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2017 Legislative Update II – Bills Affecting Durable Powers of Attorney

Published on Friday, July 14, 2017 in Client and Friends Memo, Texas Legislation

This legislative update summarizes three bills enacted into law from the 2017 Regular Session of the 85th Texas Legislature—House Bill 1974 (HB 1974), Senate Bill 39 (SB 39), and Senate Bill 1193 (SB 1193)—that impact durable powers of attorney under Chapters 751 and 752, Texas Estates Code. Each bill’s effective date is noted in the bill summary. Previous to this legislative update, we issued Legislative Update I summarizing proposed constitutional amendments and their enabling legislation, which are found on the Articles page of the firm’s website www.bmandg.com. 

TEXAS DURABLE POWER OF ATTORNEY ACT AND STATUTORY DURABLE POWER OF ATTORNEY FORM (HB 1974) (SB 39) 

Effective September 1, 2017, HB 1974 and SB 39 each enact amendments to the Durable Power of Attorney Act in Chapters 751 and 752, Estates Code, without reference to the amendments enacted by the other bill. Section 311.025(b) of the Code Construction Act (Chapter 311, Government Code), however, provides that if the amendments are irreconcilable, the latest in date of enactment prevails. HB 1974 was enacted on May 30, 2017, and SB 39 was enacted on May 28, 2017, which means the amendments enacted by HB 1974 would prevail over the amendments enacted by SB 39 if the amendments in these two bills are irreconcilable. Our reading of these amendments leads us to conclude that they are not irreconcilable. In which case, Section 311.025(b) also provides, “if amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each.”

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