## THE AITCBFCNEY GENERAL UDFTEXAS AriaTIN. TExae 78711 October 18, 1967

Honorable Burton G.Hackney Opinion No. M-148 Commissioner, State Department ofPublic Welfare Re: Whether House Rills Nos. 78 and 80, 60th John H. Reagan Bldg. Legislature, 1967, have the effect of re Austin, Texas 7870~1 pealing Section 246, Texas Probate Code, so asto preclude acourt from ordering that no costs or fees be charged needy persons in guardianship proceedings; and related Dear Mr.Hackney: constitutional questions

You have requested the opinion of this office regarding the subject question. Section 246, Texas Probate Code, isquoted asfollows:

‘Whenever aguardian isappointed for the purpose ofenabling aperson to receive public assistance which is contingent upon need, from the State or Federal Government, the court may, in its discretion, order that no costs or fees be charged in connection with the proceeding.” Based upon the above statute, your letter ofrequest isquoted, inpart, asfollows: “The Probate Courts inmost ofthe Counties inthe State ofTexas have been waiving the Court costs in guardianship proceedings for the needy aged, blind, disabled, and families with dependent children whenever itwasnecessary to have a guardian appointed in order that such individuals could receive their Public Asststance

grants. In most instances, the recipients arecompletely without funds or are living on a very low-income level and depending primarily upon their assistance grants for support,. “Although the State Department of Public Welfare does not actually fte the petitions for guardianships, the Department isinvolved because it cannot make assistance payments to an individual who isincapable ofhandling his own affairs and endorsing his own checks until a legal guardian has been appointed. “The Department has received notice that in some of the Counties, guardianship papers on behalf of the indigent recipients of Public Assistance cannot be filed without the payment of Court costs. The Department iswithout. legal authority to pay :tlm Cwtt ~cebts:~andl(ltherrecipients, or potential r@ipients, are not financially able to do so. It is our understanding that the County Clerks are relying upon House Bills No. 78 and No. 80 as their legal

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authority for requiring the payment ofCourt costs.” House Bill No,. 78, 60th Legislature, Regular Session, 1967, Chapter 680, page 1785 and House Bill No. 80, 60th Legislature, Regular Session, 1967, Chapter 681, page 1789 were enacted as fee bills affecting the amount of fees that must be collected by County Clerks. Both ofthese enactments purported to repeal anumber ofspecific statutes, plus allothers inconflict with the new statutes. It isthe view of this office that Section 246, Texas Probate Code, is not affected by the enactment of House Bills 78 and 80, for the reason that these enactments simply provide for the establishment of certain fees collectable by the County Clerk for certain specific acts. Section 246 is not a fee statute, but is an authorization to the County Judge to waive the payment offees incertain circumstances” Aclose examination of House Bills78 and 80 reveals nothing which would lead usto conclude that the Legislature intended to amend orrepeal the authority granted to the Court to waive costs orfees in certain circumstances.

In view of the foregoing, your questions regarding the constitutionality ofHouse Bills78 and 80need not be answered. SUMMARY

House Bills Nos. 78 and 80, 60th Legislature, 1967, do not repeal or amend Section 246 ofthe Texas Probate Code. &ery truly,

ey General ofTexas Prepared by Malcolm L. Quick Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman W.V.Geppert W:0. Shultz Gilbert Pena 2; T. Fortescue A.JICARUBBI, JR. Staff Legal Assistant

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