f

                  TEE         ATTORNEY    GENERAL
                                 OF 7lxmLls
                               AUSTIN.        TRXA~‘78111


                                    October   25,    1974            .,.I



    The Honorable     Raymond Vowel1                           Opinion.No.        H- 431
    Commissioner,     .Statc Department
    of Publics Welfare                                         Re:      Central       Record File,
    John H. Reagan Building                                             Section       11.17 Family
    Austin,   Texas 78701                                               Code

    Dear Commissioner        Vowell:

        In Attorney General  Opinion H-353 (1974) we answered a number of
    questions growing out of the adoption of the Texas Family .Code and parti-
    cularly Section 11.17 thereof,which  provides:

                Section    11.17.      Central      Record    File

                 (a) Except as provided by Subsection (b)
            of this section,    the clerk of ‘each court having
            jurisdiction   of suits affecting the parent-child
            relationship   shall transmit to the State Depart-
            ment of Public Welfare a copy of the decree
            entered in -each suit affecting the parent-child
            relationship,    together With the name and all
            prior namer,...birthdate,      and place of, birth of
            the child..   The departmcntahall       maint@n    ., .:,._,.~        <
            these recordain      a, central file according   to the
            name, birthdate,      and place of birth of the child,
            the court which rendered the decree,         and the
            docket number of the suit.

                 (b) On entry of a decree of adoption,      the
            clerk of the court ,shall transmit to the depart-
            ment 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


                                                    p. 1992
The Honorable   Raymond    Vowell,   page 2 (H-431)




       shall not disclose any information     concerning
       the prior proceedings   affecting  the child.   Any
       subsequent inquiries concerning the child shall
       be handled as though the child had not been pre-
       viously the subject of a suit affecting the parent-
       child relationship.   On the receipt of additional
       records   concerning a child who has been the sub-
       ject of an adoption decree,    a new file shall be
       made and maintained as other records required
       by this section.

            (c) On the written request of a court,or       of an
       attorney,  the department      shall identify the court
       which last had jurisdiction     of the child in a suit
       affecting the parent-child     relationship  and give
       the docket number of the suit, or state that the
       child bas not been the subject of a suit affect-
       ing the parent-child    relationship.     The child
       shall be identified in the request by name, birth-
       date, and place of birth.      The department     shall
       transmit this information within 10 days after
       the day the request is received and may charge
       a reasonable    fee to’cover   the cost of this service.

           (d) The records required to be,maintained
       by the department are confidential,    and no person
       is entitled to access to or information    from these
       records except as. provided bythis    section or on
       an order of a district court of Travis County for
       good cause.

           (e) The department may utilize microfilm
       or other suitable means for maintaining     the
       central record file.   A certified reproduction
       of a document maintained by the department      is
       admissible  in evidence as the original document.



                                        p. 1993
The Honorable    Raymond   Vowell,     page 3     (H-431)




    You now ask two additional       questions:

            (1) Does section 11.17(b)  of the Family Code
       require the”cl~erk of the court to,forward   t’o the
       Department    adoption records in .those actions
       which were initiated prior to the effective date
       of Title 2 o,f the Family Code and were’com-
       pleted by entry of a final decree after the effective
       date?

            (2) ‘If the answer to question 1 is affirmative,
       must the’ clerk of the court forward ~the records of
       those cases initiated prior to the effective   date of
       Title 2 and completed after that date’,regardless
       of the law applied to the ‘proceedings’?

     Your inquiries  were precipitated  by the refusal of a district clerk to
forward to you a certain record in an adoption proceeding      commenced
prior to January 1, 1974, but not concluded until entry of a final order dated
February   22. 1974.  The final order .included a recitation that,

           to apply the provisions  of the new act
       [Family Code] effective January 1. 1974, to
       the instant proceeding would not be feasible
       and would work injustice. herein,   in the
       opinion of the court and‘judge hereof.

    Title t’of ‘the Family Code was enacted by the 63rd Legislature  in
Acts 1973, ch. 543. effective January 1, 1974. Section 4(a) of that Act
provides:

            This Act takes effect on January 1, 1974, and
       governs all proceedings,       orders, judgments,   and
       decrees    in suits and actions brought after it takes
       effect,  and also all further proceedings    in actions
       then pending, except to the extent that in the opinion
       of the court its application in an action pending when
       this Act takes effect would not be feasible     or would
       work injustice.      All things properly done under any
       previously    existing rule or statute prior to the taking
       effect of this Act shall be treated as valid.
       .   . .
                                            p. 1994
The Honorable   Raymond   Vowell.   page 4        (H-431)




    We believe this language is clear and unambiguous.       The Title 2
provision applies to all suits and actions brought after January 1. 1974.
As to those pending on January 1, 1974, such as this case, Title 2
applies unless the court is of the opinion that its application ,would not
be feasible or would work an injustice.

     Quite obviously the drafter of the February 22 order was Familiar
with the provision of Section 4(a). of the Act.   We find the conclusion
inescapable   in this case that the clerk is not compelled to eend the
records of the 1973 proceeding.      Thus, our answer to your first question
is in the negative.   Since the answer to your second question is contingent
upon an affirmative    answer to the first, we need not answer 'it.

                       SUMMARY

            Proceedings   for adoption are subject to
       Title 2 of the Texas Family Code, even if
       commenced     prior to its enactment so long as
       the court does not find it:infeasible to make
       them so applicable or that it would work aa
       injustice.

                                      Aery      truly yours,




                                       Attorney    Genera!     of Texas
                                         ‘,




DAVID M. KENDALL,       Chairman
Opinion Committee
                                      p. 1995
