Untitled Texas Attorney General Opinion ( 1975 )

April 15, 1975
The Honorable Raymond W. Vowel1 Opinion No. H- 582
Commissioner
Department of Public Welfare Re: Meaning of penal
John H. Reagan Building statute concerning
Austin, Texas 78701 importation of minors
for “placing out. ”
V. T. C. S., art. 695a.
Dear Commissioner Vowell: sets. 6 and 7.
You have requested our opinion on the meaning of sections 6 and 7
of article 695a. V. T. C. S. This is a penal statute concerning the importa-
tion of a child into this state for the purpose of “placing him out or pro-
curing his adoption. ” We find it unnecessary to address your specific
questions for in our view sections b and 7 of article 695a. V. T. C. S., are
clearly unconstitutional. These sections provide:
Sec. 6. It shall be unlawful for any person, for
himself or as agent or representative of another, to
bring or send into this State any child~below the age
of sixteen (16) years for the purpose of placing him out
or procuring his adoption without first haying obtained
the consent of the Department of Public Welfare. Said
consent shall be given on a regular form to be pre-
scribed by the Department of Public Welfare and no
: person shall bring any such chiid into this State without
such permit and without haying filed with the Department
of Public Welfare a bond payable to the State, on a form
to be prescribed by the Attorney General, and approved
by the Department of Public Welfare, in the penal sum
of One Thousand ($1,000. 00) Dollars. conditioned that
the person bringing or sending such child into this
State will not send or bring any child who ia incorrigible
or unsound of mind or body; that he will remove any
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The Honorable Raymond W. Vowell, page 2 (H-582)
such child who becomes a public charge or pay the
expense of removal of such charge, who, in the
opinion of the Department of Public Welfare, becomes
a menace to the community prior to this adoption or
becoming of legal age; that he will place the child under *
a written contract approved by the County Child Welfare
Board and the Department of Public Welfare; and that
the person with whom the child.isplaced shall be reapon-
aible for his proper care and training. Before any
child shall be brought or sent into the State for the
purpose of placing him in a foster home, the person so
bringing or sending such child shall first notify the
Department of Public Welfare of his intention and the
Department of Public Welfare shall immediately notify
the County Child Welfare Board, who shall make a report
to the Department of Public Welfare on the person whom
it is indicated will have charge of the child, and shall
obtain from the Department of Public Welfare a Certifi-
cate stating that such home is, and such persoa~or persona
in charge, are in the opinion of the Department of Public
Welfare, suitable to have charge of such child. Such noti-
fication shall state the name, age and description aC the
child, the name and address of the person to whom the
same is to be placed, and such other information as may be
required by the Department of Public Welfare, and the same .~..
shall be sworn to by such person. The Department of Public
Welfare shall require~the person sending said child into
this State, or the person who is in charge of the same after
he has been brought here, to make a report at certain
stated times, and in the event such reports are not made,
such Department of Public Wel.fare shall be authorized to
deport said child f~rom this State and the expenses thereof
shall be recovered under said bond: provided, however,
that nothing herein shall be deemed to prohibit a resident
of this State from bringing into the State a relative or
child for adoption into his own family. The Department
of Public Welfare and Child Welfare Boards shall not
allow minors to come into and be brought into this State
in violation of this Act.
p. 2591
.
The Honorable Raymond W. Vowell. page 3 (H- 582)
Sec. 7. If any person shall bring into this State or
.direct, conspire, or cause to be brought into or sent into
.thia State any child in violation of the foregoing section.
he shall be guilty of a misdemeanor and upon conviction
. thereof shall be fined in a sum not leas than Twenty-five
($25.00) Dollars nor more than One Thousand ($1,000. 00)
Dollars, or by confinement in the County Jail not exceeding
,twelve months, or by both such fine and imprisonment.
This Depression-era statute was enacted in 1931 as a part of the act
creating the Division of Child Welfare in the Board of Control (later
transferred to the Department of Public Welfare. art. 695e, V. T. C.S. ).
Acts 1931, 42nd Leg., ch. 194, $ s 6. 7 at pp. 324-325. Its purpose, as
indicated by its title and emergency clause, was described in Attorney
General Opinion O-2768 (1940) as follows:
‘By the passage of this Act, the Legislature sought
to correct an existing evil; namely, the importation
of defective, illegitimate, dependent, neglected or
delinquent children into this State by irresponsible
persona or agencies. More than frequently, these
children became public charges and occasioned an
overcrowded condition in our State Institutions.
We believe the statute seeks to achieve unconstitutional purposes. It
attempts to deter the entry into this state of children who might become
public charges.
The freedom to travel throughout the United States has long been
recognized as a basic wright under the Constitution; Passenger Cases. 7 How.
283 (U.S. 1849); Crandall v. Nevada, 6 Wall. 35 (U.S. 1868); Paul v. Virginia
8 Wall. 168 (U.S. 1869): Ward v. Maryland, 12 Wall. 418 (U.S. 1871); Slaughter-
House Cases, 16 Wall. 36 (II. S. 1873); Twining v. New Jersey< 211 U.S. 78(1908); Edwards v. California, 314 U.S. 160 (1941).
A California statute making it a crime to transport non-resident
indigents into the state was struck down as unconstitutional- in Edwards v.
California, 314 U.S. 160 (1941).
p. 2592
The Honorable Raymond W. Vowell, page 4 (H-582)
In Shapiro v. Thompson, 394 U.S. 618 (1969). the United States Supreme
Court held unconstitutional state statutory provisions which imposed dura-
tional residence requirements on welfare benefits. In that case the Court
said:
[T]he purpose of inhibiting migration by needy
persons into the State is constitutionally imper-
missible. 394 U.S. 618, 629 (1969).
The Supreme Court reemphasized its holding in Shapiro v. Thompson,
supra, in Memorial Hospital v. Maricopa COUP. 415 U.S. 250. 94 S. Ct.
1076 (1974). stating:
: . . to the extent the purpose of ,the requirement
is to inhibit the immigration of indigents generally.
that goal is constitutionally impermissible. . . .
94 S. Ct. 1076. at 1085.
The right of interstate travel being a “basic constitutional freedom, ” the
Court in Maricopa County required a compelling state interest to support a
duration&l residency requirement for receipt of medical benefits. The
requirement was viewed as having a sufficient impact upon the right to travel
to necessitate strict scrutiny.
While none of these cases have dealt with a minor’s,-right to travel, we
believe that minoia do have such a right, at least when they travel with the
permission of the person who is responsible for them. We reach this con-
clusion in light of several United States Supreme Court decisions which have
extended such fundamental rights to minors. Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969); In re Gault,
387 U.S. 1 (1967); West Virginia State Board of Education v. Barnette, 319
U.S. 624 (1943).
Since article 695a. sections 6 and 7. attempt to prohibit entry into the
State by some minors and inhibit entry by many. in our opinion the statute
infringes.on their right to travel and must be supported by a compelling
state interest. As previously noted, the purpose of the statute is conati-
tutionally impermissible and it cannot be considered such an interest. In
our view, sections 6 and 7 of article 695a are unconstitutional.
p. 2593
.
The Honorable Raymond W. Vowell. page 5 (H-582)
Due to the statute’s unconstitutionality as an infringement on the right
to travel, we find it unnecessary to address its possible unconstitutionality
under several other doctrines. See, -, Harper v. Virginia Board of
Elections, 383 U.S. 663 (1966); Robinson v. California, 370 U.S. 660 (1962);
Toomer v. Witsell, 334 U.S. 385 (1948).
By holding this statute unconstitutional. we do not imply that the state
is without power to regulate the placement of children brought into this
state for that purpose. Without specifying how a statute might be drawn to
avoid constitutional problems, it is simply our opinion that this particular
statute is unconstitutional.
SUMMARY
Sections 6 and 7 of article 695a. V. T. C. S., are
unconstitutional as impermissible infringements on
the right to travel.
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
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