Honorable Everett L. A.nschutz Executive Secretary Opinion No. H- 85 Employees Retirement System of Texas Re: Effect, if any, ofSenate Box 12337 Capitol Station Bi,ll 123on benefits being Austin, Texas 78711 paid or to be paid to minor children ofdeceased employees, and related questions under Article 62281, Dear Mr. Anschutz: V.T.C.S. Your Letter requesting our opinion advises:

“The State Empfoyees Retirement System of Texas is a constitutional state agency (Article 16, Section 62a, Constitution of Texas). The Board of Trustees ofthis System is charged with the responsibility ofadministering the State Employees Retirement Act (Article 6228a, Vernon’s Texas Civil Statutes) I Inaddition to its other duties, the Board is also given responsibility for the administration of death benefit payments to the surviving spouses and minor children of deceased law enforcement- officers and firemen. (See Article 3, Section 51d, Constitution of Texas; and Article 6228f, Vernon’s Texas Civil Statutes.)” You ask four specific questions, the fi,rst two ofwhich having to do with the effect ofSenate Bifl 123, 63rd Legislature (The Eighteen Year Old Bill) are:

“1. Does Senate Bill No. 123 disqualify a

person eighteen (f,8jyears ofage or over from continuing k receive the monthly annuity as the

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surviving minor child ofthe deceased law enforcement officer or fireman who died prior to the effective date ofSenate Bill No. ,l23? If your answer is in the affirmative, onwhat date must payments be suspended?

“2. Does Senate Bill No. 123 disqualify aperson eighteen (18)years ofage and over from receiving benefits where the law enforcement officer or fireman dies on or after the effective date of Senate Bill No. 123?” Section 51-d ofArticle 3ofthe Constitution provides that the Legislature shall have the power to provide for the payment ofbenefits to “the surviving spouse and minor children” of officers ofpo,lice and fire departments.Article 6228f governs assistance paid to the survivors of law enforcement officers, etc., under that provision. Itdefines “minor child” as meaning a child who, on the date ofthe violent death ofany person covered by the Act, has not reached the age oftwenty-one years. Itprovides in >3that the State will pay to the surviving spouse certain benefits and,if he is survived by a minor child or minor children the State will pay the benefits to guardians of the children according to the number of minor children surviving, “provided, that when any child entitled to benefits under this Act ceases to be a minor child as that term is defined herein, his entitlement to the benefits shall terminate.
. . .” Inour opinion there is no escape from the conclusion that the **statute** confers rights and benefits dependent upon legal infancy. Indeed, in the case of children of law enforcement officers, the **statute** would be unconsti-, tutional if benefits were extended on a different basis, since Article 3, 551-d ofthe Constitution authorizes benefits for children only if they are minors, i. e., ifthey are incapacitated because of legal infancy. The definition contained inArticle 6228f, 52(a)(7) must be viewed in that context. A,gain, we must construe “has not reached the age of 21years”

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to mean “has not been emancipated from disabilities of minority”, else the statute and the Constitution conflict. Were it necessary to declare the existence ofa conflict, the statutory language ofArt. 6228f could not control, and because persons 18years ofage or older will be emancipated by Senate Bill 123from such disabilities after August 27, 1973, on that day they will cease to be minors within the meaning ofArticles 6228a and 6228f, V. T. C.S., in our opinion, See Attorney General Opinion H-82(1973). Your remaining questions are:

“3. May this System make payments directly to any qualified surviving minor or must payments be made through (1)the natural guardian, (2) a Courtappointed guardian, or (3) some other qualified adult?

“4. Will marriage ofthe minor or adoption of such minor disqualify the minor for future payments under Article 6228f. Vernon’s Texas Civil Statutes? ” Minors are legal infants, without legal capacity. They are not legally qualifi?d to act ontheir own behalf, generally speaking, and have no capacity to give a binding discharge for obligations due them. Hence payment ofa debt to a.minor will not necessarily constitute a discharge ofthe debtthe &or: Itordinarily canbe legally received on behalf ofthe minor only by a co&-appointed guardian of the minor’s estate. See Silber v. Southern National Life Ins. Co., 326 S.W. 2d 715 (Tex. Civ.App., 1959, writ refused). The Board of Trustees ofthe State Employees Retirement System of Texas is not presently authorized, in our opinion, to pay Article 6228f benefits due minors to anyone except a person designated by a court to receive them,eg,., a court-appointed guardian ofthe minor’s estate or a guardian appointed to receive governmental funds. See Probate Code $§109, 184, 228, 246, V. T. C.S. See also Article ,l994, V. T. C.S. Article 6228f $3 says the benefits payable to children under that statute may be p&d to “the duly appointed or qualified guardian or other legal representative of each minor child. ” We do not think-these passages were intended to displace the law otherwise applicable to the property of’minors.

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Even natural parents are not authorized to control and manage the property oftheir children without spec,ific court or statutory authority. Silber v. Southern National Life Ins, Co.. supra. Such restri,ctions are imposed for the protecti.on ofthe children. Inthe absence of a specific legisl,ative intent that such protections be abrogated or ofan irreconcilable conf~lict:between the statutes (neither ofwhich we fi,nd), we think the courts will ho:ldthat benefits for children payable under Article 6228f may not be properly paid to any person other than one ,iawfull,y designated by the court to receive suc,hpayment. We answer your last question inthe affirmative, butwith a caveat regarding adoption. The same reasoning that requires the disqualific,ation of 18year old children when they are no longer protected by “:legal infancy” status also applies to married persons, regardless oftheir **ages. See**  Ex **parte** Williams, 420 S.W, 2d 135 (Tex. 1967); _Pittman vr Ti,mes Securit,ieg, 301S.W. 2d 521 (Tex. Civ.App. ~ 1957, no writ), And the,children of a deceased law officer who have been adopted by someone else cease to be his children. They would not be entitled to continue receiving benefits. See A,rticle 46a, §9, Vernon’s Texas Civil **Statutes;** Patton v. Shamburger, 431 S.W. 2d 506 (Tex. 1968). SUMMARY -- Persons cease to be minors within the meaning ofA,rtic,le 6228f, V. T. C.S., when they are no longer under disabilities as “legal infants”
. After the effective date of Senate Bill 123, 63rd Leg., persons at least ,l8 years old will not be legal infants. Persons who are married, regardless oftheir age, have the st.atus of adu1t.s. Benefits due minors under the **statute** cannot properly be paid direct.ly to them but must be paid to the persons duly appoi.nted by a court to receive them. Marriage or adopt,ion ofa minor will disqualify him from future payments under Article 6228f, V. T. C.S.

Attorney General of Texas

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?lTTF.YORkYirst ssistant

DAVID M. KENDALL, Chairman Opinion Committee

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