Untitled Texas Attorney General Opinion ( 1987 )

Mr. Clayton T. Garrison Opinion No. JM-731
Executive.Director
Employees Retirement System Re: Whether benefits paid under
of Texas article 6228f. V.T.C.S., on behalf
P. 0. Box 13207 of a minor child, cease upon the
Austin, Texas 78711 adoption of that child
Dear Mr. Garrison:
You have requested our opinion regarding the effects of adoption
upon a minor child's entitlement to death benefits under article
6228f, V.T.C.S. We believe that the adoption of a minor child sub-
sequent to the death of his natural parent does not bar the child's
entitlement to death benefits under article 6228f, V.T.C.S.
Article III, section 51-d, of the Texas Constitution authorizes
the legislature to enact legislation to provide for financial
assistance to surviving spouse and "minor children" of certain
employees "who, because of the hazardous nature of their duties,
suffer death in the course of the performance of those officiai
duties." See Tex. Const. art. III, 551-d. Upon that authority, the
legislatureenacted articlr 622&f, V.T.C.S. Section 3 of article
6228f. V.T.C.S., provides:
In any case in which a [covered employre] . . .
suffers violent death in the course of his
duty.. . if such [covered employee] . . . shall
be survived by a minor child or minor children,
the State of Texas shall pay to the duly appointed
or qualified guardian or other legal representa-
tive of each minor child. . . .
[Stipulated amounts].
Provided, that when any child entitled to bene-
fits under this Act ceases to be a minor child as
that term is defined herein, his entitlement to
benefits shall terminate. . . . (Emphasis added).
p. 3397
Mr. Clayton T. Garrison - Page 2 (JM-731)
Thus, section 3 of article 6228f. V.T.C.S., establishes when a
minor child is entitled to receive benefits and when the child's right
to the death benefits terminate.
Section 2(a)(7) of article 6228f, V.T.C.S., defines "minor child"
as "a child who. on the date of the violent death of any person
covered by this Act, has not reached the age of 21 years." Since the
enactment of article 6228f, a Texas court has held that because of
article 592313,V.T.C.S., a child reaching the age of 18 years would no
longer qualify for benefits under article 6228f. V.T.C.S. See Cook v.
Employees Retirement Syst,emof Texas, 514 S.W.2d 329 (Tex. G. App. -
Texarkana 1974, writ ref d n.r.e.); see also Attorney General Opinion
MW-354 (1981). Termination of benefits are only provided for under
those circumstances, the act does not specifically provide for the
circumstance where a minor child receiving benefits, is adopted before
reaching the age of 18 years.
In Attorney General Opinion R-85 (1973). this office concluded
that children of a deceased law enforcement officer receiving benefits
under article 6228f. V.T.C.S., who had been adopted by someone else
cease to be the officer's children. The opinion cited Patton v.
Shamburger, 431 S.W.2d 506 (Tex. 1968). in support of that conclusion.
In Patton, the Texas Supreme Court held that a workman's children, who
were adopted by his wife's second husband prior to the death of the
workman, were no longer his "minor children" entitled to workmen's
compensation death benefits within the meaning of section 8a of
article 8306, V.T.C.S. The court also held that adoption of a minor
child under the old adoption statute terminated all legal relations,
rights and duties between the child and his natural parents except for
inheritance purposes. See V.T.C.S. former art. 46a. 59 (repealed
1973). The subsequent enactment of section 15.07 of the Family Code,
the new adoption statute, has no effect on the holding in Patton. See
Banegas v. Holmquist, 535 S.W.2d 410 (Tex. Civ. App. - El Paso 1976,
no writ). Accordingly, Attorney General Opinion H-85 (1973) is
limited to situations where a child is entitled to death benefits
under article 6228f. V.T.C.S., and who is adopted prior to the death
of the covered employee.
A minor child of a covered employee who is adopted prior to the
death of the covered employee is not entitled to death benefits under
article 6228f because the child's entitlement or right to the benefit
does not vest until the death of the covered employee. -See V.T.C.S.
art. 6228f, 5§2(a)(7), 3.
On the contrary, we believe that a child receiving benefits
because a natural parent who was a covered employee has "sufferted] a
violent death in the course of his duty," can continue to receive the
benefits because a subsequent adoption does not have the effect of
emancipating the minor child from disabilities of minority. - See
p. 3398
Mr. Clayton T. Garrison - Page 3 (JM-731)
Attorney General Opinion H-85 (1973). Thus, the child is entitled to
the benefits until infancy is removed. Attorney General Opinion H-85
(1973); cf. Home Indemnity Company v. Mosqueda, 473 S.W.2d 456 (Tex.
1971) (achild was entitled to Workmen's Compensation benefits
accruing from death until reaching the age of maturity).
SUMMARY
A minor child of a covered employee, who is
entitled to death benefits under article 6228f,
V.T.C.S., does not cease upon subsequent adoption
of the child.
JIM MATTOX
Attorney General of Texas
JACK RIGHTOWKR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
p. 3399