Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
Novmber 14, 1984
JIM MATTOX
Attorney General
Supreme Court Buildin
Mr. Bruce Rineman Opinion No. JM-230
P. 0. Box 12540 Executive Secretary
Austin. TX. 78711. 2548 Teacher Retirement j:lstem of Texas Re: Whether the Teacher Retire-
5121475.2501 1001 Trinity Street ment System may pay benefits
Telex 9101874.1367
Austin, Texas 7a7o:t on behalf of a minor child to
Telecopier 51214750266
a managing conservator who is
not the child’s parent
714 Jackson. Suile 700
Dallas, TX. 75202.4506
Dear Mr. Rinemao:
2141742.8944
You ask (1) whether a non-parent managing conservator of a minor
4824 Alberta Ave.. SuiIe 160 child is authorized to receive and give receipt for Texaa Retirement
El Paso. TX. 79905-2793 System [hereinafter TRS] survivor benefits on behalf of the minor, and
91515334484 (2) whether the non-parent managing conseNator is authorized to elect
among benefits paya>:le to the minor.
,001 Texas. Sulta 700
Houston, TX. 77002.3111 Controversies over the powers of a managing conservator, either
713122559S6 parent or non-parent, arose initially because guardianship of the
person and guardia:lship of the estate are distinct positions. See
Prob. Code 5184(c). Tsxas probate law requires that a court appoio=
606 Broadway, Suite 312
Lubbock. TX. 79401-3479
guardian of e minor’s estate. See Prob. Code 1109(a); see also
SOSi747.5238 Phillips v. Phillti)s. 511 S.W.2d 748 (Tex. Civ. App. - San Antonio
1974, 00 vrit);ii;er v. Southern National Life Insurance Company,
326 S.W.Zd 715 3;~. Civ. App. - San Antonio 1959, writ ref’d).
4309 N. Tenth. Swte S
Although a child’s p,srent is the natural guardian of the person of the
McAllen. TX. 78501.1585
5121682.4547 minor, the law traditionally limited even a parent to an entitlement
to be appointed guardian of his child’s estate; he had no absolute
right to act. Si.Lber.
mm- 326 S.W.Zd at 717. Consequently, Attorney
200 Main Plaza. Suite ux)
General Opioioo E-i35 (1973) concluded that the State Employees
San Antonio. TX. 78205-2797
Retirement System may not pay benefits due minors to anyone except a
51212254191
person appointed by a court to receive the benefit payments. See
Prob. Code §109 (,guardian of estate); 5228, (guardian appoins
A” Equal Opportunitvl specifically to receive government funds).
Atfirmatwe Act,“” ErWove-
Several years later, Attorney General Opinion H-1214 (1978)
determined that section 12.04 of the Family Code, first effective in
1974, authorized ila.rents
-- to receive and give receipt for benefit
payments due their lninor child from the Employees Retirement System
without the neceslzlty of a formal guardianship. Attorney General
Opinion R-1214 construed two subsections of section 12.04 of the code
p. 1032
Mr. Bruce Aineman - Page 2 (JM-230)
as limited exceptions to the Seneral rule followed in Attorney General
Opinion H-85. At that time, two subsections provided as follows:
[T]he parent of: a child has the following
rights, privileges, duties, and powers:
* . . .
(4) the duty tolnaoage the estate of the child,
except when a gucz:dian of the estate has been
appointed;
. . . .
(8) the power 1:~) receive and give receipt for
payments for the support of the child and to hold
or disburse anyfunds
-- for the benefit of the
child. . . . (Emp’~asis added).
-Cf. Acts 1983, 68th Leg., ch. 1016 at 5436 (subsection (4) amended).
Section 14.02(b) of thsz Family Code has oo direct corollary to
the parents’ duty in section 12.04(4) to manage the minor’s estate.
As recently amended, however, subsection (6) of section 14.02(b)
clearly brings some powers over a minor’s estate within a non-parent
managing conservator’s author:lty:
the power to reprwent the child in legal action
and to make other ‘decisions of substantial legal
significance cooc:e,roing the child fncludinn .
except when a guardian of the child’s est ate or a
guardian or attorney ad litem has been appointed
for the child, a p&er as an agent of the child to
act in relation fo the child’s estate if the
-chil id’s action is required by a state, the United
States, or a fore:z;n government. . . . (Emphasis
added).
Acts 1983. 68th Leg.. ch. 10115, at 5437. V.T.C.S. Tex. Fam. Code Ann.
514.02(b) (6). (The emphasd,zed language also amended the parents’
estate power provision, sectllan 12.04(4).)
Although subsection (6: of section 14.02(b) does not create as
comprehensive a power to mar,age a minor’s estate as the power held by
parents, it does authorize action in relation to the child’s estate
when action Is required by ZI governmental entity and when a court has
not appointed a guardian auth#Drized to receive such payments. The TRS
“requires” that an authorized person receive payments to avoid the
danger of incurring double li,ability. Thus, in response to your first
p. 1033
Mr. Bruce Hioeman - Page 3 (JM-230)
question. we conclude that section 14.02(b). as amended, encompasses
authorization for a non-parent managing cooserzator to receive and
give receipt for governmeot benefit payments such as TRS survivor
benefits unless and until a formal guardianship exists.
Because election among benefits is an Incident of receiving such
benefits, we also answer yor.r second question affirmatively. Although
section 34.404(d) of Title HOB, Public Retirement Systems, refers to
election of benefits for minors by “their guardian.” section
14.02(b) (6) of the Family Code necessarily authorizes a non-parent
managing consexvetor to ele:c’ among available benefits. As indicated
at the ooset of this discusc;i.on , the general term “guardian” ten apply
to distinct positions; thus, section 34.404 may not have been intended
to require election of tbenefits by a court-appointed guardian.
Nevertheless, even if the provision requires election by a formal
guardian, section 14.02(b) (1i11, as amended, grants non-parent managing
conservators the limited “guardian” power necessary to elect among TRS
survivor benefits so long es oo formal guardianship exists. -See
Attorney General Opinion H-1,2:14.
SUMMARY
Section 14.02(b)(6) of the Texas Family Code
authorizes the non-parent maoaging conservator of
a minor child (1) to receive and give receipt for
Texas Retirement System survivor benefits on
behalf of the minor, and (2) to elect amoog the
benefit options wrailable to the minor so long as
no guardian of the child’s estate or a guardian or
attorney ad litem, has been appointed for the
child.
J In N A T T 0 X
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorne:r General
RICK GILPIN
Chairman, Opinion Committee
p. 1034
Mr. Bruce Rinemao - Page 4 (J&l-230)
Preparedby JenniferRigge
AeeietaotAttorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpio. Chairman
Co110 Carl
Susan Garrieoo
Tooy Goillory
Jim Moellinger
JenniferRigge
Nancy Sutton
p. 1035