           THEATTORNEY                  GENERAL
                       OF     TEXAS




                           January 19, 1970


Honorable Joe Resweber         Opinion No. M-557
County Attorney
Harris County Courthouse       &:     Effect of late approval of
Houston, Texas 77002                  claims under Sections
                                      308-310 of the Texas Pro-
Dear Mr. Resweber:                    bate Code.
          You have presented the following question relating
to the interpretation of Sections 308-310 of the Texas Probate
Code :
          "Does the Probate Court have the power
     to _approve a claim allowed by the personal
     representative of an estate after the statutory
     thirty (30) day limitation specified in Sec.
     308 of the Probate Code?"
          The sections of the Texas Probate Code applicable
to this question are as follows:
          "§308. Depositing Claims With Clerk
         "Claims may also be presented by depositing
    same, with vouchers and necessary exhibits and
    affidavit attached, with the clerk, who, upon
    receiving same, shall advise the representative
    of the estate, or his attorney by letter mailed
    to his last known address, of the devosit of same.
    Should the representative.fail to act on said claim
    within thirty days after it is filed then it
    shall be presumed to be rejected. F6ilure of
    the clerk-to give notice as required herein shall
    not affect the validity of the presentment or
    presumption of rejection because not acted upon
    within said thirty day period. Acts 1955, 54th
    Leg. p. 88 ch. 55. (Emphasis added,)




                           -2660-
Hon. Joe Resweber, Page 2 (M-557)

         "5309. Memorandum of Allowance or Rejection
    of Claim.




                                                          55.

          "9310. Failure to Endorse or Annex Memorandum




          The interpretative commentary of Section 309 of
the Probate Code states the purpose of this section and Section
310, to-wit:
          "The former statutes required allowance or
     rejection of claims by personal representatives,
     but they did not prescribe any period of time within
     which such action should be had. To combat the prob-
     lem of lethargic or procrastinating representatives,
     this Section requires action within 30 days after
     presentment of the claim, and Section 310 provides
     that any claim not acted on within such period shall
     be deemed rejected."
          The use of the word "shall" is ordinarily mandatory.
Moyer v. Kelley, 93 S.W.2d 502 (Tex.Civ.App. 1936, error dism.);




                          -2661-
  .    ‘




Hon. Joe Resweber, Page 3 (M-557)

53 Tex.Jur.Zd X';'Statutes, Sec. 16.
          In 18 Tex.Jur.2d 446, Decedents' Estates, Section 559,
the following is stated in discussing Allowance, Rejection, and
Contests of Claims, to-wit:
           "Generally the only mode of establishing
      a money demand against an estate and of enforcing
      its payment is provided by the Probate laws, since
      these laws evidence a design to afford a,,systemof
      rules for the settlement of the estates of deceased
      persons complete in itself, and to comprise the
      only rules that should govern their settlement."
          The question here involved was considered by the
Supreme Court of Texas in Russell v. Dobbs, 163 Tex. 282, 354
S.W.Zd 373 (1962). In this case the claim was never formally
allowed or rejected by the administratrix. In discussing the
matter the Court stated the following:
           "The representative is now required to
      endorse his allowance or rejection on the claim
      within thirty days after it is presented to him
      or filed with the clerk. Section 309. His failure
      to act within the prescribed period on a claim
      presented to him constitutes a rejection of the
      claim, and subjects the representative to liability
      for court costs and to removal from office if the
      claim is thereafter established by suit. Section
      310. In view of these provisions, we are satisfied
      that the Legislature did not intend to create merely
      a rebuttable presumption of rejection when the
      representative fails to act within thirty days on
      a claim deposited with the clerk. (354 S.W.2d 375.)
           "Section 308 was enacted prima~rilyfor the
      benefit of creditors. It provides a method of
      presenting claims when the representative cannot
      be located, and also fixes a definite time at which
      the claimant becomes entitled to institute suit
      in the event his claim is not allowed. The pur-
      pose of the statute would be defeated if an action
      instituted by the creditor after expiration of
      the thirty-day period could be abated upon a showing




                            -2662-
Hon. Joe Resweber, Page 4 (~-557)

     by the representative that the claim had not been
     rejected in fact. Since the claim is presumed to
     be rejected even though the clerk fails to notify
     the representative, it seems clear that the Legis-
     lature was attempting to do something more than
     establish a period that would prima facie constitute
     a reasonable time for the representative to act.
     In our opinion the presumption of rejection created
     by Section 308 is conclusive in so far as the
     claimant's right to institute suit and the legal
     consequences of failure to do so are concerned.
     (354 S.W.2d 375)
         "Petitioners knew that their claim had been
    filed with the clerk, and were charged with
    know%sdgs that the same would be deemed rejected
    by operation of law if no action was taken by the
    Administratrix within thirty days.," (354 S.W.2d 376)
          Also see Childre v. Childre, 417 S.W.2d 464 (Tex.Civ.
APP. 1967, no writ) for the proposition that a claim was deemed
-3 ected by operation of law thirty days after it was filed.
          In 18 Tex.Jur.Zd 500, Decedents' Estates, Section 641,
the following textual statement is made:
         "Since, where a claim for money has been
    presented, and the executor or administrator fails
    to endorse or annex the memorandum of his action
    within thirty days after presentation as required
    by statute, such failure operates as a rejection,
    inaction on the part of the representative for
    the Maospecified   in this provision sets in motion
    the statute requiring suit on a rejected claim to
    be commenced within ninety days after rejection."
          It is also provided, in 18 Tex.Jur.2d 478, Decedents'
Estates, Section 603, as follows:
         "The county judge, sitting in Probate, has no
    authority to hear a claim that has been rejected
    by a representative. His authority is limited to
    passing'on claims that have been allowed by the
    representative."




                          -2663-
.    .




Hon. Joe Resweber, Page 5 (M-557)

          The question under consideration is analogous to the
one involved in Chantre v. National Maritime Union P&W Plan,
425 S.W.Zd 659 (Tex.Civ.App. 1968, no writ.),wherein the Court
held that after the judgment had become final the trial court
did not have the authority to preserve a party's right to appeal
by withdrawing the order granting summary judgment after the ten
day period within which notice of appeal should be given and
re-entering the same order as of a later date.
          A claim   iS   deemed rejected by operation of law
after it has been   on   file for thirty days and thereafter the
Probate Court has   no   authority to approve such claim.

                           SUMMARY
                           -------
          The Probate Court has no power to approve claims
     filed under Section 308 of the Texas Probate Code where
     such claims have been rejected by operation of law
     under Section 310 of,the       Probate Code.
                                       truly   yours,

                                                           f
                                                   < ’
                                               . 4&h
                                               eneral of Texas
Prepared by Jack Sparks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Alfred Walker, Co-Chairman
John Banks
Fisher Tyler
James Quick
Phil Warner
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant




                              -2664-
