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 of Representatives 

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 a licensed child-placing agency’ or a parent, expectant parent, 

or legal guardian of a child may place a child for adoption, and only a licensed child-placing agency 

may act as an intermediary between a parent and a prospective 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 of the child, or a child-placing agency licensed under Chapter 

42, Human Resources Code, commits an offense if the person: 

(1) serves as an intermediary between a prospective adoptive parent 

and an expectant parent or parent of a minor child to identify the parties 

to each other; or 

(2) places a child for adoption. 

(b) It is not an offense under this section if a professional provides legal 

or medical services to: 

(1) a parent who identities the prospective adoptive parent and places 

the child for adoption without the assistance of the 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 01 guardian of a child who 

plans for the placement of 01 places 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) a prospective adoptive parent who identities a parent and receives 

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 a prospective adoptive parent from 

identifying each other and arranging an adoption without the assistance of a licensed intermediary. 

Section 25.09, Penal Code, makes it a crime 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 the person will place a child for adoption or will provide or obtain 

a child for adoption. 

(b) This section does not apply to a licensed 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 a felony of the 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 OI article I, section 8, of the Texas Constitution. 

‘Section 101.003, Family Code, defmes “child” as “a person under 18 years 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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The Honorable Toby Goodman - Page 3 (DM-500) 

(2) “Public media” has the meaning assigned by Section 38.01 .5 The 

term also includes communications through the use of the Internet or 

another public computer network.6 

You tirti ask whether section 25.09, Penal Code, prohibits a parent from advertising to place 

his or her child for adoption. On its face, section 25.09 applies to any person who advertises to 

place, provide, or obtain a child for adoption. We think that the words “place” or “provide” a child 

for adoption plainly include placing or providing 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 a parent 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 a child. Section 25.09 prohibits a person, other than 

a licensed child-placing agency, from advertising that the person “will place a child for adoption or 

will provide or obtain a child for adoption.” The phrase “will. . obtain a child 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 a reading was intended. During a hearing on House Bill 1091 before the 

House Committee on Juvenile Justice and Family Issues, a witness asked you, as the bill’s sponsor, 

whether the provision would prohibit prospective adoptive parents from advertising that they 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 

On the other hand, the phrase ‘will. . obtain a child for adoption” could also be read to refer 

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 1091 states: “The 

bill amends Penal Code Chapter 25, stating that a person 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. 

p. 2866 
The Honorable Toby Goodman - Page 4 (DM-500) 

public media that they will place a child in adoption, or provide 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 of the 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 a court normally focuses on the literal text of the 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 a court would rule on this 

question. Moreover, we believe this ambiguity makes the statute susceptible to a challenge that it 

is unconstitutionally vague. 

Criminal laws must give notice to the populace as to what activity is made 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 of what 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 a court would rule on this question. We note, however, that it 

is within the power of the 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 ask us 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)) 

P. 2867 
The Honorable Toby Goodman - Page 5 (DM-500) 

advertisement publisher does not commit an offense under section 25.09 by its own conduct, since 

the publisher itself does not seek to place, provide, or obtain a child for adoption, but instead 

provides the means of advertising for someone else who wishes to do so. Thus we consider whether 

a publishern can be criminally responsible for the conduct of another person who places an 

advertisement in violation of section 25.09. 

Section 7.02 makes a person 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 of the 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 a legal duty to prevent commission of the offense and acting 

with intent to promote or assist its commission, he fails to make a reasonable 

effort to prevent commission of the offense. 

Criminal responsibility under subsections (1) (2), and (3) of section 7.02 requires 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 a publisher does not commit an offense under 

section 25.09 if it merely 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 a matter of law whether a publisher is criminally responsible for an unlawful 

advertisement, since whether a publisher possesses the requisite criminal intent will depend upon 

the facts of the 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 as an intermediary to bring together a parent 

“We use the term”publisher” to refer not only to a member 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). 

‘?See Amaya 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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The Honorable Toby Goodman - Page 6 (DM-500) 

and a prospective adoptive parent. Penal Code section 1.04 gives Texas jurisdiction over criminal 

conduct if either “the conduct or a result that is an element” of the 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 for offenses 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 and that law enforcement should be facilitated by plugging gaps in 

existing law when a course of conduct goes beyond the boundaries of a single 

state?O 

- 

The application of these principles to conduct that occurs via the Internet has not yet, as far as we 

know, been tested by any Texas court. The Internet is a conglomeration of technology 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 an instant. Information that is created 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 a particular 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 a person might advertise or communicate by way of the Internet that 

the person will serve as an intermediary to bring together a parent and a prospective adoptive parent 

are limitless. The facts of each 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 a matter of law whether Internet advertisements or communications initiated outside 

of Texas, but received within the state, are within the reach of Texas law pursuant to the authority 

of Penal 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). 

p. 2869 
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challenge on the ground that they violate the Commerce Clause of the United States Constitution.zz 

The Commerce Clause empowers Congress to regulate interstate commerce and restricts the states’ 

power to enact laws that interfere with interstate commerce .‘r It also prohibits states from regulating 

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 

In American Libraries Ass ‘n v. Patuki,z5 a federal district court found unconstitutional a New 

York law making it a crime to use a communications system to transfer sexually explicit materials 

to minors. The court examined the nature of the Internet and efforts by states to regulate Internet 

conduct and found that such regulation implicates the Commerce Clause. The court explained: 

The unique nature of the Internet highlights the likelihood that a single actor 

might be subject to haphazard, uncoordinated, and even 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 the Internet. The menace of inconsistent state regulation invites 

analysis under the Commerce Clause ofthe Constitution, because that clause 

represented the framers’ reaction to overreaching by the individual states that 

might jeopardize the growth of the nation-and in particular, the national 

infrastructure of communications and trade-as a whole.26 

The court then examined the New York law, which applied to any communication, whether intrastate 

or interstate, over which New York had the capacity to exercise criminal jurisdiction. The court held 

that the law violated the Commerce Clause, stating: 

[T]he New York Act is concerned with interstate commerce and contravenes 

the Commerce Clause for three reasons. First, the Act represents an 

unconstitutional projection ofNew York law into 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, the burdens on interstate 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. 

p. 2870 
The Honorable Toby Goodman - Page 8 (DM-500) 

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 of Penal Code section 1.04, a Texas prosecutor could seek to apply Family 

Code section 162.025, prohibiting unlicensed adoption intermediations, to Internet conduct. We 

think that a court would consider the American 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 with jurisdiction over 

Texas has yet considered the constitutionality of state regulation of Internet 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 of Internet 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 to place, provide, or obtain a child for 

adoption. Whether a publisher of an advertisement prohibited by section 

25.09 is criminally responsible for the conduct of the advertiser depends upon 

the facts of the 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 of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH .I. SHIRLEY 

Chair, Opinion Committee 

Prepared by Barbara Griffin 

Assistant Attorney General 

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