ORNEY GENE 

QF TEXAS 

Honorable Bayne Satterfield, Commissioner 

Firemen's Pension Commissfon 

P. 0. BOX 1062 

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 to widows and children, says, In part: 

“‘Section 12 a ----; (b) to the 

each child the sum of Six Dollars ( t 

uaFdlan of 

6) per month 

until such chfld reaches the age of eighteen (18) 

gears; o a o D yt 

"One of OUP c1tg Attorney's has brought up 

the questfon as to whether the benefits to the child 

or chfldren should be made to the 'natural guardian 

of the child or" children' where no authority to 

expend funds has been made by the probate Court; 

or- to the guapdfan of the estate who 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 youra opinion as to whom 

the Boards may make benefit payments to minor 

chfldren; 

"1 a 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-e is also a natural guardian who 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 guardian who 

has been authorized by the probate court to expend 

funds of the ward." 

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 

children by 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 parents who 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: 

"Only one 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 shall be satisfied that 

it will be for the advantage of the ward to do so. 

Nothing in this article shall be held to prohfbit 

the joint appointment of husband and wife." 

Article 4162: 

"The guardian of the person Is entitled to 

the charge and control of the person of the ward, 

and the care of his support and educa,tlon, and 

hLs duties shall correspond with 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 

is properly 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 

"The guardian 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 such ward, to enforce all obllgations in his favor, to bring and defend suits by 

or against him; but In the management of the estate, ,the guardian shall be 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 

estate would have produced by such prudent management." 

Article 4166: 

"The guardian of both person and estate has 

all the rights and powers and shall perform all 

the dutLes of the guardian of the person and of 

the guardian of the estate." 

Article 41128: 

"SectIon 1, Whenever any minor, lunatic, 

ldlbt, or non compos mentis, who has no le-gal 

guardian shall be entitled to any sum or sums of 

money not exceeding Two 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'sum may 

pay same over to the County Clerk of the county In 

which said minor, lunatic, Idiot, or non compos 

mentls,~resldes, for the account of said mfnor, 

lunatic, ddlot, OP non compos mentls, and the receipt of the County Clerk therefor shall be forever bfnding on said minor, lunatic, idLot, or 

non compos mentls, as of the date and to the extent of the payment so made. 

"Set o 2. Whenever any such sum shall be re-" 

celved by any County Clerk, he shall fortM"$.M~~ 

posit said sum in his Trust Account in--name 

and for the account of said minor, lunatic, idiot, 

or non compos mentls. 
Honorable Bayne Satterfleld, page 4 o -6492 

“Sec. 3. The father OP mother of such minor. 

lunatic, idiot, or non compos mentis, if either-be 

living within the State, OP if both the father and 

mother be dead or living without the State, then 

such person having custody of the person of saidminor', lunatic, idiot, or" non compos mentis, may, 

uponapplication approved by the Countg~Judge of 

the county in which said minor, lunatic, ldlot, 

or non compos mentis resides, withdraw and take 

charge'of said money for the benefit-of said minor, 

lunatic, idiot, or non compos mentis, upon execut-. 

fng and ffling wfth the County Clerk a proper bond, 

approved by the County Judge Ln a sum at least 

double the amount of said fund, payable to the 

County Judge, conditioned that 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 said money and the increase thereof, if 

any,~to the minor when he becomes of age or to the 

lunatic, idlot, or non compos mentls when he is 

restored to sanity or to 'the legally qualified 

guardian of such person, when called upon to do so. 

"Set D 4. Such person who takes such money shall 

receive no fees or commissions for caring for or 

handling the same. 

"Sec. 4-a" When the person to whom said money 

has been paid by the County Clerk for the benefit 

of said minor, lunatic, idLot, OP non compos mentis 

as dire&e8 ~bg the County Court OP Judge thereof 

or shall have otherwise complied with the provisions of his aforesaid bond by accounting for said 

money and the increase thereof, if any, he shall 

file with the County Clerk from whom said money 

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 liability under and by reason of the aforesaid bond. The County Court or Judge thereof shall 

satisfy himself 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 

shall be 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 statute which provides for the natural guardianship 

or parents over the person of their minor children also provides that, "the natural guardian 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 surviving mother is entitled to the positlon. But thls portion of 

the sta'tute merely entitles the natural guardian 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 

he must be appointed by the probate court before he may act. 

Vineyard v. Heard, (Clv. App.) 167 S.W. 22, affirmed 212 S.W. 

489 D 

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 that we have had some difficulty in interpreting 

them and particularly your question No. 3. We believe, however, that the above sufficiently answers 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 

ATTORNEY GENERAL 

Approved Opinion Committee By s/BwB Chairman