OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Hoaorable L. 01 Bowel1 

Aoting County Attorney 

BoVio County 

Texorkaru, fexar 

Dear Sir% ' 

320 

an's general bond slon file is suffioient 

er double the amount 

atie ~1~8 double the 

or any pe~00nal propthe hands of the 

by the 48th Legislature, 

Regular SeasIon, 1943. 

eassry for the guardian to file a *peol.+l aeler 

bond In double t&e amount for ohloh real eetatr 

is sold where the guardlan*r general bond already on file ir auffioient to oover double the 

amount of the sale plus double the amount of any 

personal propert 

3; 

in the hand8 of the guardian 

at the time of t 8 rale. , 
321 

Honorable L. C. Bosvell, page 2 

'The intention of this amendment is to 

&arify the old statute but It still does not 

clearly indioate vhether or not It 14 neoestmry to file a speolal as184 bond or merely 

to file an order of the County Judge approving the guardlan~r general bond vhere it is 

mrrlolent . * 

Article 4141, Vernon~s Annotated Civil Btatutea 

of Texa8, require8 the guardian of the ertate of 8 vard 

to give a bond a8 therein mentioned au a quallfioatlon of 

the guardlM.' 

Bowe Bill 482, Aots of the 48th Legl4l'ature, 

Regular g4344lon, 1943, aend- Art1ol.e 4201 and Artiole 

4216 V8rnontr Annotated Civil statutes of Texas, r8ads In 

part aa rollovat 

: "Art. 4201. 

aAn order for the sale of real estate shall 

rtatet 

"1. The property to be sold, giring~suoh 

deaoriptlon of It ad will Idsntffy It. 

'2. Whether it Is to be sold at publie 

auction or at private 881.8, and if at publlo 

motion, the time end place of suoh aale. 

"3. The necearlty and purpose of ruoh eale. 

"4. That no sale of real estate made by 

the guardian rball be conflmed, nor ahall title 

of the ward to euch real es tat8 pars to thg purchaser unless and until it shall ffrrt be found 

and determined by the Court, by an order duly 

made and entered, ,that the guardIan has flied a 

good and auffioient bond in an amount equal to 

tvioe the amount for vhI&.aaid real estate 14 

$016, and that the suretI84 on 4uch bond are solvent, provided, however, that where the aale of 

such reel eetate 14 made to the owner or holder 

of’ a secured clslm agelnat the estate, and the 
322 

HOnO~b18 &I C. BO4U812, Page 3 

49e 14 of the real estate aeourlng such olaim 

and is in fu21 payment, liquidation, and aatlsr.30ti0n thereof, orily the amount 0s Cash, if any, 

aotually reoeived by auoh guardian in 8~~844 or 

the amount neoersary to pay, llqufdate and eotlsfy auoh olairn in-f'ull, ahall be aonaidersd ia 

pa84lag upon the 8uiriOi=0y 0s the bond aa herelnabove rq,ulred. 

45, It ahall require the s&e to be m4d4 

and the report th4reor to b4 rqturned to the 

Court lt~auoordanos rlth the UW.~ 

. * . . . 

“At aaj ti4W after the 43Xpi~tiOtt Of fiY4 

(5) day8 +rter the rii~,or a report 0s 4al4, 

the'CoUrt ah811 inquire iato the manner in vhioh 

au& 4ti8 Va4 llode &Id hear 8YidenC4 in support 

of or against 4uoh report, and if 4ati4fi8d that 

rwh 4814 wa4 fairly mad4 and la Onaiosalty uith 

lav aud thet the gpardipn ha8 an file a good atid 

suffioiknt band in an amount equal to tuioe the 

valu4 fop vhiOh aald +eal eatat is being sold, 

and if and when the guardian14 ea3.d bond ha4 

been examined by the Couzt and found to be in 

the amount above required vlth good and auPS& 

oient ruretiba thereon, a4 evidenced by 8n order 

duly 4md4. and entered by th8 Court to that eff%Ot, the Court shall oaure to be entered a deor44 oonfinaing euoh aale and order the report 

of 44l4 to be recorded by the Clsrk and the 

proper con~8yen08 of the property sold to be 

made by the gu%rdlan to the puroha44r, upon cornplianoe by auoh puxwh+ser vlth the temm of 

sale, provided, hovever, that Uh8M the 4f&28 Of 

auoh real 44t&8'%4 &a to the owner or holder 

of a aeoursd alair againat the estate 'aad the 

4am4 la of tha real estate 44ourS.ng snob olaia 

and la In full payment, liquidation, and aatisfaction thereof, only the uDount of .caab, if any, 

actually recieived by auoh gUaX'di+~ in 4X486% Of 
Honorable I,. C. Bosv822, Page 4 

th8 cuPOuut ll408448l'y t0 pay, 2iqtidet9 and 

gatisfy such 02aim in full, shall b8 oonaldered, together vlth the other property of 

the estate, 3.n passing upon the surrioien0y 

of such bond, Th4 provlelons of this Act shall 

be mandatory and unlese the Court eball Slrat 

d%t%m.he that the guardl~~a bond 1s adequate 

and solvent, as 8boYa set forth, as evidenoed 

by an order tie and entered by the Court to 

that %ff%Ct, any sale of real eatate hereafter 

made mder the provirions OS this Title shall 

be void; provided, that the provlalonr hereof 

ahall not apply to 08881) pending at the time 

this lav become4 effective . . . .' 

.* 

Prior to the enactment of House Bill Ho. 482, aupra, . 

the App82lafe Courta Of this Stat8 haY8 rendered many opfnions oonstrulng Articlea 4202 and 4226. However, many of 

these qasea do not pa44 upon the qU84tiOI.I Under consideration; 

moat of them are oau4ea in which the attack on the judgkent 

of the Probsts Court was made oo2laterally, and, Sollowlng 

the well-known ~28, tines4 authorities hold that the Probate 

Court is 8 oourt of gene*2 jurisdiction, and that Its judgments are pwsumed to have been properly rendered on sufflclent facts and are not subject to oollatera2 attacks. HOY- 

%Yer, it vas held in American Indwanlty Company va. Robe1 

(Texaa Conrmieslon or Appeals) 235 s.w. 867# that Article 4201, 

prior t0 its aZ?M&dent, rSqUired a lndepend%nt and 48p8r8t% 

bond S'rm that given a4 a quallSlcation of the guardi,an. It 

will be noted that Article 4201, supra, as amended by liouse 

Bill 482, aupra, requires the guardian to file a good and 

4urricient bond in in amount equal to tvica the saount for 

vhich the real estate is sold. (Al40 see the case City of 

Tyler V8.~FirSt Rational Sank of Beaumont, et al, 46 S.W. 

(26) 454). 

After carsfully considering Bouae Bill 482 and the 

foregoing authorities, it is our opinion that it Is necessary 

for the guardian to file 8 speolal sales bocd in double the 

amount for vhloh the real estate is sold. In other words a 

speolal sale bond must be filed in oaaplianoe vith said House 
Honoreble L. 0. Bo~vell, Page 4 

Bill& re&wdleas of the aamunt of th6 general bond QII 

file vhen reel estate 18 rold by the gumdlan.