Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
July 24, 1978
JOHN I-. HILL
Attorney General
Honorable Joseph N. Murphy, Jr. Opinion No. H-12 14
Employees Retirement System of Texas
18th & San Jacinto Streets Re: Distribution of funds to
Austin, Texas 787ll minor children by the Employees
Retirement System.
Dear Mr. Murphy:
You inform us that the Employees Retirement System administers
several programs which require payments to minor children as beneficiaries
or descendants of members. See V.T.C.S. art. 6228a, SS 5, 5-1; art. 62284 SS
2, 6; art. 6228f, S 3. You wish to know whether you may distribute these
funds to the natural parents of the minors without requiring that a
guardianship be established.
In the past, you have made payments only to the guardian of the minor’s
estate. In Attorney General Opinion H-85 (1973) we informed you that
retirement system benefits due minors must be paid to a court-appointed
guardian of the minor’s estate or a guardian appointed to receive govern-
mental funds. Section 109(a) of the Probate Code provides that the surviving
parent is the natural guardian of the minor’s person and is entitled to be
appointed guardian of his estate. Section 228 of the Probate Code concerns
the duties of a guardian appointed to receive funds from a governmental
agency for his ward.
As you point out, section 12.04 of the Family Code, which became
effective on January I, 1974, provides in part:
Except as otherwise provided by judicial order or by
an affidavit or relinquishment of parental rights . . .
the parent of a child has the following rights,
privileges, duties, and powers:
. . . .
(4),;h; duty to manage the estate of the child, except
guardtan of the estate has been appomted;
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Honorable Joseph N. Murphy, Jr. - Page 2 (R-1214)
. .. .
(8) the power to receive and give receipt for payments for
the support of the child and to hold or disburse any funds for
the benefit of the child. . . .
(Emphasis added). In our opinion, under section 12.04(4) of the Family Code, the
parent of a minor ordinarily has the powers of a guardian of the estate without the
need for court appointment. See 2 Texas Family Law, Speer’s 5th Edition, S 13.23.
The underlined proviso was added in 1975. Acts 1975, 64th Leg., ch. 476, S 23, at
1260. We believe thii proviso makes clear how section 12.04(4) of the Family Code
is to be harmonized with section 109 of the Probate Code. Section l2.04(4) refers to
the duties of a guardian of the estate, which belong to the parent unless a-court
reallocates them to a guardian of the estate under Probate Code provisions. Cf.
Guardianship of Henson, 551 S.W.2d 136 (Tex. Civ. App. - Corpus Christi 1977, writ
ref’d n.r.e.) (guardianship of person under Probate Code equated with managing
conservatorship under Family Code).
Section 12.04(8) of the Family Code is based on section 228 of the Probate
Code and is designed to facilitate public or private support of a child. E. L. Smith,
Family Code Symposium: Commentary on Title 2, 5 Texas Tech. L. Rev. 389, 417
(1974); 5 Texas Family Law, Speer’s 5th Edition, 299, 300 (commentary by L.
Simpkins). In our opinion, section 12.04(8) of the Family Code gives the parent of a
minor authority to receive funds from a governmental agency on behalf of his child
without the need to establish a formal guardianship. See 2 Texas Family Law,
Speer’s 5th Edition, SS 13.27, 13.29. The parent of a mm? may therefore receive
Retirement System funds for his child, including monthly payments provided under
article 62281, V.T.C.S., to the surviving minor children of law enforcement officers
killed in the performance of duties. Although section 3 of article 6228f provides
that the money shall be paid “to the duly appointed or qualified guardian or other
legal representative of each minor child,” we believe that section 12.04(4) of the
Family Code now gives the surviving parent authority to act as guardian of the
estate .in the absence of a court-appointed guardian. See also Family Code S
12.04(7).
In individual cases a judicial order may have reallocated the parental rights
and duties set out in section 12.04 so that a person other than the parent should
receive retirement system benefits for the child. See Family Code SS 12.04, 14.02,
14.04. As a general rule, however, the Retirement -tern may disburse benefits to
the minor’s parent without the establishment of a formal guardianship.
SUMMARY
Payments made by the Retirement System for the benefit of
a minor child may be made to the parent under section
12.04(4) and (8) of the Family Code.
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Honorable Joseph N. Murphy, Jr. - Page 3 (H-1214)
Very truly yours,
Attorney General of Texas
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
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