                    THE          AITCBFCNEY                  GENERAL
                                       UDFTEXAS
                                  AriaTIN. TExae           78711

                                        October 18, 1967



Honorable Burton G. Hackney                      Opinion No. M-148
Commissioner, State Department
 of Public Welfare                               Re: Whether House Rills Nos. 78 and 80, 60th
John H. Reagan Bldg.                                 Legislature, 1967, have the effect of re
Austin, Texas 7870~1                                 pealing Section 246, Texas Probate Code,
                                                     so as to preclude a court from ordering that
                                                     no costs or fees be charged needy persons
                                                     in guardianship proceedings; and related
Dear Mr. Hackney:                                    constitutional questions

              You have requested     the opinion of this office regarding the subject question.

              Section 246, Texas Probate Code, is quoted as follows:

               ‘Whenever a guardian is appointed for the purpose of enabling a person
       to receive public assistance which is contingent upon need, from the State or
       Federal Government, the court may, in its discretion, order that no costs or
       fees be charged in connection with the proceeding.”

               Based upon the above statute, your letter of request is quoted, in part, as follows:

               “The Probate Courts in most of the Counties in the State of Texas have
       been waiving the Court costs in guardianship proceedings for the needy aged,
       blind, disabled, and families with dependent children whenever it was necessary
       to have a guardian appointed in order that such individuals could receive their
       Public Asststance  grants. In most instances, the recipients are completely with-
       out funds or are living on a very low-income level and depending primarily
       upon their assistance grants for support,.

               “Although the State Department of Public       Welfare does not actually
       fte the petitions for guardianships, the Department    is involved because it can-
       not make assistance payments to an individual who     is incapable of handling his
       own affairs and endorsing his own checks until        a legal guardian has been
       appointed.

               “The Department has received notice that in some of the Counties,
       guardianship papers on behalf of the indigent recipients of Public Assistance
       cannot be filed without the payment of Court costs. The Department is with-
       out. legal authority to pay :tlm Cwtt ~cebts:~andl(ltherrecipients, or potential
       r@ipients, are not financially able to do so. It is our understanding that the
       County Clerks are relying upon House Bills No. 78 and No. 80 as their legal


                                               -689-
Honorable Burton G. Hackney, Page 2, (M-148)



       authority for requiring the payment of Court costs.”

                House Bill No,. 78, 60th Legislature, Regular Session, 1967, Chapter 680, page
1785 and House Bill No. 80, 60th Legislature, Regular Session, 1967, Chapter 681, page 1789
were enacted as fee bills affecting the amount of fees that must be collected by County Clerks.
Both of these enactments purported to repeal a number of specific statutes, plus all others in con-
flict with the new statutes. It is the view of this office that Section 246, Texas Probate Code, is
not affected by the enactment of House Bills 78 and 80, for the reason that these enactments
simply provide for the establishment of certain fees collectable by the County Clerk for certain
specific acts. Section 246 is not a fee statute, but is an authorization to the County Judge to
waive the payment of fees in certain circumstances” A close examination of House Bills 78 and 80
reveals nothing which would lead us to conclude that the Legislature intended to amend or repeal
the authority granted to the Court to waive costs or fees in certain circumstances.

                In view of the foregoing, your questions regarding the constitutionality   of House
Bills 78 and 80 need not be answered.

                                         SUMMARY

              House Bills Nos. 78 and 80, 60th Legislature, 1967, do not repeal or
        amend Section 246 of the Texas Probate Code.

                                                  &ery        truly,



                                                         ey General of Texas

Prepared by Malcolm L. Quick
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
W: 0. Shultz
Gilbert Pena
2; T. Fortescue

A. JI CARUBBI, JR.
Staff Legal Assistant




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