JIM MATTOX Attorney General

Supreme Court Buildin P.0. Box 12540 Austin. TX. 78711. 2548 5121475.2501 Telex 9101874.1367 Telecopier 51214750266

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A” Equal Opportunitvl Atfirmatwe Act,“” ErWove

# TheAttorney General ofTexas
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 aminor 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 amongbenefits 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, 00vrit);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. Si.Lber. 326 S.W.Zd at 717. mm- Consequently, Attorney General Opioioo E-i35 (1973) concluded that the State Employees Retirement System maynot 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

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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, ap&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 ZIgovernmental entity andwhen a court has not appointed a guardian auth#Drized to receive such payments. TheTRS

“requires” that an authorized person receive payments to avoid the danger of incurring double li,ability. Thus, in response to your first

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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 amongbenefits is an Incident of receiving such benefits, wealso 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

### nothave 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 

### toelect amongTRS 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 aguardian or attorney ad litem, has been appointed for the child.

J In NATT0X Attorney General of Texas TOMGREEN First Assistant Attorney General DAVIDR. RICRARDS Executive Assistant Attorne:r General RICKGILPIN Chairman, Opinion Committee

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### Mr.BruceRinemao-Page4 (J&l-230)



### Prepared

byJenniferRigge Aeeietaot

Attorney 

### General APPROVED: OPINIONCOMMITTEE RickGilpio.Chairman Co110Carl SusanGarrieoo TooyGoillory JimMoellinger JenniferRigge NancySutton



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