Case Information
*1 The Attorney General of Texas Novmber 14, 1984 JIM MATTOX
Attorney General
5121475.2501 Supreme Court Buildin Austin. TX. 78711. 2548 P. 0. Box 12540 Telex 9101874.1367 Telecopier [51214750266] Teacher Retirement Austin, Texas Mr. Bruce Rineman Executive Secretary 1001 Trinity Street 7a7o:t j:lstem of Texas ment System may pay benefits Opinion No. JM-230 on behalf Re: Whether the Teacher Retire- a managing of a minor child who is
not the child’s parent 714 Jackson. Suile 700 Dallas, TX. 75202.4506 Dear Mr. Rinemao: 2141742.8944
You ask (1) whether a non-parent managing conservator of a minor 4824 Alberta Ave.. SuiIe 160 [91515334484] El Paso. TX. 79905-2793 System [hereinafter (2) whether is authorized the non-parent managing conseNator TRS] survivor and give receipt on behalf is authorized for Texaa Retirement of the minor, and paya>:le to the minor. ,001 Texas. Sulta 700 Controversies over the powers of a managing conservator, either Houston, TX. 77002.3111 or non-parent, arose initially because 713122559S6 person and guardia:lship are distinct positions. See Prob. Code 5184(c). Tsxas probate law requires that a court appoio= 606 Broadway, Suite 312 guardian of e minor’s estate. See Prob. Code 1109(a); see also Lubbock. TX. 79401-3479 Phillips v. Phillti)s. 511 S.W.2d 748 (Tex. Civ. App. - San Antonio SOSi747.5238 1974, 00 vrit);ii;er v. Southern National Life Insurance Company, 326 S.W.Zd 715 3;~. Civ. App. - San Antonio 1959, writ ref’d). 4309 N. Tenth. Swte S Although a child’s p,srent is the natural guardian of the person of the McAllen. TX. 78501.1585 law traditionally limited even a parent to an entitlement 5121682.4547 to be appointed of his estate; he had no absolute 200 Main Plaza. Suite ux) San Antonio. TX. 78205-2797 [51212254191] General Opioioo Retirement System may not pay benefits right person appointed to act. mm- Si.Lber. E-i35 by a court 326 S.W.Zd at 717. to receive concluded due minors Consequently, the State Employees to anyone except a payments. Attorney
Prob. Code §109 (,guardian of estate); 5228, (guardian appoins specifically government funds). A” Equal Opportunitvl Atfirmatwe Act,“” ErWove-
Several years later, Attorney General Opinion H-1214 determined that section 12.04 of the Family Code, effective 1974, authorized ila.rents for benefit payments due their lninor child from the Employees Retirement without the neceslzlty of a formal guardianship. Attorney General Opinion R-1214 construed 12.04 of the code *2 Mr. Bruce Aineman - Page 2
as limited exceptions to the Seneral rule followed in Attorney General Opinion H-85. At that time, provided as follows:
[T]he of: a child has the following rights, privileges, duties, and powers: * . . .
(4) the duty tolnaoage the estate of the child, except when a gucz:dian has been appointed;
. . . . the power 1:~) receive for payments the support of the child and to hold or disburse anyfunds the . . . (Emp’~asis added). Cf. Acts 1983, 68th Leg., ch. 1016 at 5436 (subsection (4) amended). - 14.02(b) of thsz Family Code has oo direct corollary the parents’ duty in section 12.04(4) to manage minor’s estate.
As recently amended, however, subsection 14.02(b) clearly brings some powers over a minor’s estate within a non-parent managing conservator’s author:lty:
the power to reprwent the child legal action and to make other ‘decisions of substantial legal significance cooc:e,roing the fncludinn . est ate or a except when a guardian of the child’s or litem has been appointed for the child, a p&er as an agent of the child act in relation fo estate the chil id’s action is required by a state, the United States, (Emphasis or a fore:z;n government. . . . added).
Acts 1983. 68th Leg.. ch. 10115, at 5437. V.T.C.S. Tex. Fam. Code Ann. (6). (The emphasd,zed language also amended the parents’ estate power provision, sectllan 12.04(4).) subsection (6: of section does not create as
comprehensive a power to mar,age a minor’s estate as the power held by parents, it does authorize action in relation to the child’s when action Is required by ZI governmental entity and when a court has not appointed a guardian auth#Drized to receive such payments. The TRS “requires” that an authorized person to avoid danger of incurring double li,ability. Thus, in response to your *3 Mr. Bruce Hioeman - Page 3 as amended, encompasses
question. we conclude section 14.02(b). authorization for a non-parent managing cooserzator and give for governmeot benefit such as TRS survivor benefits unless and until a formal guardianship exists.
Because election is an Incident of receiving such benefits, we also answer yor.r second question affirmatively.
section 34.404(d) of Title HOB, Public Retirement Systems, refers election benefits for minors by “their guardian.” section (6) of the Family Code necessarily authorizes a non-parent managing consexvetor ele:c’ among available benefits. As indicated at the ooset of this discusc;i.on , the general term “guardian” ten apply 34.404 may not have been to distinct positions; thus, section intended require election of tbenefits by a court-appointed guardian. Nevertheless, even the provision requires election by a formal guardian, (1i11, as amended, grants non-parent managing power necessary to elect among TRS conservators the limited “guardian” survivor benefits so long es oo formal exists. Attorney General Opinion H-1,2:14.
SUMMARY 14.02(b)(6) the Texas Family Code authorizes the non-parent maoaging a minor child and give receipt Texas Retirement survivor on behalf and amoog benefit options wrailable to the minor so long as no guardian of the child’s or a guardian or litem, has been appointed J In J In N A T T 0 X N A T T 0 X Attorney General of Texas Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorne:r General
RICK GILPIN
Chairman, Opinion Committee
Mr. Bruce Rinemao - Page 4 (J&l-230)
Prepared by Jennifer Rigge
Aeeietaot Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpio. Chairman
Co110 Carl
Susan Garrieoo
Tooy Goillory
Jim Moellinger
Jennifer Rigge
Nancy Sutton
p. 1035