Untitled Texas Attorney General Opinion ( 1963 )

THEATTORNEY GENERAL
OF TEXAS
Honorable Joe Resweber Opinion No. C-114
County Attorney
Harris County Re: Duties of the ;ludge
Houston 2, Texas of the Probate Court
of Harris County, un-
der the facts states.
Dear Mr. Resweber:
Your request for an opinion reads as follows:
"During the month of June, 1962,
the Grand Jury``ofHarris County, Texas,
returned True Bills O;fIndictment against
Clem McClelland (Judge of the Probate Court
of Harris County, Texas) and several admln-
lstrators and guardltins,charging them with
theft and/or embezzlement from certain ea-
tatea under the JurisCliction of the Probate
Court of Harris County, Texas.
"On June 20, 1962,a petition for the
removal of Clem McClelland aa Judge of the
Probate Court of Harris County waa filed In
the 61st Judicial District Court, and on
June 25, 1962, the said Court entered an
order whereby Clem McClelland was suspended
temporarily and Arthur C. Lesher, Jr. was
appointed Probate Judge of Rarrla County,
Arthur C. Usher, Jr. aerved as Probate
Judge of Harris County until January 1,
1963, when Jack Smith having been elect-
ed $n the November, 19A2 election) took
office as Probate Judge.
"Up to the present time Clem McClelland
has been tried on only one of the lndict-
ments, and said conviction was very recent-
ly reversed by the Court of Criminal Appeala.
me other lndlctments against Clem McClelland
are still pending.
-563-
Honorable Joe Resweber, page 2 (C-114 1
"In view of the above facts, Jack Smith, 'y-
,ProbateJudge of Harris County, has request-
ed sn opinion to the following questions:
"1. There are between 5,000 and 10,000
filed in thi.s,Courton estates which
have not been closed but are current-
ly'open estates with unfinished busi-
nesa under the juriadlctlon of this
Court; these file,@are located in the
office of the County Clerk, Probate
Division. Is it the responeibility
of the Probate Judge to search each of
these filea‘to dacertaln,their status
or may the status of each~of these
files be ascertained as&they are plac-
ed on the docket of the Probate Court
for hearing?
"2. Is It the duty of the Probate Judge,
where a personal representative has been
indicted, but not convicted, because of
transactions In the handling of an es-
tate, to remove such person or to cause
an investigation to be made?
“3. Is it the duty of the ,Prob,ateJudge
where'persons other than personal repre-
sentatives in an estate have been in-
dicted, but not convicted, for trans-
actions involved in an estate, to cause
an investibatilonto be made to see
whether orpHot a civil cau#e of action
should be ffled against 'the indicted
person or Is thla the duty of the per-
sonal representative?
“4. What responsibility does the Probate
Judge and bonding company have when he
approves annual accounts in whi,chthere
are orders by a prior Judge which are
suspect?
-564-
.
Honorable Joe Resweber, Page 3 (C-114 )
"Attached hereto Is our memorandum brief.
Please furnish us your opinion on the ques-
tions presented."
Section 36 of the Probate Code provides:
"It shall be the duty of the judge
of each county court to uae reasonable
diligence to see that personal representa-
tives of estates being administered under
orders of the court, guardians of the per-
sona of wards, and other officers of the
court, perform the duties enjoined upon
them by law pertaining to such estates and
wards. The judge shall annually examine
into the condition of each of,aiaid eetates,
the well-being of each ward of the court,
and the solvency of the bonds of personal
representatives of estates and guardians
of persons. He shall require such repre-
sentatives or guardians, at any time he
shall find that their bonds are not suf-
ficient to protect such estate or wards,
to execute new bonds in accordance with
law; In each such case, he ahall notify
the personal repreaentative or guardian,
and the sureties on the bond, as provided
by law; and should damage or loss result to
estates or wards through the failure of the
judge to use reasonable diligence in the per-
formance of his duties, he shall be liable
on his official bond to those damages by
such neglect."
Section 222 of the Probate Code states the grounds
for removal of any personal representative appointed under
the provisions of the Probate Code, both with and without
notice. Subdlvlslon'(c)'of Section '222 provides:
"Order of Removal. The order of remov-
al shall state the cause thereof. It shall
require that any letters Issued to the one
-565-
Honorable Joe Resweber, page 4 (C-114 )
removed shall, if he has been personally serv-
ed with citation, be surrendered, and
- . that all
such letters be cancelled of record, wnether
delivered or not. It shall further require as
to tillthe estate remaining in the hands~of
a removed person, delivery thereof ~to the per-
son or’pereons entitled thereto, or to one
who has been appointed and has qualified as
succekisc+represeritatlve,and as to the person
of a,ward, that ‘controlbe relinquished as re-
quired in the order.”
Section 233 of the Probate Code provides:
“Every personal representative of an
estate ahall use ordinary dlllg@encetom
collect all claims and debts due the estate
and to cecover possession of all.property
of the estatesto which its otinershave
claim dr title, provided there Is a reason-
able prospect of collecting such claims or
of recovering such property. If he wilfully
neglecta to use such diligence, he and the
sureties on his bbnd shall be liable, at
the suit of any~person interested in the es-
tate, for the use of the estate, for the
amount of such claims or the value of such
property as has been lost by such neglect.
Such representatives may enter Into contract
to convey, or may convey, a contingent in-
terest in any propkrty’sought to be~recover-
ed, not exceeding one-third thereof, for
seWices of attorneys and incidental expenses,
subject only to approval of the court in
which the estate is being administered.”
In Crouch v. Stanley, 348 S.W.2d 543 (TexiClv.App.
1961), an Injunctive proceeding regarding the appointment
t$ the Probate Court of a new adminlstratotipending trial
In the Probate Court of an appeal~from a removal proceed-
ing of the original administrator, the Court held:
-566-
Honorable Joe Resweber, page 5 (C-114 )
"Assuming that the order of the Probate
Court lmproperly'removed Mr. Stanley as the
atilnistrator for the estate it would never-
theless be true that his appeal therefrom pre-
served his status as administrator and he will
continue to be such pending a trial de novo in
the District Court, and at least until such
time as the judgment of that court shall become
final. Power to remove a person from h$s office
aa an administrator for the estate of a decedent
'isgiven by law, in the first Instance, to the
Probate Court. Such a person who considers him-
If aggrieved by such an order of removal is
i:ven by law the remedy of an appeal to the
District Court for a trial de novo. If the
remedy .of.;appea>,wab
not ao'give&Lthe District
Court would not have any jurisdiction to lnter-
fere with the order of removal, for courts of
equity will not Interfere to protect a person
from removal from office by a man or body of
men to whom such power of removal Is given by
law.
11
. . .
"If the injunction to the extent under
consideration be undisturbed, the Probate Court
would be helpless to protect the Interests of
the estate such court is charged by law to aT-
minister, in the event of such a contingency,
and the estate's beneficiaries would be left
with recourse solely confined to damages against
the adm&nistrator and the suretles on his bond.
In a situation Such as that hypothesized, 'and
where the Probate Court might attempt to ap-
point an administrator to bring and prosecute
a suit in behalf of the estate, such attempt-
ed appointment might be stayed through the
office of an appeal from the order of appolnt-
ment. Pursuant to such proceedings the Pro-
bate Court would be empowered, through require-
ment of new or additiollalbond, more adequately
-567-
Honorable Joe Resweber, page 6 (C-114 )
to protect the interests of the estate in
the event it be ultimately determined that
the administrator's refusal to Institute
such suit actually operated to the detriment
of the estate and the beneficiaries thereof."
~Emphasls added).
In Heyn v. Massachusetts Bonding Company, 110 S.W.2d
261 (Tex.Clv.App. 1937, error di I th C t in sustain-
ing the constltutlonallty of staz%eL irnzos$ the duty on
the Judge of the Probate Court to annually examine Into the
condition of wards' estates (now ,Sectlon 36 of the Probate
Code) held:
"Under the foregoing provisions of the
statutes, obviously It Is the duty of judges
of county courts annually to examine Into the
condition of the estates of wards, the suffi-
ciencg of guardians' bonds, and, If and when
the bonds given are not ample security to pro-
tect the estates and the warda' Interest there-
in, to require such guardians to execute other
bonds In accordance with lath:and further, coun-
ty Judges are required to compel guardians to re-
turn reports of annual accountings into court
(a duty imposed under article 4225), and to exact
fines for contempt of court and assess damages on
guardians and their bondsmen for nonperformance of
such duties; and further, It is the duty of coun-
ty judges to remove guardians when they have fall-
ed fo give bonds as required by law, or when such
guardians have absented themselves from the state,
or have failed to file annual accounts, or have
refused to obey proper orders of the county judge.
ManFPestly, the above mandatory duties are Imposed
upod county judges by reason of Inability of rni-
nors, idiots, lunatics, persons non campos mentls,
and common drunkards to take care of their own ln-
terests. The welfare of persons laboring under
such disability has always been a matter of deep
-568-
Honorable Joe Resweber, page '7 (C-114 )
"
concern to the state. This state has In a
manner made the county judges its fiscal a-
gents to confide estates of such persons to
the Custody of prudent and safe persons, and
have carefully thrown safeguards ardund such
trustees, as to require of them a faithful
discharge of their trust. The statutes com-
pelling guardians to give solvent and suffl-
cient bonds in amountequal to~double the es-
timated value of the personal propetitybelong-
ing to their wards, to file annual accountings
as to elicit truthful information as to the
condition of such estates, to obey proper or-
ders of the county court or judge, and to al-
ways remain within the juriadict$.onof suph
court or judge, are for the protection of
such disabled persona and their estates.
These duties are mandatory; the failure of
performance oarries~with it penal punishment
and civil llabllltjr,and removal of such
fiduciaries. So, also, la the above statu-
tory duties Imposed upon the county judges
of equal force and effect, and the failure
of performance 18 negligence per se, for
which such county judges are amenable and
their official bonds liable for loss due to
such negligence."
In view of the foregoing, you are advised that the
provisions of Section 36 of the Probate Code requiring
the judge to annually examine Into the condition of each
of the estates Is a mandatory duty and It Is the respon-
sibility of the Probate Judge to search each of the files
to ascertain their status annually. It Is the duty of
the Probate Judge to remove the personal representative
in the event that the Court has knowledge of existing
grounds for removal prescribed by Section 222 of the
Probate Code. Whether a violation of Section 222 by
the personal representative has occurred Is a fact ques-
tion to be determined by the Probate Jtidgei
-569-
- .
Honorable Joe Resweber, page 8 (C-114 )
In view of the provisions of Sections 36 and 233 of
the Probate Code, you are advised that it is the duty of
the personal representative to use ordinary diligence to
dollect all claims and debts due an estate and to recover
possession of all property of an estate to which itB own-
ners have claim or title, provided there Is reasonable
pros ect of collecting such claim. Irithe event the per-
sonaB representative falls to perform such duty, the Pro-
bate Judge is authorized to remove the personal repye-
sentatlve under the provisions of Section 222 of the Pro-
bate Code. Therefore, It is the duty of the Probate,~Judge
to use such reasonable diligence as Is necessary to
determine whether the"persona1 representative is perform-
ing the duties required by Section 233 of the Probate Code.
In answer to your fourth question, Sectlbn 401 of
the Probate Code provides:
"Action Upon Annual Accounts.
"These rules shall govern the handling
of annual accounts:
(a) They shall be filed with the county
clerk, and the filing thereof shall be noted
forthwith upon the judge's docket.
(b) Before being considered by the judge,
the account shall remain on file ten (10) days.
(0 At any time after the expiration of
ten (101 days after the filing of an annual
account, the judge shall consider same, and
may continue the hearing thereon until fully
advised as to all Items of said account.
(d) No accounting shall be approved
unless possesalon of cash, listed securi-
ties, or other assets held In safekeeping
or on deposit under order of court has been
proved as required by law.
-570-
Honorable Joe Resweber, page 9 (C-114 )
(e) If the-account be found Incorrect,
it shall be corrected. When corrected to
the satisfaction of the court, It shall be
approved by an order of court, and the court
ahall then act with respect to unpaid claims,
as follotis:
(1) Order for Payment of Claims In Pull.
If it shall appear from t~heexhibit, or from
other evidence, that the estate Is wholly
solvent, and that the representative haB In
his hands sufficient funds for the payment of
every character of claims against the estate,
the court shall order immediate payment to be
made of all claims allowed and approved or
established by judgment.
(2) Order for Pro Rata Payment of Claims.
If it shall appear from the account, or from
other evidence, that the~funds on hand are not
sufflcrent for the payment'of all the said
claims, or if the estate Is Insolvent and the
personal representative has any funds on hand,
the court shall order such funds to be applied
to the payment of all claims having a prefer-
ence in the order of their priority If they,
or any of them, be still unpaid, and then to
the payment pro rata of the other claims allow-
ed and approved or established by final judg-
ment, taking Into consideration also the claims
that were presented within twelve (12) months
after the granting of administration, and those
which are in suit or on which suit may yet be
Instituted."
In Heyn v. Massachusetts Bonding Company, supra,
the Court held on motion for rehearing:
II
. . . The county judge knew, or
should have known, that the $1,000 bond
was insufficient, and his failure to re-
quire additional security was negligence
per se, and ~such failure, along~With the
other failures of official duties, as
-571-
Honorable Joe Reaweber, page 10 (C-114 )
reflected in the record,and pointed out
in otiti
original opinion, uere the direct
and proximate cause of the ward's 106~1."
In view of the foregoing, you are advised in ana-
wer to your fourth question that the Probate Judge and
hi8 bbtiditig
oompany atieliable If he le negligent in
the performance of hla duty in Approving annual accounts,
If such negligence constitutes proximate cause of a loss
to the estate.
SUMMARY
A Probate Judge Is required to
annually examine Into the condition
of each estate being administered un-
der orders of the Court and to use rea-
sorbabledPligen&e to determlni that the
personal repretientatlveeof estates be-
ing administered under orders of'the
Court atie.
petiformlngtheir duties required
by the provisions 6f the Probate Code,
Yours very truly,
WAGGONER CARR
Attorney ffeneral
JR:ms:;lh
APPROVED:
OPINION COMMITi'EE~
W, V. Geppert, Chairman
C. L. Snow, Jr.
,Blll Alien
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
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