March 7, 1952

Hon. Sam Ii.Davis Opinion No. V-1418 DistrictAttorney Civil CourtsBldg. Re: ConstitutionalityofArtiHouston 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 constitutionalityofArticle 1994, V.C.S. You state there is now pending in the 55th District Court of Harris County a proceeding involving a minor childwho was awarded $1,000 and there is now on file an application for permission to invest this fund. The Judge of that courthas expressed
concern as to the constitutionalityofArticle 1994, V.C.S.
Article 1994,V.C.S., provides in part as followa:
%inora, lunatics, idiots ornon compoamentia 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 application and hearing, in term time or vacation,may provide by decree for an inveatment of the funds accruing under such judgment. Such decree, if made in vacation, aball be recorded In the minutes of the succeeding term of the court."
Section 16 ofArticle V of the Texas Constitutionprovides that the County Court shall have the jurisdictionof a probate court and shall appoint guardians ofminors, idiots, lunatics, orpersona non composmentis and transact all businesspertaining toHon. Sam W. I~vis, page 2 (v-1418)

thosepersons as provided by lav. Your question is whether the provisions ofArticle 1994,V.C.S., quoted above, are in conflictwith this section of the Constitution. The constitutional jurisdiction of the District Courts as set out in Section 8 of Article V of $he Texas Constitutionprovides that those courts

. . . shallhave general original jurisdiction over all causes of action whatever for which a remedy or jurisdictionis not provided by law or this Constitution,and such other juriadlctlonL originaland appellate, as may be provided by law.

It is well settled that in determining the constitutionalityof a statute It is the duty of the courts to uphold the legislativeenactment if at all possible and to adopt any reasonable constructionwhich will place the statute in harmony with the Constitution,rather than onewhich 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 thatwhere funds are investedby'order of the District Judge under Article 1994,V.C.S., the investment la binding upon theminor, although themoney 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 aoolicationwas m&e to-the District Court underArticle 1994~-by

a person as guardian of theminors who had received funds under a judgmentand that ainoe that person was not guardian the order for investmentwas obtainedby misrepresentation. The Courtheldthat the District Court involvedmust have found that the applicant for the right to Invest was not guardian of the minors, since the District Court's orderwas based upon the provisions ofArticle 1994, and consequently the investment orderwas proper. In so holding, the court stated:

?Said article firt. 19957 in express terms authorized the court, upon application and hearing, tomake an order directing the investment of the funds belonging- .

Hon. Sam W. Davis, page 3 (v-1418)

to thesemlnora. The Century Dictionary defines the word *Invest’as follows: ‘Toemploy for some profitable
use; convert into some other form of wealth, usually of a more or leaspermsnent nature, as In the purchase of property or shares or in loans securedby mortgages’, etc. The expenditure of the funds belonging to theseminors in the purchase of real estate in their respective names was clearlywithin the authority conferred. The investment ordered by the court in this casewas not invalid, as contendedby appelleea, because the interest vested in theminors therebywas an undivided interest In said tract of land instead of the entire interest therein. A similar issue was involved in McClendon v. Gahsgan, above cited.

. . .” (1

. . .Had Mrs. Allison been accorded the right to withdraw such funds
as the duly and legally qualified and acting guardian of the estates of said severalminors, said order should and doubtlesswould have merely directed that the same be paid to her and her receipt taken theref

or. Such a guardian has a legal right to the possession of the personal estate of the minor and upon receipt thereof is required to account therefor to the probate court. 4225, and 4297. R.S. arts. 4164, 4168,

Should such a guardian desire to investmoneys belonging to the minor in real estate, application for authority to do so must be made to the probate court and the propriety and desirability of such an investmentdetermined 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 toMrs. Allison, but,
on the contrary,directed that such funds be investedby the purchase of an undivided 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 madeHon. Sam W. Davis, page 

### 4 (V-1418)

the receipt of such grantor an acquittance to the clerk of further liability
on account of such funds. Weare not warranted in assuming that the district court, in making the order under consideration,was attempting to usurp the authority and jurisdiction of the probate court. The mere fact thatMrs. Allisonmay in her applicationhave deslgnated herself as 'guardianand next friend' of said severalminors is of little if any import,

. . .U

From the above authorities the Inference Is thatArticle 1994 la not to be construedas being in violation of any of the rights of the County Court acting in its capacityas a probate court,but that the provisions ofArticle 1994 operate independent of the action of the County Court in its supervisory jurisdictionof guardians, and when.therehas been no action by the County Court with regard to the appointment of a guardian. So construed,Article 1994 is not in conflictwith Section 

### 16 ofArticleV of the Texas Constitution. We thereforeagree with your conclusion thatArticle 1994 is constitutional.

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:

J. C. Davis, Jr. CountyAffairs Division

E. Jacobson ReviewingAssistant PRICE DARIEL Attorney General

Assistant / Charles D. Mathews First Assistant

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