When the state files an elder-abuse report in a guardianship case, who pays the court filing fee?

Texas AG Opinion JM-392: Who Pays the Abuse-Report Fee

Plain-English summary

When Texas investigates the abuse, exploitation, or neglect of an elderly or disabled person who has a court-appointed guardian, the state agency doing the investigating must file a copy of its report with the probate court that oversees the guardian. In 1985 the Texas Department of Human Resources (DHR) handled those cases, and its commissioner asked the Attorney General a practical money question: when DHR files that report, does the county clerk get to charge a filing fee, and if so, who has to pay it? Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

The Attorney General answered that the county clerk must collect a filing fee. County clerks are required to collect fees for papers filed in a probate cause, and this report is filed in the guardianship proceeding. So the fee is due. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

The more important answer was who pays. The AG concluded the fee is a "cost of the guardianship proceeding," which under section 247 of the Probate Code is charged to the estate of the ward, and to the county if the estate cannot cover it. The logic is that guardianship expenses are charged to the ward's estate because they are for the ward's benefit, and making sure the guardian and the court know about alleged abuse benefits the ward. DHR is not a party to the guardianship and files the report only to keep the court informed, so the department does not owe the fee itself. Because the estate (or the county) bears the cost, the AG did not need to decide the third question, whether DHR would have had to prepay. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

Currency note

This opinion was issued in 1985. The Texas Department of Human Resources no longer exists; adult protective services functions moved to what is now the Texas Department of Family and Protective Services. The Probate Code has since been recodified into the Texas Estates Code, and guardianship cost and fee provisions have been renumbered. Treat this page as historical context, not current legal advice.

Common questions

Does the county clerk get a filing fee when the state files an abuse report?

Yes. The Attorney General concluded the clerk must collect a filing fee, because clerks are required to collect fees for papers filed in a probate cause and the abuse report is filed in the guardianship proceeding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

Does the state agency have to pay that fee out of its own budget?

No. The AG treated the fee as a cost of the guardianship proceeding, which falls on the ward's estate under section 247 of the Probate Code. The department files the report only to keep the court informed and is not a party liable for the cost. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

What if the ward's estate cannot afford the fee?

Then the county pays. Section 247 provides that if the ward's estate is insufficient to pay the cost of the proceeding, the cost is paid out of the county treasury. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

Why did the AG not answer whether the fee had to be paid in advance?

Because it became moot. Once the AG concluded the ward's estate, not the department, was liable for the fee, the question of whether the department had to prepay no longer needed an answer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

Background and statutory framework

DHR was charged with investigating reports of abuse, exploitation, or neglect of elderly or disabled persons (Hum. Res. Code §§48.036, 48.037), preparing a written report of each investigation (id. §48.038(e)), and, where the person had a guardian, filing a copy with the court to which the guardian is accountable (id. §48.038(g)). Guardianships fall under the probate courts (Prob. Code §§4, 5), and county clerks must collect fees for filing papers in a probate cause (V.T.C.S. art. 3930(b), §1(B)(1)). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

The harder question was allocation. The ordinary civil rule makes a party liable to court officers for the costs it incurs (Tex. R. Civ. Proc. 125), and "incur" usually means to become liable through one's own action (Maryland Casualty Co. v. Thomas, 289 S.W.2d 652, 655 (Tex. Civ. App. - Amarillo 1956, writ ref'd n.r.e.); but see Hays v. Spangenberg, 94 S.W.2d 899, 903 (Tex. Civ. App. - Austin 1936, no writ)). Rule 125 applies in probate unless the Probate Code says otherwise (Prob. Code §12(a)). Here it did: section 247 makes the ward's estate, or the county if the estate is insufficient, responsible for the cost of the proceeding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

The AG classified the report-filing fee as such a cost because guardianship expenses are charged to the estate when they are for the ward's benefit (Prob. Code §242; Carney v. Aicklen, 587 S.W.2d 507, 511 (Tex. Civ. App. - Tyler 1979, writ ref'd n.r.e.); In re Guardianship Estates of Kaufman, 429 S.W.2d 612, 617 (Tex. Civ. App. - Dallas 1968, no writ)). Alerting the guardian and the court to alleged abuse benefits the ward, so the fee is a cost of the guardianship, charged to the ward's estate (or the county), not to the department. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

Citations and references

• section 48.038(g) of the Texas Human Resources Code; Hum. Res. Code §§48.036, 48.037; §48.038(e); §48.002(8)
• Prob. Code §§4, 5; §12(a); §114; §184(e); §242; §247
• V.T.C.S. art. 3930(b), §1(B)(1)
• Tex. R. Civ. Proc. 125
• Maryland Casualty Co. v. Thomas, 289 S.W.2d 652, 655 (Tex. Civ. App. - Amarillo 1956, writ ref'd n.r.e.)
• Hays v. Spangenberg, 94 S.W.2d 899, 903 (Tex. Civ. App. - Austin 1936, no writ)
• Carney v. Aicklen, 587 S.W.2d 507, 511 (Tex. Civ. App. - Tyler 1979, writ ref'd n.r.e.)
• In re Guardianship Estates of Kaufman, 429 S.W.2d 612, 617 (Tex. Civ. App. - Dallas 1968, no writ)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0392
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0392.pdf

Original opinion text

Transcribed from the scanned PDF by OCR. Character-level scanning errors have been cleaned; the wording, citations, and substance are reproduced as issued. The two page-two footnotes are reproduced below the main text.

The Attorney General of Texas

December 19, 1985

Mr. Marlin W. Johnston
Commissioner
Texas Department of Human Resources
P. O. Box 2960
Austin, Texas 78769

Opinion No. JM-392

Re: Whether the Texas Department of Human 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 asked several questions about the fees to be paid when the Texas Department 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. Hum. Res. Code §§48.036, 48.037. The department must prepare a written report regarding each such investigation. Id. §48.038(e). If the elderly or disabled person has a guardian, the department must file a copy of the report with the court to which the guardian is accountable. Id. §48.038(g).

Your letter sets out the following three questions regarding the filing of the report:

1. When the department files a copy of the report mandated by section 48.038(g), is the county clerk entitled to a filing fee?

2. If 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. If 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 any cause or action in probate court. V.T.C.S. art. 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 liable to officers of the court for all costs he incurs. Tex. R. Civ. Proc. 125. In general, the party who sought the county clerk's services would be the party who "incurred" the cost of the clerk's services. See Maryland Casualty Co. v. Thomas, 289 S.W.2d 652, 655 (Tex. Civ. App. - Amarillo 1956, writ ref'd n.r.e.) (stating that the ordinary meaning of "incur" is to "become liable or subject to through one's own action"); but see Hays v. Spangenberg, 94 S.W.2d 899, 903 (Tex. Civ. App. - Austin 1936, no writ) (holding that plaintiff "incurred" the cost of a guardian ad litem for the defendant by bringing suit). Rule 125 applies in probate matters unless the Probate Code specifically provides otherwise. Prob. Code §12(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 be insufficient to pay the same, such costs shall be paid out of the county treasury, and the judgment of the court shall be accordingly.

Id. §247.[2] Thus, if the cost of filing a report regarding the investigation of alleged abuse in a guardianship proceeding is a "cost of the guardianship proceeding," section 247 rather than Rule 125 governs allocation of the filing fee. If that is the case, the estate of the ward is primarily liable 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 Human 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 the ward is that the expenses are for the benefit of the ward. See Prob. Code §242; Carney v. Aicklen, 587 S.W.2d 507, 511 (Tex. Civ. App. - Tyler 1979, writ ref'd n.r.e.) (holding that the ward's estate is liable for attorney's fees for someone who successfully contests the appointment of someone else as guardian). See also In re Guardianship Estates 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 justification 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 guardian 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 charged 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 clerk must collect a filing fee for filing a report submitted by the Texas Department of Human 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 yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

[1] We do not consider whether a fee is always due under article 3930(b) when DHR files a report in a guardianship proceeding. Although section 1(B) of article 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 proceeding 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. 3930(b), §1(B)(1)(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), §1(B)(1)(b)(1). A probate judge has discretion to order an appraisal in a proceeding to appoint a guardian of an estate. Prob. Code §184(e). If a guardian is a guardian of both the person 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. Code §114. Minors are not within the definition of elderly person or the definition of disabled person for purposes of section 48.038(g) of the Human Resources Code. Hum. Res. Code §48.002(8). 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 Resources Code.