Untitled Texas Attorney General Opinion ( 1952 )

March 7, 1952
Hon. Sam Ii. Davis Opinion No. V-1418
District Attorney
Civil Courts Bldg. Re: Constitutionality of Arti-
Houston 2, Texas cle 1994, V.C.S., which
authorizes district courts
to permit the investment
of funds accruing under a
judgment in favor of a
Dear Mr. Davis: minor.
Your request for an opinion of this office
relates to the constitutionality of Article 1994,
V.C.S. You state there is now pending in the 55th
District Court of Harris County a proceeding involv-
ing a minor child who was awarded $1,000 and there
is now on file an application for permission to in-
vest this fund. The Judge of that court has expressed
concern as to the constitutionality of Article 1994,
V.C.S.
Article 1994, V.C.S., provides in part as
followa:
%inora, lunatics, idiots or non
compoa mentia who have no legal guardian
may sue and be represented by ‘next frlend'
under the following rules:
“4. The judge of the court in which
the judgment is rendered upon an applica-
tion and hearing, in term time or vaca-
tion, may provide by decree for an inveat-
ment of the funds accruing under such judg-
ment. Such decree, if made in vacation,
aball be recorded In the minutes of the
succeeding term of the court."
Section 16 of Article V of the Texas Consti-
tution provides that the County Court shall have the
jurisdiction of a probate court and shall appoint
guardians of minors, idiots, lunatics, or persona non
compos mentis and transact all business pertaining to
Hon. Sam W. I~vis, page 2 (v-1418)
those persons as provided by lav. Your question
is whether the provisions of Article 1994, V.C.S.,
quoted above, are in conflict with this section of
the Constitution. The constitutional jurisdiction
of the District Courts as set out in Section 8 of
Article V of $he Texas Constitution provides that
those courts . . . shall have general original
jurisdiction over all causes of action whatever
for which a remedy or jurisdiction is not provided
by law or this Constitution, and such other juria-
dlctlonL original and appellate, as may be provided
by law.
It is well settled that in determining
the constitutionality of a statute It is the duty
of the courts to uphold the legislative enactment
if at all possible and to adopt any reasonable con-
struction which will place the statute in harmony
with the Constitution, rather than one which will
cause the statute to be in violation thereof. Pickle
v. Finle;E,91 Tex. 484, 44 S.W. 480 (1898).
In McClendon v. Qaha 6 S.W.2d 796
(Tex. Civ. App. 1926) the Co eld that where
funds are invested by'order of the District Judge
under Article 1994, V.C.S., the investment la bind-
ing upon the minor, although the money is lost by
reason of a bad investment.
In Patillo v. Allison, 51 S.W.2d 1041, 1043
(Tex. Civ. ADD. 1932). it was contended that aooli-
cation was m&e to-the District Court under Article
1994~-bya person as guardian of the minors who had
received funds under a judgment and that ainoe that
person was not guardian the order for investment was
obtained by misrepresentation. The Courtheldthat
the District Court involved must have found that the
applicant for the right to Invest was not guardian of
the minors, since the District Court's order was based
upon the provisions of Article 1994, and consequently
the investment order was proper. In so holding, the
court stated:
?Said article firt. 19957 in express
terms authorized the court, upon applica-
tion and hearing, to make an order direct-
ing the investment of the funds belonging
- .
Hon. Sam W. Davis, page 3 (v-1418)
to these mlnora. The Century Diction-
ary defines the word *Invest’ as fol-
lows: ‘To employ for some profitable
use ; convert into some other form of
wealth, usually of a more or leas perms-
nent nature, as In the purchase of prop-
erty or shares or in loans secured by
mortgages ’, etc. The expenditure of the
funds belonging to these minors in the
purchase of real estate in their respec-
tive names was clearly within the au-
thority conferred. The investment or-
dered by the court in this case was not
invalid, as contended by appelleea, be-
cause the interest vested in the minors
thereby was an undivided interest In said
tract of land instead of the entire in-
terest therein. A similar issue was in-
volved in McClendon v. Gahsgan, above
cited. . . .”
(1
. . . Had Mrs. Allison been ac-
corded the right to withdraw such funds
as the duly and legally qualified and
acting guardian of the estates of said
several minors, said order should and
doubtless would have merely directed that
the same be paid to her and her receipt
taken therefor. Such a guardian has a
legal right to the possession of the per-
sonal estate of the minor and upon receipt
thereof is required to account therefor to
the probate court. R.S. arts. 4164, 4168,
4225, and 4297. Should such a guardian
desire to invest moneys belonging to the
minor in real estate, application for au-
thority to do so must be made to the pro-
bate court and the propriety and desir-
ability of such an investment determined
by that tribunal. R.S. arts. 4182, 4183,
and 4184. The order of the court in this
case did not direct that the funds of the
minors be turned over to Mrs. Allison, but,
on the contrary, directed that such funds
be invested by the purchase of an undivid-
ed interest in said tract of land and that
they be paid by the clerk directly to the
grantor in the deed conveying such tract
to Mrs. Allison and said minors, and made
Hon. Sam W. Davis, page 4 (V-1418)
the receipt of such grantor an acquit-
tance to the clerk of further liability
on account of such funds. We are not
warranted in assuming that the district
court, in making the order under con-
sideration, was attempting to usurp the
authority and jurisdiction of the pro-
bate court. The mere fact that Mrs. Al-
lison may in her application have deslg-
nated herself as 'guardian and next friend'
of said several minors is of little if
any import, . . .U
From the above authorities the Inference
Is that Article 1994 la not to be construed as be-
ing in violation of any of the rights of the County
Court acting in its capacity as a probate court, but
that the provisions of Article 1994 operate independ-
ent of the action of the County Court in its super-
visory jurisdiction of guardians, and when.there has
been no action by the County Court with regard to
the appointment of a guardian. So construed, Arti-
cle 1994 is not in conflict with Section 16 of Arti-
cle V of the Texas Constitution. We therefore agree
with your conclusion that Article 1994 is constitu-
tional.
SUMMARY
Article 1994, V.C.S., which authorizes
a judge of a court to provide, upon proper
application, for the investment of funds of
a minor is constitutional.
Yours very truly,
APPROVED: PRICE DARIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
E. Jacobson
Reviewing Assistant
Assistant /
Charles D. Mathews
First Assistant
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