, . 

THE ATTORNEY GENERAL 

OFTEXAS 

Mr~. John B. Winters, 

Executive Director 

Opfnion Ro. WW-94 

Department of Public Welfare 

Austin, 14, Texas. 

RezCan a natural parent 

delegate to a third 

party the power to 

place a child for 

adoption where such 

third party is not 

licensed by the State 

forthis activity and 

if such third party 

does place a child for 

adoption has he violated 

the provfsions of Article 

695c, Section 8(a), Subsection 2(b), Vernon's 

Dear Sir: 

Texas Civil Statutes, 

requiring a license? 

Your request for an opinion dated March 20, 1957, 

concerns whether or not a natural mother and/or natural 

father can delegate to a third person by power of attornev or 

otherwise the authority to place a child for adoption when 

said third person does not have a license to place children 

and whether or not this would be a valid parental release and 

whether it would violate the law relative to child-placing 

agents. In this connection you have mafnly presented two 

questions: 

(1) Can a natural mother and/or natural father 

delegate to a third person, who has no 

license to place children, the authority to 

place the child for adoption and to give 

legal parental release to the adoptive parents? 

(2) In view of Artfcle 46a-Set. 6, Vernon's Texas 

Civil Statutes and Article 695c, Section 8a, 

Vernon's Texas Civil Statutes, can a natural 

mother and/or father give a Power of Attorney 

to a third person authorizing said third person to place the baby for adoption and give 

consent to its adoption? If said third person, who holds the Power of Attorney is not 
Mr. John Ii. Winters, wee 2 ww 94 

licensed to place babies, then does the act 

of placing the baby when the mother has given 

said party Power of Attorney to do so constlstute a violation of the licensing law? 

To answer these questions we must examine our statutes 

on adoption. They are exclusfve and no authority exfsts to 

act except as contained therein. Reeves v. Ellis, 257 S.W.2d 

876 (Tex. Clv. App. 1953, reh. den. error ref., N.R.E.) Also 

;z;: Hickman v. Smith, 238 S.W.2d 838, (Tex. Civ. App., 1951, 

APP:, 

d . error ref.), Bogd v. Wilson, 258 S.W.2d,223(Tex.Civ8 

!?;53 reh. den. error ref.) 

Article 46~1, Section 6 of Vernon's Annotated Texas 

Civil Statutes reads in part as follows: 

nExcept as otherwise provided in this section, 

no adoption shall be permitted except with the 

writttn consent of the living parents of the chfld. 

0 D . 

'In the case of a child placed by its parents 

in a child-placfng agency, or institution licensed 

by the State Department of Public Welfare to place 

children for adoption, it shall be sufficient for 

the living parents to consent in writing that such 

agency or Institution place such child for adoptfon, 

and no further,,consent shall be required by such 

living parent. 

A Power of Attorney to a third person by parents to 

place a child for adoption would not comply with this statute 

except as specifically provided for a licensed child-placing 

agency. 

Article 695c, Section 8(a), Subsection 2(b), Vernon's 

Texas Civil Statutes, reads: 

"Child-Placing Facility. Every person, 

association, institution, or corporation, whether 

operating for profit or without profit, who shall 

conduct or manage a child-placing agency, who shall 

place an 

s 

child or children who are under the age of 

sixteen 16) years, whether occasionally or otherwise, away from his own home OP relative's home, 

shall obtain from the State Department of Public 

Welfare a license to operate as a child-placing 

agency, which license shall be fn full force and 

effect until suspended or revoked by the Department 
. . 

Mr. John H. Wfnters, page 3 WIJ 94 

of Publfc Welfare as hereinafter provided, 

except that nothing In this Act shall prohibit 

a natural parent from placing his own child or 

prohibit a grandparent, uncle, aunt, legal 

guardian, brother or sister, having attained 

their majority, from placing a child under the 

age of sixteen (16) years in the home of relatives or fn a licensed institutfon, agency, or 

facility coming within the purview of this Act.” 

The followin language is contained fn the case of 

Williams v D Liles, 2 t 5 S.W.2d 551 (Tex,Cfv.App. 1952): 

“Under 46a Section 6, R.C.S.- Art o 46a, 

Sec. 6, It fs provided, with certain exceptions 

. 0 . that no adoption shall be permitted except wi,th the written consent of the living 

parents of the child. When the statutory exceptions are not applicable consent of the 

living parents or parent Is prerequisite to a 

judgment of adoption.” 

This case also cites Fitts v. Carpenter, 124 S.W.2d 420, 

(Tex. Civ. App. 1939, rehearing denied), which states: 

%hen statutory exceptions are not applicable, consent of livfng parent to adoptfon 

proceeding fs prerequisite to a judgment of 

adoption bfnding upon the parent.” 

Bm 248 S,W.2d 1015 reversed on other 

grounds, 250 SoW.2d 587, (Tex. Civ, App. 1952) states: 

“‘A petition was Insufficient under R.S. 

Art, 46a, Sec. la when it failed to specify 

which statutory exception to the necessity 

for consent of t$e mother was not applicable 

and relied upon. 

Further, In Jones v. Willson, 285 S.W.2d 877, (Tex, 

Civ. App. 1955, err. ref. n.r.e.), this language Is contained: 

“R.S. Art. 46a, Sec. 6, whfch permits 

adoption of a child without the consent of 

fts mother is to be strictly construed in 

favor of mother and child.’ 

We, therefore, find that under the statute certafn 

acts on the part of the parents or conditions obviate the 
Mr. John H, Winters, page 4 ww 94 

neoeeslty for the consent, however, these are set out speclfioally and the exletence thepeoi’ must be set out in the 

petition for adoption and must be clearly shown to exist, 

These exceptions cannot be enlarged upon and must be followed 

where parental consent Is not to be relied on. It is specifically provlded In Article 46a, Sec. 6 that It is sufficient 

for living parents to give consent to a licensed institution 

for child-placing so that they may take and use such authority 

to place sald child for adoption. It is to be noted, however, that said statute reads: 

“A child placing agency OP fnstitution 

licensed by the State Department of Public 

Welfare to place children ,for adoption.” 

This is the only statutory provision giving to a third party 

consent and power to act in place of a parent. 

The provisions of Article 695c, Section 8a, Subsection 2(b), Vernon’s Texas Civil Statutes set out the requfrements pertafning to licenses for child-placing agencfes . The 

provisions therein must be complied with for one to be duly 

authorized to act under Article 46a, Section 6, Revised Civil 

Statutes and states with or without profit. However9 it does 

state ‘who shall conduct or manage a chFld-placing agency*, 

Therefore, for one to be required to comply with the statute 

concerning a license, he must be engaged in this type of 

activity. 

The express provisions of Article 46(a), Section 6, 

require the written consent of the llvfng parent OP parents 

where an exception is not clearly applicable. Any consent 

given by a third party other than a licensed child-placing 

agency who has first obtained the parents’ consent would not 

fulfill the requirements of the statute. 

An individual not engaged in the child-placing business 

would not be authorized to sign a consent to adoption in place 

of the parents. 

One who operates as a chfld-placing agent as contemplated by Article 695c, Section 88, Subsection 2(b), Vernon’s 

Texas Civil Statutes, and does not obtain a license as required therein clearly violates the provisions thereof D Furthermore, Article 46a, Section 6, which permits a child-placing 

agency to give consent after having obtained permission from 

the parent or parents is requfred to be “licensed” and is, 

therefore, unauthorized to act without a license. Article 

46a states specifically to whom a parent may delegate authority 
Mr. John H. Winters, page 5 

to place a child and it is our opinion 

cannot be delegated to one to whom the 

authorize. 

SUMMARY 

ww 94 

that this authority 

statute does not 

Parents may only delegate the right to 

place a child for adoption to a licensed 

child-placing agency as defined by statute 

and such an agency fs the only one by 

statute permitted to give consent to adoption in place of the parents. One operatfng as a child-placing agency as defined 

by statute who does not comply with the 

provisions for license, violates the 

statute and is without authority to act. 

Yours very truly, 

WILL WIISON 

Attorney General 

JLS:zt:rh 

APPROVED: 

OPINION COMMITTEES 

H. Grady Chandler, 

Chairman 

Edwin P. Rorner 

John Reeves 

Joe G, Rollins 

F. C.(Jack) Goodman 

BY 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Geo. P. Blackburn