Untitled Texas Attorney General Opinion ( 1974 )

The Honorable Ralph Prince Opinion No. H- 221
Criminal District Attorney
Gregg County Re : Persons other than a Aicensed
P. 0. Box 2403 agency who may place a child for
Longview, Texas 75601 adoption under Article 695c, V. T.
c. s. , as amended, 1973, and Texas
Family Code, Title 2.
Dear Mr. Prince:
Referring to the enactment by the 63rd Legislature of amendments to
Article 695c, V. T. C.S. (Acts 1973, 63rd Leg., ch. 340, p. 767) and specific
provisions of the newly adopted Title 2 of the Family Code (Acts 1973, 63rd
Leg., ch. 543, p. 1411), you have requested our opinion as to whether lawyers,
doctors, clergymen and other similar persons, who assist in the placing of
a child for adoption without the participation of a licensed child placing agency,
commit :misdemeanors.
Article 695~. V. T. C. S., the Public Welfare Act of 1941, provides in
Subsection 2 of 9 g(a) of that Act:
“(b) Child Placing Facility. Every person . . .
whether operating for profit or without profit, . .
who shall place any child or children who ara under
the age of sixteen (16) years, whether occasionally
or otherwise, away from his own home or relative’s
home, shall obtain from the State Department of
Public Welfare a license to operate as a child-placing
agency. . except that nothing in this Act shall prohibit
a natural parent from, &aci.ng his own.child or .prohibit
a~.Sra&parent,’ ~unak&‘:aunt; kegal .gua.rdisn,: brother’
or sister, having rttained.tbeir majority, from pl,aeing
a child under the age of sixteen (16) years in the home
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The Honorable Ralph Prince, page 2 (H-221)
of relatives or in a licensed institution, agency, or
facility coming within the purview of this Act.
“(c) Adoption. Every person. . , whether
operating for profit or without profit, other than
a natural parent, who shall place any child or
children under the age of sixteen (16) years for
adoption, whether occasionally or otherwise, shall
obtain a license to operate in child-placing from the
State Department of Public Welfare. . . . ”
Subsection l(f) of the same section defines “Child-Placing Activity” as
follows:
“Any person who arranges for the placement
with a third party of a child not related to him, or
aids or abets in such placement, shall be deemed
to be engaged in child-placing activity. ”
Attorney General Opinion WW-94 (1957), interpreted these provisions
together with the prior statute governing adoption, Article 46a, V. T. C. S.
It was held that a natural parent could not delegate authority to place a child
for adoption except to a licensed child-placing agency, and that a third person
attempting to place a child without a license clearly violated the provisions of
Article 695~ $ 8a. Subsection 2(b).
These provisions do not appear to have been judicially construed, but
Professor John R. Wilson of the Baylor University Law School faculty, in
an article entitled “Observations on Current Texas Adoption Laws and Practices. ”
22 Baylor L. Rev. 473, 490 (1970) reached the conclusion that:
“These provisions work an obvious curtailment to
the heretofore traditionally accepted function of the
lawyer in the practice of adoption. It is evident from
the foregoing that an attorney cannot legally function
aa a child-placing agent unleaa:
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The Honorable Ralph Prince, page 3 (H-221)
“(1) he is licensed as such by the Department
of Public Welfare. (a more classic example of built-
in conflict of interest could hardly br conetructed),
or
“(2) th,e child involved is at least 16 years of
age, or
“(3) the child is a relative of his, or
“(4) the natural parent or parents identify or
otherwise designate the adoptive parents and thus
qualify as the placement instrumentality. ”
The 1973 amendment to Article 695c, supra, made no substantive
change in this law except to amend Subsection 12 of $ 8a of the Act so as to
make it a misdemeanor to conduct a child-placing agency or to place children
for adoption without a license.
Your letter requesting our opinion states that Title 2 of the Family Code,
supra, “appears to contemplate adoptions arranged without the participation
of adoption agencies--or what we have always called ‘private adoptions. ’ I’
You cite to us 5 $15. 05 (b), 15. 03 (c)(l), 16.05 (a) and 11.12 to support your
conclusion.
Title 2 of the Family Code expressly repealed Article 460, V. T. C. S,
which heretofore governed adoptions. Chapter 15 deals with termination of
the parent-child relationship, axd Chapter 16 deals with adoption. The
distinction of the issues of termination of the parent-child relationship and
that of adoption and the provision for separate proceedings for each issue are
the major innovations of these chapters of the Family Code. See Family Law
Section, State Bar of Texas. Summary and Analysis of Texas Family Code
Title 2: Parent and Child, Ii. B. 73 and S. B. l6Spp. 2-3, 12-14 (n. d. , circa
1973).
We perceive no conflict between the new Family Code provisions con-
cerning adoption and the requirement of Article 695~ that moat child-placing
activitier be licensed.
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The Honorable Ralph Prince, page 4 (H-221)
Chapter 15 of the Family Code provides for termination of the parent-
child relationship if the court finds that termination is in the best interebt of
the child. $ $15. 01, 15. 02(2). Termination of this relationship is a prerequisite
to adoption, § 16. 03(b). If a termination order is entered as to both parents,
or the only living parent, the court is required to appoint a “managing con-
servator” of the child, 5 15. OS(b), whose duties, privileges, rights and powers
are essentially parental and are set out in $14. 02(b). The managing con-
servator has “the power to consent to the adoption of the child and to make
any other decision concerning the child that a parent could make” where the
parent-child relationship has been terminated. $14. 02 (b)( 8).
Section 15. 03 (c)(l), to which you refer, provides that in a voluntary
relinquishment of parental rights, the parent’s affidavit may designate “any
qualified person, ” the State Department of Public Welfare, or any licensed
agency as managing conservator. However, the Court is not bound by the
parent’s designation of the person or agency. $14. 01(c).
Section 15. 03( c)( 3) further provides that the affidavit may contain “a
consent to the placement of the child for adoption by the State Department of
Public Welfare or by an agency authorized by the State Department of Public
Welfare to place children for adoption. ‘I By clear implication, this provision
limits the parent’s voluntary delegation of consent to place a child for adoption
to the Department or to an authorized child-placing agency, and restates
preexisting law. Section 16.05 (a) requires that, if a managing conservator
has been appointed, his consent to adoption generally is necessary. This
does not authorize him to act as a child-placing agency except insofar as his
rights are set out in $14. 02(b).
Section 11.12, which you cite, simply continues the requirement of an
investigation in adoptions, as in prior law, Art. 46a. 5 2 V. T. C. S. While
the court may appoint “any person I’ to conduct the social study, there is no
indication that the managing conservator and the investigator should be the
same except when it is an authorized agency, § 11.12(c).
While we conceive that an attorney, doctor, or clergyman may be
appointed by a court as managing conservator and, as such, exercise the
same rights in adoption of the child that the parents might have exercised,
it would be as parent that he would exercise those rights and he would have
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The Honorable Ralph Prince, page 5 (H-221)
them only by court order. We do not believe that this is a traditional
“private adoption. I’
An attorney may provide legal assistance to a parent in the exercise
of the right to place a child for adoption. However, the attorney is subject
to the licensing requirements and penalties of Article 695c, as amended,
if he engages in any other “child-placing activity”, beyond mere legal repre-
sentation, ,L. *I
Under the existing law children under 16 may be placed for adoption
bf natural parent, by a relative in some instances, or by a licensed agency.
Where authorized by court order, a managing conservator stands in the
shoes of the parent. An attorney, doctor or clergyman who does not occupy
one of ‘these positions, i. e. , who is neither parent, relative, licensed nor
appointed managing conservator, will now be guilty of a misdemeanor if he
places a child for adoption. Furthermore, if he assists another who is
equally unauthorized he may be responsible for the acts of that other under
Subchapter A of chapter 7 of the Penal Code of 1973.
SUMMARY
Children may be placed for adoption by a natural parent,
by a relative with other relatives, or by a licensed agency. When
authorized by court order, a managing conservator stands in the
shoes of the parent.
An attorney may provide legal assistance to a person
authorized to place a child for adoption, but is not otherwise
exempt from the misdemeanor penalties for unauthorized child-
placing activity, or complicity therein.
Aours very truly,
JOHN L. HILL
Attorney General of Texas
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The Honorable Ralph Prince, page 6 (H-221)
Opinion Committee
p. 1035