INTRA-STATE GUARDIANSHIP TRANSFERS IN TEXAS:
HOW IS THE NEW LAW WORKING?
Terry W. Hammond
The 87th Legislative Session was the most challenging session – ever – for TGA.
TGA had several bills that it proposed for passage in the 2021 session. With the 88th Legislative Session on the horizon in January 2023, I thought it would be helpful to take stock of how newly passed TGA-sponsored bills have been working so far.
Senate Bill 1129 (“the TGA Bill”) was sponsored by Senator Judith Zaffirini and relates to intrastate guardianship transfers and mediation of contested guardianship matters.
In this article, I want to focus on changes to the intrastate guardianship transfer process that resulted from the passage of SB 1139. These changes are now codified in Sections 1023.004-1023.011 of the Texas Estates Code.
If the Court initiates the transfer, it must provide notice to the guardian via certified mail (TEC §1023.004(c).
Section 1023.005 has been modified to allow a court to transfer an existing guardianship to another Texas county where the ward has resided for at least six months or good cause is not otherwise shown to deny the transfer. The court is now provided with several standards to consider when deciding whether an existing guardianship should be transferred to another county is in the person’s best interest:
1) the interests of justice
2) the convenience of the parties and
3) the preference of the ward if over 12 years old
The transfer order must certify that the guardianship is in compliance with the Estates Code at the time of the transfer. On receipt of the transfer order, the new county where the ward resides must accept the transfer.
Section 1023.008 is amended to state that the county that receives the guardianship becomes the court of continuing exclusive jurisdiction and that judgments and orders signed in the former court are enforceable by the new county court and that the former court retains no jurisdiction over the case.
Section 1023.011 is added to clarify that the transferring court is only liable for any injury, loss, or damage that occurred before the transfer and that the new court is only liable for any injury, loss or damage that occurs after the transfer.
There are no reported cases on this new transfer procedure known to date. However, there is one case in which Brazos County received a transfer where the judge who transferred the case did not certify in the transfer order that the guardianship was in compliance with the Estates Code at the time of transfer, and the case was clearly not current with required annual reports.
Upon consideration of the transferring court’s failure to certify compliance with the Estates Code, Brazos County rejected the transfer and asserted that the case filings had to be current, and the transfer order had certified compliance with the Estates Code.
The transferring court responded by ensuring that required reports were made current and corrected the transfer order to certify that the case was in compliance with the Estates Code. All the other requirements of Chapter 1023 were met, and the case was promptly and successfully accepted by Brazos County with the amended transfer order.
It is vitally important that courts and practitioners ensure that this new process is followed due to the potential liability that attaches to actions taken by all concerned before and after the transfer is effectuated.
Please contact me at firstname.lastname@example.org if you become aware of any intra-state transfer issues that will help TGA assess the impact and hopeful benefits of these statutory changes.