Honorable W. A.

State Registrer of .VitalStatistics T.exasState Board ofHealth Austin, Texas

Dear Sir: OpinionNo. O-1278-A Re:~ Method of procedure in the described adoption case.

We have received your letter, toge~ther with enclosures, requestingthe opinion of this departmentupon the above stated question. Your letter reads as follows:

"Inaccordancewithyour opinion O-1278, Issued 8-24-39, I declined to accept, and returned to Judge Culver, ,theadoption decree Issued In the 17th Judicial District of Tarrant County, No. 28887-A, in whFch it appears that RileyA. Ransom and his wife,Mattle B. Rans~om

are permitted to adopt the infant of Vanda Lea Foerster,' on the ground that accordkg to the sworn statement of RileyA. Ransom and his wifeMattie B. Ransom, they are'negroes, while the birth certificate for the chlld~ born November 24',1939, shows that the Infantborn toVanda Lea Foerster is a while illegttimate. Since the child 1s illegitimate,the certificate contalnsno informationas to the father.

"I am enclosing " 1 II Adoption decree, 2 A phOtOStatic copy of the birth record, 97232, (3) The sworn statement of Riley A. Ransom, and (4) The photostatle copy of Judge Culver's letter.

"Pleaseadviseme as to how to proceed in this
case."
Section 1 ofArticle 46a,Vernon's civil Statutes provides, in part:Honorable W. A. Davis, Page 2 (9-1278-A)

"Sec. 1. Any adult resident of this State may petition theDistrict Court in theDistrict of his residenceor 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 petitloner and child, and be verifiedby the affldavlt of the petitioner. * * **)I

Section 8 ofArticle 46a,Vernon's Civil Statutes, provides as follows:

"Sec. 8. No white child can be adopted by a negro person, nor can a negro childbe adopted by .awhite person."

Rule 47a. Section 26 ofArticle 4477, Vernon's Civil Statutes, provides, in part:

"(26) Provided further,upon entry of final order of adoption the Judge or Clerk ofCourt sharl notify the Registrar ofVital Statistics in State Department of Health of actlen taken, giving the names and addresses of the nstural parents, If known, or of the child's next kin,,the date of birth and name of such child before and after adoption and the name and address of fosterparents. * * t, Copies of all reports of adoptions and reports of revocation of order of adoption and of annulments shall within thirty (30) days after~such orderbe mailed to the .ReglstrarofVital Statistics of the State Department ofHealth. Upon receFpt of copy of any final order of adoption the State Reglstrar ofVital Ststlstlcs shall cause to be made a record of the birth in the new name or names of the adoptingparents or parent. He shall then cause to be sealed and filed the orlginal certificate of birth, If any, with the adoption decree of the Court and such sealedpackage may be opened only upon order of a Court oftrecord. f * *.'

The Birth CertificateNo. 97232 enclosed with your letter discloses that the mother of the child in question was a white person,but no informationwhatsoever is contained therein as to the father. The sworn affidavit ofRiley A. Ransom dlscloses that the petitioners named inHonorable W.

the adoptionA. Davis, Page 3 (o-1278-~)

proceedingsare negroes.

thereof, chllcl Fn 1939, of * *hit-" The adoption decree, in paragraph numbered two

refers to the fact thatElvis Jean Ransom, the question, "wasborn on the 24th day ofNovember, negro parent at Dallas, Dallas County, Texas,
Judge Culver's letter reads; in part:
he * t, The flndlng in the decree to the effect that the Infant adopted and re-named Elvla Jean was.born on the 24th day of.November 1939 of negro parentage.musthave been overlookedby your office. In every case such issue wouldbe one of fact, and in this particular case the child was before the Court ,and~, competent evldence,lntroducedto the effect that while the mother of the child was white the fatherwas a negro,,and the appearanceof the child seemed to be conclusive on that point. * * *.'

As providedby Section 8~ofArticle +6a, supra "No white child can be adopted by a negro person, * * *.ll The courts of this State have not interpretedthis-partlcularArticle, but the word "negro"was used as synoqvmous with the popular words "coloredpersons" inArticle 2900 ofVernon's Civil Statutes, which reads, Fn part:

"i * Y. The terms 'coloredrace' and 'coloredchildren,'as used in this title, include all personsof mixed blood descended from negro ancestry."

In view of the Legislature's definitionof the above terms, it is the opinion of this department that all persons of mixedblood descended from negro ancestry,however remote, is a negro, ofArtFcle 46a, supra. within themeaning of SectFon 8

A District Judge has jurisdiction to render a decree of adoption, so long as the provisions of Title 3 ofVernon's CFvil Statutes, which pertain to adoptlon, are complied with. Judge Culver, in the Instant case, had the judicial power to render the decree whichhe did render. The race or color of a person is a question of fact, and in the instant case this fact was determinedby Judge Culver upon competentevidence introducedat thehearing before him The adoption decree issued in the instant case by JudgeHonorablew. A. Davis, Page 4 (0-1278-A)

Culver reflects the fact that the Infant sought to be adopted is a negro, and this finding of fact takes precedence
over the recltdtlon of facts as contained In theBirth Certificate.

Under the foregoingauthorities,you are respectfully advised that it Is the opinion of this department that the adoption decree Fn question Is valid, and should be acceptedby you and flled under Rule 47a, Article 4477 ofVernon's Clvll Statutes.

This opinion Is not In conflictwith our opinion No. o-1278 referred to by you In your letter of request. The adoption decree,which was under consideration in that oplnlon did not dlsclose the facts regarding the race of petitioners In the adoption proceedings and of the minors who were purportedly adopted. This decree was held to be void for all purposes for the reason that the court did not have the judicialpower to render the decree.whlchIt did render. Under these circumstancesyou would be justlfied In refusing 4% accept Pondfile the decree, and this
was the effect of our OpinionNo. O-1278.

Trusting that the above satisfactorilydisposes of your inquiry,we remain

APPROVED AUG 15, 1940 Very truly~ yours,
/s/ Grover Sellers A'M'ORNEYGENERALOF TEXAS ;;EM;SSISTANT ATTORNEY

DBD:RS-ds

APPROVED OPINION COMMITTEE BY /a/R.W.F. CHAIRMAN By /s/D. Burle Davlss D. Burle Daviss Assistant