                                        .GENERAL




 Hon. Geo. Y. Cox           ‘, Opinion NO. o-1278
:State Health Officer,         Re:    Should the State Registrar  file
 Austin, Texas.                 and record an adoption decree in a
                                case where the petitioners   for adop-
                               .tion are Negroes land the children to
                               be adopted are shown~by their birth
Dear Mr. Coxr                “certificates    to be white.
          Pour letter  of August 15 addressed to the Attorney
General, in which you request the opinion of this department
upon the above captioned question,  has .been received.
             In order that the facts upon which you desire such
opinion    may be fullydisclosed,   tie quote from your letter as
follows:
           “There has been. submitted to the State .Regis-
      trar an ,adoption decree to be filed under Rule
      478, Article  6677, RX.&,    as amended in 1939.
            “According to the adoption decree   NO. 258744,
      issued by the Dlst~rict Court, Tarrant Eounty, Texas’,
      96th Judicial   Mstrict,~ Antonio Maceo Johns and
      wife, Mary~White Johns, adopt Antonio Mac.eo Johns,
      Jr., and Mary Louise Johns.
            ~l’According to the affidavits   of Cecil F. Hubbert,
      these two children are the children of .Zada Hudson
      Oxford.    According to the certificates    filed by A. M.
      Johns, the adopting, father,    he land his wife ar,e ne-
      groes, while according tomthen original     birth certifi-
      cates of the two~children,     born on June 28, 1937, to
      Zada Hudson Oxford,, these two children are white.
            “I’have ,before me Section 8, ‘Article 46A, R.C.S.j
      and I am asking your advice asp to whether this adop~,tlon
      decree could be ac~cepted by the State Registrar     and
      should a certified    copy of the records be issued.
            l*Photostatlc copies of the adoption decree; the
      birth certificat,es  filed by A. Mu.Johns, the affidavit
      made~by Cecil M. Hubbert, and the original   birth rec-
      ords filed with the States Bureau on July 12, 1937, are
      enclosed.”
                                                                          ..



Hon. Geo. W. Cox, page 2         (O-1278)


            The certificates    enclosed with your letter,   and re-
ferred to therein,     disclose  that the children in question are
twins, and that they were born of yhlte parents, namely,~,Zada
Hudson Oxford, mother, and Marion Oxford, father,        and that
the petitioners   named in the adoption proceedings      are negroes.
             Section 1 of Article      46a, Revised   Civil   Statutes,
provides,    in part, as follows:
               “Any adult resident  of this State may petition
        the District    Court in the District  of his residence
        or in the District    of the residence  of the child
        to be adopted for leave to adopt a minor child;       such
        petition   shall set forth the facts relevant to pe-
        titioner   and child,  and be verified  by the affidavit
        of ,the petitioner.   . .‘I
              Section   8 of Article   46a, Revised   Civil   Statutes,
reads    as follows:
              “No white child    can be adopted by a negro per-
        son, nor can a-negro     child be adopted by a white
        person.”
           The facts regarding the race of petitioners     in the
adoption proceedings   and of the minors who were purportedly
adopted are not disclosed     in the court’s decree, and it may
safely be inferred   that such facts were unknown to the judge
presiding.   The only material question,, therefore,   which arises
Is as to whether or not this decree is void and that it ~maybe
so shown by facts outside the record in a collateral     attack on
the judgment . You are advised that it is the opinion of this
department that ‘the decree is absolutely    void, and that the
facts which make the judgment void may be shown dehors the rec-
ord in a collateral   attack.
            The hticle   of the statute just quoted is mandatory,
which means that a District    Court is absolutely  forbidden by
the provisions   of this statute to render a decree of adoption
in a case where the petit,ioners    are Negroes and the children
to be adopted are white persons.      Errors committed by a court in
pronouncing a decree in respect to a matter which the court is
forbidden by law to adjudicate    is fatal to the judgment, for the
reason that the court, did not have the judicial    power to render
the decree which it did render, and notwithstanding      that the
facts which made the judgment void were unknown to the court.
          Usually a decree rendered by a court of competent jur-
isdiction is immune to collateral   attack.   This rule is subject
to well defined exceptions,   and one of these is that the rule
does not obtain when a court of general jurisdiction    exercises
-       -




    Hon. Gee. W. Cox, page 3          (O-1278)


    special powers or limited jurisdiction       with respect to certain
    particular    subjects.    Examples of these are judgments of a dis-
    trict   court removing the disabilities     of minors or marrled
    w omen. In this case the court, in pronouncing the decree of
    adoption, was exercising      a special or limited jurisdiction,   and
    all the facts which called into existence        the power of the court
    to render such a decree must be shown in the record in any
    event to entitle      the judgment to the usual presumptions of verity.
               In this, case the judgment not only d?.d not disclose         the
    race of the petitioners     or of the children to be adopted, but it
    did not set forth the residence      of the petitioners     or of the said
    two children;   whereas, the exhibits    attached to your letter      indi-
    cate that the petitioners     resided in Harris county and that the
    minor children resided in Upshur county at the time the decree
    was rendered.    The failure   of the decree to recite      these juris-
    dictional  facts is merely an additional      reason for holding that
    the decree is subject to collateral      attack, and is in no wise a
    limitation   upon the doctrine well supported, by authorities       that
    a judgment forbidden to. be rendered by positive        law, or one ln
    which the court .was without judicial     power to act, is absolutely
    void end may be shown so to be at any time in a collateral           attack.
    This doctrine is well stated in Freeman on Judgments (5th Ed.),
    Section 354, from which we quote as follows:
                   “This well-established       doctrine    that a judgment
            beyond the court’s     power is invalid,        is not limited in
            its application     to any particular       kind of judgment
            nor is it peculiar to the judgments of any particular
            court.    Irrespective    of the character        or dignity of the
            tribunal pronouncing the decision,            whether of inferior,
            limited or superior general jurisdiction,             it must con-
            fine its determination       within the authority        it possesses
            under the law and the case.          If the court is exercisk
            soecial   statutorv oowers the measure of its authority
            j.s the statute itself.       and a j-t           in excess thereof
            IS null and void and subject t collateral               attack? a
            rule which fj.&ts freauent aaolication            in the case of
            probate .ludsments.”       (Italics    ours.)
               The Supreme Court of Texas has announced the same doc-
    trine in several well considered  cases.   Among these is Cline v.
    Niblo, 117 Tex. 474, 8 S.W.(2d) 633, 66 A.L.R. 916, in which the
    Court held a judgment of a county court to be void and subject to
    collateral  attack which undertook to direct the sale of a home-
    stead of a deceased person for the purpose of paying the ordinary
    debts of the intestate.   The Court, speaking by Cureton, C.J.,
    said:
Hon. Geo. W. Cox, page 4       (O-1278)


                "It is too plain ~for argument that a probate
         court.iu    dealing with the subjectof     the sale of a
         homestead is not acting under Itsbroad        general
         powers as a probate court, In aid of which the usual
         p~esumptlons apply, nor under its common law powers;
         but is acting within a specially      limited field of
         jurisdiction     declared by the Constitution   and stat-
         utes.     These limitations  are binding on the courts,
         and they have no jurisdiction     to order the sale of a
         homestead except within the limitations       permitted.
         So, then, under the general rule, the jurisdiction
         of a probate court to sell a homestead must appear
         of record,    or the facts may be shown in another forum.a
          See also Grant VS. Ellis  (Cotutu.App.) 50 S.W.(2d)     1093;
State Mortgage Corporation vs. Traylor,   120 Tex. 1481, 36      8.W.
(2d) @tOj Templeton VS. Ferguson, 89 Tex. 47, 33 S.W. 329;        Easter-
line vs. Bean (Comm.App.) 49 S.W. (2d) 427.    25 Tex.Jur.,      Sec.
322, P. 838, and Sec. 335, p. 873.
              The adoptiou decree in question being void for    all   pur-
poses,     we advise that you refuse to register  the same.
                                     Yours very truly
                                      ATTORNEY
                                             GENWALOF TEXAS
                                     By /s/ Wm. F. Moore
                                     Wm. F. Moore, First Assistant
 APPROVED BUG24, 1939
/s/ Gerald C. Mann
ATTORNEY  GENERALOF TEXAS
APPROVED:OPINION COMMITTEE
BY:     BWB, CHAIRMAN
WFM:FG:wb
