.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