THE AITCBFCNEY GENERAL 

UDFTEXAS 

AriaTIN. TExae 78711 

October 18, 1967 

Honorable Burton G. Hackney Opinion No. M- 148 

Commissioner, State Department 

of Public 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 as to preclude a court 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, is quoted as follows: 

‘Whenever a guardian is appointed for the purpose of enabling a person 

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 of request is quoted, in part, as follows: 

“The Probate Courts in most of the Counties in the State of Texas have 

been waiving the Court costs in guardianship proceedings for the needy aged, 

blind, disabled, and families with dependent children whenever it was necessary 

to have a guardian appointed in order that such individuals could receive their 

Public Asststance grants. In most instances, the recipients are completely 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 is involved because it cannot make assistance payments to an individual who is incapable of handling 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 is without. 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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Honorable Burton G. Hackney, Page 2, (M-148) 

authority for requiring the payment of Court 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 of these enactments purported to repeal a number of specific statutes, plus all others in conflict with the new statutes. It is the 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 of fees in certain circumstances” A close examination of House Bills 78 and 80 

reveals nothing which would lead us to conclude that the Legislature intended to amend or repeal 

the authority granted to the Court to waive costs or fees in certain circumstances. 

In view of the foregoing, your questions regarding the constitutionality of House 

Bills 78 and 80 need not be answered. 

SUMMARY 

House Bills Nos. 78 and 80, 60th Legislature, 1967, do not repeal or 

amend Section 246 of the Texas Probate Code. 

&ery truly, 

ey General of Texas 

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. JI CARUBBI, JR. 

Staff Legal Assistant 

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