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 

308-310 of the Texas ProDear Mr. Resweber: bate Code. 

You have presented the following question relating 

to the interpretation of Sections 308-310 of the Texas Probate 

Code : 

"Does the Probate Court have the power 

to _approve a claim allowed by the personal 

representative of 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 

"Claims may also be presented by 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 attorney by letter mailed 

to his last known address, of the devosit of same. 

Should the representative.fail to 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 required herein shall 

not affect the validity of the presentment or 

presumption of rejection because not acted upon 

within said thirty day period. Acts 1955, 54th 

Leg. p. 88 ch. 55. (Emphasis added,) 

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Hon. Joe Resweber, Page 2 (M-557) 

"5309. Memorandum of Allowance or Rejection 

of Claim. 

55. 

"9310. Failure to Endorse or Annex Memorandum 

The interpretative commentary of Section 309 of 

the Probate Code states the purpose of this section and Section 

310, to-wit: 

"The former statutes required allowance or 

rejection of claims by personal representatives, 

but they did not prescribe any period of time within 

which such action should be had. To combat the problem of lethargic or procrastinating representatives, 

this Section requires action within 30 days after 

presentment of the claim, and Section 310 provides 

that any claim not acted on within such period shall 

be deemed rejected." 

The use of the word "shall" is ordinarily mandatory. 

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 discussing Allowance, Rejection, and 

Contests of Claims, to-wit: 

"Generally the only mode 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 settlement of the estates of deceased 

persons complete in itself, and to comprise the 

only rules that should govern their settlement." 

The question here involved was considered by the 

Supreme Court of Texas in Russell v. Dobbs, 163 Tex. 282, 354 

S.W.Zd 373 (1962). In this case the claim was never formally 

allowed or rejected by 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 filed with the clerk. Section 309. His failure 

to act within the prescribed period on a claim 

presented to him constitutes a rejection of the 

claim, and subjects the representative to liability 

for court costs and to removal from office if the 

claim is thereafter established by suit. Section 

310. In view of these provisions, we are satisfied 

that the Legislature did not intend to create merely 

a rebuttable presumption of rejection when the 

representative fails to act within thirty days on 

a claim deposited with the clerk. (354 S.W.2d 375.) 

"Section 308 was enacted prima~rily for the 

benefit of creditors. It provides a method of 

presenting claims when the representative cannot 

be located, and also fixes a definite time at which 

the claimant becomes entitled to institute suit 

in the event his claim is not allowed. The purpose of the statute would be defeated if an action 

instituted by the creditor after expiration of 

the thirty-day period could be abated upon a showing 

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Hon. Joe Resweber, Page 4 (~-557) 

by the representative that 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 Legislature was attempting to do something more than 

establish a period that would prima facie constitute 

a reasonable time for the representative to act. 

In our opinion the presumption of rejection created 

by Section 308 is conclusive in so far as the 

claimant's right to institute suit and the legal 

consequences of failure to do so are concerned. 

(354 S.W.2d 375) 

"Petitioners knew that their claim had been 

filed with the clerk, and were charged with 

know%sdgs that the same would be deemed rejected 

by operation of law if no action was taken by the 

Administratrix within thirty days.," (354 S.W.2d 376) 

APP. 

Also see Childre v. Childre, 417 S.W.2d 464 (Tex.Civ. 

1967, no writ) for the proposition that a claim was deemed 

-3 ected by operation of law thirty days after it was filed. 

In 18 Tex.Jur.Zd 500, Decedents' Estates, Section 641, 

the following textual statement is made: 

"Since, where a claim for money 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 failure operates 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 commenced within ninety days after rejection." 

It is also provided, 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 allowed by 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 judgment had become final the trial court 

did not have the authority to preserve a party's right to appeal 

by withdrawing the order granting summary judgment after the ten 

day period within which notice of appeal should be 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 rejected by 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 rejected by operation of law 

under Section 310 of, the Probate Code. 

truly yours, 

Prepared by 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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