Mr. ClaytonT. Garrison Executive.Director EmployeesRetirement System of Texas P. 0. Box 13207 Austin,Texas 78711 OpinionNo. JM-731
Re: Whether benefits paid under article 6228f.V.T.C.S., onbehalf of a minor child, cease upon the adoption of that child
Dear Mr. Garrison:
You have requested our opinion regarding the effects of adoption upon a minor child's entitlement to death benefits under article 6228f, V.T.C.S. We believe that the adoption of a minor child subsequent to the death of his natural parent does not bar the child's entitlementto deathbenefits under article 6228f,V.T.C.S. Article III, section 51-d, of the Texas Constitution authorizes the legislature to enact legislation to provide for financial assistance to surviving spouse and "minor children" of certain employees "who, because of the hazardous nature of their duties, suffer death in the course of the performance of those officiai duties." See Tex. Const. art. III, 551-d. Upon that authority, the legislatureenacted articlr 622&f, V.T.C.S. Section 3 of article 6228f.V.T.C.S.,provides:

In any case in which a [covered employre]
. . . suffers violent death in the course of his duty..
. if such [coveredemployee]
. . . shall be survived by a minor child or minor children, the State of Texas shallpay to theduly appointed or qualified guardian or other legal representative of eachminor child.
. . . [Stipulatedamounts]. Provided, thatwhen any child entitled tobenefits under this Act ceases tobe a minor child as that term is defined herein, his entitlement to benefits shall terminate.
. . . (Emphasisadded).



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Thus, section 3 of article 6228f. V.T.C.S., establisheswhen a minor child is entitled to receivebenefits andwhen the child's right to thedeathbenefits terminate. Section 2(a)(7)of article 6228f,V.T.C.S., defines "minor child" as "a child who. on the date of the violent death of any person coveredby thisAct, has not reached the age of 21 years." Since the enactment of article 6228f, a Texas court has held that because of article 592313,

V.T.C.S., a child reaching the age of 18yearswould no longer qualify forbenefits under article 6228f.V.T.C.S. See Cook v. EmployeesRetirement Syst,em of Texas, 514 S.W.2d 329 (Tex.G. App. - Texarkana 1974,writ ref d n.r.e.); see also Attorney General Opinion MW-354 (1981). Termination of benefits are only provided for under those circumstances, the act does not specifically provide for the circumstancewhere a minor child receivingbenefits, is adoptedbefore reaching the age of 18years. In Attorney General Opinion R-85 (1973). this office concluded that children of a deceased law enforcementofficer receivingbenefits under article 6228f. V.T.C.S., who had been adopted by someone else cease to be the officer's children. The opinion cited Patton v. Shamburger,431 S.W.2d 506 (Tex. 1968). in supportof that conclusion. In Patton, the Texas Supreme Courtheld that aworkman's children,who were adopted by his wife's second husband prior to the death of the workman, were no longer his "minor children" entitled to workmen's compensation death benefits within the meaning of section 8a of article 8306, V.T.C.S. The court also held that adoption of a minor child under the old adoption statute terminated all legal relations, rights and dutiesbetween the child and his naturalparents except for inheritance purposes. See V.T.C.S. former art. 46a. 59 (repealed 1973). The subsequent enactment of section 15.07 of the Family Code, thenew adoption statute,has no effect on theholding in Patton. See Banegas v. Holmquist, 535 S.W.2d 410 (Tex.Civ. App. - El Paso 1976, no writ). Accordingly, Attorney General Opinion H-85 (1973) is limited to situations where a child is entitled to death benefits under article 6228f. V.T.C.S., and who is adopted prior to the death of the covered employee.
A minor child of a covered employeewho is adopted prior to the death of the covered employee is not entitled to death benefits under article 6228fbecause the child's entitlementor right to thebenefit does not vest until the death of the covered employee. See V.T.C.S. - art. 6228f, 5§2(a)(7),3. On the contrary, we believe that a child receiving benefits because a naturalparent who was a covered employeehas "sufferted]a violent death in the course of his duty," can continue to receive the benefits because a subsequent adoption does not have the effect of emancipating the minor child from disabilities of minority. See -

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Attorney General Opinion H-85 (1973). Thus, the child is entitled to the benefits until infancy is removed. Attorney General Opinion H-85 (1973); cf. Home Indemnity Company v. Mosqueda, 473 S.W.2d 456 (Tex. 1971) (achild was entitled to Workmen's Compensation benefits accruing from deathuntil reaching the age ofmaturity).
SUMMARY
A minor child of a covered employee, who is entitled to death benefits under article 6228f, V.T.C.S., does not cease upon subsequent adoption of the child.

JIM MATTOX AttorneyGeneral of Texas JACKRIGHTOWKR First AssistantAttorney General
MARY KELLER ExecutiveAssistantAttorney General JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General RICK GILPIN Chairman,Opinion Committee Preparedby Tony Guillory AssistantAttorneyGeneral

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