Untitled Texas Attorney General Opinion ( 1974 )

The Honorable Joe Resweber Opinion No. H- 466
Harris County Attorney
Harris County Courthouse Re: Time at which district
Houston, Texas 77002 clerk is required to forward
file in adoption case to Depart-
ment of Public Welfare.
Dear Mr. Resweber:
You have asked our opinion on four questions involving the
duties of the District Clerk in adoption cases under the Family Code.
Your first question is:
Is the District Clerk required to transmit adoption
proceeding case files to the State Department of
Public Welfare?
Section 11.17(b) of the Family Code provides in part:
eon entry of a decree of adoption, the clerk of
the court shall transmit to the department 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 shall not disclose any information
concerning the prior proceedings affecting the
child.
We. believe the language of the statute clearly requires the district
clerk to transmit the complete files of adoption cases to the.Department
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The Honorable Joe Resweber page 2 (H-466)
of Public Welfare. The Legislature chose the word “shall’! to delineate
the duty of the clerk. “Shall” ordinarily is used to indicate a mandatory
requirement, it wil~l be presumed to be used in the imperative sense
unless the context indicates otherwise. Attorney General, Oninion H-326
(1974). Here the statutory scheme compels the conclusion that the
Legislature intended to impose a mandatory duty on the clerk to transmit
the files to the Department.
Y’our second question asks:
At what point in time after the entry of the adoption
order should the files be transmitted to the State
Department of Public, Welfare?
The statute indicates that a file is to be transmitted to the
Department “on entry of a decree of adoption. ” As a general’ rule
of statutory construction a statute prescribing the time of an action
by a public official is directory rather than mandatory as to the time.
Federal Crude Oil Co. v. Yount-Lee Oil Co., 52 S. W. 2d 56,61 (Tex.
Sup. 1932); State v. Fox, 133 S. W. 2d 987, 990 (Tex. Civ. App. --Austin
1939, writ ref’d); Texas Department of Public Safety v. Dawson, 360
S. W. 2d 860 (Tzx. Ci.v. App. --,Dall,as 1962, no writ): 67 C. J. S.,
Officers $114; 2A Sands, Sutherland Statutory Construction 5 57.19 (4th
ea.). A statute indicating that action is to be taken “on” the occurrence
of a certain event has been~interpreted to mean that the action is to be
taken within a reasonabl,e time of the event. County of Platte v. New
Amsterdam Casual~ty Co., 6 F. R. D. 4’75 (D. Neb. 1946); Masters v.
McHolland, 12 Kan. 1’7 (1873). We believe, therefore, that the clerk must
forward the files to the Department within a reasonable time of .the entry
of the decree. Since the clerk has statvtory duties to~perform when an
appeal is pursued or other chall,enge to the decree is made, and since he
generally mu.st have possession of the file in order to perform those duties,
we bel.ieve it would not be unreasonable for him to retain the files while
he is ful.filli.ng his statutory dukies i,n c,onnec:ti.on with any appeal, If an
appeal is taken, in the normal.case a motion for new trial or a notice ot
appeal will be filed wi.thin ten days of the entry of the decree. Texas
Rules of Civil erocedure. Rules 32913, 353. We cannot say it would be
pa 21.33
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The Honorable Joe Resweber page 3 (H-466)
unreasonable for the clerk to delay forwarding the file for ten days until
he determined whether an appeal would be pursued. This is not to say
that he ‘may hold the file until any possibility of an out of time appeal
or of collateral attack is exhausted. If that were permitted he could hold
the file for as long as two years, a period which almost certainly would
be determined to be unreasonable. -See Texas Family ‘Code, section 16.12.
If the clerk does send the file to the Department of Public Welfare
and.an appeal or collateral attack is subsequently filed, there is a
statutory procedure by which he can recover the file. Texas Family
Code, section 11.17(d). Under that section he may be given the file on
an order of a district court in Travis County for good cause shown.
Your final question is:
May the District Clerk furnish certified copies
of the Court’s Minute Records of an adoption
proceeding to persons who request such copies?
We have found no prohibition of a furnishing of a certified copy
of the court’s minute record of an adoption proceeding. However, in
his commentary to the Family Code, Professor Joseph M&night said:
~Numerous lawyers complained that the confidentiality
provisions in Tex. Rev. Civ. Stat. Ann. ‘art. 4ba were
ineffective because of the accessibility of the adoption
files in district clerk’s offices throughout the state. To
avoid this problem, subsection(b) [of 5 11.171 provides
that the complete file, other than the minutes of the court,
is to be transmitted to the Department,. where records are
sealed. Because the courts’ minutes include the judg-
ment, good .practice will be tQ omi.t the parents’ and
chi.ld’s names. [5 Texas Tech. I+w Review 281, 412
(197411.
It i.s therefore our opinion that a certified copy of the court’s
minute records may be furnished, but the better practice is to omit the
parents’ and child’s names from the minutes.
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The Honorable Joe Resweber page 4 (H-466)
SUMMARY
The district cl,erk is required to.furnish the file
on an adoption case to the Department of Public
Welfare within a reasonable time of the entry of an
adoption decree. Normally it will not be unreasonable
for a clerk to retain the file for ten days after entry
of the decree and for the time necessary to perform
his statutory duties &ring the pendency of an attack
on the decree.
Very truly yours,
C. ROBERT HEATH, Chairman
Opinion Committee :
lg
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