Did a minor child lose Texas public-employee death benefits after being adopted following the covered parent's death?

Texas AG Opinion JM-731: Adoption and Death Benefits

Plain-English summary

The Employees Retirement System of Texas asked whether a minor child's adoption ended death benefits payable because the child's natural parent, a covered public employee, had died in the line of duty. The Attorney General concluded that an adoption after the parent's death did not end the child's entitlement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

Article 6228f tied eligibility to the child's status on the date of the covered employee's violent death and ended benefits when the child ceased to be a minor. The opinion said the statute did not list a later adoption as a terminating event. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

The opinion distinguished adoption before the covered employee's death from adoption afterward. A child adopted before the death did not have a benefit right vest through the natural parent, while a child already receiving benefits after the parent's death retained that right until minority ended. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

Currency note

This opinion was issued in 1987. 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.

Common questions

Did adoption after a covered parent's death stop the child's benefits?

No. The opinion concluded that a later adoption did not bar or terminate the minor child's death benefits under article 6228f. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

Why did the timing of the adoption matter?

The opinion treated the child's benefit right as vesting when the covered employee died. Adoption before the death meant the child was not entitled through that natural parent, but adoption after the death did not undo the vested right. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

When did the opinion say the child's benefits would end?

It said the child remained entitled until infancy was removed, relying on the statute's definition of a minor child and the legal age discussed in Cook v. Employees Retirement System of Texas. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

Did an earlier Attorney General opinion reach a different result?

JM-731 limited Attorney General Opinion H-85 (1973) to children adopted before the covered employee's death. It did not apply that earlier conclusion to a child adopted after benefits had vested. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

Background and statutory framework

Article III, section 51-d of the Texas Constitution authorized financial assistance for surviving spouses and minor children of certain employees who died performing hazardous duties. Article 6228f implemented that authority and described when a minor child's entitlement began and ended. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

The opinion discussed Patton v. Shamburger and Banegas v. Holmquist when explaining the consequences of adoption before a natural parent's death. It cited Home Indemnity Company v. Mosqueda for the separate proposition that a child's death benefits could accrue from the parent's death until the child reached maturity. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

Citations and references

• Tex. Const. art. III, § 51-d
• V.T.C.S. art. 6228f, §§ 2(a)(7), 3
• V.T.C.S. art. 5923b
• V.T.C.S. former art. 46a, § 9
• Tex. Fam. Code § 15.07
• Cook v. Employees Retirement System of Texas, 514 S.W.2d 329 (Tex. Civ. App. - Texarkana 1974, writ ref'd n.r.e.)
• Patton v. Shamburger, 431 S.W.2d 506 (Tex. 1968)
• Banegas v. Holmquist, 535 S.W.2d 410 (Tex. Civ. App. - El Paso 1976, no writ)
• Home Indemnity Company v. Mosqueda, 473 S.W.2d 456 (Tex. 1971)
• Attorney General Opinions H-85 (1973), MW-354 (1981)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0731
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0731.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

June 29, 1987

JIM MATTOX
ATTORNEY GENERAL

Mr. Clayton T. Garrison
Executive Director
Employees Retirement System of Texas
P. O. Box 13207
Austin, Texas 78711

Opinion No. JM-731

Re: Whether benefits paid under article 6228f, V.T.C.S., on behalf of a minor child, cease upon the adoption of that child

Dear Mr. Garrison:

You have requested our opinion regarding the effects of adoption upon a minor child's entitlement to death benefits under article 6228f, V.T.C.S. We believe that the adoption of a minor child subsequent to the death of his natural parent does not bar the child's entitlement to death benefits under article 6228f, V.T.C.S.

Article III, section 51-d, of the Texas Constitution authorizes the legislature to enact legislation to provide for financial assistance to surviving spouse and "minor children" of certain employees "who, because of the hazardous nature of their duties, suffer death in the course of the performance of those official duties." See Tex. Const. art. III, § 51-d. Upon that authority, the legislature enacted article 6228f, V.T.C.S. Section 3 of article 6228f, V.T.C.S., provides:

In any case in which a [covered employee] . . . suffers violent death in the course of his duty . . . if such [covered employee] . . . shall be survived by a minor child or minor children, the State of Texas shall pay to the duly appointed or qualified guardian or other legal representative of each minor child. . . .

[Stipulated amounts].

Provided, that when any child entitled to benefits under this Act ceases to be a minor child as that term is defined herein, his entitlement to benefits shall terminate. . . . (Emphasis added).

Thus, section 3 of article 6228f, V.T.C.S., establishes when a minor child is entitled to receive benefits and when the child's right to the death benefits terminate.

Section 2(a)(7) of article 6228f, V.T.C.S., defines "minor child" as "a child who, on the date of the violent death of any person covered by this Act, has not reached the age of 21 years." Since the enactment of article 6228f, a Texas court has held that because of article 5923b, V.T.C.S., a child reaching the age of 18 years would no longer qualify for benefits under article 6228f, V.T.C.S. See Cook v. Employees Retirement System of Texas, 514 S.W.2d 329 (Tex. Civ. App. - Texarkana 1974, writ ref'd n.r.e.); see also Attorney General Opinion MW-354 (1981). Termination of benefits are only provided for under those circumstances, the act does not specifically provide for the circumstance where a minor child receiving benefits, is adopted before reaching the age of 18 years.

In Attorney General Opinion H-85 (1973), this office concluded that children of a deceased law enforcement officer receiving benefits under article 6228f, V.T.C.S., who had been adopted by someone else cease to be the officer's children. The opinion cited Patton v. Shamburger, 431 S.W.2d 506 (Tex. 1968), in support of that conclusion. In Patton, the Texas Supreme Court held that a workman's children, who were adopted by his wife's second husband prior to the death of the workman, were no longer his "minor children" entitled to workmen's compensation death benefits within the meaning of section 8a of article 8306, V.T.C.S. The court also held that adoption of a minor child under the old adoption statute terminated all legal relations, rights and duties between the child and his natural parents except for inheritance purposes. See V.T.C.S. former art. 46a, § 9 (repealed 1973). The subsequent enactment of section 15.07 of the Family Code, the new adoption statute, has no effect on the holding in Patton. See Banegas v. Holmquist, 535 S.W.2d 410 (Tex. Civ. App. - El Paso 1976, no writ). Accordingly, Attorney General Opinion H-85 (1973) is limited to situations where a child is entitled to death benefits under article 6228f, V.T.C.S., and who is adopted prior to the death of the covered employee.

A minor child of a covered employee who is adopted prior to the death of the covered employee is not entitled to death benefits under article 6228f because the child's entitlement or right to the benefit does not vest until the death of the covered employee. See V.T.C.S. art. 6228f, §§ 2(a)(7), 3.

On the contrary, we believe that a child receiving benefits because a natural parent who was a covered employee has "suffer[ed] a violent death in the course of his duty," can continue to receive the benefits because a subsequent adoption does not have the effect of emancipating the minor child from disabilities of minority. See Attorney General Opinion H-85 (1973). Thus, the child is entitled to the benefits until infancy is removed. Attorney General Opinion H-85 (1973); cf. Home Indemnity Company v. Mosqueda, 473 S.W.2d 456 (Tex. 1971) (a child was entitled to Workmen's Compensation benefits accruing from death until reaching the age of maturity).

SUMMARY

A minor child of a covered employee, who is entitled to death benefits under article 6228f, V.T.C.S., does not cease upon subsequent adoption of the child.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General