Could a non-parent managing conservator receive and choose Teacher Retirement System survivor benefits for a minor child?

Texas AG Opinion JM-230: Minor TRS Survivor Benefits

Plain-English summary

The Teacher Retirement System asked whether a non-parent managing conservator could receive and give receipt for a minor child's survivor benefits and choose among benefit options payable to the child. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

JM-230 answered both questions yes. It concluded that section 14.02(b)(6) authorized the conservator to "receive and give receipt" for government benefits such as TRS survivor benefits. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

The authority was conditional. It lasted only while "no guardian of the child's estate or a guardian or attorney ad litem" had been appointed for the child. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

The opinion also treated choosing among benefits as "an incident of receiving such benefits." It concluded that the same statutory authority allowed the non-parent managing conservator to elect among the available options. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

JM-230 distinguished guardianship of a minor's person from guardianship of the estate, calling them "distinct positions." The Family Code amendment supplied a limited estate-related power to the non-parent conservator without creating the full estate-management power held by a parent. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the non-parent conservator receive a minor's TRS survivor payments?

Yes. JM-230 said section 14.02(b) authorized the conservator "to receive and give receipt" for those government benefit payments. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Could the conservator choose among available benefit options?

Yes. The opinion said section 14.02(b)(6) "necessarily authorizes" the non-parent managing conservator to make that election. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Did that authority continue after a guardian or attorney ad litem was appointed?

No. JM-230 limited the authority to the period "so long as no formal guardianship exists" and its summary also excluded cases with the specified guardian or attorney ad litem. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Did a managing conservator have full power over the child's estate?

No. The opinion said section 14.02(b)(6) did not create "as comprehensive a power to manage a minor's estate" as the power held by parents. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Why could the conservator act without a formal estate guardianship?

JM-230 read the amended Family Code to permit estate-related action when a governmental entity required the child's action and no court-appointed guardian was authorized to receive the payment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Background and statutory framework

The opinion began with the Probate Code distinction between guardianship of the person and guardianship of the estate. It described earlier Texas law as requiring court appointment of a guardian for a minor's estate. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Attorney General Opinion H-1214 had read Family Code section 12.04 to let parents receive benefit payments for a minor without formal guardianship. JM-230 considered whether the amended section 14.02(b)(6) gave a non-parent managing conservator a similar, narrower power. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Section 14.02(b)(6) allowed the conservator to act as the child's agent regarding the estate when the child's action was required by a government and no specified guardian or ad litem had been appointed. JM-230 applied that text to TRS benefit receipt and election. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Citations and references

• Phillips v. Phillips, 511 S.W.2d 748 (Tex. Civ. App. - San Antonio 1974, no writ), and Silber v. Southern National Life Insurance Company, 326 S.W.2d 715 (Tex. Civ. App. - San Antonio 1959, writ ref'd), appeared in the discussion of court-appointed guardianship for a minor's estate. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf
• Probate Code sections 109 and 228 appeared as provisions for a guardian of the estate or a guardian appointed specifically to receive government funds. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf
• Family Code section 14.02(b)(6), as amended in 1983, supplied the limited authority JM-230 applied to the non-parent managing conservator. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf
• Section 34.404(d) of Title 110B referred to a guardian's election of benefits for minors. JM-230 read the Family Code amendment to grant the limited guardian power needed for that election while no formal guardianship existed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0230
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0230.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

November 14, 1984

Mr. Bruce Hineman
Executive Secretary
Teacher Retirement System of Texas
1001 Trinity Street
Austin, Texas 78701

Opinion No. JM-230

Re: Whether the Teacher Retirement System may pay benefits on behalf of a minor child to a managing conservator who is not the child's parent

Dear Mr. Hineman:

You ask (1) whether a non-parent managing conservator of a minor child is authorized to receive and give receipt for Texas Retirement System [hereinafter TRS] survivor benefits on behalf of the minor, and (2) whether the non-parent managing conservator is authorized to elect among benefits payable to the minor.

Controversies over the powers of a managing conservator, either parent or non-parent, arose initially because guardianship of the person and guardianship of the estate are distinct positions. See Prob. Code section 184(c). Texas probate law requires that a court appoint a guardian of a minor's estate. See Prob. Code section 109(a); see also Phillips v. Phillips, 511 S.W.2d 748 (Tex. Civ. App. - San Antonio 1974, no writ); Silber v. Southern National Life Insurance Company, 326 S.W.2d 715 (Tex. Civ. App. - San Antonio 1959, writ ref'd). Although a child's parent is the natural guardian of the person of the 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. Silber, 326 S.W.2d at 717. Consequently, Attorney General Opinion H-85 (1973) concluded that the State Employees Retirement System may not pay benefits due minors to anyone except a person appointed by a court to receive the benefit payments. See Prob. Code section 109 (guardian of estate); section 228 (guardian appointed specifically to receive government funds).

Several years later, Attorney General Opinion H-1214 (1978) determined that section 12.04 of the Family Code, first effective in 1974, authorized parents to receive and give receipt for benefit payments due their minor child from the Employees Retirement System without the necessity of a formal guardianship. Attorney General Opinion H-1214 construed two subsections of section 12.04 of the code as limited exceptions to the general 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 to manage the estate of the child, except when a guardian of the estate has been appointed;

. . . .

(8) the power to receive and give receipt for payments for the support of the child and to hold or disburse any funds for the benefit of the child. . . . (Emphasis added).

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

Section 14.02(b) of the Family Code has no 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 authority:

the power to represent the child in legal action and to make other decisions of substantial legal significance concerning the child including, except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, a power as an agent of the child to act in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government. . . . (Emphasis added).

Acts 1983, 68th Leg., ch. 1016, at 5437. V.T.C.S. Tex. Fam. Code Ann. section 14.02(b)(6). (The emphasized language also amended the parents' estate power provision, section 12.04(4).)

Although subsection (6) of section 14.02(b) does not create as comprehensive a power to manage 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 a governmental entity and when a court has not appointed a guardian authorized to receive such payments. The TRS "requires" that an authorized person receive payments to avoid the danger of incurring double liability. Thus, in response to your first question, we conclude that section 14.02(b), as amended, encompasses authorization for a non-parent managing conservator to receive and give receipt for government 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 your second question affirmatively. Although section 34.404(d) of Title 110B, 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 conservator to elect among available benefits. As indicated at the onset of this discussion, the general term "guardian" can apply to distinct positions; thus, section 34.404 may not have been intended to require election of benefits by a court-appointed guardian. Nevertheless, even if the provision requires election by a formal guardian, section 14.02(b)(6), as amended, grants non-parent managing conservators the limited "guardian" power necessary to elect among TRS survivor benefits so long as no formal guardianship exists. See Attorney General Opinion H-1214.

SUMMARY

Section 14.02(b)(6) of the Texas Family Code authorizes the non-parent managing 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 among the benefit options available 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.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton