Untitled Texas Attorney General Opinion ( 1992 )

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DAN MORALES March 13,1992
,Al-r,,RSEY
CESERAL
Honorable Chet Brooks Opinion No. DM-97
Chairman
Committee on Health and Re: Whether Texas’procedure whereby
Human Services a man voluntarily can establish paternity
Texas State Senate of a child born out of wedlock “legiti-
P. 0. Box 12068 mates” the child (RQ-178)
Austin, Texas 78711
Dear Senator Brooks:
Prior to its amendment in 1986, section 309(a) of the United States
Immigration and Nationality Act of 1952 provided that a child born outside of
wedlock outside of the United States to a father who is a citizen of the United States
and a noncitizen mother was deemed a citizen of the United States from birth if,
before the child reached age twenty-one, the child’s paternity was established “by
legitimation,” according to the law of the child’s or the father’s residence or
domicile.’ We understand you to ask whether a child whose paternity is established
tScction 209(a) of the Immigration and Nationality Act appears at section 1409(a) of title 8 of
the United States Code. In 1986, Congress amended section 309(a) so that a child bon outside of
wedlock is deemed a citizeo of the United States from the time of bii if, before tbe child reaches the
age of eighteel&
a blood relationship benveen the child and the [child’s] father is established by
clear and convincing tidence, provided the father bad the nationality of the
United States at the time of the child’s bbtb, the father mdess deaascd has
agreed in writing to provide tkaocial support for the child until such child
reaches the age of eighteen years and if, while such child is under the age of
eighteen years, (1) such child is le&imated under tbe law of the child’s
residence or domicile, or (2) the father acknowledges paternity of the child in
writing under oath, or (3) paternity of the child is c&abkhed by adjudication
of a competent court.
Immigration & Nationality Act Amends. of 1986, Pub. L 99653, 5 13(b), 100 Stat. 3657 (1986). We
arc informed that a child born before the effective date of the 19% amendments must become a citizen
pursuant to the pre-1986 version of section 309(a) because that section deems tbe child a citizen from
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Honorable Chet Brooks - Page 2 (DM-97)
under Texas law pursuant to sections 13.21 through 13.24 of the Family Code, as
amended in 1989, is deemed a United States citizen pursuant to the pre-1986
version of section 309(a) of the Immigration and Nationality Act. While this office
cannot determine the citizenship of an individual under federal law, we can explain
the purpose as well as the effect, if any, of the 1989 amendments to sections 13.21
through 13.24 of the Family Code on the status and rights of a child under Texas
law.
Until 1989, Texas law provided a procedure for “voluntary legitimation” in
sections 13.21 through 13.24 of the Family Code. Using Texas’ statutory procedure
for “voluntary legitimation,” a man who was a citizen of the United States and a
resident of Texas, could, by voluntarily executing a proper statement of paternity
and having a court designate him to be the father, legitimate his child born out of
wedlock outside of the United States to an alien woman. After legitimation under
the pre-1989 version of sections 13.21 through 13.24 of the Family Code, the child
was entitled to the same rights under Texas law as a child born in wedlock. See
Fam. Code 9s 11.01(3) (defining “[plarent” to include man who has been
adjudicated to be child’s biological father), 11.01(4) (defining “[plarent-child rela-
tionship”), 12.04 (listing rights, privileges, duties, and powers existing between
parent and child). In 1989, however, Texas amended sections 13.21 through 13.24 of
the Family Code to provide a procedure for “voluntary paternity,“’ instead of
“voluntary legitimation.” By changing the name of the procedure, the Texas statute
(footnote continued)
birth if the terms of the statute are satisfied. Thus, the issue you rake will be pertinent until the year
5007, when children born in 1986 will turn twenty-one years of age.
‘Section 13.21 establishes a procedure for voluntary adjudication of paternity in cases in which
a man claiming to IX the biological farher of a child who has no presumed farher has executed a
statement of paternity. A voluntary paternity suit is “voluntary”only in the sense that the alleged father
voluntarily wires and signs a statement of paternity. Smith, Title 2: Comrnenruty, 8 TEX. TECH. L.
REV. 19, 68 (1976) (Texas Family Code Symposium Supplement). The statement of paternity, which
must be attached to the petition for adjudication of paternity, must comply with the requirements
articulated in .section 13.22 of the Family Code. But see Fam. Code 0 13.24 (validating a statement
acknowledging paternity or an obligation lo support a child if the alleged biological father signed the
statement prior to January 1, 1974, although the statement does not comply with section 13.22 of the
Family Code, and is not filed with the Texas Department of Human Services or with the court). A
statement of paternity executed in compliance with section 13.22 constitutcspriwo facie evidence that
the child is the child of the man execuGng the statement and that he has an obligation to support the
child. Id. 5 13.23(a); see also Smith, suprcrat 73. SeegenrrcrllyDoyle, Commem, Volrtrtra~Legitinwtion
Rig/m of Unwed Far/ws in Tews. 20 Hovs. L. REV. 1157 (1983).
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Honorable Chet Brooks - Page 3 (DM-97)
differs from the pre-1986 version of section 309(a) of the Immigration and
Nationality Act, which requires “legitimation.”
The Texas Legislature amended sections 13.21 through 13.24 of the Family
Code, as well as other sections of the Family Code, Human Resources Code,
Probate Code, and civil statutes in Senate Bill 401. Acts 1989, 71st leg., ch. 375,
3 17, at 1481, to remove all references to legitimacy and illegitimacy. Tapes of a
public hearing conducted regarding Senate Bill 401 reveal that, by removing
references to legitimacy and illegitimacy throughout Texas law, the legislature
merely intended to eradicate what it considered an “odious term” that wrongly
stigmatized the child of an “illicit union.” Hearings on S.B. 401 Before the Senate
Jurisprudence Comm., 71st Leg. (Mar. 14, 1989) (testimony of Harry Tindell, drafter
of S.B. 401); see aLr0 id. (testimony of Steven McNally, expert witness, stating that
word change was nonsubstantive).
The present voluntary paternity procedure is one method by which a parent-
child relationship may be established. Fam. Code 9 12.01(a). According to the
Family Code, once parenthood has been established by the volu.ntary paternity
procedure or by any other method listed in section 12.01(a), the parent-child
relationship “extends equally to every child and parent regardless of the marital
status of the parents.” Id. 9 12.01(b). Thus, once a court adjudicates the man to be a
parent of the child, see id. 5 13.21, the man and child have a legal parent-child
relationship “incident to which the rights, privileges, duties, and powers as provided
by Section 12.04 of this code are conferred or imposed.“) Id. § 11.01(4).
3Section 12.04 of the Family Code states:
Except as otherwise provided by judicial order or by an affidavit of
relinquishment of parental rights executed under Section 15.03 of thii code, the
parent of a child hasthe following rights, privileges, duties, and powers:
(1) the right to have physical possession, to direct the moral and
religious training, and to establish the legal domicile of the child:
(2) the duty of care, control, protection, and reasonable
diicipliie of the child;
(3) the duty to support the child, including providing the child
with clothing, food, shelter, medical care, and education;
(4) the duty, except when a guardian of the child’s estate has
been appointed, to manage the estate of the child, including a power
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Honorable Chet Brooks - Page 4 (DM-97)
Although Senate Bill 401 changed the name of the procedure from “voluntary
legitimation” to “voluntary paternity,” the bill did not change the procedure involved,
with the exception of amending section 13.21 to permit governmental entities other
than the Texas Department of Human Services to file a petition for adjudication of
paternity. Moreov& both the previous “voluntary legitimation” procedure and the
current “voluntary paternity” procedure produce the same result: the establishment
of a parent-child relationship. The legislature did not alter the substance of rights,
privileges, duties, and powers incident to the parent-child relationship listed in
sectlon 12.04 in 1989 when it changed the name of the procedure from “voluntary
legitimation” to “voluntary paternity.” Clearly, then, a child born out of wedlock
whose paternity has been established pursuant to the voluntary paternity procedure
set forth in sections 13.21 through 13.24 of the Family Code is entitled to the same
parent-child relationship, and therefore the same rights under Texas law, as a child
born in wedlock.” In our opinion, the 1989 amendments to sections 13.21 through
13.24 made no substantive change, and the change in terminology thus should not
(footnote continued)
as an agent of the child to act in relation to the child’s estate if the
child’s action is required by a state, the United States, or a foreign
government;
(5) the right to the services and earnings of the child;
(6) the power to consent to marriage, to enlistment in the
armed forces of the United States, and to medical, psychiatric, and
surgical treatment;
(7) the power to represent the child in legal action and to make
other decisions of substantial legal significance concerning the child;
(8) the power to receive and give receipt for payments for the
support of the child and to hold or disburse any funds for the benefit
of the child;
(9) the right to inherit from and through the child; and
(10) any other right, privilege, duty, or power existing between a
parent and child by virtue of law.
4For interesting cases regarding chapter 13 of the Family Code, see Bore v. Lmw~, 802 S.W.Zd
73, 75 a.1 (Tex. App.--Austin 1990), wrirgrmfed, 34 Tex. Sup.Ct. J. 687 (Nov. 19, 1991); TercrsDep’f of
Hunum Resorrrres I’.Hmnrmrder,595 S.W.Zd 189 (Tex. Civ. App.--Corpus Christi 1980, writ ret’d n.r.e.)
(overruled on other grounds in In Inferest o/J&M., 631 S.W.Zd 730 (Tex. 1982)).
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Honorable Chet Brooks - Page 5 (DM-97)
affect the way in which the federal government applies the provisions in determining
citizenship of children born out of wedlock under the Immigration and Nationality
Act.
SUMMARY
The procedure for establishing “voluntary paternity” under
sections 13.21 through 13.24 of the Family Code is essentially
the same as the procedure for “voluntary legitimation” under the
pre-1989 version of sections 13.21 through 13.24, and both
procedures produce the same result. A child born out of
wedlock whose paternity has been established pursuant to
sections 13.21 through 13.24 of the Family Code is entitled to
the same parent-child relationship and the same rights under
Texas law as a child born in wedlock.
Very truly yours,
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Kym Oltrogge
Assistant Attorney General
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