.GENERAL 

Hon. Geo. Y. Cox 

:State Health Officer, 

Austin, Texas. 

‘, Opinion NO. o-1278 

Re: Should the State Registrar file 

and record an adoption decree in a 

Dear Mr. 

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 be white. 

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 upon which you desire such 

opinion may be 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 amended in 1939. 

“According to the 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.eo Johns, 

and Mary Louise 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, he land his wife ar,e negroes, while according tom then original birth certificates of the two~children, born on June 28, 1937, to 

Zada Hudson Oxford,, these two children are white. 

“I’have ,before me Section 8, ‘Article 46A, R.C.S.j 

and I am asking your advice asp to 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, and the original birth records filed with the States Bureau on July 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, and that they were born of yhlte parents, namely,~,Zada 

Hudson Oxford, mother, and Marion Oxford, father, and that 

the petitioners named in the adoption proceedings are negroes. 

Section 1 of Article 46a, Revised Civil Statutes, 

provides, in part, as follows: 

“Any adult resident of this State may petition 

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 a minor child; such 

petition shall set forth the facts relevant to petitioner and child, and be verified by the affidavit 

of ,the petitioner. . .‘I 

Section 8 of Article 46a, Revised Civil Statutes, 

reads as follows: 

“No white child can be adopted by a negro person, nor can a-negro child be adopted by a white 

person.” 

The facts regarding the race of petitioners in the 

adoption proceedings and of the minors who were purportedly 

adopted are not disclosed in the court’s decree, and it may 

safely be inferred that such facts were unknown to the judge 

presiding. The only material question,, therefore, which arises 

Is as to whether or not this decree is void and that it ~may be 

so shown by 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, and that the 

facts which make the judgment void may be shown dehors the record in a collateral attack. 

The hticle of the statute just quoted is mandatory, 

which means that a District 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 and the children 

to be adopted are white persons. Errors committed by a court in 

pronouncing a decree in respect to a matter 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, and notwithstanding that the 

facts which made the judgment void were unknown to the court. 

Usually a decree rendered by a court of competent jurisdiction is immune to collateral attack. This rule is subject 

to well defined exceptions, and one of these is that the rule 

does not obtain when a 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 

w omen. 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 must be shown in the record in any 

event to entitle the judgment to the usual presumptions of verity. 

In this, case the judgment not only d?.d not 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 and that 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 no wise a 

limitation upon the doctrine well supported, by authorities that 

a judgment forbidden to. be rendered by positive law, or one ln 

which the court .was without judicial power to act, is absolutely 

void end may be shown so to be at any time in a collateral attack. 

This doctrine is well stated in Freeman on Judgments (5th Ed.), 

Section 354, from which we quote as follows: 

“This well-established doctrine that a judgment 

beyond the court’s power is invalid, is not limited in 

its application to any particular 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. and a j-t in excess thereof 

IS null and void and subject t collateral attack? a 

rule which fj.&ts freauent aaolication in the case of 

probate .ludsments.” (Italics ours.) 

The Supreme Court of Texas has announced the same doctrine in several well considered cases. Among these is Cline v. 

Niblo, 117 Tex. 474, 8 S.W.(2d) 633, 66 A.L.R. 916, in which the 

Court held a judgment of a county court to be void and subject to 

collateral attack which undertook to direct the sale of a homestead of a deceased person for the purpose of paying the ordinary 

debts of the intestate. The Court, 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 common law powers; 

but is acting within a specially limited field of 

jurisdiction declared by the Constitution and statutes. These limitations are binding on the courts, 

and they have no jurisdiction 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 may be shown in another forum.a 

See also Grant VS. Ellis (Cotutu.App.) 50 S.W.(2d) 1093; 

State Mortgage Corporation vs. Traylor, 120 Tex. 1481, 36 8.W. 

(2d) @tOj Templeton VS. Ferguson, 89 Tex. 47, 33 S.W. 329; Easterline vs. Bean (Comm.App.) 49 S.W. (2d) 427. 25 Tex.Jur., Sec. 

322, P. 838, and Sec. 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 OF TEXAS 

By /s/ Wm. F. Moore 

Wm. F. Moore, First Assistant 

APPROVED BUG 24, 1939 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: BWB, CHAIRMAN 

WFM:FG:wb