DAN MORALES

ATTORNEY GENERAL 

### QBffice of toe Rlttornep @eneral &ate of ZEexae December 29. 1998

The Honorable Toby Goodman Chair, Committee on Juvenile Justice & Family Issues Texas House ofRepresentatives P.O. Box 2910 Austin, Texas 787682910 Opinion No. DM-500 Re: Advertising for placement of child for adoption (RQ-1144)

Dear Representative Goodman: As you know, in Texas only alicensed child-placing agency’ or aparent, expectant parent, or legal guardian ofachild may place achild for adoption, andonly alicensed child-placing agency may act as an intermediary between aparent and aprospective adoptive parent. Section 162.025, Family Code, makes it an offense for any other person to perform such acts, as follows:

(a) A person who is not the natural or adoptive parent of the child, the legal guardian ofthe child, or achild-placing agency licensed under Chapter 42, Human Resources Code, commits an offense if the person: (1) serves as an intermediary between aprospective adoptive parent and an expectant parent orparent ofaminor child to identify the parties to each other; or (2) places a child for adoption. (b) Itisnot an offense under this section if aprofessional provides legal or medical services to: (1) aparent who identities theprospective adoptive parent andplaces the child for adoption without the assistance ofthe professional; or

‘A child-placing agency is defmed in chapter 42, Human Resources Code, which regulates such agencies. A

“child-placing agency” is “a person, including an organization, other than the nahxal parents 01guardian of a child who plans for the placement of 01places a child in a child-care facility, agency foster home, agency foster group home, 01 adoptive home.” Human Res. Code 5 42.002(12).The Honorable Toby Goodman - Page 2 (DM-500)

(2) aprospective adoptive parent who identities aparent andreceives placement of a child for adoption without the assistance of the professional. (c) An offense under this section is a Class B misdemeanor.2 *- Nothing in section 162.025 prohibits, however, a parent and aprospective adoptive parent from identifying each other and arranging an adoption without the assistance of alicensed intermediary. Section 25.09, Penal Code, makes it acrime for a person to advertise that the person will place, provide, or obtain a child for adoption.) Only a licensed child-placing agency is expressly / excepted horn this prohibition, as follows:

(a) A person commits an offense if the person advertises in the public media that theperson will place achild for adoption orwill provide or obtain a child for adoption. (b) This section does not apply to alicensed child-placing agency that is identified in the advertisement as a licensed child-placing agency. (c) An offense under this section is a Class A misdemeanor unless the person has been convicted previously under this section, in which event the offense is afelony ofthe third degree. (d) In this section: (1) “Child” has the meaning assigned by Section 101.003, Family Code?

‘Fan. Code 5 162.025.

‘We do not consider whether this statute violates the free speech protections of the First Amendment of the United States Constitution OIarticle I, section 8, of the Texas Constitution.

‘Section 101.003, Family Code, defmes “child” as “a person under 18years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.”

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(2) “Public media” has themeaning assigned by Section 38.01.5The term also includes communications through the use of the Internet or another public computer network.6 You tirti askwhether section 25.09, Penal Code, prohibits aparent from advertising toplace his or her child for adoption. On its face, section 25.09 applies to any person who advertises to place, provide, or obtain achild for adoption. Wethink that the words “place” or“provide” achild for adoption plainly include placing orproviding one’s own child for adoption. Section 25.09 has only one express exception from its application: a licensed child-placing agency. An express exception to a statute manifests a legislative intent that the statute should apply in all cases not excepted.7 We conclude, therefore, that section 25.09 prohibits aparent from advertising to place his or her child for adoption. You next ask whether section 25.09, Penal Code, prohibits a prospective adoptive parent from advertising that he or she wishes to adopt achild. Section 25.09prohibits aperson, other than alicensed child-placing agency, from advertising that the person “will place achild for adoption or will provide or obtain achild for adoption.” The phrase “will.
.obtain achild for adoption” could plausibly be read to refer to a person who seeks to adopt a child. Parts of the statute’s legislative history indicate that such areading was intended. During ahearing on House Bill 1091before the House Committee on Juvenile Justice and Family Issues, awitness asked you, asthebill’s sponsor, whether theprovision would prohibit prospective adoptive parents from advertising thatthey wished to adopt a chi1d.s You stated repeatedly that the provision was intended to do so. You made reference to the committee’s interim report, the impetus for House Bill 1091,which recommended legislation that would ban “baby wanted” advertising.9 Onthe other hand, the phrase ‘will.
. obtain achild foradoption” could alsoberead torefer to the act of acquiring a child for someone else to adopt. Other parts of the legislative history support this construction. The Juvenile Justice Committee’s report onHouse Bill 1091states: “The bill amends Penal Code Chapter 25, stating that aperson commits an offense by advertising in the

5Section 38.01, Penal Code, defmes “public media” as “a telephone directory or legal directory, newspaper or other periodical, billboard or other sign, radio or television broadcast, recorded message the public may access by dialing a telephone number, or a written communication not prohibited by Section 38.12(d) [prohibiting barrah’y].”

6Penal Code 5 25.09 (footnotes added).

‘See Garcia v. Sfate, 829 S.W.Zd 796,798-99 (Tex. Grim. App. 1992); State v.Richards, 301 S.W.2d 597,600 (Tex. 1957).

‘Hearings on H.B. 1091 Before the House Comm on Juvenile Justice & Family Issues, 75th Leg. (Mar. 26, 1997) (audio tape available from House Video/Audio Services).

‘House Comm. on Juvenile Justice &Family Issues, Interim Report to the 75th Texas Legislature (Dec. 1996) at 8.

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public media that they will place a child in adoption, orprovide a childfor adoption.“‘O And, in explaining House Bill 1091 on the floor of the House of Representatives, you stated that the bill
“amends chapter 25 of the Penal Code creating an offense to advertise in the public media that a child will beplacedfor adoption orprovide a childfor adoption.“” Thus at least two explanations of the bill to the legislature omitted any reference to application ofthe prohibition to prospective adoptive parents. While the bill’s sponsor may have contemplated a different construction, when interpreting a statute a court must seek to effectuate the “collective” intent of the legislators who enacted it.” In doing so acourt normally focuses onthe literal text ofthe statute, which in this case we think is susceptible to more than one understanding. In light of the ambiguity in both the wording of the statute and its legislative history, we cannot predict how acourt would rule on this question. Moreover, webelieve this ambiguity makes the statute susceptible to achallenge that it is unconstitutionally vague. Criminal laws must give notice tothepopulace astowhat activity ismade criminal because lack of notice poses a trap for the innocent. ” A criminal statute must be clear enough so that a person of ordinary intelligence is given reasonable notice ofwhat conduct is prohibited.14 It must also provide adequate standards to those who enforce it so that it cannot be arbitrarily and discriminatorily applied. Is Furthermore, where the constitutional right to freedom of speech is implicated, as it is in this case, the law requires a greater degree of specificity than in other contexts.‘6 We will not predict how acourt would rule on this question. We note, however, that it is within the power ofthe legislature to avoid constitutional challenges by amending the statute to make clear its intended scope. Your third question is whether a member of the public media commits an offense if it publishes an advertisement prohibited by section 25.09. You askus to consider the application of Penal Code sections 7.01 and 7.02, known as the “law of parties,” in answering this question. Section 7.01 makes a person criminally responsible as a party to an offense if the offense is committed by the person’s own conduct or by the conduct of another for which the person is criminally responsible. We will assume that you are asking about a situation in which an

10House Cxnm. on Juvenile Iustice & Family Issues, Bill Analysis, H.B. 1091,75tb Leg. (1997) (emphasis added).

“Debate on H.B. 1091 on the Floor of the House of Representatives, 75th Leg. (Apr. 29, 1997) (audio tape available from House Video/Audio Services) (emphasis added).

‘*Boykin v. State, 818 S.W.2d 782,785 (Tex. Crim. App. 1991).

“Acosta v. State, 972 S.W.2d 95, 97 (Tex. App.--El Paso 1998, no pet.)

‘Long v. State, 931 S.W.2d 285, 287 (TM. Crim. App. 1996)

‘sAcosta, 972 S.W.2d at 98

‘6Long, 931 S.W.2d at 287-88 (citing Kramer Y. Price, 712 F.2d 174, 177 (5th Cir. 1983))

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advertisement publisher does not commit an offense under section 25.09by its own conduct, since the publisher itself does not seek to place, provide, or obtain a child for adoption, but instead provides themeans ofadvertising forsomeone elsewhowishes todo so. Thus weconsider whether a publishern can be criminally responsible for the conduct of another person who places an advertisement in violation of section 25.09. Section 7.02makes aperson criminally responsible for an offense committed by another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition ofthe offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having alegal dutytoprevent commission ofthe offense and acting with intent topromote or assist itscommission, he fails to make areasonable effort to prevent commission ofthe offense. Criminal responsibility under subsections (1) (2),and (3)of section 7.02requires criminal intent.” To be convicted as a party to an offense, it must be shown that the accused knew he or she was assisting in the commission of the offense.I9 Thus apublisher does not commit an offense under section 25.09 if itmerely publishes an advertisement without knowledge that the advertisement is unlawful and without intent to promote or assist in the commission of an offense. However, we cannot determine as amatter of law whether apublisher is criminally responsible for an unlawful advertisement, since whether apublisher possesses the requisite criminal intent will depend upon the facts ofthe particular case. Finally, you ask whether section 25.09, Penal Code, or section 162.025, Family Code, prohibits a person outside of Texas from advertising or communicating by way of Internet transmissions reaching Texas that the person will serve asanintermediary tobring together aparent

“We use the term”publisher” to refer not only to amember ofthe print media, but to any member of the public media within the Penal Code’s defmition ofpublic media. See Penal Code $ 38.01(10) (defining “public media” as “a telephone directory or legal directory, newspaper or other periodical, billboard or other sign, radio or television broadcast, recorded message the public may access by dialing a telephone number, or a written communication not prohibited by Section 38.12(d) [prohibiting barratry]“).

‘%ee Medrano v. State, 612 S.W.2d 576,578 (Tex. Grim. App. 1981); Horton Y.State, 880 S.W.2d 22,24-25 (Tex. App.--Tyler 1993, pet. ref d).

‘?SeeAmaya v. State, 733 S.W.2d 168,174-75 (Tex. Crim. App. 1986); In re AI., 868 S.W.2d 938,941 (Tex. App.--Fort Worth 1994, no tit).

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and aprospective adoptive parent. Penal Code section 1.04gives Texasjurisdiction over criminal conduct if either “the conduct or a result that is an element” ofthe offense occurs inside the state. One court has explained:

Section 1.04 combines subjective and objective territorial principles. Jurisdiction is conferred over offenses commenced within the state but completed outside the state (subjective) and foroffenses commenced outside the state but consummated within (objective). The primary policy considerations underlying section 1.04 are that Texas should have a substantial interest in or connection with the criminal event it seeks to prosecute andthat law enforcement should be facilitated by plugging gaps in existing lawwhen acourse ofconduct goesbeyond theboundaries ofasingle state?O -

The application of these principles to conduct that occurs via the Internet has not yet, as far aswe know, been tested by any Texas court. The Internet is aconglomeration oftechnology and modes of communication that we will not attempt to fully explain in this opinion.*’ We think it is well known, however, that Internet communications have the capacity to cross state boundaries, even international boundaries, in aninstant. Information that iscreated in one location may be sent to or viewed by persons in any location worldwide. Depending upon the mode of communication, the creator of Internet information may have no control over who views the information or where it is viewed. For example, if an advertisement is posted on a web page, the page may be viewed by anyone who accesses that page from any location accessible to the Internet. On the other hand, a communication might be sent to aparticular person, by way of electronic mail, for example, with the advertiser having full knowledge of the identity and location of the intended recipient. The possible scenarios under which aperson might advertise orcommunicate by way ofthe Internet that the person will serve asanintermediary tobring together aparent and aprospective adoptive parent are limitless. The facts ofeach case will have to be examined in an attempt to determine where the criminal event occurred when the events are taking place in “cyberspace.” We cannot, therefore, determine as amatter of law whether Internet advertisements or communications initiated outside ofTexas, but received within the state, are within the reach of Texas law pursuant to the authority ofPenal Code section 1.04. A more fundamental concern raised by your question, however, is whether the application of these statutes to the Internet passes constitutional muster. State laws that criminalize certain Internet communications without regard to where the communications were initiated are subject to

‘“ McGowan Y.State, 938 S.W.Zd732,734-35 (Tex. App.--Houston [14thDist.] 1996, pet. granted) (citations omitted). 2’For in-depth discussions ofthe Internet and the emerging law regarding state jurisdiction over conduct on the Internet, we recommend the following cases and publications: Rena v. American Civil Liberties Union, 521 U.S. 844 (1997); American Libraries Ass’n v.Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997); H. Joseph Hamelk & William Miles, The Dormant Commerce Clause Meets the Internet, 41-Oct. B.B.J. 8 (1997).

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challenge on the ground that they violate the Commerce Clause ofthe United States Constitution.zz The Commerce Clause empowers Congress to regulate interstate commerce andrestricts the states’ power toenact lawsthat interfere with interstate commerce .‘rItalsoprohibits states fromregulating an aspect of interstate commerce that is of such national interest that it demands uniform national treatment, thereby making it solely within the power of Congress to regulate.24 InAmerican Libraries Ass ‘nv.Patuki,z5 afederal district court found unconstitutional aNew York law making it acrime to use acommunications system to transfer sexually explicit materials to minors. The court examined the nature ofthe Internet and efforts by states to regulate Internet conduct and found that such regulation implicates the Commerce Clause. The court explained:

The unique nature ofthe Internet highlights the likelihood that a single actor might be subject tohaphazard, uncoordinated, andeven outright inconsistent regulation by states that the actor never intended to reach and possibly was unaware were being accessed. Typically, states’ jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on theInternet. Themenace ofinconsistent state regulation invites analysis under the Commerce Clause ofthe Constitution, because that clause represented the framers’ reaction tooverreaching by theindividual statesthat might jeopardize the growth of the nation-and in particular, the national infrastructure ofcommunications and trade-as a whole.26 Thecourt then examined theNew York law,which applied toanycommunication, whether intrastate orinterstate, over which New Yorkhadthecapacity toexercise criminaljurisdiction. The court held that the law violated the Commerce Clause, stating:

[T]he New York Act isconcerned with interstate commerce and contravenes the Commerce Clause for three reasons. First, the Act represents an unconstitutional projection ofNew York lawinto conduct that occurs wholly outside New York. Second, the Act is invalid because although protecting children from indecent material is a legitimate and indisputably worthy subject ofstate legislation, theburdens oninterstate commerce resulting from

UArticle I, section 8, clause 3 of the United States Constitution provides: “The Congress shall have Power to regulate Commerce among the several States .”

‘3See Gibbons v. Ogden, 22 US. (9 Wheat.) 1,236.37 (1824) ?See Southern Pac. Co. v.Arizona, 325 U.S. 761 (1945) (holding that state may not regulate railroad train lengths). I5969 F. Supp. 160 (S.D.N.Y. 1997).

261d.at 168-69.

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the Act clearly exceed any local benefit derived from it. Finally, the Internet is one of those areas of commerce that must be marked off as a national preserve to protect users from inconsistent legislation that, taken to its most extreme, could paralyze development of the Internet altogether. Thus, the Commerce Clause ordains that only Congress can legislate in this area, subject, of course, to whatever limitations other provisions of the Constitution (such as the First Amendment) may require.*’ Penal Code section 25.09, prohibiting adoption advertising, on its face applies to
“communications through the use of the Internet or another public computer network.“** And, through the application ofPenal Code section 1.04,aTexas prosecutor could seek to apply Family Code section 162.025, prohibiting unlicensed adoption intermediations, to Internet conduct. We think that acourt would consider theAmerican Libraries v.Put& case in determining whether the application of section 25.09, Penal Code, or section 162.025, Family Code, to Internet communications is constitutional. However, no Texas court or federal court withjurisdiction over Texas has yet considered the constitutionality of state regulation ofInternet communications, and we cannot predict how such a court would rule. We can only advise you that this is an issue that might arise in the prosecution of an offense committed by the use ofInternet communications.

“Id. at 169.

‘*See Penal Code 5 25.09(d)(2).

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SUMMARY Section 25.09, Penal Code, prohibits any person other than a licensed child-placing agency from advertising toplace, provide, orobtain achild for adoption. Whether a publisher of an advertisement prohibited by section 25.09 iscriminally responsible fortheconduct ofthe advertiser depends upon the facts ofthe particular case. Whether Texas courts may exercise criminal jurisdiction over unlawful Internet advertisements or communications initiated outside of Texas, but received within the state, also depends upon the facts of the particular case. No Texas court or federal court with jurisdiction over Texas has addressed this issue.

DAN MORALES Attorney General ofTexas
JORGE VEGA First Assistant Attorney General SARAH .I.SHIRLEY Chair, Opinion Committee Prepared by Barbara Griffin Assistant Attorney General

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