Educate - Advocate - Legislate
Americans Against Abusive ProbateGuardianship
PO Box 800511
Aventura, Florida 33280
(855) 91 EL
DATE: May 21, 2015
TO:Texas Governor GregAbbott Bobby Wilkinson, BudgetAnalyst Cara Crawford, BudgetAnalyst
Senate State Affairs Chairman Senator Joan HuffmanSenate State Affairs Vice Chair Senator Rodney EllisSenate State Affairs Member Senator Brian BirdwellSenate State Affairs Member Senator Brandon CreightonSenate State Affairs Member Senator Craig Estes
Senate State Affairs Member Senator Troy FraserSenate State Affairs Member Senator Jane Nelson
Senate State Affairs Member Senator Charles SchwertnerSenate State Affairs Member Senator Judith Zaffirini
RE: HB 1438, an act that is unconstitutional.
Dear Gov. Abbott and staff, Chairman Huffman and committee members,
I wanted to ensure that you saw the May 18, 2015 news report concerning the abusive guardianshipcase of Dr. Mike Reichert of Titus County, Texas, and how much worse it would have been for Dr.Reichert and his family, had HB 1438 already been enacted.
Below is a more thorough analysis of the complete Engrossed version of HB 1438 – a bill that wascompiled only after all time for public testimony had passed - because HB 1438 (Engrossed version)contains language from other house bills that had not met with favorable response from the publicduring open, public testimony. The only people testifying in favor of the bulk of what has now becomeHB 1438 were Texas Presiding Probate Judge Guy Herman and the REPTL division of the TX StateBar -- all of whom authored the various bits & pieces of HB 1438, whatever HB numbers under which
they were originally introduced.
There are two sections of HB 1438 that I have already discussed with Governor's office staff BobbyWilkinson and Diana Hodges of the Senate State Affairs Committee staff in a widely-circulatedAAAPG analysis of HB 1438. It is agreed these two sections are unconstitutional because they deny Due Process to proposed wards, before a court order has been entered finding themincompetent:
1. Section 9 of HB 1438: Allow the courts to seize a proposed ward's entire estatebefore the ward is legally made a Ward.
2. Section 10 of HB 1438: Allow the courts to charge a proposed ward's estate forlegal fees accrued before the proposed ward is made a Ward, as well as
There are many other unconstitutional sections with HB 1438, including:
1. Section 6 of HB 1438: Allows "the court to obtain 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 probable costs of the proceeding before filing the application, complaint , or opposition." This is unconstitutional and a denial of Due Process of the rights of the Ward under Texas State Constitution Article 1, section 15a which guarantees , "to provide for a method of appeal from judgments rendered" in cases ofguardianship.
NOTE 1: The Texas State Constitution mentions nothing of a requiring a Ward to havemoney to make a security payment to the court to cover his costs of trial. Justice is not open to only those with money to afford it, or is that what the courts have become in Texas? Dispensers of favorable orders in administrative proceedings in proportion to how much youpay?
NOTE 2: To the best of AAAPG and our coalition partners' knowledge, no appeals ofan adjudication of incapacitation in the State of Texas have ever been filed, much lessbeen successful.
2. Section 7 of HB 1438 limits the ability of people outside a narrow blood-related group of people to the proposed ward, to intervene about a proposed guardianship. (Wealthy) childless couples are targeted by predatory for-profit guardianship corporations such as Guardianship Services Inc (GSI) of Tarrant County, which was originally started by two probate judges and to which these probate judges continued to refer all their court-ordered wards for up to 20 years, while sitting on the bench. They have both since retired. It is unknown if they still own stock in GSI or continue to otherwise profit from their years of referrals to this one corporation.
3. Section 8 of HB 1438 further disfavors childless couples and makes them ripe forvictimization through guardianship, since childless couples may not have family that falls within the required blood-related family members to serve as their guardians in the event of serious injury or illness. With a limited pool of relatives allowed to become a person's guardian, this ensures continued high rates of return for for-profit guardianship service providers.
It should not matter the size of your family, or whether your chosen representative(s) areblood- related, to carry out a person's right to execute pre-need legal documents namingwhomever they like to take care of them following injury or illness that results in (temporary)incapacitation, especially when it allows the individual the right to self-determination and
escape from the financial and emotional predation of court-appointed guardianship.
4. Section 10 of HB 1438 states:
(b) After examining the proposed ward's assets or the assets of any management trustcreated for the proposed ward's benefit under Chapter 1301, and determining that theproposed ward or the management trust is unable to pay for services provided by theguardian ad litem, the court may authorize compensation from the county treasury.
With HB 1438, the State of Texas justifies examining an alleged incapacitated person's financialstate of affairs prior to a court's order! Section 10 of HB 1438 is unconstitutional and represents illegal search & seizure of a citizen's private property without cause or due process. On what grounds does the State of Texas justify having to investigate the financial condition of its proposedwards?
This is where it becomes obvious what HB 1438 is all about: Seizing a proposed ward's entire assets before the caught-off-foot ward and their family can do anything about it, thus rewarding the probate judge and his/her court-appointees with all the available cash and assets of the ward, now controlled by the judge, the courts, and the court-appointees.
5. Section 11 of HB 1438 makes minor changes to forms that will be used by individualsoutside of the legal profession. When ultimately presented in a court of law, these minorlanguage changes can be used in to invalidate perfectly clear instructions as to the signatories desires, disqualify the Alleged Incapacitated Person's choice as guardians and ensure more wards are created for the benefit of the for-profit guardianship serviceproviders.
6. Section 13 of HB 1438 makes Texas DPS/FBI criminal background checks mandatory forall family members who wish to become guardians. Previous to Section 13 of HB 1438such criminal background checks were not needed if you were family or an attorney. Now only the attorneys are not in need of these criminal background checks.
The only reason to include family members in required background checks is so the judge caneliminate them based on flimsy, circumstantial, or even wholly fabricated “evidence” of criminal activities. Time and time again in Texas we have seen judges disqualify family members from becoming guardians merely upon suspicion that they might be involved in something criminal. Section 13 of HB 1438 makes it easy to justify striking family members from guardianship eligibility and allowing more people to fall under for-profit guardianship service provider care – care facilities and services that might be partly or wholly-owned by any or all of the participants in the courtroom, except the Ward.
7. Section 15 of HB 1438 allows the court to set all court costs – which can easily run into the
$100,000 of dollars, especially when judges, having already examined the ward's assets (see Section 10 of HB 1438) know that the ward not only possesses enough assets to cover extensive and lengthy litigation, but the assets of the ward are now under court control and can be spent on:
“...the court costs of the proceeding, including the 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....”
This is unconstitutional and represents illegal search & seizure by the courts.
8. Section 18 of HB 1438 Allows a guardian to make an unsworn report annually, instead ofa sworn Affidavit. Filing an unsworn report is meaningless and guts any attempt at oversight of the “professional” for-profit guardianship service providers.
9. Section 20 of HB 1438 Extends to 12 months the length of a “temporary” guardianship,allowing what should have been “temporary” guardianships to endure for much longer,leaving the ward's assets exposed and being spent on legal fees that may do nothing to advance the ward's legal case.
10. Section 22 of HB 1438 allows a guardian up to 30 days after receipt of a proposed ward'sproperty to file an inventory with the court. Again, we see the courts of Texas seizing aproposed ward's property prior to any order being issued by the court. Section 22 of HB1438 is unconstitutional and:
• A Denial of Due Process,
• A Denial to the right to a jury trial and
• A Denial of the right of appeal of an adjudication of incapacitation
- all contrary to the Texas State Constitution's Article 1, Section 15a.
11. Section 28 of HB 1438 discusses Section 59.006(a), Finance Code, which currentlyreads:
(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 agencyauthorized by law to conduct an examination of the financial institution;
Section 59.006(a), Finance Code is already unconstitutional because it is illegal search of a citizen's property by government officials without any probable cause other than to investigate if the person is suitably wealthy enough to be put under guardianship so that the courts and their appointees canenrich themselves off this innocent individual's private property.
What makes Section 28 of HB 1438 so harmful to all Texans is that it gives the court explicitpermission to spy on the financial “health” of prospective wards during the course ofInvestigation of Guardianship Application (Section 1054.151 of Estates Code), during thegeneral Duties of the Court Investigator (Section 1054.152 of Estates Code), and duringCourt-Initiated Investigations (Section 1102.001 of Estates Code).
All of these instances of the courts' ability to compel a financial institution to provideprivate financial information about its customers to the court, without notifying thecustomers, is an unconstitutional search of personal property by a government entity.
Furthermore, these Court Investigations can occur upon receipt of a letter from anyone whowishes to inform the court that they have a suspicion that something is not right with the Alleged Incapacitated Person.
12. Section 29 of HB 1438 gives the Presiding Judge powers to oversee any court claimingjurisdiction and the re-assignment of cases from judges who have been recused ordisqualified.
Because this bill was written by Presiding Judge Guy Herman, who also testified in support ofHB 1438 during a meeting of the House Committee on Judiciary & Civil Jurisprudence onApril 14, 2015, this bill has an unconstitutional in its authorship as it violates Texas StateConstitution's separation of power doctrine. In practical application this means that a sittingjudge cannot help write legislative bills, testify on their behalf, and see these bills become law ifthe judge will then preside over a court in which these laws will be used in the judge'sadjudications. That is flat-out unconstitutional behavior. Judge Herman should be removedfrom the bench for such an unconstitutional action, breaking the very vows he swore to upholdwhen he become a judge and assumed absolute power over other human beings.
13. Sections 30, 31, and 32 of HB 1438 are similar to section 29 in that it rewards Presiding Judge Guy Herman with great powers beyond those he already exercises. Just as with Section 29, Sections 30, 31, and 32 are unconstitutional in their having been written by the Presiding Judge described in these very sections which give the Presiding Judge increased powers over the lives of his victims.
14. Section 33 of HB 1438 is quite similar to Section 13 of HB 1438 (See point #6 above) in that in amends sections 411.1386(a) and (e), Government Code, to make criminal background checks mandatory for all family members who wish to become guardians, leaving in tact an exemption from this rule for attorneys. This is another attempt by a for-profit industry of guardianship service providers to use laws written by probate judges and attorneys to disqualify as many non-corporate guardians as possible to ensure the for-profit corporations – which may be part or wholly-owned by the judges and attorneys participating in guardianship cases -- have the most number of profit-making, court-captive payers available.
15. Section 34 of HB 1438 repeals the sections of the Government Code governing the recusal of judges in guardianship cases. This section repeals existing law that stands between Presiding Judge Guy Herman and his probate empire, in which power to assign and re-assign lucrative guardianship cases is awarded to Guy Herman's current position: Presiding Judge.
Finally, no proposed or current law, statute, or any governmental department offers any redressto the Reicherts and similarly victimized families for their loss through improper seizure bycourts in the State of Texas. That is not only unconstitutional, but unconscionable, especiallygiven that the seizure of property and the loss of Constitutional liberties and rights are beingdone by Courts of "Law."
For all these reasons, Americans Against Abusive Probate Guardianship believe that should the Stateof Texas Legislature decide to vote HB 1438 into law, and should Governor Abbott decide to sign HB1438 into law, then a grossly unconstitutional law will have been knowingly created. This type ofhigh stakes legislative barratry simply has no place in a functioning democracy. We implore you tostop HB 1438 now, before it becomes an unconstitutional law.
Respectfully submitted,
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