## THEATTORNEY GENERAL **OF TEXAS** 

January 19, 1970

Honorable Joe Resweber Opinion No. M-557 County Attorney Harris County Courthouse &: Effect of late approval of Houston,Texas 77002 claims under Sections 308-310of the Texas ProDear Mr. Resweber: bate Code.

You have presented the followingquestion relating to the interpretationof Sections 308-310 of the Texas Probate Code: "Does the Probate Court have the power to_approvea claim allowedby the personal representativeof an estate after the statutory thirty (30)day limitation specified in Sec. 308 of the Probate Code?" The sections of the Texas Probate Code applicable to this question are as follows:

"§308. Depositing Claims With Clerk "Claimsmay alsobe presentedby depositing same, with vouchers and necessary exhibits and affidavit attached,with the clerk,who, upon receiving same, shall advise the representative of the estate, or his attorneyby lettermailed to his last known address, of the devosit of same. Should the representative.failto act on said claim within thirty days after it is filed then it shall be presumed to be rejected. F6ilure of the clerk-to give notice as requiredherein shall not affect the validity of the presentment or presumption of rejectionbecause not acted upon within said thirty day period. Acts 1955, 54th Leg. p. 88 ch. 55. (Emphasisadded,)

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"5309.Memorandum of Allowance or Rejection of Claim.

55.

"9310. Failure to Endorse or Annex Memorandum

The interpretativecommentary of Section 309 of the Probate Code states the purpose of this section and Section 310, to-wit:

"The former statutes required allowance or rejectionof claims by personal representatives, but they did not prescribe any period of timewithin which such action shouldbe had. To combat the problem of lethargicor procrastinatingrepresentatives, this Section requires actionwithin 30 days after presentment of the claim, and Section 310provides that any claim not acted on within such period shall be deemed rejected." The use of theword "shall" is ordinarilymandatory. Moyer v. Kelley, 93 S.W.2d 502 (Tex.Civ.App.1936, error dism.);

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Hon. Joe Resweber, Page 3 (M-557)
53 Tex.Jur.Zd X';'Statutes,Sec. 16.

In 18 Tex.Jur.2d 446, Decedents' Estates, Section 559, the following is stated in discussingAllowance, Rejection, and Contests of Claims, to-wit:

"Generallythe onlymode of establishing a money demand against an estate and of enforcing its payment is provided by the Probate laws, since these laws evidence a design to afford a,,system of rules for the settlementof the estates of deceased persons complete in itself, and to comprise the only rules that should govern their settlement." The questionhere involvedwas consideredby the Supreme Court of Texas in Russellv. Dobbs, 163 Tex. 282, 354 S.W.Zd 373 (1962). In this case the claim was never formally allowed or rejectedby the administratrix. In discussing the matter the Court stated the following:

"The representative is now required to endorse his allowance or rejection on the claim within thirty days after it is presented to him or filedwith the clerk. Section 309. His failure to actwithin the prescribedperiod on a claim presented to him constitutes a rejectionof the claim, and subjects the representativeto liability for court costs and to removal from office if the claim is thereafter establishedby suit. Section 310. In view of these provisions,we are satisfied that the Legislaturedid not intend to createmerely a rebuttablepresumption of rejectionwhen the representative fails to actwithin thirty days on a claim depositedwith the clerk. (354S.W.2d 375.) "Section 308was enacted prima~rilyfor the benefit of creditors. It provides amethod of presenting claimswhen the representativecannot be located, and also fixes a definite time at which the claimantbecomes entitled to institute suit in the event his claim is not allowed. The purpose of the statutewould be defeated if an action institutedby the creditor after expiration of the thirty-dayperiod could be abated upon a showing

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by the representativethat the claim had not been rejected in fact. Since the claim is presumed to be rejected even though the clerk fails to notify the representative, it seems clear that the Legislaturewas attempting to do somethingmore than establish a period thatwould prima facie constitute a reasonable time for the representativeto act. In our opinion the presumption of rejection created by Section 308 is conclusive in so far as the claimant'sright to institute suit and the legal consequencesof failure to do so are concerned. (354S.W.2d 375) "Petitionersknew that their claim had been filedwith the clerk, and were chargedwith know%sdgs that the samewould be deemed rejected by operation **of** law if no actionwas takenby the Administratrixwithin thirty days.,"(354S.W.2d 376)

APP. Also see Childre v. Childre, 417 S.W.2d 464 (Tex.Civ. 1967, no writ) for the proposition that a claimwas deemed -3 ected by operation of law thirty days after itwas filed.

In 18 Tex.Jur.Zd 500, Decedents' Estates, Section 641, the following textual statement is made:

"Since,where a claim formoney has been presented, and the executor or administrator fails to endorse or annex the memorandum of his action within thirty days after presentation as required by statute, such failureoperates as a rejection, inaction on the part **of** the representative for the Maospecified in this provision sets in motion the statute requiring suit on a rejected claim to be commencedwithin ninety days after rejection." It is alsoprovided, in 18 Tex.Jur.2d 478, Decedents' Estates, Section 603, as follows:

"The county judge, sitting in Probate,has no authority to hear a claim that has been rejected by a representative. His authority is limited to passing'on claims that have been allowedby the representative."

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Hon. Joe Resweber, Page 5 (M-557)

The question under consideration is analogous to the one involved in Chantre v. National Maritime Union P&W Plan, 425 S.W.Zd 659 (Tex.Civ.App.1968, no writ.), wherein the Court held that after the judgmenthad become final the trial court did not have the authority to preserve a party's right to appeal by withdrawing the order granting summary judgmentafter the ten day period within which notice of appeal shouldbe **given** and re-entering the same

A claim iS after it has been on Probate Court has no order as of a later date. deemed rejectedby operation of law file for thirty days and thereafter the authority to approve such claim.

SUMMARY ------- The Probate Court has no power to approve claims filed under Section 308 of the Texas Probate Code where such claims have been rejectedby operation of law under Section 310 of,the Probate Code. **truly** yours,

Preparedby Jack Sparks Assistant Attorney General **< ’**  **f**

**. 4&h**  eneral of Texas

APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman Alfred Walker, Co-Chairman John Banks Fisher Tyler James Quick Phil Warner MEADE F. GRIFFIN Staff Legal Assistant NOLA WHITE First Assistant

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