Untitled Texas Attorney General Opinion ( 1985 )


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  •                                 The Attornq             General of Texas
    JIM MAlTOX                                        December 19. 1985
    Attorney General
    Supreme Court Building         Mr.   Marlin
    W. Johns,ton                   Opinion No. JM-392
    P. 0. Box 12548
    Commissioner
    Austin. TX. 78711. 2548
    5121475-2501                   Texas Department of Ruman                 Ret Whether the Texas Department
    Telex 910/874-1367                Resources                              of Ruman Resources is required to
    Telecopier 512l475-0266        P. 0. Box 2969                            pay a filing fee when it files an
    Austin, Texas   78769                     investigation report pursuant to
    714 Jackson, Suite 7W
    section 48.038(g) of the Texas
    Dallas. TX. 75202-4506                                                   Human Resources Code, regarding
    2141742-8944                                                             the alleged abuse of the ward
    Dear Mr. Johnston:
    4824 Alberta Ave.. Suite 160
    El Paso, TX. 799052793
    915/533-34&a                        You have askc,d several questions about the fees to be paid when
    the Texas Departms:nt of Human Resources files a report regarding the
    alleged abuse of an elderly or disabled person. The department is
    1001 Texas, Suite 7tlIl        charged with the 'duty of investigating reports regarding the abuse,
    Houston, TX. 77002-3111
    exploitation, or neglect of elderly or disabled persons. Eum. Res.
    713f2255886
    Code 1948.036, 48.037. The department must prepare a written report
    regarding each sutixinvestigation. 
    Id. 548.038(e). If
    the elderly or
    808 Broadway, Suite 312        disabled person has a guardian, the department must file a copy of the
    Lubbock, TX. 79401-3479        report with the I:ourt to which the guardian is accountable. -Id.
    8C%i747.5238                   948.038(g).
    4309 N. Tenth. Suite S              Tour letter sets out the following three questions regarding the
    McAllen, TX. 78501-1885        filing of the report:
    512/882-4547
    1. Wxn    the department files a copy of the
    200 MaIn Plaza, suite 4w                      report .sandated by section 48.038(g), is the
    San Antonio. TX. 78205.2797                   county clerk entitled to a filing fee?
    51212254191
    2.  I E the county clerk is entitled to a fee,
    An Equal Opportunity/
    may the clerk tax it against the estate of the
    Affirmative Action Employer                   person for whom the guardian was appointed rather
    than the department?
    3.  IE the department must pay a filing fee,
    must it be paid in advance?
    The appointment and administration of guardianships are under the
    jurisdiction of the probate courts. Prob. Code §§4, 5. Clerks of
    county courts are required to collect fees for filing papers in
    connection with anv cause or action in nrobate court. V.T.C.S. art.
    p. 1796
    Mr. Marlin W. Johnston - Pe.ge 2   (JM-392)
    3930(b), §1(B)(1).1    It is not clear, however, from whom the county
    clerk should collect a fee for a report filed pursuant to section
    48.038(g). The rule applicable to ordinary civil cases is that a
    party to a suit shall be li.ableto officers of the court for all costs
    he incurs. Tex. R. Civ. P,roc. 125. In general. the uartv who soueht
    the county clerk's services,would be the party who "i&x&d"    then&
    of the clerk's services. 'See Maryland Casualty Co. v. Thomas, 
    289 S.W.2d 652
    , 655 (Tex. Civ.-Fp. - Amarillo 1956, writ ref'd n.r.e.)
    (stating that the ordinarv r&&a     of "incur" is to "become liable or
    subject-to through one's &n. action"); but see Rays v. Spengenberg,~94
    S.W.2d 899, 903 (Tex. Civ. App. - Austin 1936, no writ) (holding that
    plaintiff "incurred" the ccst of a guardian ad litem for the defendant
    by bringing suit). Rule 1125 applies in probate matters unless the
    Probate Code specifically Irovldes otherwise. Prob. Code 512(a).
    The Probate Code provides that the estate of              the ward    is
    responsible for the cost of a guardianship proceeding:
    When any person is found to be of unsound mind
    or to be an habitual drunkard, the cost of the
    proceeding shall 'be paid out of his estate, or,
    if his estate bei insufficient to pay the same,
    such costs shall be paid out of the county
    treasury, and thlz judgment of the court shall be
    accordingly.
    -Id. 5247.'   Thus, if the cost    of   filing   a   report   regarding   the
    1. We do not consider,whether a fee is always due under article
    3930(b) when DRR files a report in a guardianship proceeding.
    Although section l(B) of ar,ticle 3930(b) states that a fee-is due for
    anything filed in probate court, the statute never sets out the
    initial fee due in a proceelding to appoint a guardian of the person.
    The statute does set out the initial fee to be paid for a guardianship
    of an estate. Art. 393O(tN), §l(B)(l)(a)(i). The statute also sets
    out additional fees to be paid for filings that occur after court
    approval of an appraisal. Art. 3930(b), 41(B)(l)(b)(i). A probate
    judge has discretion to order an appraisal in a proceeding to appoint
    a guardian of an estate. Prob. Code 5184(e). If a guardian is a
    guardian of both the perllon and the estate and if the court has
    ordered and approved an appraisal of the estate, then the clerk
    clearly has authority to collect a separate fee for papers filed in a
    guardianship proceeding. We do not address the clerk's authority to
    collect such fees under other circumstances.
    2. Persons of unsound mind and habitual drunkards are the only
    persons other than minors for whom guardians may be appointed for
    general purposes. Prob. Cede 1114. Minors are not within the defini-
    tion  of elderly person or the definition of disabled person for
    purposes of section 48.038(g) of the Human Resources Code. Hum. Res.
    Code 548.002(E). Thus, section 247 of the Probate Code is relevant to
    any guardianship proceeding that would be affected by section
    48.038(g) of the Human Rescurces Code.
    p. 1797
    9
    -’
    Mr. Marlin W. Johnston - Page 3     (JM-392)
    investigation of alleged atuse in a guardianship proceeding is a "cost
    of the guardianship procee'ding," section 247 rather than Rule 125
    governs allocation of the filing fee. If that is the case, the estate
    of the ward is primarily li.ablefor the filing fee, and we do not need
    to determine who "incurs" that cost.
    In our opinion the fee for filing a report pursuant to section
    48.038(g) of the Ruman Resources Code is a cost of a guardianship
    proceeding for purposes of section 247 of the Probate Code. The legal
    justification for charging the expenses of a guardianship proceeding
    against the estate of th's ward is that the expenses are for the
    benefit of the ward.    See Prob. Code 9242; Carney v. Aicklen, 
    587 S.W.2d 507
    , 511 (Tex. EL.. App. - Tyler 1979, writ ref'd n.r.e.)
    (holding that the ward's estate is liable for attorney's fees for
    someone who successfullv contests the auoointment of someone else as
    guardian). See also --
    In-re Guardianship Ritates of Kaufman, 
    429 S.W.2d 612
    , 617 (Tex. Civ. App. -'Dallas 1968. no writ) (holding that court
    costs are necessarily incurred in connection with guardianship
    proceedings and are proper administrative expenses). That justifica-
    tion is applicable to the expense of a report filed by the department
    regarding the alleged abuse of the ward. The department is not a
    party to the guardianship ,proceeding, and its participation is merely
    to insure that the guardien and the court of continuing jurisdiction
    are aware of any abuse or alleged abuse of the ward. Thus, we think
    that a fee for filing such a report is a cost of the guardianship
    proceeding and should be c'iargedagainst the ward's estate or, if the
    estate is insufficient to pay the fee, against the county.
    In light of our answer to your second question, we do not reach
    your third question.
    SUMMARY
    The county clsrk must collect a filing fee for
    filing a report submitted by the Texas Department
    of Buman Resources pursuant to section 48.038(g)
    of the Human Resources Code. The estate of the
    ward is liable for the fee. If the estate is
    insufficient to pay the fee, the county is liable.
    Very   truly   your ,
    .
    f-L-k
    JIM     MATTOX
    Attorney General of Texas
    JACX HIGETOWRR
    First Assistant Attorney General
    p.    1798
    Mr.   Marlin W. Johnston - P.aSe4    (JM-392)
    MABY KELLER
    Executive Assistant Attornqr General
    ROBERT GRAY
    Special Assistant Attorney General
    RICK GILPIN
    Chairman, Opinion Cosunittec!
    Prepared by Sarah Woelk
    Assistant Attorney General
    p. 1799
    

Document Info

Docket Number: JM-392

Judges: Jim Mattox

Filed Date: 7/2/1985

Precedential Status: Precedential

Modified Date: 2/18/2017