The Honorable Joe Resweber                            Opinion No.    H-   466
Harris County Attorney
Harris   County Courthouse                            Re: Time at which district
Houston,   Texas  77002                               clerk is required to forward
                                                      file in adoption case to Depart-
                                                      ment of Public Welfare.

Dear Mr.      Resweber:

            You have asked our opinion on four questions involving          the
duties     of the District  Clerk in adoption cases under the Family         Code.
Your     first question is:

                    Is the District   Clerk required to transmit adoption
                    proceeding    case files to the State Department of
                    Public Welfare?

          Section   11.17(b)   of the Family   Code provides   in part:

                        eon entry of a decree of adoption,      the clerk of
                    the court shall transmit to the department the
                    complete file in the case, including all pleadings,
                    papers,   studies,   and records in the suit other than
                    the minutes,of    the court.   When the department
                    receives   the complete file, it shall close the records
                    concerning    that child; and except for statistical
                    purposes,    it shall not disclose  any information
                    concerning    the prior proceedings    affecting the
                    child.

           We. believe the language of the statute clearly requires the district
clerk    to transmit the complete files of adoption cases to the.Department




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The Honorable    Joe Resweber       page 2      (H-466)




of Public Welfare.      The Legislature   chose the word “shall’! to delineate
the duty of the clerk.     “Shall” ordinarily is used to indicate a mandatory
requirement,    it wil~l be presumed to be used in the imperative     sense
unless the context indicates otherwise.       Attorney General, Oninion H-326
(1974).   Here the statutory scheme compels the conclusion        that the
Legislature   intended to impose a mandatory duty on the clerk to transmit
the files to the Department.

        Y’our second   question   asks:

                 At what point in time after the entry of the adoption
                 order should the files be transmitted  to the State
                 Department   of Public, Welfare?

          The statute indicates that a file is to be transmitted         to the
Department       “on entry of a decree of adoption. ” As a general’ rule
of statutory     construction   a statute prescribing     the time of an action
by a public official is directory       rather than mandatory as to the time.
Federal Crude Oil Co. v. Yount-Lee            Oil Co.,    52 S. W. 2d 56,61 (Tex.
Sup. 1932); State v. Fox, 133 S. W. 2d 987, 990 (Tex. Civ. App. --Austin
1939, writ ref’d); Texas Department          of Public Safety v. Dawson,        360
S. W. 2d 860 (Tzx. Ci.v. App. --,Dall,as 1962, no writ): 67 C. J. S.,
Officers     $114; 2A Sands, Sutherland Statutory Construction          5 57.19 (4th
ea.).    A statute indicating that action is to be taken “on” the occurrence
of a certain event has been~interpreted         to mean that the action is to be
taken within a reasonabl,e time of the event.           County of Platte v. New
Amsterdam        Casual~ty Co.,   6 F. R. D. 4’75 (D. Neb. 1946); Masters        v.
McHolland,       12 Kan. 1’7 (1873).   We believe,    therefore,   that the clerk must
forward the files to the Department within a reasonable             time of .the entry
of the decree.       Since the clerk has statvtory duties to~perform when an
appeal is pursued or other chall,enge to the decree is made, and since he
generally     mu.st have possession     of the file in order to perform those duties,
we bel.ieve it would not be unreasonable         for him to retain the files while
he is ful.filli.ng his statutory dukies i,n c,onnec:ti.on with any appeal,       If an
appeal is taken, in the normal.case         a motion for new trial or a notice ot
appeal will be filed wi.thin ten days of the entry of the decree.            Texas
Rules of Civil erocedure.         Rules 32913, 353.      We cannot say it would be




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    The Honorable   Joe Resweber        page 3   (H-466)




    unreasonable     for the clerk to delay forwarding the file for ten days until
    he determined whether an appeal would be pursued.           This is not to say
    that he ‘may hold the file until any possibility    of an out of time appeal
    or of collateral    attack is exhausted.   If that were permitted he could hold
    the file for as long as two years,     a period which almost certainly would
    be determined      to be unreasonable.   -See Texas Family ‘Code, section 16.12.

             If the clerk does send the file to the Department  of Public Welfare
    and.an appeal or collateral   attack is subsequently filed, there is a
    statutory procedure    by which he can recover the file.   Texas Family
    Code, section 11.17(d).    Under that section he may be given the file on
    an order of a district court   in Travis County for good cause shown.

            Your final question   is:

                    May the District Clerk furnish certified copies
                    of the Court’s Minute Records of an adoption
                    proceeding   to persons who request such copies?

        We have found no prohibition of a furnishing of a certified copy
of the court’s minute record of an adoption proceeding.    However,   in
his commentary    to the Family Code, Professor    Joseph M&night   said:

                    ~Numerous lawyers complained         that the confidentiality
                    provisions    in Tex. Rev. Civ. Stat. Ann. ‘art. 4ba were
                    ineffective   because of the accessibility     of the adoption
                    files in district clerk’s   offices throughout the state. To
                    avoid this problem,     subsection(b)   [of 5 11.171 provides
                    that the complete file, other than the minutes of the court,
                    is to be transmitted    to the Department,.     where records are
                    sealed.     Because the courts’ minutes include the judg-
                    ment, good .practice will be tQ omi.t the parents’ and
                    chi.ld’s names.     [5 Texas Tech.    I+w Review 281, 412
                    (197411.

        It i.s therefore our opinion that a certified copy of the court’s
minute records may be furnished,      but the better practice is to omit the
parents’ and child’s names from the minutes.




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The Honorable   Joe Resweber      page 4   (H-466)




                                 SUMMARY

                     The district cl,erk is required to.furnish the file
                on an adoption case to the Department      of Public
                Welfare within a reasonable     time of the entry of an
                adoption decree.     Normally  it will not be unreasonable
                for a clerk to retain the file for ten days after entry
                of the decree and for the time necessary      to perform
                his statutory duties &ring the pendency of an attack
                on the decree.

                                                 Very   truly yours,




C. ROBERT HEATH,    Chairman
Opinion Committee :


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