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R-556
;
OPPICE OF
THE &PTORNEY GENERAL _
Ausmrv. TWXAS
PRICE DANIEL June 28, 1947
ATTORNEYGENERAL
Hono~rable John H. Winters ,‘~Executive Director
State Depa~rtment of, Public Welfare
Austin, Texas Opinion Ro. V-273
Re: Court costs in a pro-
ceeding to appoint guar-
dians to collect old age
assistance where such a
grant exceeds forty dol-
lars per month.
Dear Siri
We refer to your letter of June 4, 1947, in
which you request answers to the following:
1. May probate courts order that no costs
or fees shall be charged in a proceeding
to appoint a guardia~n to receive Old Age
Assistance compensation from the State
and/or Federal Government in excess of
Forty Dollars per month?
2. If the ,Courts may not waive the court
costs if the grant exceeds Forty Dol-
lars per month does this mean that ,the
department must , in each instance, es-
tablish the amount of the grant before
the Co,urt can decide whether or not the
court costs mey be waived?
Probate Courts are not authorized to order
,that no costs or fees, shall be charged in probate pro-
ceedings in the absence of a law authorizing such an or-
der. The law pertinent to your inquiry is Article
4123a-1 of Vernon’s Civil Statutes, which reads:
“Whenever a guardian is appointed
for the purposes of enabling a person to
receive not more than Forty ($40.00) Dol-
lars a m(
era1 Government, the Court may, in its
discretion, order that no costs orfees ‘.~
h 11 be charged in connection with the
ir%eeding.”
..
C
Honorable John H. Winters, Page 2
The statute is a grant of power to the pro-
bate court to order that no costs shall be charged in
such proceedings. The language of the law is plain and
unequivocal and such power may not be enlarged by con-
struction. It is limited to cases where the grant is
under Forty Dollars per month.
We are of the opinion that probate courts are
not authorized to order that no costs shall be charged
in a proceeding to appoint a guardian to receive Old
Age Assistance payments from the State and/or Federal
Government in excess of Forty Dollars per month.
We do not construe the law to permit a county
court to decide whether the court costs may be waived
until it is ascertained, by such court that the compen-
sation from the State and/or Federal Government does not
exceed Forty Dollars per month. In order for the court
to have the power to order that no fees need be paid, it
must be established that less than $40.00 per month is
to be received. It is immaterial whether this fact is
established by your department or someone else, on the
hearing of the case.
SUMMARY
Probate courts are not authorized to order
that no costs shall be charged in a proceeding
to appoint a guardian to receive Old Age Assist-
ance payments from the State and/or Federal Gov-
ernment until it has been ascertained that the
grant of such payments does not exceed Forty
Dollars per month. Art. 4123a-1, V.C.S.
Yours very truly
APPROVED RAL OF TEXAS
xkisR&
Yy. ‘I’. r811iiams
Assistant
WTW:jrb