      THEATTORNEY                 GENERAL
                     OF   TEXAS




Honorable Joe Resweber                Opinion No. C-114
County Attorney
Harris County                         Re:   Duties of the ;ludge
Houston 2, Texas                            of the Probate Court
                                            of Harris County, un-
                                            der the facts states.
Dear Mr. Resweber:
      Your request for an opinion reads as follows:
           "During the month of June, 1962,
      the Grand Jury~~ofHarris County, Texas,
      returned True Bills O;fIndictment against
      Clem McClelland (Judge of the Probate Court
      of Harris County, Texas) and several admln-
      lstrators and guardltins,charging them with
      theft and/or embezzlement from certain ea-
      tatea under the JurisCliction of the Probate
      Court of Harris County, Texas.
           "On June 20, 1962,a petition for the
      removal of Clem McClelland aa Judge of the
      Probate Court of Harris County waa filed In
      the 61st Judicial District Court, and on
      June 25, 1962, the said Court entered an
      order whereby Clem McClelland was suspended
      temporarily and Arthur C. Lesher, Jr. was
      appointed Probate Judge of Rarrla County,
      Arthur C. Usher, Jr. aerved as Probate
      Judge of Harris County until January 1,
      1963, when Jack Smith having been elect-
      ed $n the November, 19A2 election) took
      office as Probate Judge.
           "Up to the present time Clem McClelland
      has been tried on only one of the lndict-
      ments, and said conviction was very recent-
      ly reversed by the Court of Criminal Appeala.
      me other lndlctments against Clem McClelland
      are still pending.



                              -563-
Honorable Joe Resweber, page 2 (C-114 1

            "In view of the above facts, Jack Smith,       'y-
       ,ProbateJudge of Harris County, has request-
       ed sn opinion to the following questions:
            "1.   There are between 5,000 and 10,000
                  filed in thi.s,Courton estates which
                  have not been closed but are current-
                  ly'open estates with unfinished busi-
                  nesa under the juriadlctlon of this
                  Court; these file,@are located in the
                  office of the County Clerk, Probate
                  Division. Is it the responeibility
                  of the Probate Judge to search each of
                  these filea‘to dacertaln,their status
                  or may the status of each~of these
                  files be ascertained as&they are plac-
                  ed on the docket of the Probate Court
                  for hearing?
            "2.   Is It the duty of the Probate Judge,
                  where a personal representative has been
                  indicted, but not convicted, because of
                  transactions In the handling of an es-
                  tate, to remove such person or to cause
                  an investigation to be made?
            “3.   Is it the duty of the ,Prob,ateJudge
                  where'persons other than personal repre-
                  sentatives in an estate have been in-
                  dicted, but not convicted, for trans-
                  actions involved in an estate, to cause
                  an investibatilonto be made to see
                  whether orpHot a civil cau#e of action
                  should be ffled against 'the indicted
                  person or Is thla the duty of the per-
                  sonal representative?
            “4.   What responsibility does the Probate
                  Judge and bonding company have when he
                  approves annual accounts in whi,chthere
                  are orders by a prior Judge which are
                  suspect?


                              -564-
.




    Honorable Joe Resweber, Page 3 (C-114   )

           "Attached hereto Is our memorandum brief.
           Please furnish us your opinion on the ques-
           tions presented."
           Section 36 of the Probate Code provides:
                "It shall be the duty of the judge
           of each county court to uae reasonable
           diligence to see that personal representa-
           tives of estates being administered under
           orders of the court, guardians of the per-
           sona of wards, and other officers of the
           court, perform the duties enjoined upon
           them by law pertaining to such estates and
           wards. The judge shall annually examine
           into the condition of each of,aiaid eetates,
           the well-being of each ward of the court,
           and the solvency of the bonds of personal
           representatives of estates and guardians
           of persons. He shall require such repre-
           sentatives or guardians, at any time he
           shall find that their bonds are not suf-
           ficient to protect such estate or wards,
           to execute new bonds in accordance with
           law; In each such case, he ahall notify
           the personal repreaentative or guardian,
           and the sureties on the bond, as provided
           by law; and should damage or loss result to
           estates or wards through the failure of the
           judge to use reasonable diligence in the per-
           formance of his duties, he shall be liable
           on his official bond to those damages by
           such neglect."
           Section 222 of the Probate Code states the grounds
    for removal of any personal representative appointed under
    the provisions of the Probate Code, both with and without
    notice. Subdlvlslon'(c)'of Section '222 provides:
                "Order of Removal. The order of remov-
           al shall state the cause thereof. It shall
           require that any letters Issued to the one

                                  -565-
 Honorable Joe Resweber, page 4 (C-114 )


         removed shall, if he has been personally serv-
         ed with citation, be surrendered, and
                                           - .  that all
         such letters be cancelled of record, wnether
         delivered or not. It shall further require as
         to tillthe estate remaining in the hands~of
         a removed person, delivery thereof ~to the per-
         son or’pereons entitled thereto, or to one
         who has been appointed and has qualified as
         succekisc+represeritatlve,and as to the person
         of a,ward, that ‘controlbe relinquished as re-
         quired in the order.”
         Section 233 of the Probate Code provides:
              “Every personal representative of an
         estate ahall use ordinary dlllg@encetom
         collect all claims and debts due the estate
         and to cecover possession of all.property
         of the estatesto which its otinershave
         claim dr title, provided there Is a reason-
         able prospect of collecting such claims or
         of recovering such property. If he wilfully
         neglecta to use such diligence, he and the
         sureties on his bbnd shall be liable, at
         the suit of any~person interested in the es-
         tate, for the use of the estate, for the
         amount of such claims or the value of such
         property as has been lost by such neglect.
         Such representatives may enter Into contract
         to convey, or may convey, a contingent in-
         terest in any propkrty’sought to be~recover-
         ed, not exceeding one-third thereof, for
         seWices of attorneys and incidental expenses,
         subject only to approval of the court in
         which the estate is being administered.”
       In Crouch v. Stanley, 348 S.W.2d 543 (TexiClv.App.
1961), an Injunctive proceeding regarding the appointment
t$ the Probate Court of a new adminlstratotipending trial
In the Probate Court of an appeal~from a removal proceed-
ing of the original administrator, the Court held:




                               -566-
Honorable Joe Resweber, page 5 (C-114 )

           "Assuming that the order of the Probate
      Court lmproperly'removed Mr. Stanley as the
      atilnistrator for the estate it would never-
      theless be true that his appeal therefrom pre-
      served his status as administrator and he will
      continue to be such pending a trial de novo in
      the District Court, and at least until such
      time as the judgment of that court shall become
      final. Power to remove a person from h$s office
      aa an administrator for the estate of a decedent
      'isgiven by law, in the first Instance, to the
      Probate Court. Such a person who considers him-
        If aggrieved by such an order of removal is
      i:ven by law the remedy of an appeal to the
      District Court for a trial de novo.  If the
      remedy .of.;appea>,wab
                           not ao'give&Lthe District
      Court would not have any jurisdiction to lnter-
      fere with the order of removal, for courts of
      equity will not Interfere to protect a person
      from removal from office by a man or body of
      men to whom such power of removal Is given by
      law.
           11
            . . .
           "If the injunction to the extent under
      consideration be undisturbed, the Probate Court
      would be helpless to protect the Interests of
      the estate such court is charged by law to aT-
      minister, in the event of such a contingency,
      and the estate's beneficiaries would be left
      with recourse solely confined to damages against
      the adm&nistrator and the suretles on his bond.
      In a situation Such as that hypothesized, 'and
      where the Probate Court might attempt to ap-
      point an administrator to bring and prosecute
      a suit in behalf of the estate, such attempt-
      ed appointment might be stayed through the
      office of an appeal from the order of appolnt-
      ment. Pursuant to such proceedings the Pro-
      bate Court would be empowered, through require-
      ment of new or additiollalbond, more adequately



                             -567-
Honorable Joe Resweber, page 6 (C-114 )


       to protect the interests of the estate in
       the event it be ultimately determined that
       the administrator's refusal to Institute
       such suit actually operated to the detriment
       of the estate and the beneficiaries thereof."
       ~Emphasls added).
       In Heyn v. Massachusetts Bonding Company, 110 S.W.2d
261 (Tex.Clv.App. 1937, error di    I th C     t in sustain-
ing the constltutlonallty of staz%eL irnzos$ the duty on
the Judge of the Probate Court to annually examine Into the
condition of wards' estates (now ,Sectlon 36 of the Probate
Code) held:
           "Under the foregoing provisions of the
      statutes, obviously It Is the duty of judges
      of county courts annually to examine Into the
      condition of the estates of wards, the suffi-
      ciencg of guardians' bonds, and, If and when
      the bonds given are not ample security to pro-
      tect the estates and the warda' Interest there-
      in, to require such guardians to execute other
      bonds In accordance with lath:and further, coun-
      ty Judges are required to compel guardians to re-
      turn reports of annual accountings into court
      (a duty imposed under article 4225), and to exact
      fines for contempt of court and assess damages on
      guardians and their bondsmen for nonperformance of
      such duties; and further, It is the duty of coun-
      ty judges to remove guardians when they have fall-
      ed fo give bonds as required by law, or when such
      guardians have absented themselves from the state,
      or have failed to file annual accounts, or have
      refused to obey proper orders of the county judge.
      ManFPestly, the above mandatory duties are Imposed
      upod county judges by reason of Inability of rni-
      nors, idiots, lunatics, persons non campos mentls,
      and common drunkards to take care of their own ln-
      terests. The welfare of persons laboring under
      such disability has always been a matter of deep



                             -568-
Honorable Joe Resweber, page '7 (C-114 )

                                         "
       concern to the state. This state has In a
       manner made the county judges its fiscal a-
       gents to confide estates of such persons to
       the Custody of prudent and safe persons, and
       have carefully thrown safeguards ardund such
       trustees, as to require of them a faithful
       discharge of their trust. The statutes com-
       pelling guardians to give solvent and suffl-
       cient bonds in amountequal to~double the es-
       timated value of the personal propetitybelong-
       ing to their wards, to file annual accountings
       as to elicit truthful information as to the
       condition of such estates, to obey proper or-
       ders of the county court or judge, and to al-
       ways remain within the juriadict$.onof suph
       court or judge, are for the protection of
       such disabled persona and their estates.
       These duties are mandatory; the failure of
       performance oarries~with it penal punishment
       and civil llabllltjr,and removal of such
       fiduciaries. So, also, la the above statu-
       tory duties Imposed upon the county judges
       of equal force and effect, and the failure
       of performance 18 negligence per se, for
       which such county judges are amenable and
       their official bonds liable for loss due to
       such negligence."
       In view of the foregoing, you are advised that the
provisions of Section 36 of the Probate Code requiring
the judge to annually examine Into the condition of each
of the estates Is a mandatory duty and It Is the respon-
sibility of the Probate Judge to search each of the files
to ascertain their status annually. It Is the duty of
the Probate Judge to remove the personal representative
in the event that the Court has knowledge of existing
grounds for removal prescribed by Section 222 of the
Probate Code. Whether a violation of Section 222 by
the personal representative has occurred Is a fact ques-
tion to be determined by the Probate Jtidgei




                             -569-
                                                              -   .




Honorable Joe Resweber, page 8 (C-114 )


       In view of the provisions of Sections 36 and 233 of
the Probate Code, you are advised that it is the duty of
the personal representative to use ordinary diligence to
dollect all claims and debts due an estate and to recover
possession of all property of an estate to which itB own-
ners have claim or title, provided there Is reasonable
pros ect of collecting such claim. Irithe event the per-
sonaB representative falls to perform such duty, the Pro-
bate Judge is authorized to remove the personal repye-
sentatlve under the provisions of Section 222 of the Pro-
bate Code. Therefore, It is the duty of the Probate,~Judge
to use such reasonable diligence as Is necessary to
determine whether the"persona1 representative is perform-
ing the duties required by Section 233 of the Probate Code.
       In answer to your fourth question, Sectlbn 401 of
the Probate Code provides:
            "Action Upon Annual Accounts.
            "These rules shall govern the handling
       of annual accounts:
            (a) They shall be filed with the county
       clerk, and the filing thereof shall be noted
       forthwith upon the judge's docket.
            (b) Before being considered by the judge,
       the account shall remain on file ten (10) days.

            (0   At any time after the expiration of
       ten (101 days after the filing of an annual
       account, the judge shall consider same, and
       may continue the hearing thereon until fully
       advised as to all Items of said account.
            (d) No accounting shall be approved
       unless possesalon of cash, listed securi-
       ties, or other assets held In safekeeping
       or on deposit under order of court has been
       proved as required by law.




                             -570-
Honorable Joe Resweber, page 9 (C-114 )


            (e) If the-account be found Incorrect,
       it shall be corrected. When corrected to
       the satisfaction of the court, It shall be
       approved by an order of court, and the court
       ahall then act with respect to unpaid claims,
       as follotis:
           (1) Order for Payment of Claims In Pull.
      If it shall appear from t~heexhibit, or from
      other evidence, that the estate Is wholly
      solvent, and that the representative haB In
      his hands sufficient funds for the payment of
      every character of claims against the estate,
      the court shall order immediate payment to be
      made of all claims allowed and approved or
      established by judgment.
            (2) Order for Pro Rata Payment of Claims.
       If it shall appear from the account, or from
       other evidence, that the~funds on hand are not
       sufflcrent for the payment'of all the said
       claims, or if the estate Is Insolvent and the
       personal representative has any funds on hand,
       the court shall order such funds to be applied
       to the payment of all claims having a prefer-
       ence in the order of their priority If they,
       or any of them, be still unpaid, and then to
       the payment pro rata of the other claims allow-
       ed and approved or established by final judg-
       ment, taking Into consideration also the claims
       that were presented within twelve (12) months
       after the granting of administration, and those
       which are in suit or on which suit may yet be
       Instituted."
       In Heyn v. Massachusetts Bonding Company, supra,
the Court held on motion for rehearing:
            II
              . . . The county judge knew, or
       should have known, that the $1,000 bond
       was insufficient, and his failure to re-
       quire additional security was negligence
       per se, and ~such failure, along~With the
       other failures of official duties, as


                             -571-
Honorable Joe Reaweber, page 10 (C-114 )


        reflected in the record,and pointed out
        in otiti
               original opinion, uere the direct
        and proximate cause of the ward's 106~1."
       In view of the foregoing, you are advised in ana-
wer to your fourth question that the Probate Judge and
hi8 bbtiditig
            oompany atieliable If he le negligent in
the performance of hla duty in Approving annual accounts,
If such negligence constitutes proximate cause of a loss
to the estate.

                          SUMMARY
             A Probate Judge Is required to
        annually examine Into the condition
        of each estate being administered un-
        der orders of the Court and to use rea-
        sorbabledPligen&e to determlni that the
        personal repretientatlveeof estates be-
        ing administered under orders of'the
        Court atie.
                  petiformlngtheir duties required
        by the provisions 6f the Probate Code,

                               Yours very truly,
                               WAGGONER CARR
                               Attorney ffeneral




JR:ms:;lh

APPROVED:
OPINION COMMITi'EE~
W, V. Geppert, Chairman
C. L. Snow, Jr.

,Blll Alien
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone


                              -572-
