ORNEY GENE QF TEXAS

Honorable Bayne Satterfield, Commissioner Firemen's Pension Commissfon P. 0. BOX1062 Austin, Texas
Dear Sir: Opinion NO. O-6492 Re: Payment of benefFt to mlnor chlldren, 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 towidows and children, says, Inpart:

“‘Section 12a ----; (b) to the each child the sum of SixDollars ( tuaFdlan of 6) per month until such chfld reaches the age of eighteen (18) gears; o a o D yt "Oneof OUP c1tg Attorney's has brought up the questfon as to whether the benefits to the child or chfldren shouldbe made to the 'naturalguardian of the child or"

children'where no authority to expend funds has been made by the probate Court; or-to the guapdfan of the estatewho has the authorfty to expend such funds of the ward.
"In order to clear up this point for the guidance of .the

Boards of Trustees fn the future, will you please give us youraopinion as to whom the Boards may make benefit payments to minor chfldren; "1a When there is only a natural guardian and this guardian has no,t been authorized to expend funds by the comt. "2.When a guardlan of estate has been appointed and ther-eis also a natural guardianwho has not been authorfzed 'by,the court to expend funds of the ward,Honorable Bagne Satterfield,page 2 o-6492

"3

. When a guardian of estate has been appointed and there is also a natural guardianwho has been authorizedby the probate court to expend funds of theward." 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 childrenby the marriage. If one parent is dead, the survivor is the natural guardian of the person of the minor children. The natural guardian Is entltled to be appointed guardian OX?their es-~ tates. The rights of parentswho do not live together 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: "Onlyone guardian can be appointed of the person or estate;but one person may be appolnted guardian of the person, and another of the estate,whenever .the dourt shallbe satisfied that itwill be for the advantage of the ward to do so. Nothing in this article shallbe held to prohfbit the jointappointment of husband and wife." Article 4162: "Theguardian of the person Is entitled to the charge and control of the person of the ward, and the care of his supportand educa,tlon, and hLs duties shall correspondwith 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 isproperly educated, and, if necessary for his support, that he learn a trade or adopt some useful profession." Article 4164:..

Honorable Bagne Satterfield,page 3 0-6492

"Theguardian of the estate is entitled to the possession and management of all property belonging to the ward, to collect all debts, rents or clai.ms

due suchward, to enforce all obllgations in his favor, to bring and defend suitsby or against him;but In the management of the estate, ,theguardian shallbe governed by the provlslons 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 prudent man would manage his own property. He shall account,,

for all rents, profits and revenues as the estatewould have produced by such prudentmanagement." Article 4166: "Theguardian of both person and estate has all the rights and powers and shallperform all the dutLes of the guardian of the person and of the guardian of the estate." Article 41128:
"SectIon1, Whenever any minor, lunatic, ldlbt, or non compos mentis,who has no le-gal guardian shallbe entitled to any sum or sums of money not exceedingTwo Hundred and F1ftyDollars ($250) from any person, firm, corporation,admlnistrator, executor,guardian, or trustee,,arlsing out of any liquidated and uncontested claim, such person, firm, corporation,administrator, executor,guardian, or trustee holding such'summay pay same over to the County Clerk of the county In which saidminor, lunatic, Idiot, or non compos mentls,~resldes, for the account of saidmfnor, lunatic, ddlot, OP non composmentls, and the receipt of the County Clerk therefor shallbe forever bfnding on said minor, lunatic, idLot, or non compos mentls, as of the date and to the extent of the payment so made.
"Seto2. Whenever any such sum shallbe re-" celvedby any County Clerk, he shall fortM"$.M~~ posit said sum in his TrustAccount in--name and for the account of saidminor, lunatic, idiot, or non composmentls.Honorable Bayne Satterfleld,page 4 o-6492

“Sec. 3. The father OP mother of suchminor. lunatic, idiot, or non composmentis, if either-be livingwithin the State, OP if both the father and mother be dead or livingwithout the State, then suchperson having custody of the person of saidminor',lunatic, idiot, or" non compos mentis,may, uponapplication approvedby the Countg~Judgeof the county inwhich saidminor, lunatic, ldlot, or non compos mentis resides,withdraw and take charge'of saidmoney for the benefit-of saidminor, lunatic, idiot, or non compos mentis, upon execut-. fng and fflingwfth the County Clerk a proper bond, approvedby the County Judge Ln a sum at least double the amount of said fund, payable to the County Judge, conditionedthat 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 saidmoney and the increasethereof, if any,~to the minor when he becomes of age or to the lunatic, idlot, or non composmentls when he is restored to sanity or to 'thelegally qualified guardian of such person,when called upon to do so. "SetD 4. Such personwho takes suchmoney shall receive no fees or commissions for caring for or handling the same. "Sec. 4-a" When the person to whom saidmoney has been paid by the County Clerk for the benefit of saidminor, lunatic, idLot, OP non composmentis as dire&e8 ~bgthe County Court OP Judge thereof or shall have otherwise compliedwith the provisions of his aforesaidbond by accounting for said money and the increase thereof, if any, he shall filewith the County Clerk fromwhom saidmoney was received, his sworn report thereof;which report 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 further liabilityunder and by reason of the aforesaidbond. The County Court or Judge thereof shall satisfyhimself 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 shallbe cumulative of all other laws upon the same subject,and is not intended to repeal any other law upon the subject of ,the rights of minors,Honorable Bayne Satterfield, page 5 o-6492

lunatics, idiots, or non compos mentls, or money belonging to such persons." The statutewhich provides for the natural guardianship or parents over the person of theirminor children also provides that, "thenaturalguardian Is entitled to be appointed guardlan of their estate." Thus the father has the right prior to all others;and in the case of his death, the survivingmother is entitled to the positlon. But thls portion of the sta'tute

merely entitles the naturalguardian to be appointed guardian of the estate; it does not give him the absolute right to act, as in the case of guardianship of the person, and hemust be appointed by the probate court before he may act. Vineyard v. Heard, (Clv.App.) 167 S.W. 22, affirmed 212 S.W. 489D 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 Article 4112a.
We have not answered your questions categorlcally for the reason thatwe have had some difficulty in interpreting them and particularlyyour questionNo. 3. We believe, however, that the above sufficientlyanswers all of your questions.
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 ATTORNEYGENERAL Approved Opinion CommitteeBy s/BwB Chairman