                                 April   15, 1975


The Honorable Raymond W. Vowel1                 Opinion No.   H-   582
Commissioner
Department   of Public Welfare                  Re:   Meaning of penal
John H. Reagan Building                               statute concerning
Austin, Texas 78701                                   importation  of minors
                                                      for “placing out. ”
                                                      V. T. C. S., art. 695a.
Dear Commissioner      Vowell:                        sets.  6 and 7.

    You have requested our opinion on the meaning of sections 6 and 7
of article 695a. V. T. C. S.    This is a penal statute concerning the importa-
tion of a child into this state for the purpose of “placing him out or pro-
curing his adoption. ” We find it unnecessary      to address your specific
questions for in our view sections b and 7 of article 695a. V. T. C. S., are
clearly unconstitutional.     These sections provide:

             Sec. 6. It shall be unlawful for any person,       for
         himself or as agent or representative      of another,   to
         bring or send into this State any child~below the age
         of sixteen (16) years for the purpose of placing him out
         or procuring his adoption without first haying obtained
         the consent of the Department     of Public Welfare.      Said
         consent shall be given on a regular form to be pre-
         scribed by the Department     of Public Welfare and no
     :   person shall bring any such chiid into this State without
         such permit and without haying filed with the Department
         of Public Welfare   a bond payable to the State,     on a form
         to be prescribed   by the Attorney General,     and approved
         by the Department    of Public Welfare,    in the penal sum
         of One Thousand ($1,000. 00) Dollars.      conditioned that
         the person bringing or sending such child into this
         State will not send or bring any child who ia incorrigible
         or unsound of mind or body; that he will remove any




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The Honorable   Raymond   W.   Vowell,    page 2     (H-582)




       such child who becomes a public charge or pay the
       expense of removal of such charge,       who, in the
       opinion of the Department of Public Welfare,        becomes
       a menace to the community prior to this adoption or
       becoming of legal age; that he will place the child under            *
       a written contract approved by the County Child Welfare
       Board and the Department of Public Welfare; and that
       the person with whom the child.isplaced       shall be reapon-
       aible for his proper care and training.      Before any
       child shall be brought or sent into the State for the
       purpose of placing him in a foster home, the person so
       bringing or sending such child shall first notify the
       Department     of Public Welfare of his intention and the
        Department of Public Welfare      shall immediately    notify
       the County Child Welfare      Board, who shall make a report
        to the Department of Public Welfare      on the person whom
       it is indicated will have charge of the child, and shall
        obtain from the Department of Public Welfare a Certifi-
        cate stating that such home is, and such persoa~or persona
        in charge,   are in the opinion of the Department of Public
        Welfare,   suitable to have charge of such child.      Such noti-
        fication shall state the name, age and description      aC the
        child, the name and address of the person to whom the
        same is to be placed,    and such other information as may be
        required by the Department of Public Welfare,        and the same       .~..
         shall be sworn to by such person.      The Department of Public
        Welfare shall require~the person sending said child into
        this State, or the person who is in charge of the same after
        he has been brought here, to make a report at certain
        stated times,  and in the event such reports are not made,
        such Department of Public Wel.fare shall be authorized to
        deport said child f~rom this State and the expenses thereof
        shall be recovered under said bond: provided, however,
        that nothing herein shall be deemed to prohibit a resident
        of this State from bringing into the State a relative or
        child for adoption into his own family.    The Department
        of Public Welfare and Child Welfare     Boards shall not
        allow minors to come into and be brought into this State
        in violation of this Act.




                                         p.   2591
.




    The Honorable   Raymond    W.   Vowell.        page 3   (H- 582)




                Sec. 7.   If any person shall bring into this State or
           .direct,  conspire,   or cause to be brought into or sent into
           .thia State any child in violation of the foregoing section.
            he shall be guilty of a misdemeanor     and upon conviction
      .     thereof shall be fined in a sum not leas than Twenty-five
            ($25.00)  Dollars nor more than One Thousand ($1,000. 00)
            Dollars, or by confinement    in the County Jail not exceeding
           ,twelve months,     or by both such fine and imprisonment.

         This Depression-era    statute was enacted in 1931 as a part of the act
    creating the Division of Child Welfare      in the Board of Control (later
    transferred  to the Department     of Public Welfare.  art. 695e, V. T. C.S. ).
    Acts 1931, 42nd Leg.,    ch. 194, $ s 6. 7 at pp. 324-325.    Its purpose,  as
    indicated by its title and emergency     clause,  was described in Attorney
    General Opinion O-2768     (1940) as follows:

           ‘By the passage of this Act, the Legislature       sought
            to correct an existing evil; namely,     the importation
            of defective, illegitimate,   dependent,   neglected or
            delinquent children into this State by irresponsible
            persona or agencies.      More than frequently,    these
            children became public charges and occasioned         an
            overcrowded   condition in our State Institutions.

        We believe the statute seeks to achieve unconstitutional purposes.   It
    attempts to deter the entry into this state of children who might become
    public charges.

        The freedom to travel throughout the United States has long been
    recognized  as a basic wright under the Constitution;      Passenger    Cases.   7 How.
    283 (U.S. 1849); Crandall v. Nevada,      6 Wall.   35 (U.S.  1868); Paul v. Virginia
    8 Wall. 168 (U.S.  1869): Ward v. Maryland,       12 Wall. 418 (U.S.   1871); Slaughter-
    House Cases,   16 Wall.  36 (II. S. 1873); Twining v. New Jersey<       211 U.S.  78
    (1908); Edwards v. California,     314 U.S.  160 (1941).

        A California  statute making it a crime to transport non-resident
    indigents into the state was struck down as unconstitutional- in Edwards         v.
    California,  314 U.S.   160 (1941).




                                              p.   2592
The Honorable       Raymond      W.    Vowell,      page 4   (H-582)




    In Shapiro v. Thompson,     394 U.S.   618 (1969). the United States Supreme
Court held unconstitutional   state statutory provisions   which imposed dura-
tional residence  requirements    on welfare benefits.   In that case the Court
said:

        [T]he purpose of inhibiting migration     by needy
        persons into the State is constitutionally   imper-
        missible.     394 U.S.        618,   629   (1969).

    The Supreme Court reemphasized      its holding in Shapiro         v. Thompson,
supra, in Memorial    Hospital v. Maricopa COUP.      415 U.S.         250. 94 S. Ct.
1076 (1974). stating:

        : . . to the extent the purpose of ,the requirement
        is to inhibit the immigration  of indigents generally.
        that goal is constitutionally impermissible.   . . .
        94 S. Ct. 1076. at 1085.


    The right of interstate   travel being a “basic constitutional  freedom, ” the
Court in Maricopa     County required a compelling    state interest to support a
duration&l residency    requirement   for receipt of medical benefits.    The
requirement    was viewed as having a sufficient impact upon the right to travel
to necessitate  strict scrutiny.

     While none of these cases have dealt with a minor’s,-right    to travel, we
believe that minoia do have such a right, at least when they travel with the
permission   of the person who is responsible    for them.   We reach this con-
clusion in light of several   United States Supreme Court decisions which have
extended such fundamental rights to minors.       Tinker v. Des Moines
Independent Community       School District, 393 U.S.  503 (1969); In re Gault,
387 U.S. 1 (1967); West Virginia State Board of Education v. Barnette,        319
U.S. 624 (1943).

     Since article 695a.    sections   6 and 7. attempt to prohibit entry into the
State by some minors and inhibit entry by many. in our opinion the statute
infringes.on    their right to travel and must be supported by a compelling
state interest.     As previously    noted, the purpose of the statute is conati-
tutionally impermissible      and it cannot be considered   such an interest.     In
our view, sections 6 and 7 of article 695a are unconstitutional.




                                              p.   2593
.


    The Honorable   Raymond    W.     Vowell.   page    5     (H-582)




        Due to the statute’s unconstitutionality   as an infringement  on the right
    to travel, we find it unnecessary    to address its possible unconstitutionality
    under several other doctrines.      See, -,      Harper v. Virginia Board of
    Elections,  383 U.S. 663 (1966);   Robinson v. California,    370 U.S. 660 (1962);
    Toomer v. Witsell,     334 U.S.  385 (1948).

         By holding this statute unconstitutional.   we do not imply that the state
    is without power to regulate the placement of children brought into this
    state for that purpose.      Without specifying how a statute might be drawn to
    avoid constitutional   problems,    it is simply our opinion that this particular
    statute is unconstitutional.

                                SUMMARY

                Sections 6 and 7 of article 695a.    V. T. C. S.,        are
            unconstitutional  as impermissible    infringements          on
            the right to travel.




                                                   Attorney    General   of Texas

    APPROVED:




    DAVID   M.   KENDALL,     First    Assistant




    C. ROBERT HEATH,          Chairman
    Opinion Committee




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