## THEA-ITORNEY GENJSKAL OF TEXAS Auwrm II.TRX~W March 18, 19157



### HonorabieWade F. Spllman,Chainman .Judlolary 

### Committee E&si,.ofRepreaentatlves Austin,Texas Oplnion~lo.. W-35 ,.~, . 

### Rer done~l~~,tlon~llty.of H;'~B;-'1~~~0;'author- .l?L3.ng re90JIery.

OS cirrll damage&.from parj?nta

duyto wll- $ul .damage

ordestruotionof property b.y minorsu&er 18 

### yeazkof ag8, living with parents..
BearHr. .Spllmanr
You havepequestedaq,opLnlon aa:tp.the 

### ootietltutlonallt~ofHouseSill. IzO;,rlh*h~uthorlsemany propert bxoeed: 3 'ornor-to~reoowrdamagemln &~mount~not to 3OO;OOfrom rents 'oilMyd~or.mader 

### thcage of 18 

### years,~living ith_parenta;:-:*ho~:maliaiouely or .r wllfullydamage8:or:dest~yby8 ~opartp;.:~re8l,:~personal, ormixed.,

.belonglng:.$o.su~h. ~er:.;i‘~~lp~t~lL~,~b~lts~
feoovery'to~.aot~l.damagS~'in'~~~~o~t:n?~:~;~o--exoeed 300.00Inadditlon:to'ta*able.-oourt:.o~et?, aqd,:fur$her &ate8 that'theaotionatithorlzed'ia thls:blll~

is tobe Iii additiontoall dtheraotiona'iihioh'tbsiowner-io iMitltl*,d

~tcj @tit&w;,':

it: wMg;the: puirpob@

~fbf' the: bill to glpthor$.ze 

### reooiikir;y~Roniparenti Ql Iripiatlon~dyme 

### theynould'.'irot'othdti6s.be liable.~49u1~.15111

b$e(ilflO$llf'stateitha~n~thiiig-In,the~~~:bil~. aha~l:@reoXude reooieryin'a.~eatqr.:anotlit'.tSlom:.~‘~~O~ or:+dy:~'other I#rron;fdr 

### da~gbs~t~~~~loh"~uoh.rlnors or.otherperson wouldotherwleebe'llable.
At commonlaw it ;awell tistabkihed.that the 541% relatlonahlpof parentand ohlld liuporrer on the ment no llablllty'forthe torteof the ohlld. 67 C.J.S. 

### g&21. 31 Tex. Jur.page s . 95:Chahdler v. Beaton 8pp. Ct. Tex., 37 Tax. 406Hon. Wade F. Spllman, page 2: w .-:;:,

An act making parents liable for the torts of theirminor children has been In effect In Louisiana, a civil l&w state, for a number of years,and other states governed by the common law have enacted similar statute8 in reoent years. House Bill 170 la patterned after a slmllar act recentlv enaoted In MIohltin. Fub1Z.c & Lboal Acts, Michigan (1953),Act.45, page 40.- "The olvil law lIabllItg upon parents oovers all tortlous acts of the child, Intentional or negligent,, and Is predicated upon the parent-child relatlonshl Cower 25 So 2d 99 101 (Louisianal&i). 'N ?iikl&pr., paie 300.' One common law state has held that "custody of the minor Is the foundation of llablllty" under a statute making one who has custody or charge of a minor liable for lrilurles caused by the mlnor(s negligence while driving an au&mobile. Blspfiam v. Mahoney, & al, Superior Court of Delaware, 183 A. 315, 31b (1936)

. There are few oases, and In some states no cases, construing these statutes. Some of the more Importantacts have been so recently enacted that there has been scarcely enough time for a decisidn. 30 Notre Dame Lawyer, page 299, n. 24.

Parents have custody of minor children who reside with them, and are charged by law with the obligation to shield and poteott such children, to provide them with suitable shelter, food and clothing until they become self-supportlng~,

and In cooperationwith the,State to srlde proper education. 31 Tex. Jur. pages 1280 and

. They are the natural guardians of the person of their children, and are responsible to,the State for theirwell-being. Even though criminal llabi$Ity for fillure to support minor children (Article602, V. P. C.) Is limited to children under 16 years of age, and clvll llabIllty to make periodic payments for the support of mInor.chIldren after a divorce granted to parents (Article 463ga, V. C. S.) Is limited to childrenunder 18 years~ of age, under the common law the father Is still liable to third parties for necessaries furnished his minor child, either male or female, until the child reaches the age of'21 years, except wh&re the female child-has legally married. Mor an et vIr v. Drescher Ct. CIvi App. Tex. (Galveston Du Pre.v.Du Pre Ct. Clv. A$zx.'(Dallas) 27: S.?: S W 2d 4tN 194
82 81 14 McGowan v. McGowan Ct. Clv. App. Tex. ~lk.3Wo~t~~ ?+3 3. W: 2d bbU, b59 11954).

These obligations and 1Labllitles of parenthood are Imposedboth by statute and by the common law. Parents have a duty to guide their offspring. State v. Deaton, Sup. Ct. Tex., 93 Tex. 243, 54 S. W.mgOO). m order to exercise his control a parent mar moderately chastise a refractory and disobedient child In his custody. Certainly, this lrn~~lles a duty to teachminorHon. WadeF. Spllman, page 3:

childrenrespect for the law,

_ ^ ._ -. _ w-35
Includingrespect for

.__ tne propertyor otners. me bill merely lmposes an additional llablllty on parents of minor children under 18 years of age, livingwith parents,who have failed to teaoh their chlldrema respeot for the rights of others. It changes the oominonlaw rule,~ which the Legislaturehas a right to do, If not otherwiserepugnant to the Constitutions of Texas and of the United States. &&oust& PlwlIne Comnanv v. Beaslev. Ct. Clv. App. Tex.7iaveeon,

. .

o-11932). House Bill 170, therefore., doee notviolate Seotlon 19, Article I, of the Constitution of Texas.. '~

Seotlon 3, Artlole I, of the CorietItutlon of Texas, guarantees to all persona equality of rights, and the 14th'Amendment.tothe Constitution of the United States aeourekto every person equal protection of the laws. If unjuetior. arbitrary dleorImInatl6n Is the result of the applloatlon of a law, it will be held to be unconstitutional.

An act.18 not~open to&bjeotIon If all who are brought tinderIt8 Influenoeare treated alike In the same olroumstanoes. But a law will be held Invalid If It selectsparticular lndlvlduala from a.olaas and Impose8upon them speoIal'oblIgatlonsbr ,burdensfrom whloh.,'othere

ln .the.eameclkae,'&re'exempt.'9Tex. Jur. sec. 117. The Leglalature.may olaselfy etibjects of legislation,and an aot will be held to be oonstltutlonal If It applles.unlformly.to those who are within a partloular class.., The burdens Impotied.must apply Impartlallgto all .oonetItuenteof the olaas, and the law must..operate'equally and uniformly upon all persons In similar clroumstances. 9 Tex. Jur:~eeo. 119.
who conatItutee.the class ,upon:whomllabIlItg Is sought to~.be.Itiposed bx H. B. 1707 ,Not all parents,but only those parents ~of minors uriderthe-@e of 18 years, living with parents." .Theaot thus appears to be fotindd th t 1 relationship plus oustody of the minor. &'"io gt?.?k%her way it placea a lIabIllty upon pare&s as such, and.then eximpte those parents who do not have custody of theirminor ohlldren. Exempt are parents whose children live with others,.'~ardlans of mlriorchlldren;,and relatlvtis(other than parents) with whom minor children reside, eto. If a parent had a ohlld that he could not or would not control, he could send the child to live with relatives. Then the parent would not be liable under this bill, nor would the relatives with whom the child resided. 43 California Law Review 874.Hon. Wade F. Spllman,page 4: MM-35

If the llablllty is to be imposedbecause of parenthood;then the bill doea not apply equally to all parents, since thosewho do not keep their ciilldren at home are exempt; If the liability la to be Imposed because of ouatody, the bill does not lnolude others who have parentalauthority,rights, duties, and llabllltles.

In schrlm

pf v. Settegaet, Sup. Ct. Tex., 36 Tex. 296 (18711,where a farmer had takhn two orphanboy8 into his home, reared and eduaated theni'to the beat of his ability,but had never adopted them, the court, in dlsoueslng the relatlonahlpbetween the two'boyaand the adult personwith whom they lived, said,

4

. . .a pereon who had;throtigh motives of kindness or aharlty,'rbo~lved an orphan child,into hie family, whether' It be a eteD-child or an entire atranner: and treated-Ita8 a member of hi8 f&$y; a8 standing in loco Darentls, ab long a8 such ohlld should Bee fit to remain in eucli family, or 80 long aa'lt should be permitted thus to remain; and whlle.the relation ehould exist, the party who stood in 'locoDarentlswould be'bound for themaintenanoe, care, and eduoation of such ohlld,.

. . .'I Saunders V. Alvldo & Laserre et al, Ct. Civ. App. Tex., 113 S. -1, was a oaae whc Tex., 113 S. -1, was a oaae where an adult Ulster had I

raised her orphan minor brother, who livedwith her. In dlscuaelng the adult alater right8 and duties, the z ala aourt said;

'Therights and ,dutleti of one standing in 1000 pare~tlsaeem to have b&en uniformly hald b the oourta to be the same as thoae of the'parentby reason of such relationship would under elmllar~clrcumatanoe~accrue to one standing in loco Darentls. "Under these facts, It le the duty of plalnt$ff adult sister7 to look after the moral of.aaid-mindr, and ah& hae the legal right to keep him away from temptation."
It thus follow8 that the, rights, duties, and liabllIties of parenthood can fall on persons other than natural parents,where such other person haa lawful custody of the minor child. Ii.B. 170 should either place the llablllty on parents a8 such, without exception; or should Include,Hon.Wade F. Spllman, page 5: WW-35

all thoeeWho have custody of minor children. It Is the opinion of~~thla office that Ii.

B. 170; 'aspresently tirltten,Is unconetltutlonal for the reason that the claae%floatlon of'the peraorieto bi held liable for damages Salle'to op6rate.'equeJly and uniformly upon all persona in similar ciroumetancea.

SUNNARY

Holiae Bill No. 170, &uthorl%lrig redh+ery of civil damag&ti'flrofi parentis

due:t'o

irllful

da&g@'& debtructlbti

of prop&-tybk nilnors tinder18 jeara of'≥~living with parents, ia unconatltutional. Yours very truly,

WILLWILSON Attorney General

Aseletant REF:kh
APPROVED:
OPINION COMMITTEEi II.Grtidg

Chandler Chairman