JIM MATTOX 

Attorney General 

Supreme Court Buildin 

P. 0. Box 12540 

Austin. TX. 78711. 2548 

5121475.2501 

Telex 9101874.1367 

Telecopier 51214750266 

714 Jackson. Suile 700 

Dallas, TX. 75202.4506 

2141742.8944 

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El Paso. TX. 79905-2793 

91515334484 

,001 Texas. Sulta 700 

Houston, TX. 77002.3111 

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606 Broadway, Suite 312 

Lubbock. TX. 79401-3479 

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4309 N. Tenth. Swte S 

McAllen. TX. 78501.1585 

5121682.4547 

200 Main Plaza. Suite ux) 

San Antonio. TX. 78205-2797 

51212254191 

A” Equal Opportunitvl 

Atfirmatwe Act,“” ErWoveThe Attorney General of Texas 

Novmber 14, 1984 

Mr. Bruce Rineman 

Executive Secretary 

Teacher Retirement j:lstem of Texas 

1001 Trinity Street 

Austin, Texas 7a7o:t 

Opinion No. JM-230 

Re: Whether the Teacher Retirement System may pay benefits 

on behalf of a minor child to 

a managing conservator who is 

not the child’s parent 

Dear Mr. Rinemao: 

You ask (1) whether a non-parent managing conservator of a minor 

child is authorized to receive and give receipt for Texaa Retirement 

System [hereinafter TRS] survivor benefits on behalf of the minor, and 

(2) whether the non-parent managing conseNator is authorized to elect 

among benefits paya>:le to the minor. 

Controversies over the powers of a managing conservator, either 

parent or non-parent, arose initially because guardianship of the 

person and guardia:lship of the estate are distinct positions. See 

Prob. Code 5184(c). Tsxas probate law requires that a court appoio= 

guardian of e minor’s estate. See Prob. Code 1109(a); see also 

Phillips v. Phillti)s. 511 S.W.2d 748 (Tex. Civ. App. - San Antonio 

1974, 00 vrit);ii;er v. Southern National Life Insurance Company, 

326 S.W.Zd 715 3;~. Civ. App. - San Antonio 1959, writ ref’d). 

Although a child’s p,srent is the natural guardian of the person of the 

minor, the law traditionally limited even a parent to an entitlement 

to be appointed guardian of his child’s estate; he had no absolute 

right to act. mm- Si.Lber. 326 S.W.Zd at 717. Consequently, Attorney 

General Opioioo E-i35 (1973) concluded that the State Employees 

Retirement System may not pay benefits due minors to anyone except a 

person appointed by a court to receive the benefit payments. See 

Prob. Code §109 (,guardian of estate); 5228, (guardian appoins 

specifically to receive government funds). 

Several years later, Attorney General Opinion H-1214 (1978) 

determined that section 12.04 of the Family Code, first effective in 

1974, authorized ila.rents to receive and give receipt for benefit 

-- 

payments due their lninor child from the Employees Retirement System 

without the neceslzlty of a formal guardianship. Attorney General 

Opinion R-1214 construed two subsections of section 12.04 of the code 

p. 1032 
Mr. Bruce Aineman - Page 2 (JM-230) 

as limited exceptions to the Seneral rule followed in Attorney General 

Opinion H-85. At that time, two subsections provided as follows: 

[T]he parent of: a child has the following 

rights, privileges, duties, and powers: 

* . . . 

(4) the duty tolnaoage the estate of the child, 

except when a gucz:dian of the estate has been 

appointed; 

. . . . 

(8) the power 1:~) receive and give receipt for 

payments for the support of the child and to hold 

or disburse anyfunds for the benefit of the 

-- 

child. . . . (Emp’~asis added). 

Cf. Acts 1983, 68th Leg., 

- 

ch. 1016 at 5436 (subsection (4) amended). 

Section 14.02(b) of thsz Family Code has oo direct corollary to 

the parents’ duty in section 12.04(4) to manage the minor’s estate. 

As recently amended, however, subsection (6) of section 14.02(b) 

clearly brings some powers over a minor’s estate within a non-parent 

managing conservator’s author:lty: 

the power to reprwent the child in legal action 

and to make other ‘decisions of substantial legal 

significance cooc:e,roing the child fncludinn . 

except when a guardian of the child’s est ate or a 

guardian or attorney ad litem has been appointed 

for the child, a p&er as an agent of the child to 

act in relation fo the child’s estate if the 

chil 

- 

id’s action is required by a state, the United 

States, or a fore:z;n government. . . . (Emphasis 

added). 

Acts 1983. 68th Leg.. ch. 10115, at 5437. V.T.C.S. Tex. Fam. Code Ann. 

514.02(b) (6). (The emphasd,zed language also amended the parents’ 

estate power provision, sectllan 12.04(4).) 

Although subsection (6: of section 14.02(b) does not create as 

comprehensive a power to mar,age a minor’s estate as the power held by 

parents, it does authorize action in relation to the child’s estate 

when action Is required by ZI governmental entity and when a court has 

not appointed a guardian auth#Drized to receive such payments. The TRS 

“requires” that an authorized person receive payments to avoid the 

danger of incurring double li,ability. Thus, in response to your first 

p. 1033 
Mr. Bruce Hioeman - Page 3 (JM-230) 

question. we conclude that section 14.02(b). as amended, encompasses 

authorization for a non-parent managing cooserzator to receive and 

give receipt for governmeot benefit payments such as TRS survivor 

benefits unless and until a formal guardianship exists. 

Because election among benefits is an Incident of receiving such 

benefits, we also answer yor.r second question affirmatively. Although 

section 34.404(d) of Title HOB, Public Retirement Systems, refers to 

election of benefits for minors by “their guardian.” section 

14.02(b) (6) of the Family Code necessarily authorizes a non-parent 

managing consexvetor to ele:c’ among available benefits. As indicated 

at the ooset of this discusc;i.on , the general term “guardian” ten apply 

to distinct positions; thus, section 34.404 may not have been intended 

to require election of tbenefits by a court-appointed guardian. 

Nevertheless, even if the provision requires election by a formal 

guardian, section 14.02(b) (1i11, as amended, grants non-parent managing 

conservators the limited “guardian” power necessary to elect among TRS 

survivor benefits so long es oo formal guardianship exists. See 

- 

Attorney General Opinion H-1,2:14. 

SUMMARY 

Section 14.02(b)(6) of the Texas Family Code 

authorizes the non-parent maoaging conservator of 

a minor child (1) to receive and give receipt for 

Texas Retirement System survivor benefits on 

behalf of the minor, and (2) to elect amoog the 

benefit options wrailable to the minor so long as 

no guardian of the child’s estate or a guardian or 

attorney ad litem, has been appointed for the 

child. 

J In N A T T 0 X 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICRARDS 

Executive Assistant Attorne:r General 

RICK GILPIN 

Chairman, Opinion Committee 

p. 1034 
Mr. Bruce Rinemao - Page 4 (J&l-230) 

Prepared by Jennifer Rigge 

Aeeietaot Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpio. Chairman 

Co110 Carl 

Susan Garrieoo 

Tooy Goillory 

Jim Moellinger 

Jennifer Rigge 

Nancy Sutton 

p. 1035