THEA-ITORNEY GENJSKAL 

OF TEXAS 

Auwrm II.TRX~W 

March 18, 19157 

Honorabie Wade F. Spllman, Chainman 

.Judlolary Committee 

E&si,.of Repreaentatlves 

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 ordestruotion of property 

b.y minors u&er 18 

yeazkof ag8, living 

with parents.. 

Bear Hr. .Spllmanr 

You have pequested aq,opLnlon aa:tp.the ootietltutlonallt~ of House Sill. IzO;,rlh*h ~uthorlsem any 

propert 

bxoeed: 3 

'ornor-to~reoowr damagemln &~mount~not to 

3OO;OO from rents 'oilMy d~or.mader thcage 

of 18 years,~living .r ith_parenta;:-:*ho~:maliaiouely or 

wllfully damage8 :or:dest~yby8 ~opartp;.:~re8l,:~personal, 

or mixed., .belonglng:.$o.su~h. ~er:.;i‘~~lp~t~lL~,~b~lts~ 

f 

eoovery'to~.aot~l.damagS~'in'~~~~o~t:n?~:~;~o--exoeed 

300.00 In additlon:to'ta*able.-oourt:.o~et?, aqd,:fur$her 

&ate8 that'the aotion atithorlzed'ia thls:blll~ is to be 

Iii addition to all dther aotiona'iihioh'tbsiowner-io 

iMitltl*,d ~tcj @tit&w;,': it: wMg;the: puirpob@ ~fbf' the: bill 

to glpthor$.ze reooiikir;y~Roni parenti Ql Iripiatlon~dyme 

they nould'.'irot'othdti6s.be liable. ~49u1~.15111 b$e(ilflO$llf'statei tha~n~thiiig-In,the~~~:bil~. aha~l:@reoXude 

reooiery in'a.~eatqr.:anotlit'.tSlom:.~‘~~O~ or:+dy:~'other 

I#rron; fdr da~gbs~t~~~~loh"~uoh.rlnors or.other person 

would otherwlee be'llable. 

At common law it ;a well tistabkihed.that the 

541% relatlonahlp of parent and ohlld liuporrer on the 

ment no llablllty'for the torte of the ohlld. 67 C.J.S. 

g&21. 31 Tex. Jur. page s . 

95:Chahdler v. Beaton 8pp. Ct. Tex., 37 Tax. 406 
Hon. Wade F. Spllman, page 2: w .-:;:, 

An act making parents liable for the torts of 

their minor 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 (Louisiana l&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 Important acts 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 cooperation with 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 

their well-being. Even though criminal llabi$Ity for 

fillure to support minor children (Article 602, 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 children under 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 Imposed both 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 teach minor 
Hon. Wade F. Spllman, page 3: 

children respect for the law, _ ^ ._ -. _ 

w-35 

Including respect for .__ tne property or otners. me bill merely lmposes an 

additional llablllty on parents of minor children under 

18 years of age, living with parents, who have failed 

to teaoh their chlldrema respeot for the rights of 

others. It changes the oominon law rule,~ which the 

Legislature has a right to do, If not otherwise repugnant to the Constitutions of Texas and of the United 

States. &&oust& PlwlIne Comnanv v. Beaslev. Ct. Clv. 

App. Tex.7 iaveeon, 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.to the 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 tinder It8 Influenoe are treated alike In the 

same olroumstanoes. But a law will be held Invalid 

If It selects particular lndlvlduala from a.olaas and 

Impose8 upon them speoIal'oblIgatlons br ,burdens from 

whloh.,'othere ln .the.eame clkae,'&re'exempt. '9 Tex. 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 

Impartlallg to all .oonetItuente of 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:whom llabIlItg Is 

sought to~.be .Itiposed bx H. B. 1707 ,Not all parents, but 

only those parents ~of minors urider the-@e of 18 years, 

living with parents." .The aot 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 their minor ohlldren. Exempt are parents 

whose children live with others,.'~ardlans of mlrior chlldren;,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 imposed because of 

parenthood;then the bill doea not apply equally to 

all parents, since those who 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 parental authority, rights, duties, and llabllltles. 

In schrlm pf v. Settegaet, Sup. Ct. Tex., 36 Tex. 

296 (18711, where a farmer had takhn two orphan boy8 

into his home, reared and eduaated theni'to the beat of 

his ability, but had never adopted them, the court, in 

dlsoueslng the relatlonahlp between the two'boya and 

the adult person with 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-It a8 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 'loco Darentls would be'bound 

for the maintenanoe, care, and eduoation 

of such ohlld,. . . .'I 

Saunders V. Alvldo & Laserre et al, Ct. Civ. App. 

Tex., Tex., 113 113 S. S. -1, -1, was was a a oaae oaae where whc an adult 

Ulster had raised I her orphan minor brother, who lived with 

her. In dlscuaelng the adult alater right8 and duties, 

the aourtz said; ala

'The rights 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'parent by 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 thoee Who have custody of minor children. It Is 

the opinion of~~thla office that Ii. B. 170; 'as presently 

tirltten, Is unconetltutlonal for the reason that the 

claae%floatlon of'the peraorie to 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&-ty bk nilnors 

tinder 18 jeara of'≥~ living 

with parents, ia unconatltutional. 

Yours very truly, 

WILL WILSON 

Attorney General 

Aseletant 

REF:kh 

APPROVED: 

OPINION COMMITTEEi 

II. Grtidg Chandler 

Chairman