Estates Code Section 352.003 is Alive and Well!

It came to our (REPTL’s) attention late last week that Estates Code Section 352.003 may have been inadvertently repealed. It hasn’t been, but because there are sources out there that indicate it has been repealed, we thought it important to get this message out.

The short version – you may have a publication indicating that it was repealed. If so, that publication is incorrect, and you should make a note of that fact. You can stop reading here if you don’t care to know why. If you do care, then sit back. This will take a while.

Section 352.003 was enacted in 2009 as part of the Legislative Council nonsubstantive Estates Code bill enacting decedents’ estates provisions (effective January 1, 2014). It incorporates the portion of Probate Code Section 241 that allows a court to award additional compensation to a personal representative if the representative manages a farm, ranch, factory or other business, or if the compensation produced by the 5-plus-5 formula is unreasonably low.

In 2011, REPTL proposed changing a representative’s standard compensation from the 5-plus-5 formula to “reasonable compensation.” In the bill REPTL introduced (SB 1198), these changes were implemented through amendments to Sections 352.001 and 352.002, found in Section 2.36 on p. 81 of a 124-page bill. In addition, Section 352.003 was repealed because it would no longer be needed if the standard compensation was “reasonable.” This repeal was included at the end of the bill, where repealers always are found. In the introduced version, it was located in Section 2.51(a) on p. 123 of the 124-page bill. You can see all of this yourself by downloading the PDF copy of the Introduced version here.

But that’s not the final version that passed. Opposition to the compensation change led REPTL to drop the proposed changes to Sections 352.001 and 352.002. Therefore, we no longer wanted to repeal Section 352.003. In Section 2.54(a) of the enrolled version (i.e., the one that passed) -- the successor to Section 2.51(a) in the introduced version -- two sections of the Estates Code, neither of which are Section 352.003, are repealed. (This is on p. 138 of a 140-page bill.) If you’re interested, you can download the enrolled version from the same page linked to above.

Here’s where the problem arises: If you download chapter 1338 of the 2011 session laws, Section 2.54(a) INCORRECTLY states that Section 352.003 is one of the two sections that are repealed. This would’ve been correct had the introduced version passed, but it wasn’t in the version that actually passed.

Thomson Reuters (i.e., West) publishes the session laws. This accounts for them carrying forward this mistake on page 1400 of the 2013 edition of Johanson’s Texas Probate Code. I’ve been told that their other printed versions of the Estates Code leave it “blank,” rather than repealed, because it was repealed in 2011 before its effective date of 2014.

The 2013-2014 edition of O’Connor’s Estates Code plus (Jones-McClure) DOES NOT contain this mistake. I’m also told that Lexis has it correct.

West has since noted the mistake and corrected the section on Westlaw. We are told they will be sending out corrections to purchasers of the hard copy versions of the Estates Code.

In the meantime, if your copy of the Estates Code is incorrect, I've posted a page here with the correct text of Section 352.003 that you can print, cut out, and tape in your copy where it says the section is repealed.