Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GERALD C. MANN ATTORNEY GENERAL

Bonorable D. C. Greer State Highway Engineer Texas Highway Department Austin, Texas

Dear Sir:

Opinion No. 0-4685 Re: Authority of State Highway Department to withhold payments to the beneficiary of a deceased highway employee, of compensation benefits; penalies, satisfactory adjustment of a plain presented by the State Hospital to the guardian of such beneficiary.

Your letter of June 18, 1948, concerns your claim No. 40684, Allen Royce whitt, deceased. The facts, briefly, appear to be as follows:

On July 26, 1940, Allen Royce whitt was killed in the course of his employment with the State Highway Department. Whitt was a sling and his father the sole surviving beneficiary under the terms of the compensation Act providing compensation benefits for employees of the State Highway Department. The father, David V. whitt, is confined in the State Image Asylum in Terrell; Delwin D. whitt, his son, is his duty appointed guardian. Your Department aeknowledged its liability and began compensation payments to Delwin D. whitt as guardian of David V. whitt. Your Department notified the Superintendent of the Terrell State Hospital immediately, so that he might file claim with the guardian for the current care of David V. whitt. Compensation was paid through March 4, 1948. On March 10, 1948, you received a copy of a letter written by the State Board of Control, which brought to your attention the fact that the claim of the State Hospital had not been paid by the guardian. In this letter, the State Board of Control advised: "I am now filing a copy of this letter and statement with the Texas Highway Department because under our statutes warrants cannot be issued on the State funds to one who owes the State and is in arrears."

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Honorable D. G. Greer, Page 2

It appears that the whereabouts of the guardian 10 not presently knowa.

Upon this state of facta you ask the following quastions: (1) Do we have any authority under the law mentioned by the board of control to withhold pejxents in this oase pending satisfactory adjusteent of the olalm presented by the ctate Hoepital to the guardian (2) In oase another guardian is a pcointed, would the superintendent of the Tervell Hoepital to barred froz serving as guardian beo:use of his official oapacity:

The lav referred to by the state hoard of control 10 doubtloag Artiole 4280, R. 0, S. 1928, which reads as follows: "Tio warrant shall be issued to any person indebted to the state, or to his agent or assicnee, until ouch debt is paid."

Artiele 3196a, Vernon's Fovised Oivil Statutes of Texas, provides in Soetions 1, 2, 3, 4 and 5 as follows: "Gention 1. Patients admitted to ctate hoapitals and state psychopathic hospitals shall be of two classer, to wit: "Indigent patients; "Non-indigent peti ents; "Indigent patients are those who poseges no property of any kind nor have anyone leagally responsible for their support, and who are unable to reimburge the state. This olans shall be supported at the axjense of the state. "Non-indigent patients are those who poseose acce p:operty out of whiel the rtate may to reimbursed, or who have someone legally 11a-

*3 Fenorable D. O. Orcor, Page 3 and maintained at the exjense of the state, as in the fipst instance, but in such oanes the state shall have the right to be reimbursed for the support, maintenance, and treatment of such patients. "See. E. There the patient has no suffi- aient estate of his own, he shall be maintained at the expense: "Of the husband or wife of such person, if able to do so; "Of the father or mother of such person, if able to do so. "See. E. The state Board of Control is authorized to derand and conduct investigation in the County Court to determine whether or not a patient is possessed of or entitled to property and/or whether or not some other person is legal. ly liable for his support, maintenance, and treatrent and to pay therefor, and to have oitation issued and witnesses summoned to be heard on said investigation. "See. 4. The state Board of Control, direct1y or through an authorized agent or agents, may make contracts fixing the price for the support, maintenance, and treatment of patients in any state hospital or paychopsthle hospital at a sum not to eroped the cost of same or for such part thereof as such respective patient, his relatives or guardian of his estate may be able to and agree to pay, and binding the persons making such contracts to payment thereunder. "See. 5. Upon the written request of the state Board of Control the County or iistriet Attorney, or in case of the refusal or inability of both to act, the Attorney General, shall represent the state in filing a claim in Iroldte Court or a petition in a court of competent jurisdiction, wherein the guredien of such patient and/or other person legally liable for

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Eonorable D. O. Greer, Page 4

h: support, may be eited to appear then and there to show cause why the state should not have judgment against him or then for the amount due it for the support, maintenance, and treatment of such patient; and, upon sufficient ahowing, judgment may be entered against such guardian or other persons for the amount found to be due the state, which judgment may be onforced as in other cases. A verified account, swora to by the superintendent of the respective hospitals or psychopathic hosjtale wherein such petient is being treated, or has been treated, as to the amount due shall be sufficient evidence to authorize the Court to render judgment therein. The County or District Attorney representing the state shall be entitled to a commission of ten (10) per cent, of the amount collected. All moneys so collected, less such commission, shall be, by the said attorney, paid to the state board of control, which shall receive and receipt for the same and shall use the same for the maintenance and improvement of said institution or institutions in which said patient shall have been confined."

Yernon's Revised Civil Statutes, Article 8674c, the law providing workmans compensation incurange for Highway Department employees, provides in part in section 6: "All compensation allowed herein shall be exempt from garnishment, attachment, judgment, and all other suits or claims, and no such right of action and no such compensation and no part thereof nor of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void."

Section 7 of the same act adopts by reference a number of sections of the general Workmans Compensation Law, among them section 8a. Section 8a, Vernon's Revised Civil Statutes, Article 8308, provides in part as follows: " . . and the amount recovered thereunder shall not be liable for the debts of the deceased nor the debts of the beneficiary or beneficiaries and shall be distributed among the beneficiaries as may be entitled to the same as hereinbefore provided according to the laws of deaoent and distribution of this State; . . ."

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Eonorable D. C. Greer, Page 8

Since the provisions of the sortnens compensation law for state highway employees exampte the pepent of compensation to a beneficiary from compulsory devotion to the payment of the debts of the beneficiary, the provi sions of article 4350 have no application. To withhold the varent for the payment of compensation to the beneficiary under such circumstances would effect the compulsory appli cation of the compensation benefits to the payment of the state debt by set-off.

The ounity judie, however, has the authority, in his discretion, to provide for the support and maintenance of the ward, and may for that purpose authorize the expenditure by the guardian (or require the expenditure by the guardian) for that purpose from any property belonging to the estate of the ward. This thee compensation monies belonging to the cstate of the ward ray in the discretion of the probate court be expended for the support and maintenance of the ward, just as the ward himself, if he were mentally competent, might expend those funds for that purpose.

The reredy of the state roard of control under these circumstances is not that which has been suggested, towit, the withholding of the issuance of warrants for the compensation. The roard should present its claim to the probate eourt and request that the judge order the guardian to expend so much of the property belonging to the estate, whether in the fers of compensation benefits or otherwise as may be reasonably necessary for the support and maintenance of the ward.

Your second question presents a ratter with which your departnent has no concern. Therefore we do not answer it. The eligibility of a person to serve as guardian of the estate, in the event a new one need be appointed, is one which is addressed to the appointing power, the judge of the probato onurt.

Yours very truly AT CINEET CERERAL CF TOTAL APPROVEDJUL 1, 1942 E. R. P. Fairchild

ASSISTANT

APPROVEO CONMITTEE BY