The Attorney General of Texas 

July 24, 1978 

JOHN I-. HILL 

Attorney General 

Honorable Joseph N. Murphy, Jr. 

Employees Retirement System of Texas 

18th & San Jacinto Streets 

Austin, Texas 787ll 

Opinion No. H-12 14 

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, SS 5, 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 of the 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 on January I, 1974, provides in part: 

Except as otherwise provided by judicial 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 has been appomted; 

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Honorable Joseph N. Murphy, Jr. - Page 2 (R-1214) 

. . . . 

(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 of the 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 a guardian of the estate without the 

need for court appointment. See 2 Texas Family Law, Speer’s 5th Edition, S 13.23. 

The underlined proviso was added in 1975. Acts 1975, 64th Leg., ch. 476, S 23, at 

1260. We believe thii proviso makes clear how section 12.04(4) of the Family Code 

is to be harmonized with section 109 of 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, 551 S.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 is designed to facilitate public or private support of a child. E. L. Smith, 

Family Code Symposium: Commentary on Title 2, 5 Texas Tech. L. Rev. 389, 417 

(1974); 5 Texas Family Law, Speer’s 5th Edition, 299, 300 (commentary by L. 

Simpkins). In our opinion, section 12.04(8) of the Family Code gives the parent of a 

minor authority to receive funds from a governmental agency on behalf of his child 

without the need to establish a formal guardianship. See 2 Texas Family Law, 

Speer’s 5th Edition, SS 13.27, 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 of law enforcement officers 

killed in the performance of duties. Although section 3 of 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 a judicial 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 SS 12.04, 14.02, 

14.04. As a general rule, however, the Retirement -tern may disburse benefits to 

the minor’s parent without the establishment of a formal guardianship. 

SUMMARY 

Payments made by the 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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Honorable Joseph N. Murphy, Jr. - Page 3 (H-1214) 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

C. ROBERT HEATH, Chairman 

Opinion Committee 

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