Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL
OF TEXAS

AUSTIN, T-s VS’7ll

July 24, 1974

The Honorable Raymond W. Vowell, Opinion No. H- 353
Commissioner
State Dept. of Public Welfare Re: The Responsibility of the
John H. Reagan Building Department of Public Welfare
Austin, Texas 78701 under Title 2 of the Family
Code.

Dear Mr. Vowell:

You have asked our opinion on 23 separate questions. involving your
Department’s responsibilities under Title 2 of the Family Code. Your
first question is:

Does the general rule and regulatory authority
contained in Article 695c, V. T. C. S., authorize
the State Department of Public Welfare to make
rules and regulations to carry out ite responsi-
bilities as set out in Title 2 of the Family Code?

We have carefully studied Article 695c, V. T. C. S., and although
it discusses rule-making authority, its references are to detailed and
specific rather than general powers. In fact we found 29 separate references
to rules and regulations in that Article. See Article 695c, 9 § 3(2), 3(3),
4(10), 6Ab), 6-4(b), bA(d), 7A, 8(a)2(4(2), 8W3, 8W7b), 8(a)% 8b)9ab), 143
16, lbB(l), 16B(4), 17A(2), 18, 18A(l), 18A(2), 19, 29, 33(2), 38(2).and 41, .
V. T. C. S.

Although we have no specific rules and regulations before us, we
are confident that Article 695~‘s numerous grants of the rule making
authority will provide a basis for many types of rules to govern the

p. 1644
 The Honorable Raymond W. Vowell, page 2. (H-353)

Department’s administration of its varied responsibilities under Title 2
of the Family Code.

Furthermore, the Department does have general rule making
authority under another statute. Article 6252-13 $2, V. T. C. S. provides
in part:

Set 2. In addition to the rule-making requirements
imposed or authorized by law:

(a) Each agency shall adopt rules concerning the
formal and informal procedures, including rules of
practice before the agency. Such rules may include
forms and instructions so far as deemed practical.

Without having specific rules to consider we cannot say categorically
that all rules or regulations would be authorized; however; we believe the
power granted the Department in Arts. 695~ and 6252-13 would be sufficient
to sustain many if not all the rules you might wish to issue in regard to
your responsibilities under Title 2.

In connection with your second questi’on you indicate that the Depart-
ment has relied on Article 46a, V. T. C. S. for procedures to be followed
under Article 4613-2, V. T. C. S. Article 46a was the general adoption
statute and was repealed when the ~Family Code was adopted. (Acts 1973,
63,rd Leg., ch. 543, Sec. 3, p. 1458). Its provisions are now found in
Chapter 16 of the Family Code. Article 4613-2 concerns adoption of
hard-to-place children, and it has not been repealed. You state that the
repeal of Article 46a coupled with the failure to incorporate Article 46b-2
in the Code results in numerous “gaps ” in the latter statute., You ask:

Do these gaps have the effect of rendering Article 4610-2
invalid? If not, then will the procedure prescribed in
Chapter 16 of the Code be applicable, or will Article
46b-2, of necessity, b,e interpreted without any correla-
tion to the present Article 46a or to the Code?

p. 1645
The Honorable Raymond W. Vowell. page 3 (H-353)

We have discovered no “gaps” in Article 46b-2. Any adoption
is governed by the requirements of Chapter 16 of the Family Code,
except as modified by Article 46b-2. We attach no consequence to the fact
that these two statutes now appear in different locations in compilations
of the laws of this State. If the Department determines that additional
regulations are desirable, it may adopt them under Article 46b-2, §3
which provides in part that “[t]he department shall adopt regulations neces-
sary to carry out the provisions of this Act.”

Your remaining questions are grouped under the heading “Central
Record File. ” Section 11.17 of the Family Code requires that the Depart-
ment maintain a central record file on all suits affecting the parent-child
relationship. The definitions section of Chapter 11 of the Code provides
at Section 11.01 (5) that:

‘Suit affecting the parent-child relationship’ means
a suit brought under this subtitle in which the appoint-
ment of a managing conservator or a possessory conserva-
tor, access to or support of a child, or establishment
or termination of the parent-child relationship is sought.

You indicate that the Department has determined that the following types of
suits ‘affect the parent-child relationship:

a. Adoptions (Ch. 16, Family Code)

b. Termination of parental rights (Ch. 15, Family Code)

c. Divorce, annulment, or suit to declare a ma,rriage
void where children are involved. (5 3. 5,5, Family Code)

d. Cases of separation involving the custody and support
of children (Art. 4639b, V. T. C. S.)

e. Voluntary legitimation (Ch. 13. Family Code)

p. 1646
The Honorable Raymond W. Vowel1 page 4 (H-353)

f. Conservatorship (Ch. 14, Family Code)

g. Removal of disabilities of minority (Ch. 31,
Family Code)

h. Habeas Corpus (Section 14.10, Family Code)

i. Uniform Reciprocal Enforcement of Support Act
(Ch. 21, Family Code)

j. Change of name of minor, if the petition alleged that
the minor was subject to the continuing jurisdiction of
a court under Subtitle A - Title 2, Family Code (Ch. 32,
Family Code).

You ask:

Is the department required to maintain the Central
Record File on all the types of suits listed above?
Are there any other types of suits on which the
department is required to maintain a record in the
Central Record File?

By definition, a suit affecting the parent-child relationship is one
which, inter alia, is brought under Subtitle A of Title 2 of the Family Code.
That Subtitle sncanpaases Chapters 11 through 17. Of the types of cases you
mention, removal of disabilities cases, (Ch. 31), Uniform Reciprocal
Enforcement of Support Act cases (Ch. 21), and change of name suits
(Ch. 32) do not arise under Subtitle A, and therefore are not &Is affecting
the parent-child relationship under the definition of Section 11.01 (5).
Separation cases (Art. 463913) are discussed in response to your twenty-
first question. Cases involving divorce, annulment or a declaration that
a marriage is void arise under Section 3. 55 of the Family Code, but where
children are involved, that section generally requires that the suit for
divorce “include a suit affecting the parent-child relationship under

p. 1647
The Honorable Raymond W. Vowel1 page 5 (H-353)

Subtitle A, Title 2 of[the Family C]ode. ” It is our conclusion that under
511.17 the Department is required to keep records of the types of cases
you listed except for removal of disabilities cases, Uniform Reciprocal
Enforcement of Support Act cases, and change of name suits. In addition
to these types of suits you listed, the Department may be required to
keep records of suits for protection of children in emergencies depending
on the nature of the particular case. These suits arise under Chapter 17.

Your fourth question states:

Section 11.17(a) of Title 2 of the Family Code
provides that the clerk of each court having jurisdic-
tion of suits affecting the parent-child relationship
must transmit specified information to the State
Department of Public Welfare. This provision
seems to give the district clerk discretionary power
in transmitting information, allowing him to trans-
mit information that in his opinion affects the parent-
child relationship. Does this uncertainty, if it is an
uncertainty, render this portion of Title 2 unconstitutional
or invalid?

We percieve no uncertainty in the statutory requirement. The clerk
is not required to determine whether a case has an effect on the parent-child
relationship. Rather his responsibility is to determine whe’ther a case is
included in the statutory definition of the term contained in Section 11.01(5).

Your fifth question is:

Should court proceedings in habeas corpus actions
($13.10) be reported to the Central Record File?
If so, then is the department’s obligation fulfilled
when it receives and makes a record of such
proceeding, or do all of the other provisions relating
to the Central Record File apply to this type of
proceeding?

p. 1648
The Honorable Raymond W. Vowel1 page 6 (H-353)

These proceedings are to be reported as indicated in our answer
to your third question. We see nothing to indicate other than that all the
requirements of Section 11.17 apply to the Department’s recordation of
this information except for the requirements of Subsection (b) which
apply to adoption decrees.

Your sixth question states:

The information the clerk is required to send to
the department, the content of the record main-
tained by the department, and the information
to be supplied, upon request, by the department
from its records are slightly different in each
type of case involving the parent-child relation-
ship. Is the department authorized to require
from the clerk additional information other than
that required by statute? Such information might
be necessary for identification purposes. May the
department require a submittal in a prescribed
form? If your answer is affirmative, may the
department assess a greater fee where the pres-
cribed form is not used?

The statutory scheme is designed so that the court clerk is required
to submit enumerated data to the Department which the Department is
required to file. The Department may request that the clerk supply
additional information, and generally the clerk will not be legally pre-
cluded from complying wi.th the request, but the limits of the clerk’s
duties are prescribed by the statute.

We assume the submittal to which you refer is a submittal of a
request for information by a court or an attorney rather than a submittal
of information by the clerk, si.nce the fee authorized in Section 11.17 is
to be collected for supplying rather than filing information. For the
reasons discussed in our answer to your first question we believe the

p. ,1649
The Honorable Raymond Vowel1 page 7 (H-353)

Department may require that prescribed forms be used, and if the cost of
supplying information is higher when the prescribed form is not used a
higher fee may be charged to reflect the higher cost.

Your seventh question asks:

May the department assume that. . . records [on
adoptions] will be maintained on the same basis that
the Central Record File is maintained on other types
of suits involving the parent-child relationship under
the authority of Chapter 11, Section 11.17(a) 7 .In the
absince’of’a directive in the Code, ‘does the depart-
ment have the authority to establish and maintain a
record file on adoptions for retrieval purposes?

Adoption records are subject to different guidelines than records of
other suits affecting the parent-child relationship, Sec. 11,17(b), Family
Code. For example, inquiries by attorneys or courts under Subsection (c)
as to whether a child had been the subject of a suit involving the parent-
child relationship are required to be answered in the negative if an adoption
is the most recent suit of that type on file.

We believe the Department has authority to make a retrieval file or
index of adoption cases. Maintenance of records is generally meaningless
unless there is a means of locating and recovering specific information.
Furthermore, the statute contemplates in Subsection (d) that some informa-
tion may be required to be revealed under court order, and without a means
of recovery compliance with the order might be impossible. Of course, the
Department may not use any index or retrieval file in a way that compromises
the confidentiality statutorily accorded adoption records.

Your eighth question asks:

Should . . . adoptions [of hard-to-place children]
be reported to the Central Record File in the same
manner as other adoption cases are reported? If

p. 1650
The Honorable Raymond W. Vowel1 page 8 (H-353)

so, and the district clerks do not send the
information on adoptions consummated under
Article 4613-2 to the Central Record File, what
is the responsibility of the department?

Article 46b-2 is not a vehicle for the consumation of adoptions. It
provides for the dissemination of information on programs for adoption
of “hard-to-place children” and for financial assistance to adoptive parents.
With the exception of waiver of certain fees, adoptions of hard-to-place
children are handled under the normal adoption statute. Since it is our
opinion that the premise on which you base this question is mistaken, we
find it unnecessary to answer it.

Your ninth question states:

Section 11.17 provides for distribution of information
from the Central Record File as follows:

The records required to be maintained by
the department are confidential, and no
person is entitled to access to or informa-
tion from these records except as provided
by this section or an order of a district court
of Travis County for good cause.

According to Chapter 11, Section 11.07, the department
may, on the written request of an attorney or a court,
identi.fy the court which last had continuing jurisdiction
and the docket number of a suit.

Is the department correct in interpreting the above
provisions to mean that all records in its Central
File are confidential?

Must the department refuse to furnish information if
the request is from any source other than an attorney
or a court?

p. 1651
The Honorable Raymond W. Vowel1 page 9, (H-353)

As provided by statute the information maintained in the Central
Record File is confidential except to the extent that disclosure is provided
for in Section 11.17. Those exceptions are revelation on an order of a
district court in Travis County and furnishing of the information required
to be disclosed on the request of a court or an attorney. ,In the absence
of a court order the Department is required to decline to furnish the
information to anyone other than an attorney or court.

Your tenth question is:

Will the provisions of the Code prevail over any other
law relating to records which may be in conflict,
including any provisions of [the Open Records Act,
Article 6252-l?‘a, V. T. C. S. 1, which may be in
conflict? May members of the legislature be denied
access to the Central Files under the confidentiality
requirement, since they are not authorized access
in the Code, even though [the Open Record~s Act]
makes confidential information available to them?

Your question is extremely broad, and in the absence of specific
cases or examples we cannot answer as to the effect of every potentially
conflicting statute under all circumstances. Therefore, we limit our
discussion to the specific case you present, to wit: the effect of the Open
Record~s Act on the right of a legislator to ex=e the material in question.

Section 3 (a) of the Open Records Act provides in part:

Sec. 3 (a) All information collected, assembled,
or maintained by governmental bodies pursuant to law
or ordinance or in connection with the transaction of
official business is public information and available
to the public during normal business hours of any
governmental body, with the following exceptions
only:

(1) information deemed confidential by law, either

p. 1652
The Honorable Raymond W. Vowel1 page 10 (H-353)

Constitutional, statutory, or by judicial decision:

As information in the Central Record File is deemed confidential
by statute it is excepted from disclosure under Section 3 of the Open
Records Act. However, Section 3 (b) of the Open Records Act provides
in part:

(b) . . . . This section is not authority to withhold
information from individual members or committees
of the legislature to use for legislative purposes.

Section 14 (b) of the Act provides:

(c) This Act does not give authority to withhold informa-
tion from individual members or committees of the
Legislature of the State of Texas to use for legislative
purposes.

While these two provisions clearly indicate that the Open Records
Act does not give an agency authority to withhold information from a
legislator, it does not speak to situations involving information withheld
under other statutes. Whether a legislator would have a right to this
information without regard to the Open Records Act would depend on the
facts of the particular case and the statutory authority on which the legis-
lator relies. It is our opinion that a legislator, in the absence.of a court
order, cannot require disclosure of information declared confidential by
Section 11.17. Whether he can require disclosure under another statute
or in another capacity will depend on the facts of the case.

Your eleventh question is:

Chapter 11, Section 11.17(b) states that an adoption
decree ends the court’s continuing jurisdiction over
a child and any subsequent suit must be commenced
as though the child had not been the subject of a suit

p. 1653
The Honorable Raymond W. Vowel1 page 11 (H-353)

for adoption.

Is the department correct in assuming that no
information regarding the adoption proceeding
may be released, and that requests for informa-
tion must be answered as follows: “The child
has not been the subject of a suit affecting the
parent-child relationship? ”

No information on the adoption ‘proceedings may be released in
the absence of an order from a district court in Travis County, and a
reply of the type you suggest is required by the statute when a request
is made involving a child who has been adopted.

Your twelfth question is:

The Department of Public Welfare has records
pertaining to children covering a lmg period of
time prior to the enactment of Title 2.

In answering inquiries about one of these children,
should the department ignore the fact that it has
in its files information concerning the child which
was recorded prior to JandAry 1; 1974,. an,d reply
that “the child has not been the subject of a suit
affecting the parent-child relationship? ” May the
department instead use the wording “the department
has no record of a suit having been filed subsequent
to .kmkryl, ‘1974, involving such a child. ” In other
words, is the department limited to’the actual wording
in the Code, or may it formulate answers that will be
more appropriate for the circumstances?

We find nothing in t.he Code to suggest that the Department is
required to use the exact language of the Code in responding to requests

p. 1654
The Honorable Raymond W. Vowel1 page 12 (H-353)

for information. Specifically, we believe the Department may limit its
response by‘indicating that it applies only to cases subsequent to the
effective date of the Act.,

Your thirteenth question is:

If any instrument is filed in the court after the
effective date of the act which brings a suit that
was pending on the effective date of the act
within the scope of the Family Code, does the
department combine the information it has on
hand which predates the Family Code with the
new information, making it all one suit? If so,
do the other provisions of the Code relating to
confidentiality and procedures for obtaining
information from the department refer t6 the
information the department had prior to January
1, 1974, as well as to the information obtained
subsequently?

Section 4 of Acts 1973, 63rd Legis.,ch. : 543, p. 1459, the Act
enacting Title 2 of the Family Code,protides:

Set 4. (a) This Act takes effect on January 1,
1974, and governs all proceedings, orders, judgments,
and decrees in suits and actions brough 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.

(b) Any action or suit commenced after January 1,
1974, that has as its object the modification of an order,

p. 1655
The Honorable Raymond W. Vowel1 page 13 (H-353)

judgment, or decree entered prior to January 1, 1974,
but which under this Act would be a suit affecting the
parent-child relationship, is governed by the provi-
sions of this Act, and shall be treated as the commence-
ment of a suit affecting the parent-child relationship in
which no court has continuing exclusive jurisdiction.

The data required to be furnished to the Department for the Central
Record File are a copy of the court’s decree, the name and all prior names
of the child, the child’s birthdate and the child’s birthplace.~. The informa-
tion the Department is required to furnish to attorneys and courts is the
name of the court last having jurisdiction of the child in a suit involving
the parent-child relationship and the docket number of the suit. The
purpose of maintaining this file and informing attorneys and courts of
prior suits involving a child is to ease the administration of the Code’s
provision that, except in cases of adoption, once a court acquires jurisdic-
tion of a suit affecting the parent-child relationship it retains exclusive,
continuing jurisdiction over similar suits involving that child, Considering
the language and purpose of the statute, we see no requirement that the
Department include information attributable to pre-January 1, 1974, cases
in its Central Record File. Neither do we see any prohibition of an
integration of this information, although it would generally, if not always,
be irrelevant to the request of an attorney or court under Section 11.17
of the Act. Whether the irfo:rmation would be confidential would depend
on the facts of the case.

Your fourteenth question states:

Chapter 11, Section 11.05(c) provides that “a court shall
have jurisdiction . . . if it has been informed by the
Department of Public Welfare [that the child has not
been the subject of a suit affecting the parent-child
relationship and the petition states that no court has
continuing jurisdiction over the child]. ” This state-
ment implies that the department may report only
to the court.

p. 1656
The Honorable Raymond Vowel1 page 14 (H-353)

Is it mandatory that the department report to the
court or may the department exercise discretion
as to whether it will report to the court or the
attorney?

The above’, provision also itnplies that the court
has jurisdiction if it has been informed by the
department that no other court has jurisdiction,
even if the department’s answer may be erroneous.
Would the judgment or decree based on faulty informa*
tion concerning jurisdiction render the decree invalid?

The statutory scheme contemplates that the Department communicate
information on prior suits to attorneys as well as to courts. Attorneys are
permitted to request the information, Section 11.17(c), and the statute pre-
sumes that they will attach the information given them by the Department
to the petition. Section 11.17 (b).

If a court acquires jurisdiction over a case under Section 11.05(c)
because of erroneous information supplied by the Department, it is
contemplated that that court will retain jurisdiction and enter a valid
order since Section 11,06(d) provides:

(d) If a court has continuing jurisdiction over a
child but another court has acquired jurisdiction over
the child in a suit affecting the parent-child relation-
ship under Section 11.05(c) of this code, the court
previously having jurisdiction over the child, on a
motion of any party or on the court’s motion, shall
transfer the proceeding to the court which has acquired
jurisdiction under Section 11.05(c) of this code.

Your fifteenth question states:

In many cases involving children, the State Depart-
ment of Public Welfare will be initiating suits involving
the parent-child relationship. It will be necessary in

p. 1657
The Honorable Ray~mond W. Vowel1 page 15 (H-353)

these cases to have a statement attached to the
petition, either showing the court which last had
jurisdiction or stating that the child has not been
the subject of a suit affecting the parent-child
relationship.

May the department interpret the Code as being
sufficiently flexible for the department to make
reasonable rules and regulations concerning the
use of the records necessary for the direct
administration of its programs7

The Department is permitted to make reasonable rules and regula-
tions concerning the custody and use of its records. Article 695~ $33(2).
We believe that use of the files for the purpose of the Department’s directly
bringing suits affecting the parent-child relationship would be reasonable.
Furthermore a suit of the type you describe would be filed by an attorney
for the Department who would be entitled to the information under Section
11.17(c).

Your sixteenth question states:

There is no provision in the Code for ever removing
a case from the Central Record File. Ifhe child
appears on the Central Record File because of a suit
to terminate the parent-child relationship and is
subsequently adopted, then the child is no longer
subject to the continuing jurisdiction of the court
and the department cannot give information about
the adoption.

Is the department responsible for correlating the
adoption case with the previous case terminating
parental rights, if any, and closing the pr,evious
case as well as the adoption case?

p. 1658
The Honorable Raymond W. Vowel1 page 16 (H-353)

If a case is reported when the child is under 18 and
he reaches 18 terminating the jurisdiction of the court,
is the department responsible for closing that case?
Is the closing of a case and the removal of the record
from the Central Record File dependent upon receiving
information from the clerk to close the case? Is the
department required to continue cases received and
ma’de a part of the Central Record File indefinitely
since no provision is made for removing them, except
in adoptions 7

The Department will be required to correlate its records on adoption
cases with its other records in the Central Record File since an adoption
ends a court’s continuing jurisdiction over a child and any subsequent suit
is to be handled as if no adoption case or any prior case affecting the parent-
child relationship had been filed. Sections 11.05(b), 11.17(b). Furthermore,
the Department is specifically required to close the records concerning
that child and to decline to produce records of any prior proceedings
concerning the child except in the unusual situation specified in the Act.
Sec. 11.17(b) and (d). Clearly it is impossible for the Department to
comply with the statute in the absence of a correlation or integration of
the files.

The method to be used in closing individual files is within the rule-
making authority the Department has under Article 695c, $ 33(2) in rela-
tion to the custody of its records.

Your seventeenth question states:

The Code does not provide for storage of records.
May the department arrange for storage of records
with the Texas Library and Historical Commission?
If so, are the records subject to the various statutes
governing storage of records by&at body including
TEX. REV. CIV. STAT. ANN. art. 5441b governing
disposition of valueless records and TEX. REV. CIV.
STATE. ANN. art. 5441a governing preservation of
records?

p. 1659
The Honorable Raymond Vowel1 page 17 (H-353)

We believe that there is ample authority for the Department to
arrange for storage of its records by the Texas Library and Historical
Commission. The Interagency Cooperation Act, Article 4413 (32),
V. T. C. S. See also, The Preservation of Essential Records Act,
Article 5441d, V. T. C. S. Whether a statute would apply to records of
the Department maintained by the Library and Historical Commission
would depend on the wording.of the particular statute. Article 5441a,
which is one of the two statutes you mention, applies to all public
records of the State. Article 5441b, the other statute about which you
inquire, applies only to records consigned by law to the custody of the
State Librarian.

Your eighteenth question states:

Chapter 11, Section 11.17 (e) provides that:

(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.

Since the Code is silent as to the’period of time the depart-
ment is required to keep the records received within
the scope of this law, may the department establish the
length of time the original records and/or the microfilm
are to be retained? In the absence. of rule and regulatory
authority, is the department required to retain the
records and/or microfilm indefinitely? Is the depart-
ment authorized to have the decrees microfilmed
immediately upon receipt and destroy the official record
immediately, or is there any law which requires the
department to retain the original record for any period
of time, either before or after it is microfilmed? After
it is microfilmed and the original record destroyed,
then is the department required to retain the microfilm
indefinitely? If not indefinitely, then under what authority
may the department ever destroy the record and microfilm?

p. 1660
The Honorable Raymond W. Vowel1 page 18 (H-353)

We believe the Department has ample rule making authority, as
discussed in response to your fifteenth and sixteenth questions, to establish
procedures for copying and maintaining its records and files. Of course,
any~. destrirtion of records, whether original or microfilm, must comply
with the requirements of Article 5441a.

Your nineteenth question states:

In adoption cases, it is the department’s interpretation
of the Code that all of the original instruments filed in
the court will betransmitted to the State Department
of Public Welfare for filing, leaving no official records
in the local district courts as previously provided by
law.

The requirement that they be sealed upon receipt implies
that the adoption records are never to be destroyed. In
view of this, is the department authorized under the
Code to destroy the original court papers after they
have been’microfilmed on the adoption cases? If these
official original records are to be destroyed, then is there
any general law which prescribes the length of time that
the department must retain the official adoption records
it receives from the courts? Is there any,prescribed
period of time that the department is required to retain
the official records before thay can be destroyed? Is
there any length of time prescribed for retaining the
microfilm of such records? Must the department retain
either the original record or the microfilm for an
indefinite period of time?

The department has no system for microfiliming records,
but may contract for this purpose. In view of the require-
ment that the records in adoptions must be sealed upon
receipt, would it be a breach of the requirement of
confidentiality for the department to have them micro-
filmed by an outside contractor? May the department

p. 1661
The Honorable Raymond W. Vowel1 page 19 (H-353)

request the State Director and Librarian to provide
microfilming?

A file on an adoption is a district court record, and it is contemplated
that it will be permanently preserved. Article 1899a, § 2(5). ‘Before copies
are made and originals are destroyed the Department must comply with the
provisions of Article 5441b which require, inter alia, the permission of the
State Librarian and the Director of the Records Management Division. The
Preservation of Essential Records Act also may be applicable, Further-
more, in copying adoption records and retaining duplicates rather than
originals the Department should be guided by the requirements established
for district clerks for preserving this type of record. Those guidelines
are found at Article 1899a, V. T. C. S.

Although in the absence of a specific proposal we cannot say that
the Department is precluded from contracting with an outside contractor
for the microfilming’ of its records, we believe confidentiality could be
best maintained by a proper contract with&e Library and Historical
Commission. For example, confidential records are recognized and
protected under Section 7 of the Preservation of Essential Records Act.

Your twentieth question states:

Chapter 11, Section 11.05 relates to the continuing
jurisdiction of a suit affectirgthe parent-child relation-
ship and Section 11.06 provides for the transfer of
proceedings. Apparently no provision is made for
notifying the Department of Public Welfare of the
change. Without proper notice, any information
subsequent to a change given by the department
would be erroneous. We were unable to find a
section requiring that the department be notified
of placing responsibility on anyone for so notifying
the department in case of change or even dismissal
of a suit.

In the absence of a provision in the law requiring it,

p. 1662
The Honorable Raymond W. Vowel1 page 20 (H-353)

who is responsible for seeing that the correct
information is transmitted to the department -
the department or the court?

We do not believe the situation you describe involves a problem
that was outside the contemplation of the statute’s drafters. Whenever a
suit is pending the Department’s information will be out of date whether
a transfer is involved or not. We can find no statutory requirement that the
Department be notified of a transfer of a suit prior to entry of a decree,
and we know of no responsibility on the part of the Department to acquire
such information. An order dismissing a suit, however, will be reflected
in a decree which must be reported to the Department.

Your twenty-first question states:

Section 3 of the Code repeals certain specific articles
of the current statutes. Article 4639b, TEX. REV.
CIV. STAT. ANN., which provides in essence for
the determination of custody and support of children
in cases of separation without the necessity of filing
a petition for divorce, was not repealed.

Will this article continue to be in effect after the Code
becomes effective January 1, 19747 If your answer is
affirmative, then is the department supposed to receive
a copy of the decree or order from the clerk together
with other identifying information so that it may be
placed in the Central Record File? Is it subject to all
other provisions relating to the Central Record File?

As Article 463913 was neither expressly nor impliedly repealed by
the enactment of the Family Code, it remains in force. However, the
relief sought in an action under that statute is generally outlined in
chapter 14 of the Family Code. In fact, where the parents of a child are
separated the Court is directed to appoint a managing conservator for the
child under Section 14.01(a). Since the relief eought under an Article 4639b

p. 1663
The Honorable Raymond W. Vowel1 page 21 (H-353)

suit is controlled by Chapter 14, we believe it is a suit affecting the parent-
child relationship and subject to report,

Your twenty-second question involves the permission given the
Department in Section 11,17(c) to charge a ,reasonable fee to cover the
cost of the service it provides through the Central Record File. The
question states:

The State Department of Public Welfare r,eceived no
state appropriation for the specific purpose of establishing
and maintaining a Central Record File. A “reasonable
fee” for furnishing the court or the ~attorney the informa-
tion about the continuing jurisdiction of the suit affecting
the parent-child relationship would be wholly inadequate
to establish and maintain such a file. Furthermore, the
department is reluctant to charge the court a fee for
such a service, since the department is dependent
upon the courts for many services which they furnish
without charge,

May the department furnish the information without
charge in all cases? If deemed feasible by the depart-
ment, could it charge in some instances and not in
others? If a fee is charged, could it be deposited to
the credit of the Central Record File for its maintenance
and operation and used for that purpose, or must it be
deposited into the General Revenue Fund?

Your question concerning the deposit and~use of funds generated
by charges to users of the File were answered by Attorney General Opinion
H-211 (1974). The statute provides that the Department “may charge a
reasonable fee, ” and we believe this language permits the Department
to decline to charge any fee. Furthermore, we believe the Department
could charge a fee in some cases but not in others so long as the distinction
was not arbitrary and capricious. For example, distinction between charges

p. 1664
The Honorable Raymond W. Vowel1 page 22 (H-353)

to attorneys and to courts probably would be reasonable.

Your final question was presented in a supplemental request and
concerns disposition hearings for juveniles under Section 54.04 of the
Family Code. You ask if a suit involving an order of the Juvenile Court
committing a child in need, of rehabilitation to the custody of a relative
or other fit person is a case affecting the parent-child relationship and
as such is subject to reportb the Department and to the continuing
jurisdiction concept of Section 11.05. As indicated in response to your
third’question a suit affecting the parent-child relationship is, inter alia,
one brought under Subtitle A of Title 2 of the Family Code. As Section
54.04 is in Title 3 it does not fit the statutory definition, and your question
must be answered in the negative.

SUMMARY

(1) The Department may make rules and regulations
to aid it in the administration of its responsibilities
under Title 2 of the Family Code.

(2) A suit affecting the parent-child relation can
only be one brought under Subtitle A of Title 2 of the
Family Code.

(3) Adoptions of hard-to-place children are handled
on the same basis as other adoptions for Central Record
File purposes.

(4) The Open R&or& Act does bot give an’agency the
right to withhold information from a legislator, but his
right to access may be affected by other statutes.

(5) The Department is required to furnish certain
Central Record File information to attorneys as well
as to courts,

p. 1665
The Honorable Raymond W. Vowel1 page 23 (H-353)

(6) The Department may contract with the
Texas Library and Historical Commission for
the storage and preservation of the file.

Very truly yours,

7
DAVID M. KENDALL, Chairmafi
Opinion Committee

p* 1666