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.
p. 1796
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
9
-’
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
p. 1798
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
p. 1799