                                   The Attorney General of Texas
                                                       Novmber       14,   1984
JIM MATTOX
Attorney General


Supreme Court Buildin
                                 Mr. Bruce     Rineman                                    Opinion     No. JM-230
P. 0. Box 12540                  Executive     Secretary
Austin. TX. 78711. 2548          Teacher Retirement     j:lstem       of   Texas          Re: Whether the Teacher Retire-
5121475.2501                     1001 Trinity   Street                                    ment System may pay benefits
Telex 9101874.1367
                                 Austin,  Texas     7a7o:t                                on behalf  of a minor child  to
Telecopier   51214750266
                                                                                          a managing conservator  who is
                                                                                          not the child’s  parent
714 Jackson. Suile 700
Dallas, TX. 75202.4506
                                 Dear Mr. Rinemao:
2141742.8944

                                       You ask (1) whether a non-parent        managing conservator   of a minor
4824 Alberta Ave.. SuiIe   160   child  is authorized     to receive   and give receipt    for Texaa Retirement
El Paso. TX. 79905-2793          System [hereinafter     TRS] survivor   benefits  on behalf   of the minor, and
91515334484                      (2) whether the non-parent      managing conseNator    is authorized    to elect
                                 among benefits    paya>:le to the minor.
 ,001 Texas. Sulta 700
Houston, TX. 77002.3111                 Controversies       over the powers of a managing conservator,                         either
713122559S6                      parent     or non-parent,         arose     initially        because      guardianship       of    the
                                 person     and guardia:lship        of the estate           are distinct        positions.         See
                                 Prob. Code 5184(c).           Tsxas probate        law requires         that a court appoio=
606 Broadway, Suite 312
Lubbock. TX. 79401-3479
                                 guardian      of e minor’s         estate.        See Prob.         Code 1109(a);         see also
SOSi747.5238                     Phillips     v. Phillti)s.       511 S.W.2d 748           (Tex.    Civ.     App. - San Antonio
                                 1974, 00 vrit);ii;er              v. Southern         National       Life    Insurance     Company,
                                 326 S.W.Zd 715 3;~.              Civ.    App. - San Antonio                 1959,   writ    ref’d).
4309 N. Tenth. Swte S
                                 Although a child’s        p,srent is the natural            guardian      of the person of the
McAllen. TX. 78501.1585
5121682.4547                     minor,     the law traditionally           limited     even a parent          to an entitlement
                                 to be appointed        guardian       of his child’s           estate;     he had no absolute
                                 right     to act.      Si.Lber.
                                                       mm-           326 S.W.Zd at 717.                 Consequently,       Attorney
200 Main Plaza. Suite ux)
                                 General      Opioioo     E-i35 (1973)          concluded        that     the    State    Employees
San Antonio. TX. 78205-2797
                                 Retirement      System may not pay benefits                due minors to anyone except               a
51212254191
                                 person     appointed     by a court          to receive        the benefit        payments.        See
                                 Prob.      Code   §109     (,guardian      of    estate);        5228, (guardian         appoins
A” Equal Opportunitvl            specifically      to receive      government       funds).
Atfirmatwe Act,“” ErWove-

                                       Several    years      later,      Attorney    General     Opinion     H-1214      (1978)
                                 determined    that section         12.04 of the Family Code, first            effective       in
                                 1974,   authorized     ila.rents
                                                          --           to   receive   and   give    receipt     for    benefit
                                 payments due their        lninor child        from the Employees       Retirement       System
                                 without    the neceslzlty        of a formal       guardianship.        Attorney      General
                                 Opinion R-1214 construed            two subsections    of section      12.04 of the code




                                                                      p.   1032
Mr. Bruce     Aineman - Page 2                     (JM-230)




as limited exceptions   to the Seneral rule followed     in Attorney    General
Opinion H-85.   At that time, two subsections    provided   as follows:

                   [T]he   parent              of:     a child    has   the      following
               rights,   privileges,                 duties,   and powers:

                      * .   .    .

                  (4) the duty tolnaoage                    the estate of       the child,
              except    when a gucz:dian                   of  the estate         has been
              appointed;

                      .   . . .

                    (8) the power 1:~) receive    and give   receipt  for
               payments for the support       of the child   and to hold
               or disburse    anyfunds
                                    --       for   the benefit     of the
               child.   . . .  (Emp’~asis added).

-Cf.   Acts   1983,       68th       Leg.,   ch.     1016 at 5436      (subsection    (4)    amended).

        Section    14.02(b)  of thsz Family Code has oo direct            corollary       to
the parents’       duty in section       12.04(4)    to manage the minor’s        estate.
As recently        amended,   however,      subsection    (6)  of   section     14.02(b)
clearly     brings    some powers over a minor’s        estate  within    a non-parent
managing conservator’s        author:lty:

               the power to reprwent             the child    in legal     action
               and to make other         ‘decisions    of substantial        legal
               significance       cooc:e,roing      the    child     fncludinn     .
               except when a guardian           of the child’s     est ate or a
              guardian      or attorney      ad litem     has been appointed
               for the child,      a p&er as an agent of the child               to
               act    in relation      fo     the child’s      estate     if    the
              -chil id’s action    is required      by a state,      the United
               States,    or a fore:z;n      government.     . . .     (Emphasis
               added).

Acts 1983. 68th Leg..      ch. 10115, at 5437.                        V.T.C.S.   Tex. Fam. Code Ann.
514.02(b)   (6).    (The emphasd,zed language                          also    amended the parents’
estate    power provision,    sectllan 12.04(4).)

       Although    subsection     (6: of section      14.02(b)      does not create     as
comprehensive     a power to mar,age a minor’s          estate     as the power held by
parents,    it does authorize        action    in relation       to the child’s    estate
when action     Is required     by ZI governmental      entity     and when a court has
not appointed     a guardian     auth#Drized to receive        such payments.     The TRS
“requires”     that an authorized         person   receive      payments   to avoid    the
danger of incurring        double li,ability.     Thus, in response        to your first




                                                          p.   1033
Mr. Bruce     Hioeman - Page 3          (JM-230)




question.     we conclude    that   section    14.02(b).     as amended, encompasses
authorization       for a non-parent       managing     cooserzator    to receive  and
give    receipt    for  governmeot     benefit    payments      such as TRS survivor
benefits     unless and until     a formal guardianship        exists.

       Because election         among benefits       is an Incident         of receiving     such
benefits,     we also answer yor.r second question               affirmatively.         Although
section    34.404(d)      of Title       HOB, Public     Retirement       Systems,    refers     to
election       of    benefits       for     minors    by    “their      guardian.”       section
14.02(b)   (6) of the Family Code necessarily                    authorizes       a non-parent
managing consexvetor           to ele:c’ among available          benefits.       As indicated
at the ooset of this discusc;i.on , the general                 term “guardian”       ten apply
to distinct       positions;     thus, section      34.404 may not have been intended
to    require      election      of     tbenefits   by    a court-appointed           guardian.
Nevertheless,        even if      the provision        requires      election     by a formal
guardian,      section     14.02(b) (1i11, as amended, grants non-parent                managing
conservators       the limited       “guardian”    power necessary         to elect among TRS
survivor      benefits       so long      es oo formal        guardianship       exists.       -See
Attorney     General Opinion H-1,2:14.

                                         SUMMARY

                  Section      14.02(b)(6)       of the Texas Family Code
              authorizes      the non-parent        maoaging conservator      of
              a minor child        (1) to receive       and give receipt    for
              Texas     Retirement         System    survivor     benefits    on
              behalf    of   the minor,        and (2) to elect      amoog the
              benefit    options     wrailable     to the minor so long as
              no guardian of the child’s            estate    or a guardian   or
              attorney     ad litem,        has been      appointed     for the
              child.




                                                       J In     N A T T 0 X
                                                       Attorney  General of Texas

TOM GREEN
First Assistant        Attorney    General

DAVID R. RICRARDS
Executive Assistant         Attorne:r    General

RICK GILPIN
Chairman, Opinion        Committee




                                                p.   1034
Mr. Bruce Rinemao - Page 4   (J&l-230)




Preparedby JenniferRigge
AeeietaotAttorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpio. Chairman
Co110 Carl
Susan Garrieoo
Tooy Goillory
Jim Moellinger
JenniferRigge
Nancy Sutton




                                    p. 1035
