Untitled Texas Attorney General Opinion ( 2008 )

GREG ABBOTT
May 30,2008
The Honorable Rick Perry Opinion No. GA-0632
Governor of Texas
Post Office Box 12428 Re: Constitutionality of section 41(e)(3) of the
Austin, Texas 787 11-2428 Probate Code, which permits a probate court to
declare that a parent may not inherit from his own
child if the parent has been convicted of one of
several crimes against a child (RQ-0649-GA)
Dear Governor Perry:
You ask about an enactment by the Eightieth Legislature providing that a probate court may
declare that a parent may not inherit from his own child if the parent "has been convicted or has been
placed on community supervision. . . for being criminally responsible for the death or serious injury"
of a child under certain provisions of the Penal Code.' In your request letter, you state the following:
The Governor permitted [House Bill 56812to become law without his
signature on June 15,2007; however, the Governor stated at the time
that Section 41(e)(3) may pose a constitutional question because it
appears to prevent inheritance based on a prior bad act. The
constitutional question arises from Article I, Section 21, of the Texas
Constitution, which states in part that "[nlo conviction shall work
corruption of blood, or forfeiture of estate . . . ."
Request Letter, supra note 1, at 1 (footnote added). Thus, you ask whether "Section 41 (e)(3) of the
Probate Code, as amended by HB 568, [is] in conflict with Article I, Section 21, of the Texas
Constit~tion."~ Id. Section 4 1(e)(3) of the Probate Code provides, in relevant part:
'See Letter from Brian C. Newby, Chief of Staff, Office of the Governor, to Honorable Greg Abbott, Attorney
General of Texas (Nov. 26, 2007) (on file with the Opinion Committee, also available at http://www
.texasattomeygeneral.gov) [hereinafter Request Letter].
'Act of May 27,2007, 80th Leg., R.S., ch. 1412, § 2,2007 Tex. Gen. Laws 4855,4856.
3 Y o indicate
~ that section 41(e)(3) of the Probate Code, which contains this provision, "does not qualify the
term 'child' to limit it to mean only a child born of (or adopted by) a parent subject to this section." Request Letter,
supra note 1, at 1. Thus, you contend that the statute "raises the possibility that a person may be disinherited by a court
(continued.. .)
The Honorable Rick Peny - Page 2 (GA-0632)
A probate court may declare that a parent of a child under 18
years of age may not inherit from or through the child under the laws
of descent and distribution if the court finds by clear and convincing
evidence that the parent has:
(3) been convicted or has been placed on community
supervision, including deferred adjudication community supervision,
for being criminally responsible for the death or serious injury of a
child . . . that would constitute a violation of one or more of the
following sections of the Penal Code:
(A) Section 19.02 (murder);
(B) Section 19.03 (capital murder);
(C) Section 19.04 (manslaughter);
(D) Section 2 1.11 (indecency with a child);
(E) Section 22.0 1 (assault);
(F) Section 22.01 1 (sexual assault);
(G) Section 22.02 (aggravated assault);
(H) Section 22.021 (aggravated sexual assault);
(I) Section 22.04 (injury to a child, elderly individual, or
disabled individual);
(J) Section 22.04 1 (abandoning or endangering child);
(K) Section 25.02 (prohibited sexual conduct);
(L) Section 43.25 (sexual performance by a child); or
(M) Section 43.26 (possession or promotion of child
pornography).
TEX.PROB.CODEANN. 5 41(e)(3) (Vernon Supp. 2007).
'(...continued)
for committing a crime against any child, not just a child related to that person." Id. We will base our answer on an
analysis of article I, section 2 1 of the Texas Constitution and need not address this issue.
The Honorable Rick Perry - Page 3 (GA-0632)
I. Historical Background
The concept of "corruption of blood" and "forfeiture of estate" emanate from the English
common-law doctrine of "attainder." As the United States Supreme Court has observed, attainder
is "'the stain or corruption of the blood of a criminally capitally condemned; the immediate
inseparable consequence of the common law on the pronouncing the sentence of death.' The effect
of this corruption of the blood was that the party attainted lost all inheritable quality, and could
neither receive nor transmit any property or other rights by inheritance." Exparte Garland, 71 U.S.
333, 387 (1866). The Court has further explained that "[tlhe attainder of death was usually
accompanied by a forfeiture of the condemned person's property to the King and the corruption of
his blood, whereby his heirs were denied the right to inherit his estate." Nixon v. Adm 'r of Gen.
Servs., 433 U.S. 425, 475 (1977); see also Austin v. United States, 509 U.S. 602, 611-12 (1993)
("[C]ommon-law forfeiture fell only upon those convicted of a felony or of treason. 'The convicted
felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor
forfeited all ofhis property, real and personal, to the Crown.'"); Hedrickv. Marshall, 282 S.W. 289,
291 (Tex. Civ. App.-Dallas 1926, no writ) ("By the ancient common law, when sentence was
pronounced for treason or other felony, the offender was by operation of law placed in a state of
attainder. And there were three principal incidents consequent on such attainder, to wit, forfeiture,
corruption ofblood, and an extinction of civil rights, more or less complete, which was denominated
'civil death. '"). Id.
11. State of Texas Law
Article I, section 2 1 of the Texas Constitution expressly declares in part that "[nlo conviction
shall work corruption of blood, or forfeiture of e~tate."~ TEX.CONST.art. I, 5 21. In an early case,
the Texas Supreme Court rejected the related concept of civil death on the basis of various
constitutional provisions, including article I, section 21. The court explained that "[alttainders,
outlawry, deprivation of property except by due process of law, and the corruption of blood or
forfeiture of estate, as a result of conviction of crime, are expressly prohibited by the organic law."
Davis v. Laning, 19 S.W. 846, 846 (Tex. 1892) (emphasis added). The court continued:
Section 21 declares that "no conviction shall work a corruption of
blood or forfeiture of estate . . . ." This provision is invoked by the
4Vimallyidentical language is found in section 41(d) of the Texas Probate Code, which provides, in relevant
part:
(d) No conviction shall work corruption of blood or forfeiture of estate,
except in the case of a beneficiary of a life insurance policy or contract who is
convicted and sentenced as a principal or accomplice in wilfully bringing about the
death of the insured . . . .
TEX.PROB.CODEANN. $ 41(d) (Vernon Supp. 2007). The exception in section 41(d), known as the "Slayer's Rule,"
is briefly discussed inpa.
The Honorable Rick Perry - Page 4 (GA-0632)
plaintiffs in error, but it aids their case no further than a declaration
that a convict may either inherit himself or transmit inheritance.
Id. (emphasis added).
A recent Texas intermediate appellate decision has declared that the "Texas Supreme Court
has interpreted [article I, section 211 to mean that unlike in England where a convict is deemed
civilly dead and cannot inherit, Texas preserves the inheritance of a convicted felon from forfeiture
through corruption ofblood." I n re B.S.W., 87 S.W.3d 766,770 (Tex. App.-Texarkana 2002, pet.
denied), citing Davis, 19 S.W. at 847. The Interpretative Commentary to article I, section 21
moreover states that "[alt ancient common law, when a person was convicted of a capital offense,
he was placed in a state of attainder, and, as incident thereto, the blood of the attained person was
corrupted so that he could not inherit from his ancestors, nor transmit his estate to his heirs, and his
estate was forfeited to the king." TEX.CONST.art. I, 5 21 interp. commentary (Vernon 2007). The
general rule in Texas is that the denial of a person's right to inherit or to transmit his property
violates article I, section 21.
There is a judicially-created doctrine that may be viewed as a corollary or exception to the
prohibition in article I, section 21, the doctrine that "no conviction shall work a corruption of blood
or forfeiture of estate." In 1918, a Texas court of civil appeals pronounced what has since become
known as the "Slayer's Rule."' In Murchison v. Murchison, 203 S.W. 423 (Tex. Civ.
App.-Beaumont 1918, no writ), the court, relying on an early decision from the United States
Supreme Court, quoted the following from that case: "It would be a reproach to the jurisprudence
of the country, if one could recover insurance money payable on the death of a party whose life he
had feloniously taken. As well might he recover insurance money upon a building that he had
willfully fired." Id. at 425, quoting New York Mut. Life Ins. Co. v. Armstrong, 117 U.S. 591, 600
(1886). Murchison was subsequently affirmed by the Texas Supreme Court in Greer v. Franklin Life
Insurance Co., 221 S.W.2d 857, 859 (Tex. 1949). And the Texas Probate Code now incorporates
the Slayer's Rule wlth respect to insurance proceeds. TEX.PROB.CODEANN. § 41(d) (Vernon Supp.
2007) (proceeds of life insurance policy may not be paid to beneficiary who is convicted of wilfully
causing death of insured); see also TEX.LNS. CODEANN. 5 1031.151 (Vernon 2007) (same). The
Slayer's Rule is implicated by your question only to the extent that section 41(e)(3) of the Probate
Code may deny the inheritance from a child to an individual who has been convicted of murder or
capital murder of that child, i.e., a violation of Penal Code sections 19.02 (murder) or 19.03 (capital
murder).
The common-law remedy of constructive trust also mitigates the results that otherwise might
occur in extreme cases from a strict application of article I, section 21. The Texas Supreme Court
has declared that "the law will impose a constructive trust upon the property of a deceased which
passed either by inheritance or by will if the beneficiary wilfully and wrongfully caused the death
of the deceased." Bounds v. Caudle, 560 S.W.2d 925, 928 (Tex. 1977). See also Medford v.
'When we allude to the Slayer's Rules, we limit its meaning to insurance proceeds as referenced in section 4 1(d)
of the Probate Code. TEX.PROB.CODEANN.§ 41(d) (Vernon Supp. 2007).
The Honorable Rick Perry - Page 5 (GA-0632)
Medford, 68 S.W.3d 242,248-49 (Tex. App.-Fort Worth 2002, no pet.) ("When the legal title to
property has been obtained through means that render it unconscionable for the holder of legal title
to retain the beneficial interest, equity imposes a constructive trust on the property in favor of the one
who is equitably entitled to the same."), citing Fitz-Gerald v. Hull, 237 S.W.2d 256,262-63 (Tex.
1951). In other words, a constructive trust leaves intact a convicted individual's right to inherit legal
title to property while denying the individual the beneficial interest. Viewed in such a light, the
imposition of a constructive trust, when equity demands it, does not violate article I, section 21 of
the constitution. See Greer, 221 S.W.2d at 859.
More recently, Texas courts have declined to expand the constructive trust doctrine. In a
1966 case, a court of civil appeals held that a parent's contributory negligence in failing to keep a
proper lookout for the safety of her child did not bar the parent's recovery of damages for funeral and
burial expenses and for pain and mental anguish in a suit brought in behalf of the deceased child.
Mitchell v. Akers, 401 S.W.2d 907,9 10 (Tex. Civ. App.-Dallas 1966, writ ref d n.r.e.). The court
concluded that
the constructive trust doctrine should not be applied in a case coming
within the provisions of Subsection (d) of Article 41 of the Probate
Code . . . , which says that there shall be no forfeiture by reason of
death by casualty. To hold otherwise would be to say that the
Legislature intended in effect to disinherit an unfortunate heir,
innocent of intent to kill, whose contributory negligence has been
found to be a proximate cause of the death of a person toward whom
he occupied the status of an heir.
Mitchell, 401 S.W.2d at 911.6 Thus, there are only two judicially-created limits to the literal
language of article I, section 21: the Slayer's Rule and the constructive trust doctrine.
111. Analysis
We now turn to the issue of the constitutionality of section 41(e)(3) under article I, section
2 1 of the Texas Constitution, as construed by the Texas courts. "Presuming that the language of the
Texas Constitution is carefully selected, we construe its words as they are generally understood."
Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578,580 (Tex. 2000), quoting City of Beaumont v.
Bouillon, 896 S.W.2d 143, 148 (Tex. 1995).
When interpreting our state constitution, courts "rely heavily on its literal text and must give
effect to its plain language" and "strive to give constitutional provisions the effect their makers and
adopters intended." Stringer v. Cendant Movtgage Corp., 23 S.W.3d 353, 355 (Tex. 2000). The
plain language of article I, section 21 requires that "no conviction shall work corruption of blood or
forfeiture of estate." TEX.CONST.art. I, 6 21 (emphasis added). The language about which you
'The relevant portion of the Probate Code declares that "there [shall not] be any forfeiture by reason of death
by casualty." TEX.PROB.CODEANN.5 41(d) (Vernon Supp. 2007).
The Honorable Rick Perry - Page 6 (GA-0632)
inquire, added to the Probate Code as section 41(e)(3) by the most recent session of the Legislature,
permits a probate court to bar the inheritance from a person's child if that person has been convicted,
placed on community supervision, including deferred adjudication community supervision, for
"being criminally responsible for the death or serious injury" of a child under any one of thirteen
provisions of the Penal Code, including assault under section 22.01. See TEX.PROB.CODEANN. 4
41(e)(3) (Vernon Supp. 2007). To the extent that this provision authorizes a probate court to bar a
person's inheritance from his child under circumstances within the Slayer's Rule or the constructive
trust doctrine, it is consistent with Texas Constitution article I, section 21 as construed by the Texas
courts. In our opinion, however, the courts would probably find Probate Code section 41(e)(3)
violative of article I, section 21 when applied to bar a wrongdoer's inheritance under circumstances
not within either of these two doctrines. See id.
It is possible that the Texas Supreme Court could find the provisions of section 41(e)(3) of
the Probate Code to be constitutional, by broadening either the Slayer's Rule or the constructive trust
doctrine. But this office may not do so. CJ: Canal Ins. Co. v. Hopkins, 238 S.W.3d 549,562 (Tex.
App.-Tyler 2007, pet. denied) ("it is not within the judicial province to indulge in acts of
legislation").
The Honorable Rick Perry - Page 7 (GA-0632)
S U M M A R Y
Article I, section 21 of the Texas Constitution provides that
"no conviction shall work corruption ofblood or forfeiture of estate,"
which means that a person may not be denied the right to inherit on
the basis of a criminal conviction. Texas courts have found limits to
that provision in the Slayer's Rule and the constructive trust doctrine,
which prevent a convicted murderer fi-om receiving life insurance
proceeds or inheriting property from the murder victim.
Absent the Texas Supreme Court's expansion of these two
exceptions, a court would likely find that Probate Code section
41(e)(3) contravenes article I, section 21 of the Texas Constitution
when applied to bar a person's inheritance from his own child under
circumstances not within either the Slayer's Rule or the constructive
trust doctrine.
Yours very truly,
~ t t o r n w e n e r aof
l Texas
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee