.GENERAL

Hon.Geo.Y. Cox :State Health Officer, Austin, Texas. ‘, Opinion NO. o-1278 Re: Should the State Registrar file andrecord an adoption decree in a

DearMr.
General, upon the case where the petitioners for adop- .tion are Negroes land the children to be adopted are shown~ by their birth Coxr “certificates to bewhite. Pour letter of August 15 addressed to the Attorney in which you request the opinion of this department above captioned question, has .been received. In order that the facts uponwhich you desire such opinion maybe fullydisclosed, tie quote from your letter as follows:

“There has been.submitted to the State .Registrar an,adoption decree to be filed under Rule 478, Article 6677, RX.&, as amendedin 1939.

“According tothe adoption decree issued by the Dlst~rict Court, Tarrant NO. 258744, Eounty, Texas’, 96th Judicial Mstrict,~ Antonio Maceo Johns and wife, Mary~

White Johns, Jr., adopt Antonio Mac.eoJohns, andMaryLouise Johns. ~l’According to the affidavits of Cecil F. Hubbert, these two children are the children of.Zada Hudson Oxford. According to the certificates filed by A. M. Johns, the adopting, father, helandhis wife ar,enegroes, while according tom thenoriginal birth certificates of the two~children, born onJune 28, 1937, to Zada HudsonOxford,, these two children are white.

“I’have ,before meSection 8, ‘Article 46A, R.C.S.j andI amasking your advice aspto whether this adop~,tlon decree could be ac~cepted by the State Registrar and should a certified copy of the records be issued. l*Photostatlc copies of the adoption decree; the birth certificat,es filed by A. Mu. Johns, the affidavit made~ by Cecil M.Hubbert, andthe original birth records filed with the States Bureau onJuly 12, 1937, are enclosed.”..

Hon. Geo. W. Cox, page 2 (O-1278)

The certificates enclosed with your letter, and referred to therein, disclose that the children in question are twins, andthat they were born of yhlte parents, namely,~,Zada Hudson Oxford, mother, andMarion Oxford, father, andthat the petitioners namedin the adoption proceedings are negroes.

Section 1 of Article 46a, Revised Civil Statutes, provides, in part, as follows:

“Any adult resident of this State maypetition the District Court in the District of his residence or in the District of the residence of the child to be adopted for leave to adopt aminor child; such petition shall set forth the facts relevant to petitioner and child, andbe verified by the affidavit of,the petitioner.

. .‘I Section 8 of Article 46a, Revised Civil Statutes, reads as follows:

“Nowhite child can be adopted by anegro person, nor can a-negro child be adopted by awhite person.” The facts regarding the race of petitioners in the adoption proceedings and of the minors whowere purportedly adopted are not disclosed in the court’s decree, and it may safely be inferred that such facts were unknownto the judge presiding. The only material question,, therefore, which arises Is as to whether or not this decree is void andthat it ~may be so shownby facts outside the record in a collateral attack on the judgment

. You are advised that it is the opinion of this department that ‘the decree is absolutely void, andthat the facts which makethe judgment void maybe showndehors the record in a collateral attack.

The hticle of the statute just quoted is mandatory, which meansthat aDistrict Court is absolutely forbidden by the provisions of this statute to render a decree of adoption in a case where the petit,ioners are Negroes andthe children to be adopted are white persons. Errors committed by a court in pronouncing a decree in respect to amatter which the court is forbidden by law to adjudicate is fatal to the judgment, for the reason that the court, did not have the judicial power to render the decree which it did render, andnotwithstanding that the facts which madethe judgment void were unknownto the court.

Usually a decree rendered by a court of competent jurisdiction is immuneto collateral attack. This rule is subject to well defined exceptions, and one of these is that the rule does not obtain whena court of general jurisdiction exercises- -

Hon. Gee. W. Cox, page 3 (O-1278)
special powers or limited jurisdiction with respect to certain particular subjects. Examples of these are judgments of a district court removing the disabilities of minors or marrled women. In this case the court, in pronouncing the decree of adoption, was exercising a special or limited jurisdiction, and all the facts which called into existence the power of the court to render such a decree mustbe shownin the record in any event to entitle the judgment to the usual presumptions of verity.

In this, case the judgment not only d?.dnot disclose the race of the petitioners or of the children to be adopted, but it did not set forth the residence of the petitioners or of the said two children; whereas, the exhibits attached to your letter indicate that the petitioners resided in Harris county andthat the minor children resided in Upshur county at the time the decree was rendered. The failure of the decree to recite these jurisdictional facts is merely an additional reason for holding that the decree is subject to collateral attack, and is in nowise a limitation upon the doctrine well supported, by authorities that ajudgment forbidden to.be rendered by positive law, or one ln which the court .waswithout judicial power to act, is absolutely void endmaybe shownso to be at any time in a collateral attack. This doctrine is well stated in Freeman onJudgments (5th Ed.), Section 354, from which we quote as follows:

“This well-established doctrine that ajudgment beyond the court’s power is invalid, is not limited in its application to anyparticular kind of judgment nor is it peculiar to the judgments of any particular court. Irrespective of the character or dignity of the tribunal pronouncing the decision, whether of inferior, limited or superior general jurisdiction, it must confine its determination within the authority it possesses under the law and the case. If the court is exercisk soecial statutorv oowers the measure of its authority j.s the statute itself. andaj-t in excess thereof IS null andvoid and subject t collateral attack? a rule which fj.&ts freauent aaolication in the case of probate .ludsments.” (Italics ours.) The SupremeCourt of Texas has announced the samedoctrine in several well considered cases. Amongthese is Cline v. Niblo, 117Tex. 474, 8S.W.(2d) 633, 66 A.L.R. 916, in which the Court held ajudgment of a county court to be void and subject to collateral attack which undertook to direct the sale of ahomestead of a deceased person for the purpose of paying the ordinary debts of the intestate. TheCourt, speaking by Cureton, C.J., said:Hon. Geo. W. Cox, page 4 (O-1278)

"It is too plain ~for argument that a probate court.iu dealing with the subjectof the sale of a homestead is not acting under Itsbroad general powers as a probate court, In aid of which the usual p~esumptlons apply, nor under its commonlaw powers; but is acting within a specially limited field of jurisdiction declared by the Constitution and statutes. These limitations are binding on the courts, andthey have nojurisdiction to order the sale of a homestead except within the limitations permitted. So, then, under the general rule, the jurisdiction of a probate court to sell a homestead must appear of record, or the facts maybe shownin another forum.a See also Grant **VS.** Ellis (Cotutu.App.) 50S.W.(2d) 1093; State Mortgage Corporation vs. Traylor, 120Tex. 1481, 36 8.W. (2d) @tOj Templeton **VS.** Ferguson, 89Tex. 47, 33S.W. 329; Easterline vs. Bean (Comm.App.) 49S.W. (2d) 427. 25 Tex.Jur., Sec. 322, P. 838, andSec. 335, p. 873.

The adoptiou decree in question being void for all purposes, we advise that you refuse to register the same. Yours very truly ATTORNEY

GENWAL

OFTEXAS By /s/ Wm.F. Moore Wm.F. Moore, First Assistant APPROVED

BUG 24, 1939 /s/ Gerald C. Mann ATTORNEY

GENERAL

OFTEXAS APPROVED:

OPINIONCOMMITTEE BY: BWB,CHAIRMAN WFM:FG:wb