Untitled Texas Attorney General Opinion ( 1973 )

Honorable Everett L. A.nschutz Opinion No. H- 85
Executive Secretary
Employees Retirement System of Texas Re: Effect, if any, of Senate
Box 12337 Capitol Station Bi,ll 123 on benefits being
Austin, Texas 78711 paid or to be paid to minor
children of deceased em-
ployees, and related ques-
tions under Article 62281,
Dear Mr. Anschutz: V.T.C.S.
Your Letter requesting our opinion advises:
“The State Empfoyees Retirement System
of Texas is a constitutional state agency (Article
16, Section 62a, Constitution of Texas). The
Board of Trustees of this System is charged with
the responsibility of administering the State Em-
ployees Retirement Act (Article 6228a, Vernon’s
Texas Civil Statutes) I In addition to its other
duties, the Board is also given responsibility for
the administration of death benefit payments to
the surviving spouses and minor children of de-
ceased law enforcement- officers and firemen.
(See Article 3, Section 51d, Constitution of Texas;
and Article 6228f, Vernon’s Texas Civil Statutes.)”
You ask four specific questions, the fi,rst two of which having to do
with the effect of Senate Bifl 123, 63rd Legislature (The Eighteen Year Old
Bill) are:
“1. Does Senate Bill No. 123 disqualify a
person eighteen (f,8j years of age or over from
continuing k receive the monthly annuity as the
p. 385
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?IS kionorablc Everett L. Anschute, page 2 (H-85)
surviving minor child of the deceased law en-
forcement officer or fireman who died prior to
the effective date of Senate Bill No. ,l23? If
your answer is in the affirmative, on what date
must payments be suspended?
“2. Does Senate Bill No. 123 disqualify
a person eighteen (18) years of age and over from
receiving benefits where the law enforcement
officer or fireman dies on or after the effective
date of Senate Bill No. 123?”
Section 51-d of Article 3 of the Constitution provides that the Legis-
lature shall have the power to provide for the payment of benefits to “the
surviving spouse and minor children” of officers of po,lice and fire depart-
ments.
Article 6228f governs assistance paid to the survivors of law enforce-
ment officers, etc., under that provision. It defines “minor child” as
meaning a child who, on the date of the violent death of any person covered
by the Act, has not reached the age of twenty-one years. It provides in
> 3 that the State will pay to the surviving spouse certain benefits and, if
he is survived by a minor child or minor children the State will pay the
benefits to guardians of the children according to the number of minor
children surviving, “provided, that when any child entitled to benefits
under this Act ceases to be a minor child as that term is defined herein,
his entitlement to the benefits shall terminate. . . . ”
In our opinion there is no escape from the conclusion that the statute
confers rights and benefits dependent upon legal infancy. Indeed, in the
case of children of law enforcement officers, the statute would be unconsti-,
tutional if benefits were extended on a different basis, since Article 3,
5 51-d of the Constitution authorizes benefits for children only if they are
minors, i. e., if they are incapacitated because of legal infancy.
The definition contained in Article 6228f, 5 2(a) (7) must be viewed in
that context. A,gain, we must construe “has not reached the age of 21 years”
p. 386
T%e Honorable Everett L. Anschutz, page 3 (H-85)
to mean “has not been emancipated from disabilities of minority”, else
the statute and the Constitution conflict. Were it necessary to declare
the existence of a conflict, the statutory language of Art. 6228f could not
control, and because persons 18 years of age or older will be emancipated
by Senate Bill 123 from such disabilities after August 27, 1973, on that
day they will cease to be minors within the meaning of Articles 6228a and
6228f, V. T. C.S., in our opinion, See Attorney General Opinion H-82(1973).
Your remaining questions are:
“3. May this System make payments directly
to any qualified surviving minor or must payments
be made through (1) the natural guardian, (2) a Court-
appointed guardian, or (3) some other qualified adult?
“4. Will marriage of the minor or adoption of
such minor disqualify the minor for future payments
under Article 6228f. Vernon’s Texas Civil Statutes? ”
Minors are legal infants, without legal capacity. They are not legally
qualifi?d to act on their own behalf, generally speaking, and have no capacity
to give a binding discharge for obligations due them. Hence payment of a
debt to a.minor will not necessarily constitute a discharge of the debt-
the &or: It ordinarily can be legally received on behalf of the minor only
by a co&-appointed guardian of the minor’s estate. See Silber v. Southern
National Life Ins. Co., 326 S.W.2d 715 (Tex. Civ.App., 1959, writ refused).
The Board of Trustees of the State Employees Retirement System of
Texas is not presently authorized, in our opinion, to pay Article 6228f bene-
fits due minors to anyone except a person designated by a court to receive
them,eg,., a court-appointed guardian of the minor’s estate or a guardian
appointed to receive governmental funds. See Probate Code $ § 109, 184,
228, 246, V. T. C. S. See also Article ,l994, V. T. C.S.
Article 6228f $3 says the benefits payable to children under that statute
may be p&d to “the duly appointed or qualified guardian or other legal repre-
sentative of each minor child. ” We do not think-these passages were intended
to displace the law otherwise applicable to the property of’minors.
p, 387
, .
: :I: Honorable
‘--I
Everett L. Anschutz, page 4 (H-85)
Even natural parents are not authorized to control and manage
the property of their children without spec,ific court or statutory autho-
rity. Silber v. Southern National Life Ins, Co.. supra. Such restri,c-
tions are imposed for the protecti.on of the children. In the absence of
a specific legisl,ative intent that such protections be abrogated or of an
irreconcilable conf~lict: between the statutes (neither of which we fi,nd),
we think the courts will ho:ld that benefits for children payable under
Article 6228f may not be properly paid to any person other than one
,iawfull,y designated by the court to receive suc,h payment.
We answer your last question in the affirmative, but with a caveat
regarding adoption.
The same reasoning that requires the disqualific,ation of 18 year
old children when they are no longer protected by “:legal infancy” status
also applies to married persons, regardless of their ages. See Ex parte
Williams, 420 S. W, 2d 135 (Tex. 1967); _Pittman vr Ti,mes Securit,ieg,
301 S.W.2d 521 (Tex. Civ.App. ~ 1957, no writ), And the, children of a
deceased law officer who have been adopted by someone else cease to
be his children. They would not be entitled to continue receiving benefits.
See A,rticle 46a, § 9, Vernon’s Texas Civil Statutes; Patton v. Shamburger,
431 S.W.2d 506 (Tex. 1968).
SUMMARY --
Persons cease to be minors within the meaning
of A,rtic,le 6228f, V. T. C. S., when they are no longer
under disabilities as “legal infants”. After the effective
date of Senate Bill 123, 63rd Leg., persons at least ,l8
years old will not be legal infants. Persons who are
married, regardless of their age, have the st.atus of
adu1t.s. Benefits due minors under the statute cannot
properly be paid direct.ly to them but must be paid to
the persons duly appoi.nted by a court to receive them.
Marriage or adopt,ion of a minor will disqualify him
from future payments under Article 6228f, V. T. C. S.
Attorney General of Texas
pe 388
The Honorable Everett L. Anschutz, page 5 (H-85)
?lTTF.YORkYirst ssistant
DAVID M. KENDALL, Chairman
Opinion Committee
p. 389