THEATTORNEY GENERAL 

OF TEXAS 

Honorable Joe Resweber 

County Attorney 

Harris County 

Houston 2, Texas 

Opinion No. C-114 

Re: Duties of the ;ludge 

of the Probate Court 

of Harris County, under the facts states. 

Dear Mr. Resweber: 

Your request 

"During 

for an opinion reads as follows: 

the month of June, 1962, 

the Grand Jury~~of Harris County, Texas, 

returned True Bills O;f Indictment against 

Clem McClelland (Judge of the Probate Court 

of Harris County, Texas) and several admlnlstrators and 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 Clem McClelland aa Judge of the 

Probate Court of Harris County waa filed In 

the 61st Judicial District Court, and on 

June 25, 1962, the said Court entered an 

order whereby Clem McClelland was suspended 

temporarily and Arthur C. Lesher, Jr. was 

appointed Probate Judge of Rarrla County, 

Arthur C. Usher, Jr. aerved as Probate 

Judge of Harris County until January 1, 

1963, when Jack Smith 

ed $n the November, A 

having been elect19 2 election) took 

office as Probate Judge. 

"Up to the present time Clem McClelland 

has been tried on only one of the lndictments, and said conviction was very recently reversed by the Court of Criminal Appeala. 

me other lndlctments against Clem McClelland 

are still pending. 

-563- 
Honorable Joe Resweber, 

"In view of 

,Probate Judge of 

ed sn opinion to 

"1. 

"2. 

“3. 

“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 estates which 

have not been closed but are currently'open estates with unfinished businesa 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 ascertained as&they are placed on the docket of the Probate Court 

for hearing? 

Is It the duty of the Probate Judge, 

where a personal representative has been 

indicted, but not convicted, because of 

transactions In the handling of an estate, to remove such person or to cause 

an investigation to 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 

should be ffled against 'the indicted 

person or Is thla the duty of the personal representative? 

What responsibility does the Probate 

Judge and bonding company have when he 

approves annual accounts in whi,ch there 

are orders by a prior Judge which are 

suspect? 

-564- 
. 

Honorable Joe Resweber, Page 3 (C-114 ) 

"Attached hereto Is our memorandum brief. 

Please furnish us your opinion on the questions presented." 

Section 36 of the Probate Code provides: 

"It shall be the duty of the judge 

of each county court to uae reasonable 

diligence to see that personal representatives of estates being administered under 

orders of the court, guardians of the persona of wards, and other officers of the 

court, perform the duties enjoined upon 

them by law pertaining to such estates and 

wards. The judge shall annually 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 

representatives of estates and guardians 

of persons. He shall require such representatives or guardians, at any time he 

shall find that their bonds are not sufficient to protect such estate or wards, 

to execute new bonds in accordance with 

law; In each such case, he ahall notify 

the personal repreaentative or guardian, 

and the sureties on the bond, as provided 

by law; and should damage or loss result to 

estates or wards through the failure of the 

judge to use reasonable diligence in the performance of his duties, he shall be liable 

on his official bond to those damages by 

such neglect." 

Section 222 of the Probate Code states the grounds 

for removal of any personal representative appointed under 

the provisions of the Probate Code, both with and without 

notice. Subdlvlslon'(c)'of Section '222 provides: 

"Order of Removal. The order of removal shall state the cause thereof. It shall 

require that any letters Issued to the one 

-565- 
Honorable Joe Resweber, page 4 (C-114 ) 

removed shall, if 

ed with citation, 

he has been personally servbe surrendered, and that all - . such letters be cancelled of record, wnether 

delivered or not. It shall further require as 

to till the estate remaining in the hands~ of 

a removed person, delivery thereof ~to the person or’pereons entitled thereto, or to one 

who has been appointed and has qualified as 

succekisc+represeritatlve, and as to the person 

of a,ward, that ‘control be relinquished as required in the order. ” 

Section 233 of the Probate Code provides: 

“Every personal representative of an 

estate ahall use ordinary dlllg@ence tom 

collect all claims and debts due the estate 

and to cecover possession of all.property 

of the estates to which its otiners have 

claim dr title, provided there Is a reasonable prospect of collecting such claims or 

of recovering such property. If he wilfully 

neglecta to use such diligence, he and the 

sureties on his bbnd shall be 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 representatives may 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 Injunctive proceeding regarding the appointment 

t$ the Probate Court of a new adminlstratoti pending trial 

In the Probate Court of an appeal~from a removal proceeding of the original administrator, the Court held: 

-566- 
Honorable Joe Resweber, page 5 (C-114 ) 

"Assuming that the order of the Probate 

Court lmproperly'removed Mr. Stanley as the 

atilnistrator for the estate it would nevertheless be true that his appeal therefrom preserved his status as administrator and he will 

continue to be such pending a trial de novo in 

the District Court, and at least until such 

time as the judgment of that court shall become 

final. Power to remove a person from h$s office 

aa an administrator for the estate of a decedent 

'is given by law, in the first Instance, to the 

Probate Court. Such a person who considers himIf aggrieved by such an order of removal 

i:ven by law the remedy of an appeal to the 

is 

District Court for a trial de novo. If the 

remedy .of.;appea>,wab not ao'give&Lthe District 

Court would not have any jurisdiction to lnterfere with the order of removal, for courts of 

equity will not Interfere to protect a person 

from removal from office by a man or body of 

men to whom such power of removal Is given by 

law. 11 

. . . 

"If the injunction to the extent under 

consideration be undisturbed, the Probate Court 

would be helpless to protect the Interests of 

the estate such court is charged by law to aTminister, in the event of such a contingency, 

and the estate's beneficiaries would be left 

with recourse solely confined to damages against 

the adm&nistrator and the suretles on his bond. 

In a situation Such as that hypothesized, 'and 

where the Probate Court might attempt to appoint an administrator to bring and prosecute 

a suit in behalf of the estate, such attempted appointment might 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 

-567- 
Honorable Joe Resweber, page 6 (C-114 ) 

to protect the interests of the estate in 

the event it be ultimately determined that 

the administrator's refusal to Institute 

such suit actually operated to the detriment 

of the estate and the beneficiaries thereof." 

~Emphasls added). 

In Heyn v. Massachusetts Bonding Company, 110 S.W.2d 

261 (Tex.Clv.App. 1937, error di I th C 

ing the constltutlonallty of staz%eL 

t in sustainirnzos$ the duty on 

the Judge of the Probate Court to annually examine Into the 

condition of wards' 

Code) held: 

estates (now ,Sectlon 36 of the Probate 

"Under the foregoing provisions of the 

statutes, obviously It Is the duty of judges 

of county courts annually to examine Into the 

condition of the estates of wards, 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 accordance with lath: and further, county Judges are required to compel guardians to return reports of annual accountings into court 

(a duty imposed under article 4225), and to exact 

fines for contempt of court and assess damages on 

guardians and their bondsmen for nonperformance of 

such duties; and further, It is the duty of county judges to remove guardians when they have falled fo give bonds as required by 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 judges by reason of Inability of rninors, idiots, lunatics, persons non campos mentls, 

and common drunkards to take care of their own lnterests. The welfare of persons laboring under 

such disability has always been a matter of deep 

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

" 

concern to the state. This state has In a 

manner made the county judges its fiscal agents to confide estates of such persons to 

the Custody of prudent and safe persons, and 

have carefully thrown safeguards ardund 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 estimated value of the personal propetity belonging to their wards, to file annual accountings 

as to elicit truthful information as to the 

condition of such estates, to obey proper orders of the county court or judge, and to always remain within the juriadict$.on of suph 

court or judge, are for the protection of 

such disabled persona 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 Imposed upon the county judges 

of equal force and effect, and the failure 

of performance 18 negligence per se, for 

which such county judges are amenable and 

their official bonds 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 status annually. It Is the duty of 

the Probate Judge to remove the personal representative 

in the event that the Court has knowledge of existing 

grounds for removal prescribed by Section 222 of the 

Probate Code. Whether a violation of Section 222 by 

the personal representative has occurred Is a fact question to be determined by the Probate Jtidgei 

-569- 
- . 

Honorable Joe Resweber, page 8 (C-114 ) 

In view of the provisions of Sections 36 and 233 of 

the Probate Code, you are advised that it is the duty of 

the personal representative to use ordinary diligence 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 perrepresentative falls to perform such duty, the Probate Judge is authorized to remove the personal repyesentatlve under the provisions of Section 222 of the Probate Code. Therefore, It is the duty of the Probate,~Judge 

to use such reasonable diligence as Is necessary to 

determine whether the"persona1 representative is performing the duties required by Section 233 of the Probate Code. 

In answer to your fourth question, Sectlbn 401 of 

the Probate Code provides: 

"Action Upon Annual Accounts. 

"These rules shall govern the handling 

of annual accounts: 

(a) They shall be filed with the county 

clerk, and the filing thereof shall be noted 

forthwith upon the judge's docket. 

(b) Before being considered by the judge, 

the account shall remain on file ten (10) days. 

(0 

1 

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 thereon until 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 deposit under order of court has been 

proved as required by law. 

-570- 
Honorable Joe Resweber, page 9 (C-114 ) 

(e) If the-account be found Incorrect, 

it shall be corrected. When corrected to 

the satisfaction of the court, It shall be 

approved by 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~he exhibit, or from 

other evidence, that the estate Is wholly 

solvent, and that the representative haB In 

his hands sufficient funds for the payment of 

every character of claims against the estate, 

the court shall order immediate payment to be 

made of all claims allowed and approved or 

established by 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 representative has 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 still unpaid, and then to 

the payment pro rata of the other claims allowed and approved or established by final judgment, taking Into consideration also the claims 

that were presented within twelve (12) months 

after the granting of administration, and those 

which are in suit or on which suit may yet be 

Instituted." 

In Heyn v. Massachusetts Bonding Company, supra, 

the Court held on motion for rehearing: 

II 

. . . The county judge knew, or 

should have known, that the $1,000 bond 

was insufficient, and his failure to require additional security was negligence 

per se, and ~such failure, along~ With the 

other failures of official duties, as 

-571- 
Honorable Joe Reaweber, page 10 (C-114 ) 

reflected in the record,and pointed 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 atie liable If he le negligent in 

the performance of hla duty in Approving annual accounts, 

If such negligence constitutes proximate cause of a loss 

to the estate. 

SUMMARY 

A Probate Judge Is required to 

annually examine Into the condition 

of each estate being administered under orders of the Court and to use reasorbable dPligen&e to determlni that the 

personal repretientatlvee of estates being administered under 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. 

,Blll Alien 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

-572-