Judges: DAN MORALES, Attorney General of Texas
Filed Date: 3/13/1992
Status: Precedential
Modified Date: 7/6/2016
Honorable Chet Brooks Chairman Committee on Health and Human Services Texas State Senate P.O. Box 12068 Austin, Texas 78711
Re: Whether Texas procedure whereby a man voluntarily can establish paternity of a child born out of wedlock "Legitimates" the child (RQ-178)
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, it 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 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 subsection
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, section 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 also 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 section
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. Moreover, 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 section 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.4 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 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.
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
[1] Section 309(a) of the Immigration and Nationality Act appears at section 1409(a) of title 8 on the United States Code. In 1986 congress amended section 309(a) so that a child born outside of wedlock is deemed a citizen of the United States from the time of birth if; before the child reaches the age of eighteen,
a blood relationship between the child and the [child's] father is established by clear and convincing evidence provided the father had the nationality of the United States at the time of the child s birth, the father unless deceased has agreed in writing to provide financial 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 legitimated under the 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 established by adjudication of a competent court.
Immigration and Nationality Act Amends. of 1986, Pub.L.
Except as otherwise provided by judicial order or by an affidavit of relinquishment of parental rights executed under Section 15.03 of this code, the parent of a child has the 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 discipline 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 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.