## THEATTORNEY GENERAL OF TEXAS

Honorable Joe Resweber County Attorney Harris County Houston 2, Texas OpinionNo. C-114

Re: Duties of the ;ludge of the Probate Court of Harris County,under the facts states.

Dear Mr. Resweber:

Your request "Duringfor an opinion reads as follows:

themonth of June, 1962, the Grand Jury~~of Harris County, Texas, returned True Bills O;fIndictmentagainst Clem McClelland (Judgeof the Probate Court of Harris County, Texas) and several admlnlstratorsand guardltins, charging them with theft and/or embezzlement from certain eatatea under the JurisCliction of the Probate Court of Harris County, Texas.

"On June 20, 

## 1962, a petition for the removal of ClemMcClelland aa Judge of the Probate Court of Harris Countywaa filed In the 61st Judicial District Court, and on June 25, 1962, the said Court entered an orderwhereby Clem McClellandwas suspended temporarilyand Arthur C. Lesher, Jr. was appointed ProbateJudge of Rarrla County, Arthur C. Usher, Jr. aerved as Probate Judge of Harris Countyuntil January 1, 1963, when Jack Smith ed $n the November, A having been elect19 2 election) took office as ProbateJudge.
"Up to the present time ClemMcClelland has been tried on only one of the lndictments, and said convictionwas very recently reversedby the Court of CriminalAppeala. me other lndlctmentsagainst Clem McClelland are still pending.

-563-Honorable Joe Resweber,

"Inview of ,Probate

Judge of ed sn opinion to
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“4. page 2 (C-114 1

the above facts, Jack Smith, 'yHarris County,has requestthe following questions:
There are between 5,000 and 10,000 filed in thi.s,Court on estateswhich have not been closedbut are currently'open estateswith unfinishedbusinesa under the juriadlctlon of this Court; these file,@ are located in the office of the County Clerk, Probate Division. Is it the responeibility of the Probate Judge to search each of these filea‘

to dacertaln,their status or may the status of each~of these files be ascertainedas&they are placed on the docket of the Probate Court for hearing?

Is It the duty of the ProbateJudge, where a personal representativehas been indicted,but not convicted,because of transactions In the handling of an estate, to remove suchperson or to cause an investigationto be made?

Is it the duty of the ,Prob,ate Judge where'persons other than personal representatives in an estate have been indicted,but not convicted, for transactions involved in an estate, to cause an investibatilon

to be made to see whether orp

Hot a civil cau#e of action shouldbe ffled against 'theindicted person or Is thla the duty of the personal representative?
What responsibilitydoes the Probate Judge and bonding companyhave when he approves annual accounts in whi,chthere are ordersby a prior Judgewhich are suspect?

-564-.

Honorable Joe Resweber, Page 3 (C-114 )

"Attachedhereto Is ourmemorandumbrief. Please furnish us your opinion on the questions presented."
Section 36 of the Probate Codeprovides:

"It shallbe the duty of the judge of each county court to uae reasonable diligence to see that personal representatives of estatesbeing administeredunder orders of the court, guardians of the persona ofwards, and other officers of the court,perform the duties enjoinedupon them by law pertaining to such estates and wards. The judge shallannually examine into the condition of each of,aiaid eetates, the well-being of each ward of the court, and the solvency of the bonds of personal representativesof estates and guardians of persons. He shall require such representativesor guardians, at any time he shall find that their bonds are not sufficient to protect such estate or wards, to execute new bonds in accordancewith law; In each such case, he ahall notify the personal repreaentativeor guardian, and the sureties on the bond, as provided by law; and should damage or loss result to estates orwards through the failure of the judge to use reasonable diligence in the performance of his duties,he shall be liable on his officialbond to those damagesby such neglect."
Section 222 of the Probate Code states the grounds for removal of any personal representativeappointedunder the provisions of the Probate Code,both with and without notice. Subdlvlslon'(c)'ofSection '222provides:

"Orderof Removal. The order of removal shall state the cause thereof. It shall require that any letters Issued to the one

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removed shall, if ed with citation, he has been personally servbe surrendered,and that all

- . such lettersbe cancelled of record,wnether delivered or not. It shall further require as to tillthe estate remaining in the hands~of a removedperson, delivery thereof~tothe person or’pereons entitled thereto, or to one who has been appointedand has qualified as succekisc+represeritatlve, and as to the person of a,ward, that ‘controlbe relinquishedas required in the order.”
Section 233 of the Probate Codeprovides:
“Everypersonal representativeof an estate ahall use ordinarydlllg@ence tom collect all claims and debts due the estate and to cecoverpossession of all.property of the estatesto which its otiners have claim dr title, provided there Is a reasonable prospect of collecting such claims or of recovering suchproperty. If he wilfully neglecta to use such diligence,he and the sureties on his bbnd shallbe liable, at the suit of any~person interested in the estate, for the use of the estate, for the amount of such claims or the value of such property as has been lost by such neglect. Such representativesmay enter Into contract to convey, or may convey, a contingent interest in any propkrty’sought to be~recovered, not exceeding one-third thereof, for seWices of attorneys and incidental expenses, subject only to approval of the court in which the estate is being administered.”

In Crouch v. Stanley, 348 S.W.2d 543 (TexiClv.App. 1961), an Injunctiveproceeding regarding the appointment t$ the Probate Court of a new adminlstratoti pending trial In the Probate Court of an appeal~froma removal proceeding of the originaladministrator,the Courtheld:

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"Assumingthat the order of the Probate Court lmproperly'removedMr. Stanley as the atilnistrator for the estate itwould neverthelessbe true that his appeal therefrompreservedhis status as administratorand he will continue to be suchpending a trial de novo in the District Court, and at leastuntil such time as the judgment of that court shallbecome final. Power to remove a person from h$s office
aa an administrator for the estate of a decedent 'isgiven by law, in the first Instance, to the Probate Court. Such a personwho considershimIf aggrievedby such an order of removal i:ven by law the remedy of an appeal to theis
District Court for a trial de novo. If the remedy .of.;appea>,wab not ao'give&LtheDistrict Court would not have any jurisdiction to lnterfere with the order of removal, for courts of equitywill not Interfere to protect a person from removal from office by a man or body of men to whom suchpower of removal Is given by law. 11

. . . "If the injunction to the extentunder considerationbe undisturbed, the Probate Court would be helpless to protect the Interests of the estate such court is chargedby law to aTminister, in the event of such a contingency, and the estate'sbeneficiarieswould be left with recourse solely confined to damages against the adm&nistratorand the suretles on his bond. In a situation Such as that hypothesized, 'and where the Probate Courtmight attempt to appoint an administrator to bring and prosecute a suit in behalf of the estate, such attempted appointmentmight be stayed through the office of an appeal from the order of appolntment. Pursuant to such proceedings the Probate Court would be empowered, through requirement of new or additiollal bond, more adequately

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to protect the interests of the estate in the event it be ultimately determined that the administrator'srefusal to Institute such suit actually operated to the detriment of the estate and the beneficiaries thereof." ~Emphasls added).

In Heyn v. MassachusettsBonding Company, 110 S.W.2d 261 (Tex.Clv.App.1937, error di I th C ing the constltutlonalltyof staz%eL t in sustainirnzos$ the duty on the Judge of the Probate Court to annually examine Into the condition ofwards' Code) held: estates (now,Sectlon36 of the Probate

"Under the foregoingprovisions of the statutes,obviously It Is the duty of judges of county courts annually to examine Into the condition of the estates ofwards, the sufficiencg of guardians'bonds, and, If and when the bonds given are not ample security to protect the estates and the warda' Interest therein, to require such guardians to execute other bonds In accordancewith lath: and further, county Judges are required to compel guardians to return reports of annual accountings into court (aduty imposedunder article 4225), and to exact fines for contempt of court and assess damages on guardians and their bondsmen for nonperformance of suchduties; and further, It is the duty of county judges to remove guardianswhen they have falled fo give bonds as requiredby law, or when such guardians have absented themselves from the state, or have failed to file annual accounts, or have refused to obey proper orders of the county judge. ManFPestly, the above mandatory duties are Imposed upod county judgesby reason of Inability of rninors, idiots, lunatics,persons non camposmentls, and common drunkards to take care of their own lnterests. The welfare of persons laboringunder such disabilityhas always been a matter of deep

-568-Honorable Joe Resweber,page '7(C-114 )

"
concern to the state. This statehas In a manner made the county judges its fiscal agents to confide estates of suchpersons to the Custody of prudent and safepersons, and have carefully thrown safeguardsardund such trustees,as to require of them a faithful discharge of their trust. The statutes compelling guardians to give solvent and sufflcient bonds in amountequal to~double the estimatedvalue of the personal propetitybelonging to their wards, to file annual accountings as to elicit truthful informationas to the condition of such estates, to obey proper orders of the county court or judge, and to always remainwithin the juriadict$.on of suph court or judge, are for the protection of such disabledpersona and their estates. These duties are mandatory; the failure of performance oarries~with it penal punishment and civil llabllltjr, and removal of such fiduciaries. So, also, la the above statutory duties Imposedupon the county judges of equal force and effect, and the failure of performance 18 negligenceper se, for which such county judges are amenable and their officialbonds liable for loss due to such negligence."

In view of the foregoing,you are advised that the provisions of Section 36 of the Probate Code requiring the judge to annually examine Into the condition of each of the estates Is a mandatory duty and It Is the responsibility of the Probate Judge to search each of the files to ascertain their statusannually. It Is the duty of the Probate Judge to remove the personal representative in the event that the Courthas knowledge of existing grounds for removal prescribedby Section 222 of the Probate Code. Whether a violation of Section 222 by the personal representativehas occurred Is a fact question to be determinedby the ProbateJtidgei

-569-- .

Honorable Joe Resweber,page 8 (C-114 )

In view of theprovisions of Sections 36 and 233 of the Probate Code, you are advised that it is the duty of the personal representativeto use ordinarydiligence to dollect all claims and debts due an estate and to recover possession of all property of an estate to which itB ownners have claim or title, provided there Is reasonable pros ect sona B of collecting such claim. Iri the event the perrepresentativefalls to perform suchduty, the Probate Judge is authorized to remove the personal repyesentatlveunder the provisions of Section 222 of the Probate Code. Therefore, It is the duty of the Probate,~Judge to use such reasonablediligence as Is necessary to determinewhether the"persona1representative is performing the duties requiredby Section 233 of the Probate Code.

In answer to your fourth question, Sectlbn 401 of the Probate Code provides:

"ActionUpon Annual Accounts.
"Theserules shall govern the handling of annual accounts: (a) They shallbe filed with the county clerk,and the filing thereof shallbe noted forthwithupon the judge'sdocket. (b) Before being consideredby the judge, the account shall remain on file ten (10)days.
(01 At any time after the expiration of ten (10 days after the filing of an annual account, the judge shall consider same, and may continue the hearing thereonuntil fully advised as to all Items of said account. (d) No accounting shall be approved unless possesalon of cash, listed securities, or other assets held In safekeeping or on depositunder order of courthas been proved as requiredby law.

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(e) If the-accountbe found Incorrect, it shallbe corrected. When corrected to the satisfaction of the court, It shallbe approvedby an order of court, and the court ahall then act with respect to unpaid claims,
as follotis:
(1) Order for Payment of Claims In Pull. If it shall appear from t~heexhibit, or from other evidence, that the estate Iswholly solvent,and that the representativehaB In his hands sufficient funds for the payment of every character of claims against the estate, the court shall order immediatepayment to be made of all claims allowed and approved or establishedby judgment.
(2) Order for Pro Rata Payment of Claims. If it shall appear from the account, or from other evidence, that the~funds on hand are not sufflcrent for the payment'of all the said claims, or if the estate Is Insolvent and the personal representativehas any funds on hand, the court shall order such funds to be applied to the payment of all claims having a preference in the order of their priority If they, or any of them,be stillunpaid, and then to the payment pro rata of the other claims allowed and approved or establishedby final judgment, taking Into considerationalso the claims that were presentedwithin twelve (12)months after the granting of administration,and those which are in suit or on which suitmay yet be Instituted."

In Heyn v. MassachusettsBonding Company, supra, the Courtheld onmotion for rehearing:

II

. . . The county judge knew, or shouldhave known, that the $1,000bond was insufficient,and his failure to require additional securitywas negligence per se, and ~suchfailure, along~ With the other failures of official duties, as

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reflected in the record,andpointed out in otiti

original opinion,uere the direct and proximate cause of the ward's 106~1."

In view of the foregoing, you are advised in anawer to your fourth question that the Probate Judge and hi8 bbtiditig

oompany atieliable If he le negligent in the performance of hla duty in Approving annual accounts, If such negligence constitutesproximate cause of a loss to the estate.

SUMMARY

A Probate Judge Is required to annually examine Into the condition of each estatebeing administeredunder orders of the Court and to use reasorbable

dPligen&e to determlni that the personal repretientatlvee of estatesbeing administeredunder orders of'the Court atie.

petiformlng

their duties required by the provisions 6f the Probate Code,

Yours very truly,

WAGGONER CARR Attorney ffeneral

JR:ms:;lh

APPROVED: OPINION COMMITi'EE~ W, V. Geppert, Chairman C. L. Snow, Jr.

,BlllAlien APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone

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