                   THE           ATTORNEY                          GENERAL
                                            OF     TEXAS

                                  AUSTIN,          T-s             VS’7ll




                                                  July 24, 1974


The Honorable         Raymond          W.    Vowell,                  Opinion     No.    H-    353
Commissioner
State Dept. of Public Welfare                                         Re: The Responsibility  of the
John H. Reagan Building                                               Department  of Public Welfare
Austin,  Texas   78701                                                under Title 2 of the Family
                                                                      Code.

Dear     Mr.   Vowell:

        You have asked our                  opinion on 23 separate   questions. involving   your
Department’s   responsibilities                 under Title 2 of the Family    Code.   Your
first question is:

                     Does the general       rule and regulatory    authority
                     contained   in Article     695c, V. T. C. S., authorize
                     the State Department        of Public Welfare    to make
                     rules and regulations       to carry out ite responsi-
                     bilities  as set out in Title 2 of the Family       Code?

         We have carefully     studied Article    695c, V. T. C. S., and although
it discusses    rule-making   authority,   its references     are to detailed  and
specific   rather than general    powers.     In fact we found 29 separate      references
to rules and regulations    in that Article.      See Article   695c, 9 § 3(2), 3(3),
4(10),   6Ab),     6-4(b),    bA(d),        7A,   8(a)2(4(2),         8W3,      8W7b),        8(a)%   8b)9ab),       143
16, lbB(l),      16B(4),     17A(2),    18, 18A(l),         18A(2),    19, 29, 33(2),         38(2).and   41,    .
V. T. C. S.

          Although    we have no specific   rules and regulations  before us,                             we
are confident     that Article   695~‘s numerous   grants of the rule making
authority    will provide    a basis for many types of rules to govern the




                                                       p.   1644
  The Honorable      Raymond       W.    Vowell,        page   2.      (H-353)




Department’s      administration        of its varied      responsibilities      under   Title   2
of the Family     Code.

          Furthermore,    the Department     does have general rule making
authority   under another   statute.  Article   6252-13 $2, V. T. C. S. provides
in part:

                      Set 2. In addition           to the rule-making         requirements
                  imposed  or authorized             by law:

                       (a) Each agency shall adopt rules concerning      the
                  formal and informal    procedures,   including rules of
                  practice   before the agency.    Such rules may include
                  forms and instructions     so far as deemed practical.

         Without having specific    rules to consider we cannot say categorically
that all rules or regulations    would be authorized;  however; we believe    the
power granted the Department       in Arts.  695~ and 6252-13 would be sufficient
to sustain many if not all the rules you might wish to issue in regard to
your responsibilities   under Title 2.

         In connection    with your second questi’on you indicate        that the Depart-
ment has relied on Article       46a, V. T. C. S. for procedures       to be followed
under Article    4613-2, V. T. C. S. Article      46a was the general      adoption
statute and was repealed       when the ~Family Code was adopted.            (Acts 1973,
63,rd Leg.,   ch. 543, Sec. 3, p. 1458).        Its provisions   are now found in
Chapter 16 of the Family       Code.   Article   4613-2 concerns    adoption of
hard-to-place    children,    and it has not been repealed.       You state that the
repeal of Article    46a coupled with the failure      to incorporate    Article    46b-2
in the Code results     in numerous     “gaps ” in the latter statute.,     You ask:


                  Do these gaps have the effect of rendering         Article   4610-2
                  invalid?    If not, then will the procedure     prescribed     in
                  Chapter 16 of the Code be applicable,        or will Article
                  46b-2,   of necessity,   b,e interpreted   without any correla-
                  tion to the present Article      46a or to the Code?




                                              p.    1645
The Honorable     Raymond      W.   Vowell.        page    3       (H-353)




          We have discovered      no “gaps” in Article     46b-2.   Any adoption
is governed   by the requirements       of Chapter 16 of the Family     Code,
except as modified    by Article    46b-2.    We attach no consequence       to the fact
that these two statutes now appear in different         locations  in compilations
of the laws of this State.    If the Department      determines   that additional
regulations   are desirable,    it may adopt them under Article        46b-2,   §3
which provides    in part that “[t]he department       shall adopt regulations     neces-
sary to carry out the provisions       of this Act.”

          Your remaining    questions     are grouped under the heading “Central
Record    File. ” Section 11.17 of the Family       Code requires that the Depart-
ment maintain a central      record   file on all suits affecting  the parent-child
relationship.    The definitions    section of Chapter 11 of the Code provides
at Section 11.01 (5) that:

                     ‘Suit affecting    the parent-child   relationship’     means
                 a suit brought under this subtitle in which the appoint-
                 ment of a managing        conservator   or a possessory       conserva-
                 tor, access     to or support of a child,      or establishment
                 or termination      of the parent-child    relationship    is sought.

You indicate    that the Department     has determined                 that the following    types   of
suits ‘affect the parent-child   relationship:

                 a. Adoptions       (Ch.   16, Family          Code)

                 b. Termination        of parental        rights    (Ch.     15, Family     Code)

                 c. Divorce,      annulment,        or suit to declare    a ma,rriage
                 void where      children are       involved.  (5 3. 5,5, Family   Code)

                 d. Cases of separation  involving the custody                     and support
                 of children (Art. 4639b, V. T. C. S.)

                  e. Voluntary      legitimation     (Ch.       13. Family      Code)




                                              p.   1646
The Honorable       Raymond     W.   Vowel1        page    4       (H-353)




                   f.   Conservatorship       (Ch.     14, Family       Code)

                   g. Removal    of disabilities          of minority     (Ch.    31,
                   Family  Code)

                   h. Habeas     Corpus     (Section      14.10,   Family       Code)

                   i. Uniform Reciprocal             Enforcement        of Support      Act
                   (Ch. 21, Family   Code)

                   j. Change of name of minor,     if the petition alleged    that
                   the minor was subject to the continuing       jurisdiction  of
                   a court under Subtitle A - Title 2, Family        Code (Ch. 32,
                   Family  Code).

         You ask:

                   Is the department     required   to maintain the Central
                   Record   File on all the types of suits listed above?
                   Are there any other types of suits on which the
                   department    is required    to maintain a record  in the
                   Central Record     File?

         By definition,     a suit affecting     the parent-child      relationship     is one
which, inter alia,      is brought under Subtitle A of Title 2 of the Family                 Code.
That Subtitle sncanpaases         Chapters    11 through 17. Of the types of cases you
mention,    removal     of disabilities    cases,    (Ch. 31), Uniform        Reciprocal
Enforcement      of Support Act cases (Ch. 21), and change of name suits
 (Ch. 32) do not arise under Subtitle A, and therefore               are not &Is affecting
the parent-child     relationship      under the definition     of Section 11.01 (5).
Separation    cases (Art. 463913) are discussed           in response      to your twenty-
first question.     Cases involving       divorce,    annulment     or a declaration       that
a marriage     is void arise under Section 3. 55 of the Family                Code, but where
children   are involved,     that section generally        requires    that the suit for
divorce   “include   a suit affecting     the parent-child      relationship      under




                                              p.   1647
The Honorable      Raymond         W.      Vowel1         page   5   (H-353)




Subtitle A, Title 2 of[the Family C]ode. ” It is our conclusion           that under
511.17 the Department    is required    to keep records      of the types of cases
you listed except for removal     of disabilities    cases,    Uniform   Reciprocal
Enforcement    of Support Act cases,      and change of name suits.        In addition
to these types of suits you listed,    the Department       may be required      to
keep records   of suits for protection     of children   in emergencies      depending
on the nature of the particular    case.     These suits arise under Chapter 17.

         Your   fourth    question         states:

                        Section 11.17(a) of Title 2 of the Family             Code
                   provides    that the clerk of each court having jurisdic-
                   tion of suits affecting      the parent-child      relationship
                   must transmit      specified    information     to the State
                   Department      of Public Welfare.         This provision
                   seems to give the district         clerk discretionary         power
                   in transmitting     information,      allowing    him to trans-
                   mit information      that in his opinion       affects   the parent-
                   child relationship.       Does this uncertainty,          if it is an
                   uncertainty,   render this portion of Title 2 unconstitutional
                   or invalid?

          We percieve    no uncertainty    in the statutory   requirement.      The clerk
is not required    to determine    whether    a case has an effect on the parent-child
relationship.    Rather his responsibility       is to determine    whe’ther a case is
included in the statutory     definition  of the term contained      in Section 11.01(5).

         Your   fifth   question     is:

                   Should court proceedings      in habeas corpus actions
                   ($13.10) be reported    to the Central Record      File?
                   If so, then is the department’s     obligation   fulfilled
                   when it receives    and makes a record       of such
                   proceeding,    or do all of the other provisions        relating
                   to the Central Record     File apply to this type of
                   proceeding?




                                                     p.   1648
The Honorable     Raymond       W.    Vowel1     page     6   (H-353)




         These proceedings     are to be reported  as indicated    in our answer
to your third question.     We see nothing to indicate   other than that all the
requirements     of Section 11.17 apply to the Department’s     recordation   of
this information    except for the requirements   of Subsection     (b) which
apply to adoption decrees.

         Your   sixth   question     states:

                  The information      the clerk is required         to send to
                  the department,      the content of the record          main-
                  tained by the department,         and the information
                  to be supplied,     upon request,      by the department
                  from its records      are slightly     different    in each
                  type of case involving      the parent-child        relation-
                  ship.   Is the department       authorized       to require
                  from the clerk additional        information       other than
                  that required    by statute?      Such information         might
                  be necessary     for identification      purposes.       May the
                  department     require   a submittal      in a prescribed
                  form?     If your answer is affirmative,            may the
                  department     assess   a greater     fee where the pres-
                  cribed form is not used?

         The statutory       scheme is designed      so that the court clerk is required
to submit enumerated          data to the Department     which the Department       is
required   to file.    The    Department     may request    that the clerk supply
additional   information,       and generally   the clerk will not be legally     pre-
cluded from complying          wi.th the request,   but the limits   of the clerk’s
duties are prescribed         by the statute.

         We assume the submittal        to which you refer is a submittal       of a
request for information      by a court or an attorney     rather than a submittal
of information    by the clerk,   si.nce the fee authorized     in Section 11.17 is
to be collected   for supplying   rather than filing information.         For the
reasons   discussed   in our answer      to your first question    we believe  the




                                               p. ,1649
The   Honorable     Raymond       Vowel1        page    7     (H-353)




Department   may require  that prescribed   forms be used, and if the cost of
supplying information  is higher when the prescribed     form is not used a
higher fee may be charged    to reflect the higher cost.

         Your     seventh    question    asks:

                    May the department         assume that.       . . records   [on
                    adoptions]   will be maintained        on the same basis that
                    the Central Record        File is maintained       on other types
                    of suits involving     the parent-child      relationship   under
                    the authority    of Chapter 11, Section 11.17(a) 7 .In the
                    absince’of’a    directive     in the Code, ‘does the depart-
                    ment have the authority         to establish    and maintain a
                    record file on adoptions        for retrieval     purposes?

        Adoption    records   are subject to different      guidelines    than records      of
other suits affecting    the parent-child    relationship,     Sec. 11,17(b), Family
Code.    For example,     inquiries   by attorneys    or courts under Subsection          (c)
as to whether a child had been the subject of a suit involving              the parent-
child relationship    are required    to be answered      in the negative     if an adoption
is the most recent suit of that type on file.

         We believe     the Department      has authority      to make a retrieval      file or
index of adoption cases.          Maintenance    of records     is generally     meaningless
unless there is a means of locating           and recovering      specific   information.
Furthermore,        the statute contemplates      in Subsection      (d) that some informa-
tion may be required        to be revealed     under court order,       and without a means
of recovery    compliance      with the order might be impossible.              Of course,   the
Department     may not use any index or retrieval           file in a way that compromises
the confidentiality     statutorily   accorded    adoption    records.

         Your     eighth    question    asks:

                    Should . . . adoptions   [of hard-to-place     children]
                    be reported  to the Central   Record    File in the same
                    manner as other adoption cases are reported?            If




                                                 p.    1650
The Honorable     Raymond       W.   Vowel1         page   8   (H-353)




                  so, and the district    clerks   do not send the
                  information    on adoptions    consummated     under
                  Article   4613-2 to the Central    Record  File,  what
                  is the responsibility    of the department?

         Article  46b-2 is not a vehicle      for the consumation    of adoptions.    It
provides   for the dissemination      of information   on programs     for adoption
of “hard-to-place    children”   and for financial    assistance   to adoptive    parents.
With the exception    of waiver   of certain fees,    adoptions   of hard-to-place
children are handled under the normal adoption statute.             Since it is our
opinion that the premise     on which you base this question is mistaken,           we
find it unnecessary    to answer    it.

        Your    ninth   question     states:

                  Section 11.17 provides for distribution   of information
                  from the Central Record    File as follows:

                        The records    required  to be maintained     by
                        the department    are confidential,   and no
                        person is entitled to access     to or informa-
                        tion from these records     except as provided
                        by this section or an order of a district      court
                        of Travis  County for good cause.

                  According    to Chapter 11, Section 11.07, the department
                  may, on the written    request  of an attorney or a court,
                  identi.fy the court which last had continuing  jurisdiction
                  and the docket number of a suit.

                  Is the department    correct in interpreting     the above
                  provisions   to mean that all records     in its Central
                  File are confidential?

                  Must the department           refuse to furnish information  if
                  the request is from          any source other than an attorney
                  or a court?




                                               p.   1651
The Honorable      Raymond     W.    Vowel1        page    9,      (H-353)




         As provided    by statute the information       maintained     in the Central
Record    File is confidential    except to the extent that disclosure        is provided
for in Section 11.17. Those exceptions          are revelation    on an order of a
district  court in Travis      County and furnishing     of the information     required
to be disclosed    on the request     of a court or an attorney.      ,In the absence
of a court order the Department          is required  to decline to furnish the
information    to anyone other than an attorney        or court.


         Your   tenth question      is:

                   Will the provisions       of the Code prevail       over any other
                   law relating     to records    which may be in conflict,
                   including    any provisions      of [the Open Records       Act,
                   Article    6252-l?‘a,   V. T. C. S. 1, which may be in
                   conflict?     May members         of the legislature    be denied
                   access    to the Central     Files under the confidentiality
                   requirement,       since they are not authorized         access
                   in the Code, even though [the Open Record~s Act]
                   makes confidential       information     available    to them?

          Your question    is extremely  broad,   and in the absence     of specific
cases or examples      we cannot answer as to the effect of every potentially
conflicting   statute under all circumstances.       Therefore,    we limit our
discussion    to the specific   case you present,   to wit:   the effect of the Open
Record~s Act on the right of a legislator      to ex=e       the material   in question.

         Section   3 (a) of the Open Records              Act   provides     in part:

                         Sec. 3 (a) All information      collected,    assembled,
                   or maintained     by governmental     bodies pursuant to law
                   or ordinance     or in connection   with the transaction      of
                   official  business   is public information      and available
                   to the public during normal business hours of any
                   governmental      body, with the following      exceptions
                   only:

                        (1) information    deemed          confidential      by law,    either




                                              p.   1652
The Honorable        Raymond     W.      Vowel1        page   10      (H-353)




                     Constitutional,       statutory,         or by judicial    decision:

         As information   in the Central  Record   File is deemed confidential
by statute it is excepted   from disclosure    under Section 3 of the Open
Records   Act.   However,    Section 3 (b) of the Open Records   Act provides
in part:

                     (b) . . . . This section is not authority     to withhold
                     information     from individual members     or committees
                     of the legislature   to use for legislative  purposes.

         Section     14 (b) of the Act      provides:

                     (c) This Act does not give authority   to withhold informa-
                     tion from individual  members    or committees    of the
                     Legislature  of the State of Texas to use for legislative
                     purposes.

           While these two provisions          clearly    indicate   that the Open Records
Act does not give an agency authority              to withhold information         from a
legislator,     it does not speak to situations          involving    information     withheld
under other statutes.         Whether     a legislator      would have a right to this
information       without regard     to the Open Records         Act would depend on the
facts of the particular       case and the statutory         authority     on which the legis-
lator relies.       It is our opinion that a legislator,          in the absence.of      a court
 order,    cannot require     disclosure     of information       declared    confidential    by
Section 11.17. Whether he can require                disclosure     under another statute
 or in another capacity       will depend on the facts of the case.

         Your      eleventh   question     is:

                     Chapter 11, Section 11.17(b) states that an adoption
                     decree  ends the court’s continuing  jurisdiction  over
                     a child and any subsequent   suit must be commenced
                     as though the child had not been the subject of a suit




                                                  p.    1653
The Honorable     Raymond        W.    Vowel1        page 11   (H-353)




                  for     adoption.

                  Is the department     correct   in assuming    that no
                  information   regarding     the adoption proceeding
                  may be released,      and that requests    for informa-
                  tion must be answered       as follows:   “The child
                  has not been the subject of a suit affecting       the
                  parent-child   relationship?    ”

        No information     on the       adoption ‘proceedings   may be released   in
the absence  of an order from           a district court in Travis  County, and a
reply of the type you suggest          is required   by the statute when a request
is made involving    a child who        has been adopted.

        Your    twelfth     question   is:

                  The Department     of Public Welfare    has records
                  pertaining to children   covering   a lmg period of
                  time prior to the enactment     of Title 2.

                  In answering      inquiries   about one of these children,
                  should the department        ignore    the fact that it has
                  in its files information      concerning      the child which
                  was recorded       prior to JandAry 1; 1974,. an,d reply
                  that “the child has not been the subject of a suit
                  affecting   the parent-child     relationship?      ” May the
                  department      instead use the wording         “the department
                  has no record       of a suit having been filed subsequent
                  to .kmkryl,    ‘1974, involving     such a child. ” In other
                  words,    is the department      limited    to’the actual wording
                  in the Code, or may it formulate           answers     that will be
                  more appropriate        for the circumstances?

         We find nothing in t.he Code to suggest that the Department   is
required  to use the exact language   of the Code in responding  to requests




                                                p.   1654
The Honorable     Raymond      W.   Vowel1         page   12    (H-353)




for information.      Specifically,    we believe  the Department   may limit its
response   by‘indicating     that it applies  only to cases subsequent  to the
effective  date of the Act.,

        Your    thirteenth   question   is:

                  If any instrument      is filed in the court after the
                  effective    date of the act which brings a suit that
                  was pending on the effective         date of the act
                  within the scope of the Family          Code, does the
                  department      combine the information         it has on
                  hand which predates        the Family    Code with the
                  new information,       making it all one suit?         If so,
                  do the other provisions        of the Code relating       to
                  confidentiality     and procedures     for obtaining
                  information     from the department        refer t6 the
                  information      the department     had prior to January
                  1, 1974, as well as to the information            obtained
                  subsequently?

        Section 4 of Acts 1973, 63rd Legis.,ch.                : 543,   p. 1459, the Act
enacting Title 2 of the Family  Code,protides:

                       Set 4.   (a) This Act takes effect on January 1,
                  1974, and governs       all proceedings,     orders,   judgments,
                  and decrees     in suits and actions brough after it takes
                  effect,  and also all further      proceedings    in actions
                  then pending,     except to the extent that in the opinion
                  of the court its application      in an action pending when
                  this Act takes effect would not be feasible          or would
                  work injustice.      All things properly      done under any
                  previously   existing     rule or statute prior to the taking
                  effect of this Act shall be treated as valid.

                      (b) Any action or suit commenced       after           January 1,
                  1974, that has as its object the modification              of an order,




                                              p.   1655
The Honorable       Raymond      W.   Vowel1        page     13   (H-353)




                    judgment,    or decree    entered prior to January 1, 1974,
                    but which under this Act would be a suit affecting            the
                    parent-child   relationship,     is governed   by the provi-
                    sions of this Act, and shall be treated as the commence-
                    ment of a suit affecting     the parent-child    relationship     in
                    which no court has continuing        exclusive  jurisdiction.

          The data required         to be furnished      to the Department         for the Central
Record     File are a copy of the court’s           decree,    the name and all prior names
of the child, the child’s        birthdate    and the child’s      birthplace.~.       The informa-
tion the Department         is required     to furnish to attorneys         and courts is the
name of the court last having jurisdiction                of the child in a suit involving
the parent-child       relationship     and the docket number of the suit.                The
purpose of maintaining          this file and informing        attorneys      and courts of
prior suits involving        a child is to ease the administration              of the Code’s
provision     that, except in cases of adoption,             once a court acquires         jurisdic-
tion of a suit affecting       the parent-child       relationship      it retains    exclusive,
continuing     jurisdiction     over similar      suits involving      that child,      Considering
the language and purpose of the statute,               we see no requirement            that the
Department       include information        attributable     to pre-January        1, 1974, cases
in its Central Record         File.    Neither    do we see any prohibition            of an
integration     of this information,       although it would generally,             if not always,
be irrelevant      to the request      of an attorney      or court under Section 11.17
of the Act.      Whether     the irfo:rmation      would be confidential         would depend
on the facts of the case.

          Your   fourteenth     question    states:

                    Chapter 11, Section 11.05(c) provides           that “a court shall
                    have jurisdiction      . . . if it has   been  informed    by the
                    Department     of Public Welfare       [that the child has not
                    been the subject of a suit affecting         the parent-child
                    relationship    and the petition    states that no court has
                    continuing   jurisdiction    over the child]. ” This state-
                    ment implies     that the department        may report    only
                    to the court.




                                               p.     1656
The Honorable     Raymond      Vowel1      page 14           (H-353)




                  Is it mandatory  that the department     report to the
                  court or may the department     exercise    discretion
                  as to whether it will report to the court or the
                  attorney?

                  The above’, provision      also itnplies   that the court
                  has jurisdiction     if it has been informed      by the
                  department     that no other court has jurisdiction,
                  even if the department’s         answer   may be erroneous.
                  Would the judgment        or decree based on faulty informa*
                  tion concerning     jurisdiction     render the decree invalid?

          The statutory    scheme contemplates     that the Department    communicate
information    on prior suits to attorneys   as well as to courts.     Attorneys  are
permitted    to request   the information,  Section 11.17(c), and the statute pre-
sumes that they will attach the information        given them by the Department
to the petition.    Section 11.17 (b).

        If a court acquires   jurisdiction     over a case under Section 11.05(c)
because of erroneous    information      supplied by the Department,    it is
contemplated   that that court will retain jurisdiction     and enter a valid
order since Section 11,06(d) provides:

                       (d) If a court has continuing        jurisdiction      over a
                  child but another court has acquired            jurisdiction      over
                  the child in a suit affecting       the parent-child       relation-
                  ship under Section 11.05(c) of this code, the court
                  previously      having jurisdiction    over the child,       on a
                  motion of any party or on the court’s             motion,     shall
                  transfer     the proceeding    to the court which has acquired
                  jurisdiction     under Section 11.05(c) of this code.

        Your    fifteenth   question    states:

                  In many cases        involving    children,    the State Depart-
                  ment of Public        Welfare    will be initiating   suits involving
                  the parent-child        relationship.      It will be necessary    in




                                             p.   1657
The Honorable     Ray~mond W.      Vowel1        page   15   (H-353)




                  these cases to have a statement        attached to the
                  petition,    either showing the court which last had
                  jurisdiction     or stating that the child has not been
                  the subject of a suit affecting     the parent-child
                  relationship.

                  May the department         interpret  the Code as being
                  sufficiently   flexible   for the department     to make
                  reasonable     rules and regulations      concerning   the
                  use of the records       necessary   for the direct
                  administration      of its programs7

          The Department       is permitted    to make reasonable      rules and regula-
tions concerning      the custody and use of its records.         Article   695~ $33(2).
We believe     that use of the files for the purpose of the Department’s           directly
bringing    suits affecting   the parent-child     relationship  would be reasonable.
Furthermore       a suit of the type you describe        would be filed by an attorney
for the Department        who would be entitled to the information         under Section
11.17(c).

         Your   sixteenth   question   states:

                  There is no provision      in the Code for ever removing
                  a case from the Central Record            File. Ifhe     child
                  appears   on the Central Record         File because of a suit
                  to terminate   the parent-child       relationship    and is
                  subsequently    adopted,    then the child is no longer
                  subject to the continuing      jurisdiction     of the court
                  and the department      cannot give information         about
                  the adoption.

                  Is the department   responsible  for correlating   the
                  adoption case with the previous    case terminating
                  parental  rights, if any, and closing  the pr,evious
                  case as well as the adoption case?




                                            p.   1658
The Honorable      Raymond      W.   Vowel1        page    16   (H-353)




                   If a case is reported      when the child is under 18 and
                   he reaches    18 terminating     the jurisdiction    of the court,
                   is the department      responsible    for closing   that case?
                   Is the closing    of a case and the removal       of the record
                   from the Central Record         File dependent upon receiving
                   information    from the clerk to close the case?           Is the
                   department     required    to continue cases received        and
                   ma’de a part of the Central Record          File indefinitely
                   since no provision      is made for removing       them, except
                   in adoptions 7

           The Department      will be required        to correlate    its records     on adoption
cases with its other records          in the Central Record         File since an adoption
ends a court’s     continuing    jurisdiction     over a child and any subsequent            suit
is to be handled as if no adoption case or any prior case affecting                     the parent-
child relationship     had been filed.        Sections    11.05(b), 11.17(b). Furthermore,
the Department      is specifically      required     to close the records       concerning
that child and to decline      to produce      records     of any prior proceedings
concerning     the child except in the unusual situation             specified    in the Act.
Sec. 11.17(b) and (d).      Clearly     it is impossible      for the Department         to
comply with the statute in the absence              of a correlation      or integration    of
the files.

         The method to be used in closing  individual              files is within the rule-
making authority   the Department   has under Article               695c, $ 33(2) in rela-
tion to the custody of its records.

         Your    seventeenth     question     states:

                   The Code does not provide          for storage    of records.
                   May the department        arrange     for storage    of records
                   with the Texas      Library   and Historical      Commission?
                   If so, are the records       subject to the various       statutes
                   governing     storage   of records     by&at body including
                   TEX.     REV.    CIV. STAT.      ANN.     art. 5441b governing
                   disposition    of valueless    records     and TEX.    REV.     CIV.
                   STATE.      ANN.    art. 5441a governing       preservation     of
                   records?




                                              p.    1659
The Honorable      Raymond      Vowel1       page     17     (H-353)




         We believe     that there is ample authority         for the Department      to
arrange   for storage     of its records    by the Texas Library         and Historical
Commission.        The Interagency       Cooperation    Act, Article     4413 (32),
V. T. C. S. See also,      The Preservation        of Essential     Records    Act,
Article  5441d, V. T. C. S. Whether          a statute would apply to records          of
the Department      maintained      by the Library    and Historical      Commission
would depend on the wording.of          the particular     statute.    Article   5441a,
which is one of the two statutes you mention,             applies to all public
records   of the State.     Article    5441b, the other statute about which you
inquire,   applies   only to records      consigned    by law to the custody of the
State Librarian.

         Your   eighteenth    question      states:

                   Chapter    11, Section     11.17 (e) provides       that:

                        (e) The department      may utilize   microfilm
                        or other suitable means for maintaining          the
                                                                           .
                        central  record   file.  A  certified  reproduction
                        of a document    maintained    .by the department
                        is admissible   in evidence    as the original
                        document.

                   Since the Code is silent as to the’period               of time the depart-
                   ment is required         to keep the records        received    within
                   the scope of this law, may the department                  establish     the
                   length of time the original          records     and/or the microfilm
                   are to be retained?          In the absence. of rule and regulatory
                   authority,      is the department        required    to retain the
                   records     and/or microfilm         indefinitely?      Is the depart-
                   ment authorized         to have the decrees        microfilmed
                   immediately         upon receipt    and destroy      the official    record
                   immediately,         or is there any law which requires             the
                   department        to retain the original       record for any period
                   of time,     either before      or after it is microfilmed?           After
                   it is microfilmed         and the original      record    destroyed,
                   then is the department          required     to retain the microfilm
                   indefinitely?        If not indefinitely,     then under what authority
                   may the department           ever destroy      the record     and microfilm?




                                               p.     1660
The Honorable     Raymond      W.   Vowel1        page 18    (H-353)




         We believe     the Department     has ample rule making authority,       as
discussed    in response    to your fifteenth   and sixteenth    questions,  to establish
procedures      for copying and maintaining       its records  and files.   Of course,
any~. destrirtion    of records,    whether   original   or microfilm,    must comply
with the requirements       of Article   5441a.

        Your    nineteenth   question    states:

                  In adoption cases,     it is the department’s     interpretation
                  of the Code that all of the original       instruments    filed in
                  the court will betransmitted        to the State Department
                  of Public Welfare     for filing,  leaving   no official   records
                  in the local district    courts as previously     provided     by
                  law.

                  The requirement         that they be sealed upon receipt          implies
                  that the adoption records          are never to be destroyed.            In
                  view of this, is the department           authorized    under the
                  Code to destroy       the original    court papers     after they
                  have been’microfilmed           on the adoption cases?        If these
                  official   original   records     are to be destroyed,       then is there
                  any general      law which prescribes        the length of time that
                  the department       must retain the official       adoption records
                  it receives     from the courts?        Is there any,prescribed
                  period of time that the department            is required     to retain
                  the official    records    before thay can be destroyed?             Is
                  there any length of time prescribed             for retaining     the
                  microfilm      of such records?        Must the department          retain
                  either the original       record    or the microfilm      for an
                  indefinite    period of time?

                  The department      has no system for microfiliming    records,
                  but may contract     for this purpose.   In view of the require-
                  ment that the records     in adoptions  must be sealed upon
                  receipt,    would it be a breach of the requirement     of
                  confidentiality   for the department   to have them micro-
                  filmed   by an outside contractor?     May the department




                                             p.    1661
The   Honorable     Raymond      W.   Vowel1         page    19    (H-353)




                    request   the State    Director         and Librarian    to provide
                    microfilming?

           A file on an adoption is a district         court record,      and it is contemplated
that it will be permanently          preserved.      Article   1899a, § 2(5).    ‘Before   copies
are made and originals           are destroyed     the Department      must comply with the
provisions      of Article   5441b which require,         inter alia,   the permission     of the
State Librarian        and the Director     of the Records      Management      Division.     The
Preservation        of Essential    Records     Act also may be applicable,         Further-
more,     in copying adoption       records     and retaining    duplicates   rather than
originals    the Department        should be guided by the requirements            established
for district     clerks for preserving        this type of record.       Those guidelines
are found at Article        1899a, V. T. C. S.

          Although   in the absence    of a specific    proposal    we cannot say that
the Department      is precluded   from contracting       with an outside contractor
for the microfilming’      of its records,     we believe    confidentiality     could be
best maintained      by a proper   contract    with&e    Library    and Historical
Commission.        For example,     confidential    records    are recognized      and
protected     under Section 7 of the Preservation         of Essential     Records    Act.

         Your     twentieth   question     states:

                    Chapter 11, Section 11.05 relates          to the continuing
                    jurisdiction     of a suit affectirgthe    parent-child     relation-
                    ship and Section       11.06 provides    for the transfer      of
                    proceedings.        Apparently    no provision    is made for
                    notifying    the Department      of Public Welfare      of the
                    change.      Without proper notice,       any information
                    subsequent      to a change given by the department
                    would be erroneous.          We were unable to find a
                    section requiring       that the department      be notified
                    of placing responsibility       on anyone for so notifying
                    the department       in case of change or even dismissal
                    of a suit.

                    In the absence       of a provision        in the law requiring       it,




                                               p.    1662
The Honorable     Raymond      W.   Vowel1        page   20   (H-353)




                  who is responsible    for seeing that the correct
                  information  is transmitted    to the department          -
                  the department    or the court?


         We do not believe     the situation you describe       involves    a problem
that was outside the contemplation        of the statute’s   drafters.     Whenever     a
suit is pending the Department’s       information     will be out of date whether
a transfer  is involved   or not.   We can find no statutory        requirement     that the
Department    be notified  of a transfer     of a suit prior to entry of a decree,
and we know of no responsibility       on the part of the Department         to acquire
such information.      An order dismissing       a suit, however,      will be reflected
in a decree which must be reported          to the Department.

         Your   twenty-first   question      states:

                  Section 3 of the Code repeals         certain   specific   articles
                  of the current    statutes.    Article    4639b, TEX.       REV.
                  CIV. STAT.     ANN.,      which provides      in essence     for
                  the determination      of custody and support of children
                  in cases of separation      without the necessity        of filing
                  a petition for divorce,      was not repealed.

                  Will this article      continue to be in effect after the Code
                  becomes      effective   January 1, 19747 If your answer is
                  affirmative,      then is the department        supposed to receive
                  a copy of the decree         or order from the clerk together
                  with other identifying        information     so that it may be
                  placed in the Central         Record    File?   Is it subject to all
                  other provisions       relating    to the Central Record     File?

         As Article   463913 was neither     expressly    nor impliedly     repealed    by
the enactment    of the Family   Code, it remains       in force.    However,      the
relief  sought in an action under that statute is generally          outlined in
chapter 14 of the Family     Code.     In fact, where the parents of a child are
separated   the Court is directed     to appoint a managing       conservator     for the
child under Section 14.01(a).      Since the relief    eought under an Article         4639b




                                             p.   1663
The   Honorable      Raymond     W.   Vowel1        page   21    (H-353)




suit is controlled      by Chapter 14, we believe           it is a suit affecting   the parent-
child relationship      and subject to report,

         Your twenty-second        question  involves the permission     given the
Department     in Section 11,17(c) to charge a ,reasonable     fee to cover the
cost of the service     it provides   through the Central Record     File.    The
question   states:

                     The State Department         of Public Welfare        r,eceived  no
                     state appropriation      for the specific      purpose of establishing
                     and maintaining     a Central Record         File.    A “reasonable
                     fee”   for furnishing     the court or the ~attorney the informa-
                     tion about the continuing       jurisdiction     of the suit affecting
                     the parent-child     relationship     would be wholly inadequate
                     to establish   and maintain      such a file.       Furthermore,     the
                     department    is reluctant     to charge the court a fee for
                     such a service,     since the department           is dependent
                     upon the courts for many services             which they furnish
                     without charge,

                     May the department      furnish the information      without
                     charge in all cases?      If deemed feasible     by the depart-
                     ment, could it charge in some instances          and not in
                     others?    If a fee is charged,    could it be deposited     to
                     the credit of the Central     Record   File for its maintenance
                     and operation    and used for that purpose,       or must it be
                     deposited   into the General    Revenue    Fund?

         Your question   concerning    the deposit and~use of funds generated
by charges   to users of the File were answered       by Attorney     General  Opinion
H-211 (1974).    The statute provides    that the Department      “may charge a
reasonable   fee, ” and we believe    this language   permits    the Department
to decline to charge any fee.      Furthermore,     we believe    the Department
could charge a fee in some cases but not in others so long as the distinction
was not arbitrary    and capricious.     For example,    distinction   between charges




                                               p.   1664
The Honorable      Raymond      W.   Vowel1          page    22    (H-353)




to attorneys    and to courts      probably     would       be reasonable.

         Your     final question     was presented    in a supplemental          request and
concerns     disposition    hearings    for juveniles    under Section 54.04 of the
Family     Code.      You ask if a suit involving     an order of the Juvenile           Court
committing      a child in need, of rehabilitation       to the custody of a relative
or other fit person is a case affecting          the parent-child        relationship     and
as such is subject to reportb           the Department      and to the continuing
jurisdiction     concept of Section 11.05. As indicated             in response      to your
third’question       a suit affecting   the parent-child     relationship       is, inter alia,
one brought under Subtitle A of Title 2 of the Family                 Code.       As Section
54.04 is in Title 3 it does not fit the statutory            definition,     and your question
must be answered         in the negative.

                                        SUMMARY

                        (1) The Department    may make rules and regulations
                   to aid it in the administration   of its responsibilities
                   under Title 2 of the Family     Code.

                       (2) A suit affecting the parent-child relation can
                   only be one brought under Subtitle A of Title 2 of the
                   Family  Code.

                        (3) Adoptions         of hard-to-place   children  are handled
                   on the same basis          as other adoptions    for Central Record
                   File purposes.

                         (4) The Open R&or&       Act does bot give an’agency      the
                     right to withhold information    from a legislator,    but his
                    right to access may be affected      by other statutes.

                       (5)   The Department    is required   to furnish certain
                   Central   Record  File information    to attorneys  as well
                   as to courts,




                                                p.    1665
The Honorable   Raymond     W.   Vowel1   page   23      (H-353)




                    (6) The Department      may contract    with the
                Texas   Library  and Historical   Commission      for
                the storage   and preservation   of the file.

                                                  Very    truly    yours,




                                 7
DAVID M. KENDALL,         Chairmafi
Opinion Committee




                                      p* 1666
