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                                                                 R-556


                                                                  ;
                                   OPPICE         OF

                   THE &PTORNEY                     GENERAL _
                                 Ausmrv.       TWXAS
PRICE  DANIEL                       June 28,     1947
ATTORNEYGENERAL


       Hono~rable John H. Winters ,‘~Executive Director
       State Depa~rtment of, Public Welfare
       Austin, Texas               Opinion Ro. V-273
                                    Re:   Court  costs in a pro-
                                          ceeding to appoint guar-
                                          dians to collect  old age
                                          assistance  where such a
                                          grant exceeds forty dol-
                                          lars per month.
       Dear Siri
                 We refer to your letter of June 4,            1947, in
       which you request answers to the following:
                   1.   May probate courts order that no costs
                        or fees shall be charged in a proceeding
                        to appoint a guardia~n to receive Old Age
                        Assistance  compensation from the State
                        and/or Federal Government in excess of
                        Forty Dollars per month?
                   2.   If the ,Courts may not waive the court
                        costs if the grant exceeds Forty Dol-
                        lars per month does this mean that ,the
                        department must , in each instance, es-
                        tablish the amount of the grant before
                        the Co,urt can decide whether or not the
                        court costs mey be waived?
                   Probate Courts are not authorized to order
       ,that no costs or fees, shall be charged in probate pro-
        ceedings in the absence of a law authorizing  such an or-
        der.   The law pertinent to your inquiry is Article
        4123a-1 of Vernon’s Civil Statutes,  which reads:
                               “Whenever a    guardian is appointed
                        for the purposes      of enabling a person to
                        receive not more      than Forty ($40.00) Dol-
                        lars a m(
                        era1 Government,      the Court may, in its
                        discretion,   order    that no costs orfees       ‘.~
                          h 11 be charged     in connection with the
                        ir%eeding.”


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             C




 Honorable   John H. Winters,   Page 2


             The statute is a grant of power to the pro-
  bate court to order that no costs shall be charged in
  such proceedings.    The language of the law is plain and
  unequivocal and such power may not be enlarged by con-
  struction.   It is limited to cases where the grant is
  under Forty Dollars per month.
            We are of the opinion that probate courts are
 not authorized to order that no costs shall be charged
 in a proceeding to appoint a guardian to receive Old
 Age Assistance  payments from the State and/or Federal
 Government in excess of Forty Dollars per month.
              We do not construe the law to permit a county
  court to decide whether the court costs may be waived
  until it is ascertained, by such court that the compen-
  sation from the State and/or Federal Government does not
  exceed Forty Dollars per month. In order for the court
  to have the power to order that no fees need be paid, it
  must be established   that less than $40.00 per month is
  to be received.    It is immaterial whether this fact is
  established   by your department or someone else, on the
  hearing of the case.
                                SUMMARY
               Probate courts are not authorized to order
         that no costs shall be charged in a proceeding
         to appoint a guardian to receive Old Age Assist-
         ance payments from the State and/or Federal Gov-
         ernment until it has been ascertained   that the
         grant of such payments does not exceed Forty
         Dollars per month. Art. 4123a-1, V.C.S.
                                         Yours very truly
  APPROVED                                          RAL OF TEXAS


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                                          Yy. ‘I’. r811iiams
                                          Assistant
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