Honorable Everett L. A.nschutz                   Opinion No.      H-   85
Executive Secretary
Employees  Retirement   System of Texas          Re:   Effect,   if any, of Senate
Box 12337 Capitol Station                              Bi,ll 123 on benefits being
Austin, Texas 78711                                    paid or to be paid to minor
                                                       children of deceased em-
                                                       ployees,    and related ques-
                                                       tions under Article    62281,
Dear   Mr.   Anschutz:                                 V.T.C.S.

       Your Letter requesting    our opinion advises:

                     “The State Empfoyees       Retirement   System
              of Texas is a constitutional     state agency (Article
              16, Section 62a, Constitution of Texas).        The
              Board of Trustees      of this System is charged with
              the responsibility    of administering   the State Em-
              ployees Retirement      Act (Article 6228a,    Vernon’s
              Texas Civil Statutes) I In addition to its other
              duties, the Board is also given responsibility       for
              the administration     of death benefit payments to
              the surviving    spouses and minor children of de-
              ceased law enforcement- officers       and firemen.
              (See Article   3, Section 51d, Constitution of Texas;
              and Article   6228f,   Vernon’s   Texas Civil Statutes.)”

       You ask four specific questions,  the fi,rst two of which having to do
with the effect of Senate Bifl 123, 63rd Legislature   (The Eighteen Year Old
Bill) are:

                     “1. Does Senate Bill No. 123 disqualify a
              person eighteen (f,8j years of age or over from
              continuing k receive the monthly annuity as the




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     ?IS kionorablc   Everett   L. Anschute,    page 2   (H-85)




                 surviving minor child of the deceased law en-
                 forcement    officer or fireman who died prior to
                 the effective date of Senate Bill No. ,l23? If
                 your answer is in the affirmative,   on what date
                 must payments be suspended?

                        “2.  Does Senate Bill No. 123 disqualify
                 a person eighteen (18) years of age and over from
                 receiving benefits where the law enforcement
                 officer or fireman dies on or after the effective
                 date of Senate Bill No. 123?”

       Section 51-d of Article 3 of the Constitution provides that the Legis-
lature shall have the power to provide for the payment of benefits to “the
surviving spouse and minor children” of officers of po,lice and fire depart-
ments.

       Article 6228f governs assistance     paid to the survivors    of law enforce-
ment officers,   etc.,  under that provision.    It defines “minor child” as
meaning a child who, on the date of the violent death of any person covered
by the Act, has not reached the age of twenty-one        years.   It provides in
> 3 that the State will pay to the surviving spouse certain benefits and, if
he is survived by a minor child or minor children the State will pay the
benefits to guardians of the children according to the number of minor
children surviving,    “provided,  that when any child entitled to benefits
under this Act ceases to be a minor child as that term is defined herein,
his entitlement to the benefits shall terminate.      . . . ”

       In our opinion there is no escape from the conclusion          that the statute
confers rights and benefits dependent upon legal infancy.           Indeed, in the
case of children of law enforcement      officers,   the statute would be unconsti-,
tutional if benefits were extended on a different basis,        since Article   3,
5 51-d of the Constitution authorizes    benefits for children only if they are
minors,   i. e., if they are incapacitated    because of legal infancy.

       The definition contained in Article 6228f, 5 2(a) (7) must be viewed in
that context.  A,gain, we must construe “has not reached the age of 21 years”




                                          p.   386
   T%e Honorable    Everett   L. Anschutz,        page 3   (H-85)




to mean “has not been emancipated        from disabilities of minority”,    else
the statute and the Constitution    conflict.  Were it necessary   to declare
the existence   of a conflict, the statutory language of Art. 6228f could not
control,   and because persons 18 years of age or older will be emancipated
by Senate Bill 123 from such disabilities     after August 27, 1973, on that
day they will cease to be minors within the meaning of Articles         6228a and
6228f,   V. T. C.S.,  in our opinion,   See Attorney General Opinion H-82(1973).

      Your   remaining   questions   are:

                    “3. May this System make payments directly
             to any qualified surviving minor or must payments
             be made through (1) the natural guardian,   (2) a Court-
             appointed guardian,   or (3) some other qualified adult?

                   “4.   Will marriage   of the minor or adoption of
             such minor disqualify the minor for future payments
             under Article   6228f. Vernon’s   Texas Civil Statutes? ”

        Minors are legal infants, without legal capacity.        They are not legally
qualifi?d to act on their own behalf, generally       speaking,  and have no capacity
to give a binding discharge for obligations       due them.    Hence payment of a
debt to a.minor will not necessarily      constitute a discharge of the debt-
the &or:      It ordinarily  can be legally received on behalf of the minor only
by a co&-appointed       guardian of the minor’s     estate.  See Silber v. Southern
National Life Ins. Co.,     326 S. W. 2d 715 (Tex. Civ.App.,      1959, writ refused).

       The Board of Trustees   of the State Employees     Retirement  System of
Texas is not presently authorized,    in our opinion, to pay Article   6228f bene-
fits due minors to anyone except a person designated by a court to receive
them,eg,., a court-appointed guardian of the minor’s     estate or a guardian
appointed to receive governmental    funds.     See Probate Code $ § 109, 184,
228, 246, V. T. C. S. See also Article    ,l994, V. T. C.S.

       Article 6228f $3 says the benefits payable to children under that statute
may be p&d to “the duly appointed or qualified guardian or other legal repre-
sentative of each minor child. ” We do not think-these passages    were intended
to displace the law otherwise applicable to the property of’minors.




                                      p,    387
,     .


      : :I: Honorable
    ‘--I
                        Everett   L. Anschutz,    page 4 (H-85)




            Even natural parents are not authorized to control and manage
    the property of their children without spec,ific court or statutory autho-
    rity.   Silber v. Southern National Life Ins, Co..       supra.   Such restri,c-
    tions are imposed for the protecti.on of the children.        In the absence of
    a specific legisl,ative intent that such protections     be abrogated or of an
    irreconcilable    conf~lict: between the statutes (neither of which we fi,nd),
    we think the courts will ho:ld that benefits for children payable under
    Article 6228f may not be properly paid to any person other than one
    ,iawfull,y designated by the court to receive suc,h payment.

           We answer your last question          in the affirmative,      but with a caveat
    regarding adoption.

           The same reasoning that requires the disqualific,ation    of 18 year
    old children when they are no longer protected by “:legal infancy” status
    also applies to married persons,    regardless  of their ages.  See Ex parte
    Williams,   420 S. W, 2d 135 (Tex. 1967); _Pittman vr Ti,mes Securit,ieg,
    301 S. W. 2d 521 (Tex. Civ.App.  ~ 1957, no writ),   And the, children of a
    deceased law officer who have been adopted by someone else cease to
    be his children.   They would not be entitled to continue receiving benefits.
    See A,rticle 46a, § 9, Vernon’s  Texas Civil Statutes;  Patton v. Shamburger,
    431 S. W. 2d 506 (Tex. 1968).

                                            SUMMARY  --
                           Persons     cease to be minors within the meaning
                   of A,rtic,le 6228f,    V. T. C. S., when they are no longer
                   under disabilities      as “legal infants”.    After the effective
                   date of Senate Bill 123, 63rd Leg.,         persons at least ,l8
                   years old will not be legal infants.        Persons    who are
                   married,     regardless     of their age, have the st.atus of
                   adu1t.s.    Benefits due minors under the statute cannot
                   properly be paid direct.ly to them but must be paid to
                   the persons duly appoi.nted by a court to receive them.
                   Marriage     or adopt,ion of a minor will disqualify him
                   from future payments under Article 6228f,            V. T. C. S.




                                             Attorney     General      of Texas



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The Honorable   Everett   L.   Anschutz,       page 5 (H-85)




      ?lTTF.YORkYirst          ssistant




DAVID M. KENDALL,         Chairman
Opinion Committee




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