Can Texas stop a parent convicted of a crime against a child from inheriting from that child?

TX AG Opinion GA-0632: Can a parent who harmed a child be barred from inheriting from that child?

Plain-English summary

In 2007 the Legislature added section 41(e)(3) to the Probate Code. It lets a probate court declare, on clear and convincing evidence, that a parent of a child under 18 may not inherit from or through that child if the parent was convicted or placed on community supervision (including deferred adjudication) for being criminally responsible for the death or serious injury of a child under any of thirteen listed Penal Code provisions, ranging from murder and capital murder to assault, indecency with a child, injury to a child, and child pornography offenses. Governor Rick Perry, who had let the bill become law without his signature, asked whether section 41(e)(3) conflicts with article I, section 21 of the Texas Constitution, which says "No conviction shall work corruption of blood, or forfeiture of estate."

The opinion traced "corruption of blood" and "forfeiture of estate" to the English common-law doctrine of attainder, under which a person condemned for treason or felony lost the ability to inherit or pass on property. Texas rejected that doctrine. As the Texas Supreme Court held in 1892, article I, section 21 means a convict may still inherit and may still transmit an inheritance; the general rule is that denying a person's right to inherit or transmit property because of a conviction violates the clause.

The opinion then identified the only two judicially created limits Texas courts have placed on that clause. The first is the "Slayer's Rule," which bars a person who feloniously kills another from collecting life insurance on the victim's life; it is reflected in Probate Code section 41(d) and Insurance Code section 1031.151. The second is the common-law constructive trust, under which a person who wrongfully and willfully causes a death may take legal title to the victim's property but holds it in trust for those equitably entitled, so equity, not forfeiture, redirects the benefit. The opinion noted Texas courts have declined to expand the constructive-trust doctrine beyond willful wrongdoing, for example refusing to apply it to a merely negligent parent.

Applying that framework, the opinion concluded that to the extent section 41(e)(3) bars a parent's inheritance in situations already covered by the Slayer's Rule or the constructive-trust doctrine (for instance, a parent who murdered the child), it is consistent with article I, section 21. But because the statute reaches far beyond those two doctrines, a court would probably find it unconstitutional when applied to bar inheritance in circumstances outside them. The opinion acknowledged the Texas Supreme Court might uphold the statute by broadening one of the doctrines, but said the Attorney General's office cannot do that itself.

Currency note

This opinion was issued in 2008. 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.

Probate Code section 41 has since been recodified into the Texas Estates Code, and courts may have addressed section 41(e)(3) or its successor directly. Confirm current law before relying on this analysis.

Who this opinion affected (as of 2008)

Probate courts: The opinion concluded a court could constitutionally apply section 41(e)(3) to bar a parent's inheritance only where the Slayer's Rule or the constructive-trust doctrine already applied, and that applying it more broadly would likely violate article I, section 21.

Parents convicted of crimes against a child: The opinion treated the constitution as generally protecting a convicted person's right to inherit, so a conviction alone (outside the two doctrines) could not strip inheritance.

The Legislature and the Governor: The opinion answered the Governor's constitutional concern by concluding the new statute likely conflicted with article I, section 21 in its broader applications, leaving any rescue to the Texas Supreme Court.

Estate and probate lawyers: The opinion framed the live question as whether a given case fits the Slayer's Rule or constructive-trust doctrine, since those are the only recognized limits on the no-forfeiture clause.

Common questions

Does the Texas Constitution let the state take away inheritance because of a conviction?
Generally no. The opinion explained that article I, section 21 means no conviction works "corruption of blood or forfeiture of estate," so a person normally cannot be denied the right to inherit because of a criminal conviction.

When can a parent who harmed a child still be blocked from inheriting?
The opinion concluded the two recognized exceptions are the Slayer's Rule (no life insurance for a killer) and the constructive-trust doctrine (a willful killer holds inherited property in trust for the rightful taker). A parent who murdered the child fits within those.

So is section 41(e)(3) unconstitutional?
The opinion concluded a court would likely find it unconstitutional when used to bar inheritance outside those two doctrines, though it is constitutional where they already apply.

Could the statute still be upheld?
The opinion said the Texas Supreme Court could uphold it by expanding the Slayer's Rule or the constructive-trust doctrine, but the Attorney General's office could not do so.

Background and statutory framework

Article I, section 21 of the Texas Constitution provides that "no conviction shall work corruption of blood, or forfeiture of estate" (Tex. Const. art. I, § 21). The Texas Supreme Court read that to preserve a convict's right to inherit and to transmit inheritance (Davis v. Laning, 19 S.W. 846, 846 (Tex. 1892); In re B.S.W., 87 S.W.3d 766, 770 (Tex. App.-Texarkana 2002, pet. denied)); the concept descends from the English attainder doctrine (Ex parte Garland, 71 U.S. 333, 387 (1866)). Probate Code section 41(e)(3) lets a probate court bar a parent's inheritance from a child on clear and convincing evidence of conviction or community supervision for one of thirteen Penal Code offenses, including murder (Tex. Penal Code § 19.02), capital murder (§ 19.03), and injury to a child (§ 22.04) (Tex. Prob. Code Ann. § 41(e)(3) (Vernon Supp. 2007)). Two judicial limits qualify the no-forfeiture clause: the Slayer's Rule, reflected in section 41(d) and Insurance Code section 1031.151, bars a killer from collecting the victim's life insurance (Greer v. Franklin Life Insurance Co., 221 S.W.2d 857, 859 (Tex. 1949); Tex. Prob. Code Ann. § 41(d) (Vernon Supp. 2007); Tex. Ins. Code Ann. § 1031.151 (Vernon 2007)); and the constructive-trust doctrine imposes a trust on property a willful killer would otherwise inherit (Bounds v. Caudle, 560 S.W.2d 925, 928 (Tex. 1977)).

Citations

Statutes:

• Tex. Const. art. I, § 21
• Tex. Prob. Code Ann. §§ 41(d), 41(e)(3) (Vernon Supp. 2007)
• Tex. Ins. Code Ann. § 1031.151 (Vernon 2007)
• Tex. Penal Code §§ 19.02, 19.03, 22.04

Cases:

• Davis v. Laning, 19 S.W. 846, 846 (Tex. 1892)
• In re B.S.W., 87 S.W.3d 766, 770 (Tex. App.-Texarkana 2002, pet. denied)
• Bounds v. Caudle, 560 S.W.2d 925, 928 (Tex. 1977)
• Greer v. Franklin Life Insurance Co., 221 S.W.2d 857, 859 (Tex. 1949)
• Ex parte Garland, 71 U.S. 333, 387 (1866)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0632
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0632.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

GREG ABBOTT

May 30, 2008

The Honorable Rick Perry
Governor of Texas
Post Office Box 12428
Austin, Texas 78711-2428

Opinion No. GA-0632

Re: Constitutionality of section 41(e)(3) of the Probate Code, which permits a probate court to declare that a parent may not inherit from his own child if the parent has been convicted of one of several crimes against a child (RQ-0649-GA)

Dear Governor Perry:

You ask about an enactment by the Eightieth Legislature providing that a probate court may declare that a parent may not inherit from his own child if the parent "has been convicted or has been placed on community supervision . . . for being criminally responsible for the death or serious injury" of a child under certain provisions of the Penal Code.[1] In your request letter, you state the following:

The Governor permitted [House Bill 568][2] to become law without his signature on June 15, 2007; however, the Governor stated at the time that Section 41(e)(3) may pose a constitutional question because it appears to prevent inheritance based on a prior bad act. The constitutional question arises from Article I, Section 21, of the Texas Constitution, which states in part that "[n]o conviction shall work corruption of blood, or forfeiture of estate . . . ."

Request Letter, supra note 1, at 1 (footnote added). Thus, you ask whether "Section 41(e)(3) of the Probate Code, as amended by HB 568, [is] in conflict with Article I, Section 21, of the Texas Constitution."[3] Id. Section 41(e)(3) of the Probate Code provides, in relevant part:

A probate court may declare that a parent of a child under 18 years of age may not inherit from or through the child under the laws of descent and distribution if the court finds by clear and convincing evidence that the parent has:

(3) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child . . . that would constitute a violation of one or more of the following sections of the Penal Code:

(A) Section 19.02 (murder);

(B) Section 19.03 (capital murder);

(C) Section 19.04 (manslaughter);

(D) Section 21.11 (indecency with a child);

(E) Section 22.01 (assault);

(F) Section 22.011 (sexual assault);

(G) Section 22.02 (aggravated assault);

(H) Section 22.021 (aggravated sexual assault);

(I) Section 22.04 (injury to a child, elderly individual, or disabled individual);

(J) Section 22.041 (abandoning or endangering child);

(K) Section 25.02 (prohibited sexual conduct);

(L) Section 43.25 (sexual performance by a child); or

(M) Section 43.26 (possession or promotion of child pornography).

TEX. PROB. CODE ANN. § 41(e)(3) (Vernon Supp. 2007).

I. Historical Background

The concept of "corruption of blood" and "forfeiture of estate" emanate from the English common-law doctrine of "attainder." As the United States Supreme Court has observed, attainder is "'the stain or corruption of the blood of a criminal capitally condemned; the immediate inseparable consequence of the common law on the pronouncing the sentence of death.' The effect of this corruption of the blood was that the party attainted lost all inheritable quality, and could neither receive nor transmit any property or other rights by inheritance." Ex parte Garland, 71 U.S. 333, 387 (1866). The Court has further explained that "[t]he attainder of death was usually accompanied by a forfeiture of the condemned person's property to the King and the corruption of his blood, whereby his heirs were denied the right to inherit his estate." Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 475 (1977); see also Austin v. United States, 509 U.S. 602, 611-12 (1993) ("[C]ommon-law forfeiture fell only upon those convicted of a felony or of treason. 'The convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown.'"); Hedrick v. Marshall, 282 S.W. 289, 291 (Tex. Civ. App.-Dallas 1926, no writ) ("By the ancient common law, when sentence was pronounced for treason or other felony, the offender was by operation of law placed in a state of attainder. And there were three principal incidents consequent on such attainder, to wit, forfeiture, corruption of blood, and an extinction of civil rights, more or less complete, which was denominated 'civil death.'").

II. State of Texas Law

Article I, section 21 of the Texas Constitution expressly declares in part that "[n]o conviction shall work corruption of blood, or forfeiture of estate."[4] TEX. CONST. art. I, § 21. In an early case, the Texas Supreme Court rejected the related concept of civil death on the basis of various constitutional provisions, including article I, section 21. The court explained that "[a]ttainders, outlawry, deprivation of property except by due process of law, and the corruption of blood or forfeiture of estate, as a result of conviction of crime, are expressly prohibited by the organic law." Davis v. Laning, 19 S.W. 846, 846 (Tex. 1892) (emphasis added). The court continued:

Section 21 declares that "no conviction shall work a corruption of blood or forfeiture of estate . . . ." This provision is invoked by the plaintiffs in error, but it aids their case no further than a declaration that a convict may either inherit himself or transmit inheritance.

Id. (emphasis added).

A recent Texas intermediate appellate decision has declared that the "Texas Supreme Court has interpreted [article I, section 21] to mean that unlike in England where a convict is deemed civilly dead and cannot inherit, Texas preserves the inheritance of a convicted felon from forfeiture through corruption of blood." In re B.S.W., 87 S.W.3d 766, 770 (Tex. App.-Texarkana 2002, pet. denied), citing Davis, 19 S.W. at 847. The Interpretative Commentary to article I, section 21 moreover states that "[a]t ancient common law, when a person was convicted of a capital offense, he was placed in a state of attainder, and, as incident thereto, the blood of the attained person was corrupted so that he could not inherit from his ancestors, nor transmit his estate to his heirs, and his estate was forfeited to the king." TEX. CONST. art. I, § 21 interp. commentary (Vernon 2007). The general rule in Texas is that the denial of a person's right to inherit or to transmit his property violates article I, section 21.

There is a judicially-created doctrine that may be viewed as a corollary or exception to the prohibition in article I, section 21, the doctrine that "no conviction shall work a corruption of blood or forfeiture of estate." In 1918, a Texas court of civil appeals pronounced what has since become known as the "Slayer's Rule."[5] In Murchison v. Murchison, 203 S.W. 423 (Tex. Civ. App.-Beaumont 1918, no writ), the court, relying on an early decision from the United States Supreme Court, quoted the following from that case: "It would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired." Id. at 425, quoting New York Mut. Life Ins. Co. v. Armstrong, 117 U.S. 591, 600 (1886). Murchison was subsequently affirmed by the Texas Supreme Court in Greer v. Franklin Life Insurance Co., 221 S.W.2d 857, 859 (Tex. 1949). And the Texas Probate Code now incorporates the Slayer's Rule with respect to insurance proceeds. TEX. PROB. CODE ANN. § 41(d) (Vernon Supp. 2007) (proceeds of life insurance policy may not be paid to beneficiary who is convicted of wilfully causing death of insured); see also TEX. INS. CODE ANN. § 1031.151 (Vernon 2007) (same). The Slayer's Rule is implicated by your question only to the extent that section 41(e)(3) of the Probate Code may deny the inheritance from a child to an individual who has been convicted of murder or capital murder of that child, i.e., a violation of Penal Code sections 19.02 (murder) or 19.03 (capital murder).

The common-law remedy of constructive trust also mitigates the results that otherwise might occur in extreme cases from a strict application of article I, section 21. The Texas Supreme Court has declared that "the law will impose a constructive trust upon the property of a deceased which passed either by inheritance or by will if the beneficiary wilfully and wrongfully caused the death of the deceased." Bounds v. Caudle, 560 S.W.2d 925, 928 (Tex. 1977). See also Medford v. Medford, 68 S.W.3d 242, 248-49 (Tex. App.-Fort Worth 2002, no pet.) ("When the legal title to property has been obtained through means that render it unconscionable for the holder of legal title to retain the beneficial interest, equity imposes a constructive trust on the property in favor of the one who is equitably entitled to the same."), citing Fitz-Gerald v. Hull, 237 S.W.2d 256, 262-63 (Tex. 1951). In other words, a constructive trust leaves intact a convicted individual's right to inherit legal title to property while denying the individual the beneficial interest. Viewed in such a light, the imposition of a constructive trust, when equity demands it, does not violate article I, section 21 of the constitution. See Greer, 221 S.W.2d at 859.

More recently, Texas courts have declined to expand the constructive trust doctrine. In a 1966 case, a court of civil appeals held that a parent's contributory negligence in failing to keep a proper lookout for the safety of her child did not bar the parent's recovery of damages for funeral and burial expenses and for pain and mental anguish in a suit brought in behalf of the deceased child. Mitchell v. Akers, 401 S.W.2d 907, 910 (Tex. Civ. App.-Dallas 1966, writ ref'd n.r.e.). The court concluded that

the constructive trust doctrine should not be applied in a case coming within the provisions of Subsection (d) of Article 41 of the Probate Code . . . , which says that there shall be no forfeiture by reason of death by casualty. To hold otherwise would be to say that the Legislature intended in effect to disinherit an unfortunate heir, innocent of intent to kill, whose contributory negligence has been found to be a proximate cause of the death of a person toward whom he occupied the status of an heir.

Mitchell, 401 S.W.2d at 911.[6] Thus, there are only two judicially-created limits to the literal language of article I, section 21: the Slayer's Rule and the constructive trust doctrine.

III. Analysis

We now turn to the issue of the constitutionality of section 41(e)(3) under article I, section 21 of the Texas Constitution, as construed by the Texas courts. "Presuming that the language of the Texas Constitution is carefully selected, we construe its words as they are generally understood." Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000), quoting City of Beaumont v. Bouillon, 896 S.W.2d 143, 148 (Tex. 1995).

When interpreting our state constitution, courts "rely heavily on its literal text and must give effect to its plain language" and "strive to give constitutional provisions the effect their makers and adopters intended." Stringer v. Cendant Mortgage Corp., 23 S.W.3d 353, 355 (Tex. 2000). The plain language of article I, section 21 requires that "no conviction shall work corruption of blood or forfeiture of estate." TEX. CONST. art. I, § 21 (emphasis added). The language about which you inquire, added to the Probate Code as section 41(e)(3) by the most recent session of the Legislature, permits a probate court to bar the inheritance from a person's child if that person has been convicted, placed on community supervision, including deferred adjudication community supervision, for "being criminally responsible for the death or serious injury" of a child under any one of thirteen provisions of the Penal Code, including assault under section 22.01. See TEX. PROB. CODE ANN. § 41(e)(3) (Vernon Supp. 2007). To the extent that this provision authorizes a probate court to bar a person's inheritance from his child under circumstances within the Slayer's Rule or the constructive trust doctrine, it is consistent with Texas Constitution article I, section 21 as construed by the Texas courts. In our opinion, however, the courts would probably find Probate Code section 41(e)(3) violative of article I, section 21 when applied to bar a wrongdoer's inheritance under circumstances not within either of these two doctrines. See id.

It is possible that the Texas Supreme Court could find the provisions of section 41(e)(3) of the Probate Code to be constitutional, by broadening either the Slayer's Rule or the constructive trust doctrine. But this office may not do so. Cf. Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 562 (Tex. App.-Tyler 2007, pet. denied) ("it is not within the judicial province to indulge in acts of legislation").

SUMMARY

Article I, section 21 of the Texas Constitution provides that "no conviction shall work corruption of blood or forfeiture of estate," which means that a person may not be denied the right to inherit on the basis of a criminal conviction. Texas courts have found limits to that provision in the Slayer's Rule and the constructive trust doctrine, which prevent a convicted murderer from receiving life insurance proceeds or inheriting property from the murder victim.

Absent the Texas Supreme Court's expansion of these two exceptions, a court would likely find that Probate Code section 41(e)(3) contravenes article I, section 21 of the Texas Constitution when applied to bar a person's inheritance from his own child under circumstances not within either the Slayer's Rule or the constructive trust doctrine.

Yours very truly,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Brian C. Newby, Chief of Staff, Office of the Governor, to Honorable Greg Abbott, Attorney General of Texas (Nov. 26, 2007) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].

[2] Act of May 27, 2007, 80th Leg., R.S., ch. 1412, § 2, 2007 Tex. Gen. Laws 4855, 4856.

[3] You indicate that section 41(e)(3) of the Probate Code, which contains this provision, "does not qualify the term 'child' to limit it to mean only a child born of (or adopted by) a parent subject to this section." Request Letter, supra note 1, at 1. Thus, you contend that the statute "raises the possibility that a person may be disinherited by a court for committing a crime against any child, not just a child related to that person." Id. We will base our answer on an analysis of article I, section 21 of the Texas Constitution and need not address this issue.

[4] Virtually identical language is found in section 41(d) of the Texas Probate Code, which provides, in relevant part:

(d) No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary of a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in wilfully bringing about the death of the insured . . . .

TEX. PROB. CODE ANN. § 41(d) (Vernon Supp. 2007). The exception in section 41(d), known as the "Slayer's Rule," is briefly discussed infra.

[5] When we allude to the Slayer's Rule, we limit its meaning to insurance proceeds as referenced in section 41(d) of the Probate Code. TEX. PROB. CODE ANN. § 41(d) (Vernon Supp. 2007).

[6] The relevant portion of the Probate Code declares that "there [shall not] be any forfeiture by reason of death by casualty." TEX. PROB. CODE ANN. § 41(d) (Vernon Supp. 2007).