# The Attorney General of Texas July 24, 1978
JOHN I-. HILL Attorney General
Honorable Joseph N.Murphy, Jr. Employees Retirement System ofTexas 18th&San Jacinto Streets Austin, Texas 787ll Opinion No.H-1214 Re: Distribution of funds to minor children by the Employees Retirement System. Dear Mr. Murphy: You inform us that the Employees Retirement System administers several programs which require payments to minor children as beneficiaries or descendants of members. See V.T.C.S. art. 6228a, SS5, 5-1;art. 62284 SS 2, 6; art. 6228f, S 3. You wish to know whether you may distribute these funds to the natural parents of the minors without requiring that a guardianship be established. In the past, you have made payments only to the guardian ofthe minor’s estate. In Attorney General Opinion H-85 (1973) we informed you that retirement system benefits due minors must be paid to a court-appointed guardian of the minor’s estate or a guardian appointed to receive governmental funds. Section 109(a)of the Probate Code provides that the surviving parent is the natural guardian of the minor’s person and is entitled to be appointed guardian of his estate. Section 228 of the Probate Code concerns the duties of a guardian appointed to receive funds from a governmental agency for his ward. As you point out, section 12.04 of the Family Code, which became effective onJanuary I, 1974,provides inpart:

Except as otherwise provided byjudicial order or by an affidavit or relinquishment of parental rights

. .. the parent of a child has the following rights, privileges, duties, and powers:

. . . . (4),;h; duty to manage the estate of the child, except guardtan of the estate hasbeen appomted;

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. .. . (8) the power to receive and give receipt for payments for the support of the child and to hold or disburse any funds for the benefit ofthe child.

... (Emphasis added). In our opinion, under section 12.04(4) of the Family Code, the parent of a minor ordinarily has the powers of aguardian of the estate without the need for court appointment. See 2Texas Family Law, Speer’s 5th Edition, S13.23. The underlined proviso was added in 1975. Acts 1975,64th Leg., ch. 476, S23, at 1260. Webelieve thii proviso makes clear how section 12.04(4)of the Family Code isto be harmonized with section 109of the Probate Code. Section l2.04(4) refers to the duties of a guardian of the estate, which belong to the parent unless a-court reallocates them to a guardian of the estate under Probate Code provisions. Cf. Guardianship of Henson, 551S.W.2d 136(Tex. Civ. App. - Corpus Christi 1977,writ ref’d n.r.e.) (guardianship of person under Probate Code equated with managing conservatorship under Family Code). Section 12.04(8) of the Family Code is based on section 228 of the Probate Code and isdesigned to facilitate public or private support of a child. E. L.Smith, Family Code Symposium: Commentary on Title 2, 5Texas Tech. L. Rev. 389, 417 (1974); 5 Texas Family Law, Speer’s 5th Edition, 299, 300 (commentary by L. Simpkins). Inour opinion, section 12.04(8)of the Family Code gives the parent ofa minor authority to receive funds from agovernmental agency onbehalf ofhis child without the need to establish a formal guardianship. See 2 Texas Family Law, Speer’s 5th Edition, SS13.27, 13.29. The parent of a mm? may therefore receive Retirement System funds for his child, including monthly payments provided under article 62281,V.T.C.S., to the surviving minor children oflaw enforcement officers killed in the performance of duties. Although section 3of article 6228f provides that the money shall be paid “to the duly appointed or qualified guardian or other legal representative of each minor child,” we believe that section 12.04(4) of the Family Code now gives the surviving parent authority to act as guardian of the estate .in the absence of a court-appointed guardian. See also Family Code S 12.04(7). In individual cases ajudicial order may have reallocated the parental rights and duties set out in section 12.04 so that a person other than the parent should receive retirement system benefits for the child. See Family Code SS12.04,14.02, 14.04. Asageneral rule, however, the Retirement -tern may disburse benefits to the minor’s parent without the establishment ofa formal guardianship. SUMMARY Payments made bythe Retirement System for the benefit of a minor child may be made to the parent under section 12.04(4)and (8)of the Family Code.

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Very truly yours,

Attorney General of Texas APPROVED:

C. ROBERT HEATH, Chairman Opinion Committee

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