                                The Attornq             General of Texas

JIM MAlTOX                                        December 19. 1985
Attorney General


Supreme Court Building         Mr.   Marlin
                                          W. Johns,ton                   Opinion No. JM-392
P. 0. Box 12548
                               Commissioner
Austin. TX. 78711. 2548
5121475-2501                   Texas Department of Ruman                 Ret Whether the Texas Department
Telex 910/874-1367                Resources                              of Ruman Resources is required to
Telecopier 512l475-0266        P. 0. Box 2969                            pay a filing fee when it files an
                               Austin, Texas   78769                     investigation report pursuant to
714 Jackson, Suite 7W
                                                                         section 48.038(g) of the Texas
Dallas. TX. 75202-4506                                                   Human Resources Code, regarding
2141742-8944                                                             the alleged abuse of the ward

                               Dear Mr. Johnston:
4824 Alberta Ave.. Suite 160
El Paso, TX. 799052793
915/533-34&a                        You have askc,d several questions about the fees to be paid when
                               the Texas Departms:nt of Human Resources files a report regarding the
                               alleged abuse of an elderly or disabled person. The department is
1001 Texas, Suite 7tlIl        charged with the 'duty of investigating reports regarding the abuse,
Houston, TX. 77002-3111
                               exploitation, or neglect of elderly or disabled persons. Eum. Res.
713f2255886
                               Code 1948.036, 48.037. The department must prepare a written report
                               regarding each sutixinvestigation. Id. 548.038(e). If the elderly or
808 Broadway, Suite 312        disabled person has a guardian, the department must file a copy of the
Lubbock, TX. 79401-3479        report with the I:ourt to which the guardian is accountable. -Id.
8C%i747.5238                   948.038(g).

4309 N. Tenth. Suite S              Tour letter sets out the following three questions regarding the
McAllen, TX. 78501-1885        filing of the report:
512/882-4547
                                                 1. Wxn    the department files a copy of the
200 MaIn Plaza, suite 4w                      report .sandated by section 48.038(g), is the
San Antonio. TX. 78205.2797                   county clerk entitled to a filing fee?
51212254191
                                                 2.  I E the county clerk is entitled to a fee,
An Equal Opportunity/
                                              may the clerk tax it against the estate of the
Affirmative Action Employer                   person for whom the guardian was appointed rather
                                              than the department?

                                                 3.  IE the department must pay a filing fee,
                                              must it be paid in advance?

                                    The appointment and administration of guardianships are under the
                               jurisdiction of the probate courts. Prob. Code §§4, 5. Clerks of
                               county courts are required to collect fees for filing papers in
                               connection with anv cause or action in nrobate court. V.T.C.S. art.



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Mr. Marlin W. Johnston - Pe.ge 2   (JM-392)




3930(b), §1(B)(1).1    It is not clear, however, from whom the county
clerk should collect a fee for a report filed pursuant to section
48.038(g). The rule applicable to ordinary civil cases is that a
party to a suit shall be li.ableto officers of the court for all costs
he incurs. Tex. R. Civ. P,roc. 125. In general. the uartv who soueht
the county clerk's services,would be the party who "i&x&d"    then&
of the clerk's services. 'See Maryland Casualty Co. v. Thomas, 289
S.W.2d 652, 655 (Tex. Civ.-Fp. - Amarillo 1956, writ ref'd n.r.e.)
(stating that the ordinarv r&&a     of "incur" is to "become liable or
subject-to through one's &n. action"); but see Rays v. Spengenberg,~94
S.W.2d 899, 903 (Tex. Civ. App. - Austin 1936, no writ) (holding that
plaintiff "incurred" the ccst of a guardian ad litem for the defendant
by bringing suit). Rule 1125 applies in probate matters unless the
Probate Code specifically Irovldes otherwise. Prob. Code 512(a).

     The Probate Code provides that the estate of              the ward    is
responsible for the cost of a guardianship proceeding:

             When any person is found to be of unsound mind
          or to be an habitual drunkard, the cost of the
          proceeding shall 'be paid out of his estate, or,
          if his estate bei insufficient to pay the same,
          such costs shall be paid out of the county
          treasury, and thlz judgment of the court shall be
          accordingly.

-Id. 5247.'   Thus, if the cost    of   filing   a   report   regarding   the


     1. We do not consider,whether a fee is always due under article
3930(b) when DRR files a report in a guardianship proceeding.
Although section l(B) of ar,ticle 3930(b) states that a fee-is due for
anything filed in probate court, the statute never sets out the
initial fee due in a proceelding to appoint a guardian of the person.
The statute does set out the initial fee to be paid for a guardianship
of an estate. Art. 393O(tN), §l(B)(l)(a)(i). The statute also sets
out additional fees to be paid for filings that occur after court
approval of an appraisal. Art. 3930(b), 41(B)(l)(b)(i). A probate
judge has discretion to order an appraisal in a proceeding to appoint
a guardian of an estate. Prob. Code 5184(e). If a guardian is a
guardian of both the perllon and the estate and if the court has
ordered and approved an appraisal of the estate, then the clerk
clearly has authority to collect a separate fee for papers filed in a
guardianship proceeding. We do not address the clerk's authority to
collect such fees under other circumstances.

     2. Persons of unsound mind and habitual drunkards are the only
persons other than minors for whom guardians may be appointed for
general purposes. Prob. Cede 1114. Minors are not within the defini-
tion  of elderly person or the definition of disabled person for
purposes of section 48.038(g) of the Human Resources Code. Hum. Res.
Code 548.002(E). Thus, section 247 of the Probate Code is relevant to
any guardianship proceeding that would be affected by section
48.038(g) of the Human Rescurces Code.

                                   p. 1797
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         Mr. Marlin W. Johnston - Page 3     (JM-392)




         investigation of alleged atuse in a guardianship proceeding is a "cost
         of the guardianship procee'ding," section 247 rather than Rule 125
         governs allocation of the filing fee. If that is the case, the estate
         of the ward is primarily li.ablefor the filing fee, and we do not need
         to determine who "incurs" that cost.

              In our opinion the fee for filing a report pursuant to section
         48.038(g) of the Ruman Resources Code is a cost of a guardianship
         proceeding for purposes of section 247 of the Probate Code. The legal
         justification for charging the expenses of a guardianship proceeding
         against the estate of th's ward is that the expenses are for the
         benefit of the ward.    See Prob. Code 9242; Carney v. Aicklen, 587
         S.W.2d 507, 511 (Tex. EL.. App. - Tyler 1979, writ ref'd n.r.e.)
         (holding that the ward's estate is liable for attorney's fees for
         someone who successfullv contests the auoointment of someone else as
         guardian). See also --
                              In-re Guardianship Ritates of Kaufman, 429 S.W.2d
         612, 617 (Tex. Civ. App. -'Dallas 1968. no writ) (holding that court
         costs are necessarily incurred in connection with guardianship
         proceedings and are proper administrative expenses). That justifica-
         tion is applicable to the expense of a report filed by the department
         regarding the alleged abuse of the ward. The department is not a
         party to the guardianship ,proceeding, and its participation is merely
         to insure that the guardien and the court of continuing jurisdiction
         are aware of any abuse or alleged abuse of the ward. Thus, we think
         that a fee for filing such a report is a cost of the guardianship
         proceeding and should be c'iargedagainst the ward's estate or, if the
         estate is insufficient to pay the fee, against the county.

              In light of our answer to your second question, we do not reach
         your third question.

                                      SUMMARY

                      The county clsrk must collect a filing fee for
                   filing a report submitted by the Texas Department
                   of Buman Resources pursuant to section 48.038(g)
                   of the Human Resources Code. The estate of the
                   ward is liable for the fee. If the estate is
                   insufficient to pay the fee, the county is liable.


                                                     Very   truly   your ,
                                                                .

                                                   f-L-k
                                                     JIM     MATTOX
                                                     Attorney General of Texas

         JACX HIGETOWRR
         First Assistant Attorney General




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Mr.   Marlin W. Johnston - P.aSe4    (JM-392)




MABY KELLER
Executive Assistant Attornqr General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Cosunittec!

Prepared by Sarah Woelk
Assistant Attorney General




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