Untitled Texas Attorney General Opinion ( 1945 )

ORNEY GENE
QF TEXAS
Honorable Bayne Satterfield, Commissioner
Firemen's Pension Commissfon
P. 0. BOX 1062
Austin, Texas
Dear Sir: Opinion NO. O-6492
Re: Payment of benefFt to mlnor chlld-
ren,
We have your request for an oplnlon from this department,
which reads as follows:
“Section 12 of Article 6243-e, V.R,C.S,,
1925, as amended, which provides for the death
allowance to widows and children, says, In part:
“‘Section 12 a ----; (b) to the uaFdlan of
each child the sum of Six Dollars (t6) per month
until such chfld reaches the age of eighteen (18)
gears; o a o D yt
"One of OUP c1tg Attorney's has brought up
the questfon as to whether the benefits to the child
or chfldren should be made to the 'natural guardian
of the child or"children' where no authority to
expend funds has been made by the probate Court;
or-to the guapdfan of the estate who has the au-
thorfty to expend such funds of the ward.
"In order to clear up this point for the
guidance of .theBoards of Trustees fn the future,
will you please give us youraopinion as to whom
the Boards may make benefit payments to minor
chfldren;
"1 a When there is only a natural guardian and
this guardian has no,tbeen authorized to expend
funds by the comt.
"2. When a guardlan of estate has been appointed
and ther-eis also a natural guardian who has not
been authorfzed 'by,thecourt to expend funds of the
ward,
Honorable Bagne Satterfield, page 2 o-6492
"3. When a guardian of estate has been ap-
pointed and there is also a natural guardian who
has been authorized by the probate court to expend
funds of the ward."
The following &atutory provisions are pertinent to
this discussion:
Article 4118:
"If the parents live together, the father is
the natural guardian of the person of the minor
children by the marriage. If one parent is dead,
the survivor is the natural guardian of the per-
son of the minor children. The natural guardian
Is entltled to be appointed guardian OX?their es-~
tates. The rights of parents who do not live to-
gether are equal; the guardlanship of their minor
children shall be assigned to one or the other;
taking into consideration the interest of the child
alone *"
Article 4124:
"Only one guardian can be appointed of the
person or estate; but one person may be appolnt-
ed guardian of the person, and another of the es-
tate, whenever .thedourt shall be satisfied that
it will be for the advantage of the ward to do so.
Nothing in this article shall be held to prohfbit
the joint appointment of husband and wife."
Article 4162:
"The guardian of the person Is entitled to
the charge and control of the person of the ward,
and the care of his support and educa,tlon,and
hLs duties shall correspond with his rights,"
Article 4163:
"It Is the duty of the guardlan of the person
ofa minor to take care of the person of such
minor, to treat him humanely, and to see that he
is properly educated, and, if necessary for his
support, that he learn a trade or adopt some use-
ful profession."
Article 4164:
..
Honorable Bagne Satterfield, page 3 0 -6492
"The guardian of the estate is entitled to
the possession and management of all property be-
longing to the ward, to collect all debts, rents
or clai.msdue such ward, to enforce all obllga-
tions in his favor, to bring and defend suits by
or against him; but In the management of the es-
tate, ,the guardian shall be governed by the provl-
slons of this title."
Article 4165:
"It is the duty of the guardian of the estate
to take care of and manage such estate as a prud-
ent man would manage his own property. He shall
account,,for all rents, profits and revenues as the
estate would have produced by such prudent manage-
ment."
Article 4166:
"The guardian of both person and estate has
all the rights and powers and shall perform all
the dutLes of the guardian of the person and of
the guardian of the estate."
Article 41128:
"SectIon 1, Whenever any minor, lunatic,
ldlbt, or non compos mentis, who has no le-gal
guardian shall be entitled to any sum or sums of
money not exceeding Two Hundred and F1ftyDollars
($250) from any person, firm, corporation, admln-
istrator, executor, guardian, or trustee,,arls-
ing out of any liquidated and uncontested claim,
such person, firm, corporation, administrator, ex-
ecutor, guardian, or trustee holding such'sum may
pay same over to the County Clerk of the county In
which said minor, lunatic, Idiot, or non compos
mentls,~resldes, for the account of said mfnor,
lunatic, ddlot, OP non compos mentls, and the re-
ceipt of the County Clerk therefor shall be for-
ever bfnding on said minor, lunatic, idLot, or
non compos mentls, as of the date and to the ex-
tent of the payment so made.
"Seto 2. Whenever any such sum shall be re-"
celved by any County Clerk, he shall fortM"$.M``
posit said sum in his Trust Account in--name
and for the account of said minor, lunatic, idiot,
or non compos mentls.
Honorable Bayne Satterfleld, page 4 o -6492
“Sec. 3. The father OP mother of such minor.
lunatic, idiot, or non compos mentis, if either-be
living within the State, OP if both the father and
mother be dead or living without the State, then
such person having custody of the person of said-
minor',lunatic, idiot, or"non compos mentis, may,
uponapplication approved by the Countg~Judge of
the county in which said minor, lunatic, ldlot,
or non compos mentis resides, withdraw and take
charge'of said money for the benefit-of said minor,
lunatic, idiot, or non compos mentis, upon execut-.
fng and ffling wfth the County Clerk a proper bond,
approved by the County Judge Ln a sum at least
double the amount of said fund, payable to the
County Judge, conditioned that he will use said
money for the benefit of said minor, lunatic, idiot,
or non compos mentis under the direction of the
County Court or the Judge thereof, and that he will
account for said money and the increase thereof, if
any,~to the minor when he becomes of age or to the
lunatic, idlot, or non compos mentls when he is
restored to sanity or to 'thelegally qualified
guardian of such person, when called upon to do so.
"SetD 4. Such person who takes such money shall
receive no fees or commissions for caring for or
handling the same.
"Sec. 4-a" When the person to whom said money
has been paid by the County Clerk for the benefit
of said minor, lunatic, idLot, OP non compos mentis
as dire&e8 ~bg the County Court OP Judge thereof
or shall have otherwise complied with the provi-
sions of his aforesaid bond by accounting for said
money and the increase thereof, if any, he shall
file with the County Clerk from whom said money
was received, his sworn report thereof; which re-
port when so filed and approved by the County Court
or Judge thereof shall operate as a dfscharge of
said person and his sureties from any and all fur-
ther liability under and by reason of the afore-
said bond. The County Court or Judge thereof shall
satisfy himself that said report speaks the truth,
and to that end may require said person to submit
proof thereon,
"Sec. 5- This Act and the provisions thereof
shall be cumulative of all other laws upon the
same subject, and is not intended to repeal any
other law upon the subject of ,therights of minors,
Honorable Bayne Satterfield, page 5 o-6492
lunatics, idiots, or non compos mentls, or money
belonging to such persons."
The statute which provides for the natural guardianship
or parents over the person of their minor children also pro-
vides that, "the natural guardian Is entitled to be appoint-
ed guardlan of their estate." Thus the father has the right
prior to all others; and in the case of his death, the surviv-
ing mother is entitled to the positlon. But thls portion of
the sta'tutemerely entitles the natural guardian to be appoint-
ed guardian of the estate; it does not give him the absolute
right to act, as in the case of guardianship of the person, and
he must be appointed by the probate court before he may act.
Vineyard v. Heard, (Clv. App.) 167 S.W. 22, affirmed 212 S.W.
489 D
You are accordingly advised that these funds must be
paid to the guardian of the estate of the minor child, and that
where no such guardian has been appointed by the probate court,
these funds may be pald to the county clerk as provided by Ar-
ticle 4112a.
We have not answered your questions categorlcally for
the reason that we have had some difficulty in interpreting
them and particularly your question No. 3. We believe, how-
ever, that the above sufficiently answers all of your ques-
tions.
Yours very truly
ATTORNEYGENERAL OF TEXAS
By s/H. T. Bob Donahue
Assistant
HTBD:db:wc
APPROVED JUR 19, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BwB Chairman