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DAN MORALES
 ATTORNEY
       GENERAL                                    December 29. 1998



   The Honorable Toby Goodman                                 Opinion No. DM-500
   Chair, Committee on Juvenile Justice &
   Family Issues                                              Re: Advertising for placement of child for
   Texas House of Representatives                             adoption (RQ-1144)
   P.O. Box 2910
   Austin, Texas 787682910

   Dear Representative Goodman:

           As you know, in Texas only a licensed child-placing agency’ or a parent, expectant parent,
   or legal guardian of a child may place a child for adoption, and only a licensed child-placing agency
   may act as an intermediary between a parent and a prospective adoptive parent. Section 162.025,
   Family Code, makes it an offense for any other person to perform such acts, as follows:

                    (a) A person who is not the natural or adoptive parent of the child, the
                legal guardian of the child, or a child-placing agency licensed under Chapter
                42, Human Resources Code, commits an offense if the person:

                         (1) serves as an intermediary between a prospective adoptive parent
                     and an expectant parent or parent of a minor child to identify the parties
                     to each other; or

                          (2) places a child for adoption.

                    (b) It is not an offense under this section if a professional provides legal
                or medical services to:

                         (1) a parent who identities the prospective adoptive parent and places
                     the child for adoption without the assistance of the professional; or




              ‘A child-placing agency is defmed in chapter 42, Human Resources Code, which regulates such agencies. A
   “child-placing agency” is “a person, including an organization, other than the nahxal parents 01 guardian of a child who
   plans for the placement of 01 places a child in a child-care facility, agency foster home, agency foster group home, 01
   adoptive home.” Human Res. Code 5 42.002(12).
The Honorable Toby Goodman - Page 2                          (DM-500)




                         (2) a prospective adoptive parent who identities a parent and receives
                     placement of a child for adoption without the assistance of the
                     professional.

                     (c) An offense under this section is a Class B misdemeanor.2                                 *-

Nothing in section 162.025 prohibits, however, a parent and a prospective adoptive parent from
identifying each other and arranging an adoption without the assistance of a licensed intermediary.

        Section 25.09, Penal Code, makes it a crime for a person to advertise that the person will
place, provide, or obtain a child for adoption.) Only a licensed child-placing agency is expressly                         /
excepted horn this prohibition, as follows:

                     (a) A person commits an offense if the person advertises in the public
                 media that the person will place a child for adoption or will provide or obtain
                 a child for adoption.

                     (b) This section does not apply to a licensed child-placing agency that is
                 identified in the advertisement as a licensed child-placing agency.

                     (c) An offense under this section is a Class A misdemeanor unless the
                 person has been convicted previously under this section, in which event the
                 offense is a felony of the third degree.

                     (d) In this section:

                        (1) “Child” has the meaning assigned by Section 101.003, Family
                     Code?




         ‘Fan.    Code 5 162.025.

         ‘We do not consider whether this statute violates the free speech protections   of the First Amendment   of the
United States Constitution OI article I, section 8, of the Texas Constitution.

         ‘Section 101.003, Family Code, defmes “child” as “a person under 18 years of age who is not and has not been
married or who has not had the disabilities of minority removed for general purposes.”



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                      (2) “Public media” has the meaning assigned by Section 38.01 .5 The
                  term also includes communications through the use of the Internet or
                  another public computer network.6

        You tirti ask whether section 25.09, Penal Code, prohibits a parent from advertising to place
his or her child for adoption. On its face, section 25.09 applies to any person who advertises to
place, provide, or obtain a child for adoption. We think that the words “place” or “provide” a child
for adoption plainly include placing or providing one’s own child for adoption. Section 25.09 has
only one express exception from its application: a licensed child-placing agency. An express
exception to a statute manifests a legislative intent that the statute should apply in all cases not
excepted.7 We conclude, therefore, that section 25.09 prohibits a parent from advertising to place
his or her child for adoption.

         You next ask whether section 25.09, Penal Code, prohibits a prospective adoptive parent
from advertising that he or she wishes to adopt a child. Section 25.09 prohibits a person, other than
a licensed child-placing agency, from advertising that the person “will place a child for adoption or
will provide or obtain a child for adoption.” The phrase “will. . obtain a child for adoption” could
plausibly be read to refer to a person who seeks to adopt a child. Parts of the statute’s legislative
history indicate that such a reading was intended. During a hearing on House Bill 1091 before the
House Committee on Juvenile Justice and Family Issues, a witness asked you, as the bill’s sponsor,
whether the provision would prohibit prospective adoptive parents from advertising that they wished
to adopt a chi1d.s You stated repeatedly that the provision was intended to do so. You made
reference to the committee’s interim report, the impetus for House Bill 1091, which recommended
legislation that would ban “baby wanted” advertising.9

        On the other hand, the phrase ‘will. . obtain a child for adoption” could also be read to refer
to the act of acquiring a child for someone else to adopt. Other parts of the legislative history
support this construction. The Juvenile Justice Committee’s report onHouse Bill 1091 states: “The
bill amends Penal Code Chapter 25, stating that a person commits an offense by advertising in the



          5Section 38.01, Penal Code, defmes “public media” as “a telephone directory or legal directory, newspaper or
other periodical, billboard or other sign, radio or television broadcast, recorded message the public may access by
dialing a telephone number, or a written communication      not prohibited by Section 38.12(d) [prohibiting barrah’y].”

         6Penal Code 5 25.09 (footnotes   added).

         ‘See Garcia v. Sfate, 829 S.W.Zd 796,798-99   (Tex. Grim. App. 1992); State v. Richards, 301 S.W.2d 597,600
(Tex. 1957).

         ‘Hearings on H.B. 1091 Before the House Comm on Juvenile                Justice   & Family   Issues,    75th Leg.
(Mar. 26, 1997) (audio tape available from House Video/Audio Services).

         ‘House Comm. on Juvenile Justice &Family      Issues, Interim Report to the 75th Texas Legislature     (Dec. 1996)
at 8.



                                                              p.   2866
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public media that they will place a child in adoption, or provide a childfor adoption.“‘O And, in
explaining House Bill 1091 on the floor of the House of Representatives, you stated that the bill
“amends chapter 25 of the Penal Code creating an offense to advertise in the public media that a
child will beplacedfor adoption orprovide a childfor adoption.“” Thus at least two explanations
of the bill to the legislature omitted any reference to application of the prohibition to prospective
adoptive parents. While the bill’s sponsor may have contemplated a different construction, when
interpreting a statute a court must seek to effectuate the “collective” intent of the legislators who
enacted it.” In doing so a court normally focuses on the literal text of the statute, which in this case
we think is susceptible to more than one understanding. In light of the ambiguity in both the
wording of the statute and its legislative history, we cannot predict how a court would rule on this
question. Moreover, we believe this ambiguity makes the statute susceptible to a challenge that it
is unconstitutionally vague.

        Criminal laws must give notice to the populace as to what activity is made criminal because
lack of notice poses a trap for the innocent. ” A criminal statute must be clear enough so that a
person of ordinary intelligence is given reasonable notice of what conduct is prohibited.14 It must
also provide adequate standards to those who enforce it so that it cannot be arbitrarily and
discriminatorily applied. Is Furthermore, where the constitutional right to freedom of speech is
implicated, as it is in this case, the law requires a greater degree of specificity than in other
contexts.‘6 We will not predict how a court would rule on this question. We note, however, that it
is within the power of the legislature to avoid constitutional challenges by amending the statute to
make clear its intended scope.

        Your third question is whether a member of the public media commits an offense if it
publishes an advertisement prohibited by section 25.09. You ask us to consider the application of
Penal Code sections 7.01 and 7.02, known as the “law of parties,” in answering this question.
Section 7.01 makes a person criminally responsible as a party to an offense if the offense is
committed by the person’s own conduct or by the conduct of another for which the person is
criminally responsible. We will assume that you are asking about a situation in which an


            10House Cxnm.   on Juvenile   Iustice & Family Issues, Bill Analysis,   H.B. 1091,75tb   Leg. (1997) (emphasis
added).

            “Debate on H.B. 1091 on the Floor of the House of Representatives,       75th Leg. (Apr. 29, 1997) (audio tape
available    from House Video/Audio Services) (emphasis added).

            ‘*Boykin v. State, 818 S.W.2d 782,785    (Tex. Crim. App. 1991).

            “Acosta v. State, 972 S.W.2d 95, 97 (Tex. App.--El Paso 1998, no pet.)

            ‘Long   v. State, 931 S.W.2d 285, 287 (TM. Crim. App. 1996)

            ‘sAcosta, 972 S.W.2d at 98

            ‘6Long, 931 S.W.2d at 287-88 (citing Kramer Y. Price, 712 F.2d 174, 177 (5th Cir. 1983))



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advertisement publisher does not commit an offense under section 25.09 by its own conduct, since
the publisher itself does not seek to place, provide, or obtain a child for adoption, but instead
provides the means of advertising for someone else who wishes to do so. Thus we consider whether
a publishern can be criminally responsible for the conduct of another person who places an
advertisement in violation of section 25.09.

         Section 7.02 makes a person criminally responsible for an offense committed by another if:

                      (1) acting with the kind of culpability required for the offense, he
                causes or aids an innocent or nonresponsible person to engage in conduct
                prohibited by the definition of the offense;

                      (2) acting with intent to promote or assist the commission of the
                offense, he solicits, encourages, directs, aids, or attempts to aid the other
                person to commit the offense; or

                       (3) having a legal duty to prevent commission of the offense and acting
                with intent to promote or assist its commission, he fails to make a reasonable
                effort to prevent commission of the offense.

Criminal responsibility under subsections (1) (2), and (3) of section 7.02 requires criminal intent.”
To be convicted as a party to an offense, it must be shown that the accused knew he or she was
assisting in the commission of the offense. I9 Thus a publisher does not commit an offense under
section 25.09 if it merely publishes an advertisement without knowledge that the advertisement is
unlawful and without intent to promote or assist in the commission of an offense. However, we
cannot determine as a matter of law whether a publisher is criminally responsible for an unlawful
advertisement, since whether a publisher possesses the requisite criminal intent will depend upon
the facts of the particular case.

        Finally, you ask whether section 25.09, Penal Code, or section 162.025, Family Code,
prohibits a person outside of Texas from advertising or communicating by way of Internet
transmissions reaching Texas that the person will serve as an intermediary to bring together a parent



          “We use the term”publisher”   to refer not only to a member ofthe print media, but to any member of the public
media within the Penal Code’s defmition ofpublic media. See Penal Code $ 38.01(10) (defining “public media” as “a
telephone directory or legal directory, newspaper or other periodical, billboard or other sign, radio or television
broadcast, recorded message the public may access by dialing a telephone number, or a written communication          not
prohibited by Section 38.12(d) [prohibiting barratry]“).

         ‘%ee Medrano v. State, 612 S.W.2d 576,578         (Tex. Grim. App. 1981); Horton Y. State, 880 S.W.2d 22,24-25
(Tex. App.--Tyler 1993, pet. ref d).

             ‘?See Amaya v. State, 733 S.W.2d 168,174-75   (Tex. Crim. App. 1986); In re AI.,   868 S.W.2d 938,941   (Tex.
App.--Fort      Worth 1994, no tit).



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and a prospective adoptive parent. Penal Code section 1.04 gives Texas jurisdiction over criminal
conduct if either “the conduct or a result that is an element” of the offense occurs inside the state.
One court has explained:

                Section 1.04 combines subjective and objective territorial principles.                                 -
                Jurisdiction is conferred over offenses commenced within the state but
                completed outside the state (subjective) and for offenses commenced outside
                the state but consummated within (objective).           The primary policy
                considerations underlying section 1.04 are that Texas should have a
                substantial interest in or connection with the criminal event it seeks to
                prosecute and that law enforcement should be facilitated by plugging gaps in
                existing law when a course of conduct goes beyond the boundaries of a single
                state?O

The application of these principles to conduct that occurs via the Internet has not yet, as far as we
know, been tested by any Texas court. The Internet is a conglomeration of technology and modes
of communication that we will not attempt to fully explain in this opinion.*’ We think it is well
known, however, that Internet communications have the capacity to cross state boundaries, even
international boundaries, in an instant. Information that is created in one location may be sent to or
viewed by persons in any location worldwide. Depending upon the mode of communication, the
creator of Internet information may have no control over who views the information or where it is
viewed. For example, if an advertisement is posted on a web page, the page may be viewed by
anyone who accesses that page from any location accessible to the Internet. On the other hand, a
communication might be sent to a particular person, by way of electronic mail, for example, with
the advertiser having full knowledge of the identity and location of the intended recipient. The
possible scenarios under which a person might advertise or communicate by way of the Internet that
the person will serve as an intermediary to bring together a parent and a prospective adoptive parent
are limitless. The facts of each case will have to be examined in an attempt to determine where the
criminal event occurred when the events are taking place in “cyberspace.” We cannot, therefore,
determine as a matter of law whether Internet advertisements or communications initiated outside
of Texas, but received within the state, are within the reach of Texas law pursuant to the authority
of Penal Code section 1.04.

        A more fundamental concern raised by your question, however, is whether the application
of these statutes to the Internet passes constitutional muster. State laws that criminalize certain
Internet communications without regard to where the communications were initiated are subject to


            ‘“McGowan Y. State, 938 S.W.Zd732,734-35    (Tex. App.--Houston    [14thDist.]   1996, pet. granted) (citations
omitted).

          2’For in-depth discussions ofthe Internet and the emerging law regarding state jurisdiction over conduct on the
Internet, we recommend the following cases and publications:      Rena v. American Civil Liberties Union, 521 U.S. 844
(1997); American Libraries Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997); H. Joseph Hamelk          & William Miles,
The Dormant Commerce Clause Meets the Internet, 41-Oct. B.B.J. 8 (1997).



                                                              p.   2869
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challenge on the ground that they violate the Commerce Clause of the United States Constitution.zz
The Commerce Clause empowers Congress to regulate interstate commerce and restricts the states’
power to enact laws that interfere with interstate commerce .‘r It also prohibits states from regulating
an aspect of interstate commerce that is of such national interest that it demands uniform national
treatment, thereby making it solely within the power of Congress to regulate.24

       In American Libraries Ass ‘nv. Patuki,z5 a federal district court found unconstitutional a New
York law making it a crime to use a communications system to transfer sexually explicit materials
to minors. The court examined the nature of the Internet and efforts by states to regulate Internet
conduct and found that such regulation implicates the Commerce Clause. The court explained:

                The unique nature of the Internet highlights the likelihood that a single actor
                might be subject to haphazard, uncoordinated, and even outright inconsistent
                regulation by states that the actor never intended to reach and possibly was
                unaware were being accessed. Typically, states’ jurisdictional limits are
                related to geography; geography, however, is a virtually meaningless
                construct on the Internet. The menace of inconsistent state regulation invites
                analysis under the Commerce Clause ofthe Constitution, because that clause
                represented the framers’ reaction to overreaching by the individual states that
                might jeopardize the growth of the nation-and in particular, the national
                infrastructure of communications and trade-as a whole.26

The court then examined the New York law, which applied to any communication, whether intrastate
or interstate, over which New York had the capacity to exercise criminal jurisdiction. The court held
that the law violated the Commerce Clause, stating:

                [T]he New York Act is concerned with interstate commerce and contravenes
                the Commerce Clause for three reasons. First, the Act represents an
                unconstitutional projection ofNew York law into conduct that occurs wholly
                outside New York. Second, the Act is invalid because although protecting
                children from indecent material is a legitimate and indisputably worthy
                subject ofstate legislation, the burdens on interstate commerce resulting from



          UArticle I, section 8, clause 3 of the United States Constitution     provides:   “The Congress   shall have Power
    to regulate Commerce         among the several States      .”

            ‘3See Gibbons v. Ogden, 22 US. (9 Wheat.)      1,236.37    (1824)

            ?See Southern     Pac. Co. v. Arizona, 325 U.S. 761 (1945) (holding    that state may not regulate   railroad train
lengths).

            I5969 F. Supp. 160 (S.D.N.Y.    1997).

            261d.at 168-69.



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           the Act clearly exceed any local benefit derived from it. Finally, the Internet
           is one of those areas of commerce that must be marked off as a national
           preserve to protect users from inconsistent legislation that, taken to its most
           extreme, could paralyze development of the Internet altogether. Thus, the
           Commerce Clause ordains that only Congress can legislate in this area,
           subject, of course, to whatever limitations other provisions of the
           Constitution (such as the First Amendment) may require.*’

        Penal Code section 25.09, prohibiting adoption advertising, on its face applies to
“communications through the use of the Internet or another public computer network.“** And,
through the application of Penal Code section 1.04, a Texas prosecutor could seek to apply Family
Code section 162.025, prohibiting unlicensed adoption intermediations, to Internet conduct. We
think that a court would consider the American Libraries v. Put& case in determining whether the
application of section 25.09, Penal Code, or section 162.025, Family Code, to Internet
communications is constitutional. However, no Texas court or federal court with jurisdiction over
Texas has yet considered the constitutionality of state regulation of Internet communications, and
we cannot predict how such a court would rule. We can only advise you that this is an issue that
might arise in the prosecution of an offense committed by the use of Internet communications.




        “Id. at 169.

        ‘*See Penal Code 5 25.09(d)(2).




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                                      SUMMARY

               Section 25.09, Penal Code, prohibits any person other than a licensed
          child-placing agency from advertising to place, provide, or obtain a child for
          adoption. Whether a publisher of an advertisement prohibited by section
          25.09 is criminally responsible for the conduct of the advertiser depends upon
          the facts of the particular case. Whether Texas courts may exercise criminal
          jurisdiction over unlawful Internet advertisements or communications
          initiated outside of Texas, but received within the state, also depends upon
          the facts of the particular case. No Texas court or federal court with
          jurisdiction over Texas has addressed this issue.




                                             DAN MORALES
                                             Attorney General of Texas


JORGE VEGA
First Assistant Attorney General

SARAH .I. SHIRLEY
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General




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