal services by a guardian in connection with a guardianship.
Author: Harris
Bill History
Bill Text

Relevance: This bill would add Section 773A to the Probate Code, reading: "An attorney who services as guardian may not provide legal services in connection with the guardianship." It would repeal Section 665D, which was added in 2009 and which provides that an attorney serving as guardian who also provides legal services (1) must file detailed billing with the court and (2) "is not entitled to payment of attorney's fees for guardianship services that are not legal services."


x-Did Not Pass: SB 1192 -- REPTL Power of Attorney Bill

Caption: Relating to the creation, administration, and interpretation of powers of attorney, including statutory powers of attorney.
Author: Rodriguez
Bill History
Bill Text

Relevance:  This bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It is the "Durable Power of Attorney Act," which rewrites Texas law regarding durable powers of attorney. Most of these changes are based on the new Uniform Power of Attorney Act, which was adopted by the National Conference of Commissioners on Uniform State Laws in 2006. It changes the statutory durable power of attorney form significantly. The changes are too numerous to mention here, but here are a few highlights:

  • Powers of attorney are presumed to be durable unless they expressly terminate on disability.
  • The act lists the persons who have standing to bring an action to construe a power of attorney, review an agent's conduct or grant appropriate relief.
  • The point at which an agent accepts appointment is defined.
  • The act provides protections for persons accepting powers of attorney and consequences for persons who don't accept a power of attorney.
  • Agents are permitted to do the following only if the principal specifically authorizes these actions:
    • Create, amend, revoke, or terminate an inter vivos trust.
    • Make a gift.
    • Create or change rights of survivorship.
    • Create or change a beneficiary designation.
    • Waive the principal's right to be a beneficiary of a joint and survivor annuity.
  • There's a totally new statutory durable power of attorney form, which includes a disclosure statement and a statement of the agent's duties.
  • There's a new form for an agent's certification as to the validity of a power of attorney and the agent's authority.

This is a significant piece of legislation that will change power of attorney practice if it is enacted.

See "REPTL bills would make changes to trusts, guardianships and powers of attorney" on texasprobate.com. 


x-Did Not Pass: SB 1299 -- Recodification of guardianship statutes

Caption: Relating to the nonsubstantive revision of provisions of the Texas Probate Code relating to durable powers of attorney, guardianships, and other related proceedings and alternatives, and the redesignation of certain other provisions of the Texas Probate Code, including conforming amendments and repeals.
Author: Duncan
Bill History
Bill Text

Relevance: This is the recodification of the guardianship portion of the Probate Code, as well as the power of attorney portion of the Probate Code, into the new Estates Code, to be effective January 1, 2014. This is intended as a nonsubstantive revision of those statutes and was prepared by the Legislative Council. 

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