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