The Honorable Ralph Prince                       Opinion No.   H-   221
Criminal District Attorney
Gregg County                                     Re : Persons   other than a Aicensed
P. 0. Box 2403                                   agency who may place a child for
Longview,  Texas     75601                       adoption under Article 695c, V. T.
                                                 c. s. , as amended,  1973, and Texas
                                                 Family Code, Title 2.

Dear Mr.   Prince:

       Referring    to the enactment by the 63rd Legislature    of amendments   to
Article 695c, V. T. C.S.     (Acts 1973, 63rd Leg.,   ch. 340, p. 767) and specific
provisions    of the newly adopted Title 2 of the Family Code (Acts 1973, 63rd
Leg.,    ch. 543, p. 1411), you have requested our opinion as to whether lawyers,
doctors,    clergymen    and other similar persons,   who assist in the placing of
a child for adoption without the participation    of a licensed child placing agency,
commit :misdemeanors.

      Article 695~. V. T. C. S., the Public       Welfare   Act of 1941, provides   in
Subsection 2 of 9 g(a) of that Act:

                   “(b) Child Placing Facility.     Every person . . .
            whether operating for profit or without profit,      . .
            who shall place any child or children who ara under
            the age of sixteen (16) years,     whether occasionally
            or otherwise,    away from his own home or relative’s
            home,    shall obtain from the State Department     of
            Public Welfare a license to operate as a child-placing
            agency.      . except that nothing in this Act shall prohibit
            a natural parent from, &aci.ng his own.child or .prohibit
            a~.Sra&parent,’ ~unak&‘:aunt; kegal .gua.rdisn,: brother’
            or sister,   having rttained.tbeir   majority,  from pl,aeing
            a child under the age of sixteen (16) years in the home




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        The Honorable       Ralph Prince,   page 2        (H-221)




                     of relatives or in a licensed institution, agency,               or
                     facility coming within the purview of this Act.

                            “(c) Adoption.    Every person.     . , whether
                     operating for profit or without profit,    other than
                     a natural parent, who shall place any child or
                     children under the age of sixteen (16) years for
                     adoption, whether occasionally      or otherwise,    shall
                     obtain a license to operate in child-placing      from the
                     State Department     of Public Welfare.   . . . ”

               Subsection    l(f) of the same   section    defines   “Child-Placing        Activity”   as
        follows:

                          “Any person who arranges for the placement
                     with a third party of a child not related to him, or
                     aids or abets in such placement,     shall be deemed
                     to be engaged in child-placing   activity. ”

                Attorney General Opinion WW-94    (1957), interpreted   these provisions
        together with the prior statute governing adoption, Article 46a, V. T. C. S.
        It was held that a natural parent could not delegate authority to place a child
        for adoption except to a licensed child-placing   agency,   and that a third person
        attempting to place a child without a license clearly violated the provisions     of
        Article   695~ $ 8a. Subsection 2(b).

               These provisions  do not appear to have been judicially   construed, but
        Professor   John R. Wilson of the Baylor University  Law School faculty,    in
        an article entitled “Observations  on Current Texas Adoption Laws and Practices.                        ”
        22 Baylor L. Rev. 473, 490 (1970) reached the conclusion      that:

                            “These provisions     work an obvious curtailment    to
                     the heretofore   traditionally   accepted function of the
                     lawyer in the practice of adoption.      It is evident from
                     the foregoing that an attorney cannot legally function
                     aa a child-placing    agent unleaa:




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The Honorable    Ralph Prince,    page 3       (H-221)




                   “(1) he is licensed as such by the Department
             of Public Welfare. (a more classic   example of built-
             in conflict of interest could hardly br conetructed),
             or

                    “(2) th,e child involved     is at least   16 years   of
             age,   or

                    “(3) the child is a relative     of his,   or

                    “(4) the natural parent or parents identify or
             otherwise designate the adoptive parents and thus
             qualify as the placement    instrumentality. ”

      The 1973 amendment to Article 695c, supra, made no substantive
change in this law except to amend Subsection 12 of $ 8a of the Act so as to
make it a misdemeanor     to conduct a child-placing agency or to place children
for adoption without a license.

       Your letter requesting our opinion states that Title 2 of the Family Code,
supra, “appears to contemplate     adoptions arranged without the participation
of adoption agencies--or   what we have always called ‘private adoptions. ’ I’
You cite to us 5 $15. 05 (b), 15. 03 (c)(l), 16.05 (a) and 11.12 to support your
conclusion.

        Title 2 of the Family Code expressly      repealed Article 460, V. T. C. S,
 which heretofore     governed adoptions.    Chapter 15 deals with termination      of
 the parent-child    relationship,  axd Chapter 16 deals with adoption.       The
distinction    of the issues of termination  of the parent-child   relationship   and
that of adoption and the provision     for separate proceedings    for each issue are
 the major innovations of these chapters of the Family Code.           See Family Law
 Section,   State Bar of Texas.    Summary and Analysis of Texas Family Code
 Title 2: Parent and Child, Ii. B. 73 and S. B. l6Spp.        2-3, 12-14 (n. d. , circa
 1973).

        We perceive  no conflict between the new Family Code provisions      con-
cerning adoption and the requirement     of Article 695~ that moat child-placing
activitier be licensed.




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 The Honorable    Ralph Prince,     page 4       (H-221)




       Chapter 15 of the Family Code provides for termination               of the parent-
child relationship     if the court finds that termination      is in the best interebt of
the child.    $ $15. 01, 15. 02(2).    Termination    of this relationship     is a prerequisite
to adoption,    § 16. 03(b).   If a termination   order is entered as to both parents,
or the only living parent,       the court is required to appoint a “managing          con-
servator”    of the child, 5 15. OS(b), whose duties, privileges,          rights and powers
are essentially    parental and are set out in $14. 02(b).         The managing con-
servator has “the power to consent to the adoption of the child and to make
any other decision concerning the child that a parent could make” where the
parent-child    relationship    has been terminated.       $14. 02 (b)( 8).

        Section 15. 03 (c)(l), to which you refer,  provides that in a voluntary
relinquishment     of parental rights, the parent’s affidavit may designate “any
qualified person, ” the State Department      of Public Welfare,     or any licensed
agency as managing conservator.         However,   the Court   is not bound by the
parent’s   designation   of the person or agency.    $14. 01(c).

        Section 15. 03( c)( 3) further provides that the affidavit may contain “a
 consent to the placement of the child for adoption by the State Department          of
 Public Welfare     or by an agency authorized by the State Department       of Public
 Welfare to place children for adoption. ‘I By clear implication,        this provision
 limits the parent’s    voluntary delegation of consent to place a child for adoption
 to the Department     or to an authorized child-placing    agency,  and restates
 preexisting   law.   Section 16.05 (a) requires   that, if a managing conservator
 has been appointed, his consent to adoption generally        is necessary.    This
does not authorize him to act as a child-placing       agency except insofar as his
 rights are set out in $14. 02(b).

       Section 11.12, which you cite, simply continues the requirement    of an
investigation  in adoptions, as in prior law, Art. 46a. 5 2 V. T. C. S. While
the court may appoint “any person I’ to conduct the social study, there is no
indication that the managing conservator    and the investigator should be the
same except when it is an authorized agency,     § 11.12(c).

       While we conceive that an attorney,  doctor,  or clergyman  may be
appointed by a court as managing conservator     and, as such, exercise  the
same rights in adoption of the child that the parents might have exercised,
it would be as parent that he would exercise   those rights and he would have




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                The Honorable     Ralph Prince,     page 5     (H-221)




                them only by court order.         We do not believe      that this is a traditional
                “private adoption. I’

                       An attorney may provide legal assistance        to a parent in the exercise
                of the right to place a child for adoption.    However,     the attorney is subject
                to the licensing  requirements   and penalties of Article 695c, as amended,
                if he engages in any other “child-placing     activity”,   beyond mere legal repre-
                sentation,                               ,L.                                *I

                        Under the existing law children under 16 may be placed for adoption
                bf natural parent, by a relative in some instances,        or by a licensed agency.
                 Where authorized by court order,         a managing conservator      stands in the
                 shoes of the parent.     An attorney,    doctor or clergyman    who does not occupy
                 one of ‘these positions,   i. e. , who is neither parent,   relative,   licensed nor
                 appointed managing conservator,         will now be guilty of a misdemeanor      if he
                 places a child for adoption.       Furthermore,   if he assists   another who is
                 equally unauthorized he may be responsible         for the acts of that other under
                 Subchapter A of chapter 7 of the Penal Code of 1973.

                                                       SUMMARY

                              Children may be placed for adoption by a natural parent,
                       by a relative with other relatives, or by a licensed agency.  When
                       authorized by court order,   a managing conservator stands in the
                       shoes of the parent.

                              An attorney may provide legal assistance   to a person
                       authorized to place a child for adoption, but is not otherwise
                       exempt from the misdemeanor     penalties for unauthorized    child-
                       placing activity, or complicity therein.

                                                                Aours          very   truly,




                                                                    JOHN L.      HILL
                                                                    Attorney     General       of Texas




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            The Honorable   Ralph Prince,   page 6   (H-221)




            Opinion   Committee




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