OP TEXAS 

AUSTIN. TRXAS 78711 

April 12, 1973 

Honorable Martin D. Eichelberger 

Criminal District Attorney 

Waco, Texas 76701 

Dear Mr. Eichelberger: 

Opinion NO. H- 29 

Re: Questions relating to the 

District Court’s power to 

regulate the handling of 

Minor’s funds deposited 

in the registry of the Court, 

where no guardian has been 

appointed. 

You have asked a number of questions concerning the handling of a 

minor’s funds deposited in the registry of the court by a next friend, 

pursuant to Article 1994, Vernon’s Texas Civil Statutes. 

There is no common law authority for a next friend or person other 

than a legally appointed guardian, to withdraw funds recovered by a 

minor and deposited in the court. Prior to 1893, the courts held 

that the proceeds of a judgment for the benefit of a minor were to be 

paid into the registry and to remain there until a legal guardian 

qualified or until the minor’s disabilities were removed. Galveston 

Gil Co. v. Thompson, 76 Tex. 235, 13 S. W. 60 (1890); Galveston 

City Railway v. Hewitt, 67 Tex. 473, 3 S. W. 705 (1887). 

In 1893 the Legislature adopted a statute authorizing withdrawal by 

a next friend when the interest of the minor in the recovery did not 

exceed the value of $500. 00. (Acts, 1893, 23rd Leg., Ch. 6,~. 3). After 

numerous amendments both adding provisions and increasing the 

stated dollar amount, the statute is now found as Article 1994, Vernon’s 

Texas Civil Sta&es, and provides, in part: 

“Minors, lunatics, idiots or non compos mentis persons 

who have no legal guardian may sue and be represented by 

‘next friend’ under the following rules: 1. In such cases 

when a judgment is recovered for money or other personal 

property the value of which does not exceed One Thousand 

Five Hundred Dollars ($1, 500.00), the court may by order 

entered of record. authorize’ such next friend or other 

p. 122 
Honorable Martin D. Eichelberger, page 2 (H-29) 

person to take charge of such money or other property for 

the use .and benefit of the plaintiff when he has executed 

a proper bond in a sum at least double the value of the 

property, payable to the county judge, conditioned that he 

will pay said money with lawful interest thereon or deliver 

said property and its increase to the person entitled to 

receive the same when ordered by the court to do so, and 

that he will use such money or property for the benefit of 

the owner under the direction of the court. 

“2. The judge of the court in which the judgment is 

rendered upon an application and hearing, in term time 

or vacation, may provide by decree for an investment 

of the funds accruing under such judgment. Such decree, 

if made in vacation, shall be recorded in the minutes of 

the succeeding term of the court . . . . ” 

It is clear, that, when the recovery exceeds the statutory amount, the 

provision for withdrawal does not apply. See for instance, Gulf Sea and 

S. F. Railway v. Younger, 45 S. W. .1030 (Tex. Civ. App., 1898, no writ 

hist. ); Travellers Insurance Co. v. Calcote, 205 S. W. 2d 56 (Tex. Civ. 

APP., Fort Worth, 1947, err. ref., n. r. e. ). 

Your first question is: 

“(1) Whether or not the Court, after ordering the 

funds of the minor deposited in the First National Bank, 

Waco, Texas, restricted so that none of the proceeds 

recovered by judgment can be spent without a proper 

order of Court and bond as required by law, can by 

proper Court order, permit the next friend to withdraw 

the interest on sum invested for support of Minor?” 

If the judgment is for an amount less than $1, 500.00, upon the 

posting of a proper bond, the court may permit withdrawal of the 

funds by a next friend. If the amount is in excess of $1, 500. 00, it 

cannot. 

Your second question is: 

p. 123 
Honorable Martin D. Eichelberger, page 3 (H-29) 

“(2) Could the Court approve a bond by next friend 

indemnifying the minor against loss from use of interest 

until he is twenty-one, and permit the interest to be 

used for his education and medical attention? ” 

If the amourit of the recovery exceeds $1, 500. 00, there is no authority, 

either at common law or by statute, for the court to permit the next fr,iend 

to withdraw interest to use for the minor’s education and medical attention. 

Your third question is in five parts all based upon the premise that the 

funds are invested in such manner that they may not be withdrawn without 

an order of the court and thus non bond is required bf~ the next friend. Your 

first question asks: 

“( 3) 1. The Court enters order requiring funds on 

deposit to be placed in the First National Bank by acquiring 

a Certificate of deposit from the bank, that expressly 

forbids the removing of any of funds from bank, without 

order from Court, would the order so entered apply to 

the interest as well as the principal? ” 

It is our opinion that the order should forbid removing of any funds, 

including interest, without other order of the court. 

Your second questions asks: 

“( 3) 2. If the order of Court depositing the funds 

does not apply to the interest on deposit, could Court, 

where no guardian has hem appointed, permit the 

interest to be paid under order of Court to the next 

friend for use and benefit of minor, for his food, 

clothing, education, medical expense, etc? ” 

Even if the order entered by the court does not apply to interest on 

the deposit, nevertheless there is no authorization for the’court to 

permit the interest to be paid to the next friend if the initial recove.ry 

exceeded $1, 500.00. 

Your third question asks: 

p. 124 
- 

Honorable Martin D. Eichelberger, page 4 (H-29) 

“( 3) 3. If, the funds are a part of the certificate 

of deposit then where interest earned is less than 

$1, 500.00 a year, would Court have power to permit 

the next friend to withdraw the interest as it accrues 

for support and benefit of minor, if a bond by next 

friend was filed with District Court to cover the 

interest being used? ” 

The statutory authorization to withdraw any funds is dependent upon 

the amount of the initial recovery, not upon the amount of annual interest 

and therefore, even though the interest earned is less than $1, 500. 00, 

if the interest of the minor in the recovery exceeds that amount, nothing 

may be withdrawn. 

You ask: 

“( 3) 4. Would the Court have authority under Art. 1994 

as amended, where no guardian has been appointed, to set 

a bond large enough to cover the principal on deposit and 

amount of interest to be earned, and restrict the spending 

of principal, and permit by Court order the withdrawal 

of interest? ” 

In our opinion the court would not have such authority. 

Your final question asks: 

“( 3) 5. If no, ‘what would the next friend have to 

do to comply with provision of the Statute which ‘no 

bond shall be required of the next friend in respect 

to such monies until the same are withdrawn from 

financial institution, ‘AT WHICH TIME THE COURT 

SHALL ORDER SUCH BOND TO BE MADE AS BE 

APPROPRIATE UNDER OTHER PROVISIONS OF THIS 

ARTICLE’. If funds did not excee.d $1, 500.00 in 

interest, why would not next friend’s bond protect 

minor and comply with statute? ” 

Under the circumstances ycu state, it may very well be that the bond 

would protect the minor but the fact remains that there is no statutory 

authority to permit a withdrawal if the minor’s interest in the initial 

recovery exceeded $1, 500~ 00. 

p. 125 
Honorable Martin D. Eichelberger, page 5 (H-29) 

As we have indicated, the statute, and the cases construing it, leave 

little doubt but that the provisions for withdrawal by the next friend 

upon posting a bond apply only to those cases in which the minor’s 

interest in the recovery is $1,500.00 or less. If the interest is greater 

than that amount and it is thought desirable to withdraw the funds 

for use in the support of the minor, then the provisions of Part 3, 

Chapter 5 of the Probate Code must be followed. 

SUMMARY 

Where the interest of a minor in a recovery exceeds 

the amount of $1,500.00, neither Article 1994, Vernon’s 

Texas Civil Statutes, nor any other statute or rule 

of common law would authorize a next friend to withdraw a portion of the recovery or the interest on the 

recovery for the purpose of supporting the minor and 

paying his necessary expenses or for any other purpose. 

Very truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 126