Attorney General Opinion JM-0392

JIM MAlTOX Attorney General Supreme Court Building P. 0. Box 12548 Austin. TX. 78711. 2548 5121475-2501 Telex 910/874-1367 Telecopier 512l475-0266 714 Jackson, Suite 7W Dallas. TX. 75202-4506 2141742-8944 4824 Alberta Ave.. Suite 160 El Paso, TX. 799052793 915/533-34&a 1001 Texas, Suite 7tlIl Houston, TX. 77002-3111 713f2255886 808 Broadway, Suite 312 Lubbock, TX. 79401-3479 8C%i747.5238 4309 N. Tenth. Suite S McAllen, TX. 78501-1885 512/882-4547 200 MaIn Plaza, suite 4w San Antonio. TX. 78205.2797 51212254191 An Equal Opportunity/ Affirmative Action Employer The Attornq General of Texas December 19. 1985 Mr. Marlin W. Johns,ton Commissioner Texas Department of Ruman Resources P. 0. Box 2969 Austin, Texas 78769 Opinion No. JM-392 Ret Whether the Texas Department of Ruman Resources is required to pay a filing fee when it files an investigation report pursuant to section 48.038(g) of the Texas Human Resources Code, regarding the alleged abuse of the ward Dear Mr. Johnston: 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 charged with the 'duty of investigating reports regarding the abuse, exploitation, or neglect of elderly or disabled persons. Eum. Res. Code 1948.036, 48.037. The department must prepare a written report regarding each sutix investigation. Id. 548.038(e). If the elderly or disabled person has a guardian, the department must file a copy of the report with the I:ourt to which the guardian is accountable. Id. 948.038(g). - Tour letter sets out the following three questions regarding the filing of the report: 1. Wxn the department files a copy of the report .sandated by section 48.038(g), is the county clerk entitled to a filing fee? 2. I E the county clerk is entitled to a fee, may the clerk tax it against the estate of the 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.able to 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. S.W.2d 899, 903 (Tex. Civ. App. Spengenberg,~ 94 - 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.able for 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'iarged against 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.aSe 4 (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