        THEA-ITORNEY      GENJSKAL
                 OF TEXAS
                   Auwrm II.TRX~W
                     March 18, 19157


Honorabie Wade F. Spllman, Chainman
.JudlolaryCommittee
E&si,.of Repreaentatlves
Austin, Texas
                                       W-35
                            Oplnion~lo..
                                           ,.~,,.
                            Rer done~l~~,tlon~llty.of
                                H;'~B;-'1~~~0;'author-
                                .l?L3.ng
                                      re90JIery.
                                               OS
                                cirrlldamage& .from
                                parj?ntaduyto wll-
                                $ul .damageordes-
                                truotion of property
                                b.yminors u&er  18
                                yeazkof ag8, living
                                with parents..
Bear Hr. .Spllmanr
        You have pequested aq,opLnlon aa:tp.the       ootietl-
tutlonallt~ of House Sill.IzO;,rlh*h ~uthorlsem any
propert 'ornor-to~reoowrdamagemln &~mount~not to
bxoeed:3 3OO;OO from rents 'oilMy d~or.mader          thcage
of 18 years,~living.rith_parenta;:-:*ho~:maliaiouely     or
wllfully damage8 :or:dest~yby8    ~opartp;.:~re8l,:~personal,
or mixed.,  .belonglng:.$o.su~h. ~er:.;i‘~~lp~t~lL~,~b~lts~
 eoovery'to~.aot~l.damagS~'in'~~~~o~t:n?~:~;~o--exoeed
f300.00 In additlon:to'ta*able.-oourt:.o~et?,      aqd,:fur$her
&ate8 that'the aotion atithorlzed'ia      thls:blll~is to be
Iiiaddition to all dther aotiona'iihioh'tbsiowner-io
iMitltl*,d~tcj@tit&w;,':it:wMg;the: puirpob@     ~fbf'
                                                     the:bill
to glpthor$.ze reooiikir;y~Roni parenti Ql Iripiatlon~dyme
they nould'.'irot'othdti6s.be    liable. ~49u1~.15111b$e(ilfl-
O$llf'stateitha~n~thiiig-In,the~~~:bil~.   aha~l:@reoXude
reooiery in'a.~eatqr.:anotlit'.tSlom:.~‘~~O~       or:+dy:~'other
I#rron; fdr da~gbs~t~~~~loh"~uoh.rlnorsor.other person
would otherwlee be'llable.
       At common law it ;a well tistabkihed.thatthe
541% relatlonahlp of parent and ohlld liuporrer
                                             on the
ment no llablllty'forthe torte of the ohlld. 67 C.J.S.
      95:Chahdler v. Beaton 8pp. Ct. Tex., 37 Tax. 406
g&21.    31 Tex. Jur. page s   .
 Hon. Wade F. Spllman, page 2:   w .-:;:,

        An act making parents liable for the torts of
 their minor children has been In effect In Louisiana,
a civil l&w state, for a number of years, and other
states governed by the common law have enacted similar
statute8 in reoent years. House Bill 170 la patterned
after a slmllar act recentlv enaoted In MIohltin. Fub-
1Z.c& Lboal Acts, Michigan (1953), Act.45, page 40.-
"The olvil law lIabllItg upon parents oovers all tortlous
acts of the child, Intentional or negligent,,and Is pre-
dicated upon the parent-child relatlonshl
    Cower 25 So 2d 99 101 (Louisiana l&i). 'N
?iikl&pr.,    paie 300.' One common law state has held
that "custody of the minor Is the foundation of llablllty"
under a statute making one who has custody or charge of a
minor liable for lrilurlescaused by the mlnor(s negligence
while driving an au&mobile.    Blspfiamv. Mahoney, & al,
Superior Court of Delaware, 183 A. 315, 31b (1936). There
are few oases, and In some states no cases, construing
these statutes. Some of the more Important acts have been
so recently enacted that there has been scarcely enough
time for a decisidn. 30 Notre Dame Lawyer, page 299, n. 24.
       Parents have custody of minor children who reside
with them, and are charged by law with the obligation to
shield and poteott such children, to provide them with
suitable shelter, food and clothing until they become
self-supportlng~,and In cooperation with the,State to
srlde   proper education. 31 Tex. Jur. pages 1280 and
     . They are the natural guardians of the person of
their children, and are responsible to,the State for
their well-being. Even though criminal llabi$Ity for
fillure to support minor children (Article 602, V. P. C.)
Is limited to children under 16 years of age, and clvll
llabIllty to make periodic payments for the support of
mInor.chIldren after a divorce granted to parents (Art-
icle 463ga, V. C. S.) Is limited to children under 18
years~of age, under the common law the father Is still
liable to third parties for necessaries furnished his
minor child, either male or female, until the child
reaches the age of'21 years, except wh&re the female
child-has legally married. Mor an et vIr v. Drescher
Ct. CIvi App. Tex. (Galveston      S W 2d 4tN 194
Du Pre.v. Du Pre Ct. Clv. A$zx.'(Dallas)      27: S.?:
   82   81   14      McGowan v. McGowan Ct. Clv. App.
Tex. ~lk.3Wo~t~~ ?+3 3. W: 2d bbU, b59 11954).
       These obligations and 1Labllitles of parenthood
are Imposed both by statute and by the common law. Par-
ents have a duty to guide their offspring. State v.
Deaton, Sup. Ct. Tex., 93 Tex. 243, 54 S. W.mgOO).
m      order to exercise his control a parent mar moder-
ately chastise a refractory and disobedient child In his
custody. Certainly, this lrn~~llesa duty to teach minor
Hon. Wade F. Spllman, page 3:   w-35

children
 _       respect^ for._ the -.
                            law,_ Including
                                  .__       respect for
tne property or otners. me bill merely lmposes an
additional llablllty on parents of minor children under
18 years of age, living with parents, who have failed
to teaoh their chlldrema respeot for the rights of
others. It changes the oominonlaw rule,~which the
Legislature has a right to do, If not otherwise repug-
nant to the Constitutions of Texas and of the United
States. &&oust& PlwlIne Comnanv v. Beaslev. Ct. Clv.
App. Tex.7 iaveeon,
           o-11932).           . .
House Bill 170, therefore.,doee notviolate Seotlon 19,
Article I, of the Constitution of Texas.. '~
       Seotlon 3, Artlole I, of the CorietItutlonof
Texas, guarantees to all persona equality of rights,
and the 14th'Amendment.to the Constitution of the
United States aeourekto every person equal protection
of the laws. If unjuetior.arbitrary dleorImInatl6n Is
the result of the applloatlon of a law, it will be held
to be unconstitutional.
       An act.18 not~open to &bjeotIon If all who are
brought tinderIt8 Influenoe are treated alike In the
same olroumstanoes. But a law will be held Invalid
If It selects particular lndlvlduala from a.olaas and
Impose8 upon them speoIal'oblIgatlons br ,burdens from
whloh.,'othere
             ln .the.eameclkae,'&re'exempt.'9 Tex. Jur.
sec. 117.  The Leglalature.may olaselfy etibjectsof
legislation, and an aot will be held to be oonstltu-
tlonal If It applles.unlformly.to those who are within
a partloular class..,The burdens Impotied.mustapply
Impartlallg to all .oonetItuente of the olaas, and the
law must..operate'equallyand uniformly upon all persons
In similar clroumstances. 9 Tex. Jur:~eeo. 119.
       who conatItutee.the class ,upon:whom llabIlItg Is
sought to~.be.Itiposed
                     bx H. B. 1707 ,Not all parents, but
only those parents ~of minors uriderthe-@e of 18 years,
living with parents." .The aot thus appears to be fotind-
 d    th       t 1 relationship plus oustody of the minor.
&'"io gt?.?k%her      way it placea a lIabIllty upon par-
e&s as such, and.then eximpte those parents who do not
have custody of their minor ohlldren. Exempt are parents
whose children live with others,.'~ardlans of mlriorchlld-
ren;,and relatlvtis(other than parents) with whom minor
children reside, eto. If a parent had a ohlld that he
could not or would not control, he could send the child to
live with relatives. Then the parent would not be liable
under this bill, nor would the relatives with whom the
child resided. 43 California Law Review 874.
 Hon. Wade F. Spllman, page 4:   MM-35

       If the llablllty is to be imposed because of
parenthood;then the bill doea not apply equally to
all parents, since those who do not keep their ciilldren
at home are exempt; If the liability la to be Imposed
because of ouatody, the bill does not lnolude others
who have parental authority, rights, duties, and lla-
bllltles.
       In schrlmpf v. Settegaet, Sup. Ct. Tex., 36 Tex.
296 (18711, where a farmer had takhn two orphan boy8
into his home, reared and eduaated theni'tothe beat of
his ability, but had never adopted them, the court, in
dlsoueslng the relatlonahlp between the two'boya and
the adult person with whom they lived, said,
             4. . . a pereon who had;throtigh
       motives of kindness or aharlty,'rbo~lved
       an orphan child,into hie family, whether'
       It be a eteD-child or an entire atranner:
       and treated-It a8 a member of hi8 f&$y;
       a8 standing in loco Darentls, ab long a8
       such ohlld should Bee fit to remain in
       euclifamily, or 80 long aa'lt should be
       permitted thus to remain; and whlle.the
       relation ehould exist, the party who
       stood in 'loco Darentls would be'bound
       for the maintenanoe, care, and eduoation
       of such ohlld,. . . .'I
       Saunders V. Alvldo & Laserre et al, Ct. Civ. App.
Tex., 113 S. -1,            was a oaae where
                                       whc    an adult
Ulster had raised
           I      her orphan minor brother, who lived with
her. In dlscuaelng the adult alater    right8 and duties,
the aourt
    aourz said;
          aala;

             'The rights and ,dutletiof one standing
       in 1000 pare~tlsaeem to have b&en uniformly
       hald b the oourta to be the same as thoae
       of the'parent by reason of such relationship
       would under elmllar~clrcumatanoe~ accrue to
       one standing in loco Darentls.
             "Under these facts, It le the duty of
       plalnt$ff      adult sister7 to look after
       the moral          of.aaid-mindr, and ah&
       hae the legal right to keep him away from
       temptation."
       It thus follow8 that the,rights, duties, and liabll-
Ities of parenthood can fall on persons other than natural
parents, where such other person haa lawful custody of the
minor child. Ii.B. 170 should either place the llablllty
on parents a8 such, without exception; or should Include
,Hon. Wade F. Spllman, page 5:   WW-35

all thoee Who have custody of minor children. It Is
the opinion of~~thlaoffice that Ii.B. 170; 'as presently
tirltten,Is unconetltutlonal for the reason that the
claae%floatlon of'the peraorieto bi held liable for
damages Salle'to op6rate.'equeJlyand uniformly upon all
persona in similar ciroumetancea.

                       SUNNARY

             HoliaeBill No. 170, &uthorl%lrig
             redh+ery of civil damag&ti'flrofi
             parentisdue:t'oirllfulda&g@'&
             debtructlbtiof prop&-ty bk nilnors
             tinder18 jeara of'&ge;~living
             with parents, ia unconatltutional.
                                 Yours   very   truly,
                                 WILL WILSON
                                 Attorney General




                                    Aseletant

REF:kh
APPROVED:
OPINION COMMITTEEi
II. GrtidgChandler
Chairman
