THE ATTORNEY GENERAL 

OF TEXAS 

AUSTIN, T-s VS’7ll 

July 24, 1974 

The Honorable Raymond W. Vowell, 

Commissioner 

State Dept. of Public Welfare 

John H. Reagan Building 

Austin, Texas 78701 

Opinion No. H- 353 

Re: The Responsibility of the 

Department of Public Welfare 

under Title 2 of the Family 

Code. 

Dear Mr. Vowell: 

You have asked our opinion on 23 separate questions. involving your 

Department’s responsibilities under Title 2 of the Family Code. Your 

first question is: 

Does the general rule and regulatory authority 

contained in Article 695c, V. T. C. S., authorize 

the State Department of Public Welfare to make 

rules and regulations to carry out ite responsibilities as set out in Title 2 of the Family Code? 

We have carefully studied Article 695c, V. T. C. S., and although 

it discusses rule-making authority, its references are to detailed and 

specific rather than general powers. In fact we found 29 separate references 

to rules and regulations in that Article. See Article 695c, 9 § 3(2), 3(3), 

4(10), 6Ab), 6-4(b), bA(d), 7A, 8(a)2(4(2), 8W3, 8W7b), 8(a)% 8b)9ab), 143 

16, lbB(l), 16B(4), 17A(2), 18, 18A(l), 18A(2), 19, 29, 33(2), 38(2).and 41, . 

V. T. C. S. 

Although we have no specific rules and regulations before us, we 

are confident that Article 695~‘s numerous grants of the rule making 

authority will provide a basis for many types of rules to govern the 

p. 1644 
The Honorable Raymond W. Vowell, page 2. (H-353) 

Department’s administration of its varied responsibilities under Title 2 

of the Family Code. 

Furthermore, the Department does have general rule making 

authority under another statute. Article 6252-13 $2, V. T. C. S. provides 

in part: 

Set 2. In addition to the rule-making requirements 

imposed or authorized by law: 

(a) Each agency shall adopt rules concerning the 

formal and informal procedures, including rules of 

practice before the agency. Such rules may include 

forms and instructions so far as deemed practical. 

Without having specific rules to consider we cannot say categorically 

that all rules or regulations would be authorized; however; we believe the 

power granted the Department in Arts. 695~ and 6252-13 would be sufficient 

to sustain many if not all the rules you might wish to issue in regard to 

your responsibilities under Title 2. 

In connection with your second questi’on you indicate that the Department has relied on Article 46a, V. T. C. S. for procedures to be followed 

under Article 4613-2, V. T. C. S. Article 46a was the general adoption 

statute and was repealed when the ~Family Code was adopted. (Acts 1973, 

63,rd Leg., ch. 543, Sec. 3, p. 1458). Its provisions are now found in 

Chapter 16 of the Family Code. Article 4613-2 concerns adoption of 

hard-to-place children, and it has not been repealed. You state that the 

repeal of Article 46a coupled with the failure to incorporate Article 46b-2 

in the Code results in numerous “gaps ” in the latter statute., You ask: 

Do these gaps have the effect of rendering Article 4610-2 

invalid? If not, then will the procedure prescribed in 

Chapter 16 of the Code be applicable, or will Article 

46b-2, of necessity, b,e interpreted without any correlation to the present Article 46a or to the Code? 

p. 1645 
The Honorable Raymond W. Vowell. page 3 (H-353) 

We have discovered no “gaps” in Article 46b-2. Any adoption 

is governed by the requirements of Chapter 16 of the Family Code, 

except as modified by Article 46b-2. We attach no consequence to the fact 

that these two statutes now appear in different locations in compilations 

of the laws of this State. If the Department determines that additional 

regulations are desirable, it may adopt them under Article 46b-2, § 3 

which provides in part that “[t]he department shall adopt regulations necessary to carry out the provisions of this Act.” 

Your remaining questions are grouped under the heading “Central 

Record File. ” Section 11.17 of the Family Code requires that the Department maintain a central record file on all suits affecting the parent-child 

relationship. The definitions section of Chapter 11 of the Code provides 

at Section 11.01 (5) that: 

‘Suit affecting the parent-child relationship’ means 

a suit brought under this subtitle in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment 

or termination of the parent-child relationship is sought. 

You indicate that the Department has determined that the following types of 

suits ‘affect the parent-child relationship: 

a. Adoptions (Ch. 16, Family Code) 

b. Termination of parental rights (Ch. 15, Family Code) 

c. Divorce, annulment, or suit to declare a ma,rriage 

void where children are involved. (5 3. 5,5, Family Code) 

d. Cases of separation involving the custody and support 

of children (Art. 4639b, V. T. C. S.) 

e. Voluntary legitimation (Ch. 13. Family Code) 

p. 1646 
The Honorable Raymond W. Vowel1 page 4 (H-353) 

f. Conservatorship (Ch. 14, Family Code) 

g. Removal of disabilities of minority (Ch. 31, 

Family Code) 

h. Habeas Corpus (Section 14.10, Family Code) 

i. Uniform Reciprocal Enforcement of Support Act 

(Ch. 21, Family Code) 

j. Change of name of minor, if the petition alleged that 

the minor was subject to the continuing jurisdiction of 

a court under Subtitle A - Title 2, Family Code (Ch. 32, 

Family Code). 

You ask: 

Is the department required to maintain the Central 

Record File on all the types of suits listed above? 

Are there any other types of suits on which the 

department is required to maintain a record in the 

Central Record File? 

By definition, a suit affecting the parent-child relationship is one 

which, inter alia, is brought under Subtitle A of Title 2 of the Family Code. 

That Subtitle sncanpaases Chapters 11 through 17. Of the types of cases you 

mention, removal of disabilities cases, (Ch. 31), Uniform Reciprocal 

Enforcement of Support Act cases (Ch. 21), and change of name suits 

(Ch. 32) do not arise under Subtitle A, and therefore are not &Is affecting 

the parent-child relationship under the definition of Section 11.01 (5). 

Separation cases (Art. 463913) are discussed in response to your twentyfirst question. Cases involving divorce, annulment or a declaration that 

a marriage is void arise under Section 3. 55 of the Family Code, but where 

children are involved, that section generally requires that the suit for 

divorce “include a suit affecting the parent-child relationship under 

p. 1647 
The Honorable Raymond W. Vowel1 page 5 (H-353) 

Subtitle A, Title 2 of[the Family C]ode. ” It is our conclusion that under 

511.17 the Department is required to keep records of the types of cases 

you listed except for removal of disabilities cases, Uniform Reciprocal 

Enforcement of Support Act cases, and change of name suits. In addition 

to these types of suits you listed, the Department may be required to 

keep records of suits for protection of children in emergencies depending 

on the nature of the particular case. These suits arise under Chapter 17. 

Your fourth question states: 

Section 11.17(a) of Title 2 of the Family Code 

provides that the clerk of each court having jurisdiction of suits affecting the parent-child relationship 

must transmit specified information to the State 

Department of Public Welfare. This provision 

seems to give the district clerk discretionary power 

in transmitting information, allowing him to transmit information that in his opinion affects the parentchild relationship. Does this uncertainty, if it is an 

uncertainty, render this portion of Title 2 unconstitutional 

or invalid? 

We percieve no uncertainty in the statutory requirement. The clerk 

is not required to determine whether a case has an effect on the parent-child 

relationship. Rather his responsibility is to determine whe’ther a case is 

included in the statutory definition of the term contained in Section 11.01(5). 

Your fifth question is: 

Should court proceedings in habeas corpus actions 

($13.10) be reported to the Central Record File? 

If so, then is the department’s obligation fulfilled 

when it receives and makes a record of such 

proceeding, or do all of the other provisions relating 

to the Central Record File apply to this type of 

proceeding? 

p. 1648 
The Honorable Raymond W. Vowel1 page 6 (H-353) 

These proceedings are to be reported as indicated in our answer 

to your third question. We see nothing to indicate other than that all the 

requirements of Section 11.17 apply to the Department’s recordation of 

this information except for the requirements of Subsection (b) which 

apply to adoption decrees. 

Your sixth question states: 

The information the clerk is required to send to 

the department, the content of the record maintained by the department, and the information 

to be supplied, upon request, by the department 

from its records are slightly different in each 

type of case involving the parent-child relationship. Is the department authorized to require 

from the clerk additional information other than 

that required by statute? Such information might 

be necessary for identification purposes. May the 

department require a submittal in a prescribed 

form? If your answer is affirmative, may the 

department assess a greater fee where the prescribed form is not used? 

The statutory scheme is designed so that the court clerk is required 

to submit enumerated data to the Department which the Department is 

required to file. The Department may request that the clerk supply 

additional information, and generally the clerk will not be legally precluded from complying wi.th the request, but the limits of the clerk’s 

duties are prescribed by the statute. 

We assume the submittal to which you refer is a submittal of a 

request for information by a court or an attorney rather than a submittal 

of information by the clerk, si.nce the fee authorized in Section 11.17 is 

to be collected for supplying rather than filing information. For the 

reasons discussed in our answer to your first question we believe the 

p. ,1649 
The Honorable Raymond Vowel1 page 7 (H-353) 

Department may require that prescribed forms be used, and if the cost of 

supplying information is higher when the prescribed form is not used a 

higher fee may be charged to reflect the higher cost. 

Your seventh question asks: 

May the department assume that. . . records [on 

adoptions] will be maintained on the same basis that 

the Central Record File is maintained on other types 

of suits involving the parent-child relationship under 

the authority of Chapter 11, Section 11.17(a) 7 .In the 

absince’of’a directive in the Code, ‘does the department have the authority to establish and maintain a 

record file on adoptions for retrieval purposes? 

Adoption records are subject to different guidelines than records of 

other suits affecting the parent-child relationship, Sec. 11,17(b), Family 

Code. For example, inquiries by attorneys or courts under Subsection (c) 

as to whether a child had been the subject of a suit involving the parentchild relationship are required to be answered in the negative if an adoption 

is the most recent suit of that type on file. 

We believe the Department has authority to make a retrieval file or 

index of adoption cases. Maintenance of records is generally meaningless 

unless there is a means of locating and recovering specific information. 

Furthermore, the statute contemplates in Subsection (d) that some information may be required to be revealed under court order, and without a means 

of recovery compliance with the order might be impossible. Of course, the 

Department may not use any index or retrieval file in a way that compromises 

the confidentiality statutorily accorded adoption records. 

Your eighth question asks: 

Should . . . adoptions [of hard-to-place children] 

be reported to the Central Record File in the same 

manner as other adoption cases are reported? If 

p. 1650 
The Honorable Raymond W. Vowel1 page 8 (H-353) 

so, and the district clerks do not send the 

information on adoptions consummated under 

Article 4613-2 to the Central Record File, what 

is the responsibility of the department? 

Article 46b-2 is not a vehicle for the consumation of adoptions. It 

provides for the dissemination of information on programs for adoption 

of “hard-to-place children” and for financial assistance to adoptive parents. 

With the exception of waiver of certain fees, adoptions of hard-to-place 

children are handled under the normal adoption statute. Since it is our 

opinion that the premise on which you base this question is mistaken, we 

find it unnecessary to answer it. 

Your ninth question states: 

Section 11.17 provides for distribution of information 

from the Central Record File as follows: 

The records required to be maintained by 

the department are confidential, and no 

person is entitled to access to or information from these records except as provided 

by this section or an order of a district court 

of Travis County for good cause. 

According to Chapter 11, Section 11.07, the department 

may, on the written request of an attorney or a court, 

identi.fy the court which last had continuing jurisdiction 

and the docket number of a suit. 

Is the department correct in interpreting the above 

provisions to mean that all records in its Central 

File are confidential? 

Must the department refuse to furnish information if 

the request is from any source other than an attorney 

or a court? 

p. 1651 
The Honorable Raymond W. Vowel1 page 9, (H-353) 

As provided by statute the information maintained in the Central 

Record File is confidential except to the extent that disclosure is provided 

for in Section 11.17. Those exceptions are revelation on an order of a 

district court in Travis County and furnishing of the information required 

to be disclosed on the request of a court or an attorney. ,In the absence 

of a court order the Department is required to decline to furnish the 

information to anyone other than an attorney or court. 

Your tenth question is: 

Will the provisions of the Code prevail over any other 

law relating to records which may be in conflict, 

including any provisions of [the Open Records Act, 

Article 6252-l?‘a, V. T. C. S. 1, which may be in 

conflict? May members of the legislature be denied 

access to the Central Files under the confidentiality 

requirement, since they are not authorized access 

in the Code, even though [the Open Record~s Act] 

makes confidential information available to them? 

Your question is extremely broad, and in the absence of specific 

cases or examples we cannot answer as to the effect of every potentially 

conflicting statute under all circumstances. Therefore, we limit our 

discussion to the specific case you present, to wit: the effect of the Open 

Record~s Act on the right of a legislator to ex=e the material in question. 

Section 3 (a) of the Open Records Act provides in part: 

Sec. 3 (a) All information collected, assembled, 

or maintained by governmental bodies pursuant to law 

or ordinance or in connection with the transaction of 

official business is public information and available 

to the public during normal business hours of any 

governmental body, with the following exceptions 

only: 

(1) information deemed confidential by law, either 

p. 1652 
The Honorable Raymond W. Vowel1 page 10 (H-353) 

Constitutional, statutory, or by judicial decision: 

As information in the Central Record File is deemed confidential 

by statute it is excepted from disclosure under Section 3 of the Open 

Records Act. However, Section 3 (b) of the Open Records Act provides 

in part: 

(b) . . . . This section is not authority to withhold 

information from individual members or committees 

of the legislature to use for legislative purposes. 

Section 14 (b) of the Act provides: 

(c) This Act does not give authority to withhold information from individual members or committees of the 

Legislature of the State of Texas to use for legislative 

purposes. 

While these two provisions clearly indicate that the Open Records 

Act does not give an agency authority to withhold information from a 

legislator, it does not speak to situations involving information withheld 

under other statutes. Whether a legislator would have a right to this 

information without regard to the Open Records Act would depend on the 

facts of the particular case and the statutory authority on which the legislator relies. It is our opinion that a legislator, in the absence.of a court 

order, cannot require disclosure of information declared confidential by 

Section 11.17. Whether he can require disclosure under another statute 

or in another capacity will depend on the facts of the case. 

Your eleventh question is: 

Chapter 11, Section 11.17(b) states that an adoption 

decree ends the court’s continuing jurisdiction over 

a child and any subsequent suit must be commenced 

as though the child had not been the subject of a suit 

p. 1653 
The Honorable Raymond W. Vowel1 page 11 (H-353) 

for adoption. 

Is the department correct in assuming that no 

information regarding the adoption proceeding 

may be released, and that requests for information must be answered as follows: “The child 

has not been the subject of a suit affecting the 

parent-child relationship? ” 

No information on the adoption ‘proceedings may be released in 

the absence of an order from a district court in Travis County, and a 

reply of the type you suggest is required by the statute when a request 

is made involving a child who has been adopted. 

Your twelfth question is: 

The Department of Public Welfare has records 

pertaining to children covering a lmg period of 

time prior to the enactment of Title 2. 

In answering inquiries about one of these children, 

should the department ignore the fact that it has 

in its files information concerning the child which 

was recorded prior to JandAry 1; 1974,. an,d reply 

that “the child has not been the subject of a suit 

affecting the parent-child relationship? ” May the 

department instead use the wording “the department 

has no record of a suit having been filed subsequent 

to .kmkryl, ‘1974, involving such a child. ” In other 

words, is the department limited to’the actual wording 

in the Code, or may it formulate answers that will be 

more appropriate for the circumstances? 

We find nothing in t.he Code to suggest that the Department is 

required to use the exact language of the Code in responding to requests 

p. 1654 
The Honorable Raymond W. Vowel1 page 12 (H-353) 

for information. Specifically, we believe the Department may limit its 

response by‘indicating that it applies only to cases subsequent to the 

effective date of the Act., 

Your thirteenth question is: 

If any instrument is filed in the court after the 

effective date of the act which brings a suit that 

was pending on the effective date of the act 

within the scope of the Family Code, does the 

department combine the information it has on 

hand which predates the Family Code with the 

new information, making it all one suit? If so, 

do the other provisions of the Code relating to 

confidentiality and procedures for obtaining 

information from the department refer t6 the 

information the department had prior to January 

1, 1974, as well as to the information obtained 

subsequently? 

Section 4 of Acts 1973, 63rd Legis.,ch. : 543, p. 1459, the Act 

enacting Title 2 of the Family Code,protides: 

Set 4. (a) This Act takes effect on January 1, 

1974, and governs all proceedings, orders, judgments, 

and decrees in suits and actions brough after it takes 

effect, and also all further proceedings in actions 

then pending, except to the extent that in the opinion 

of the court its application in an action pending when 

this Act takes effect would not be feasible or would 

work injustice. All things properly done under any 

previously existing rule or statute prior to the taking 

effect of this Act shall be treated as valid. 

(b) Any action or suit commenced after January 1, 

1974, that has as its object the modification of an order, 

p. 1655 
The Honorable Raymond W. Vowel1 page 13 (H-353) 

judgment, or decree entered prior to January 1, 1974, 

but which under this Act would be a suit affecting the 

parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in 

which no court has continuing exclusive jurisdiction. 

The data required to be furnished to the Department for the Central 

Record File are a copy of the court’s decree, the name and all prior names 

of the child, the child’s birthdate and the child’s birthplace.~. The information the Department is required to furnish to attorneys and courts is the 

name of the court last having jurisdiction of the child in a suit involving 

the parent-child relationship and the docket number of the suit. The 

purpose of maintaining this file and informing attorneys and courts of 

prior suits involving a child is to ease the administration of the Code’s 

provision that, except in cases of adoption, once a court acquires jurisdiction of a suit affecting the parent-child relationship it retains exclusive, 

continuing jurisdiction over similar suits involving that child, Considering 

the language and purpose of the statute, we see no requirement that the 

Department include information attributable to pre-January 1, 1974, cases 

in its Central Record File. Neither do we see any prohibition of an 

integration of this information, although it would generally, if not always, 

be irrelevant to the request of an attorney or court under Section 11.17 

of the Act. Whether the irfo:rmation would be confidential would depend 

on the facts of the case. 

Your fourteenth question states: 

Chapter 11, Section 11.05(c) provides that “a court shall 

have jurisdiction . . . if it has been informed by the 

Department of Public Welfare [that the child has not 

been the subject of a suit affecting the parent-child 

relationship and the petition states that no court has 

continuing jurisdiction over the child]. ” This statement implies that the department may report only 

to the court. 

p. 1656 
The Honorable Raymond Vowel1 page 14 (H-353) 

Is it mandatory that the department report to the 

court or may the department exercise discretion 

as to whether it will report to the court or the 

attorney? 

The above’, provision also itnplies that the court 

has jurisdiction if it has been informed by the 

department that no other court has jurisdiction, 

even if the department’s answer may be erroneous. 

Would the judgment or decree based on faulty informa* 

tion concerning jurisdiction render the decree invalid? 

The statutory scheme contemplates that the Department communicate 

information on prior suits to attorneys as well as to courts. Attorneys are 

permitted to request the information, Section 11.17(c), and the statute presumes that they will attach the information given them by the Department 

to the petition. Section 11.17 (b). 

If a court acquires jurisdiction over a case under Section 11.05(c) 

because of erroneous information supplied by the Department, it is 

contemplated that that court will retain jurisdiction and enter a valid 

order since Section 11,06(d) provides: 

(d) If a court has continuing jurisdiction over a 

child but another court has acquired jurisdiction over 

the child in a suit affecting the parent-child relationship under Section 11.05(c) of this code, the court 

previously having jurisdiction over the child, on a 

motion of any party or on the court’s motion, shall 

transfer the proceeding to the court which has acquired 

jurisdiction under Section 11.05(c) of this code. 

Your fifteenth question states: 

In many cases involving children, the State Department of Public Welfare will be initiating suits involving 

the parent-child relationship. It will be necessary in 

p. 1657 
The Honorable Ray~mond W. Vowel1 page 15 (H-353) 

these cases to have a statement attached to the 

petition, either showing the court which last had 

jurisdiction or stating that the child has not been 

the subject of a suit affecting the parent-child 

relationship. 

May the department interpret the Code as being 

sufficiently flexible for the department to make 

reasonable rules and regulations concerning the 

use of the records necessary for the direct 

administration of its programs7 

The Department is permitted to make reasonable rules and regulations concerning the custody and use of its records. Article 695~ $33(2). 

We believe that use of the files for the purpose of the Department’s directly 

bringing suits affecting the parent-child relationship would be reasonable. 

Furthermore a suit of the type you describe would be filed by an attorney 

for the Department who would be entitled to the information under Section 

11.17(c). 

Your sixteenth question states: 

There is no provision in the Code for ever removing 

a case from the Central Record File. Ifhe child 

appears on the Central Record File because of a suit 

to terminate the parent-child relationship and is 

subsequently adopted, then the child is no longer 

subject to the continuing jurisdiction of the court 

and the department cannot give information about 

the adoption. 

Is the department responsible for correlating the 

adoption case with the previous case terminating 

parental rights, if any, and closing the pr,evious 

case as well as the adoption case? 

p. 1658 
The Honorable Raymond W. Vowel1 page 16 (H-353) 

If a case is reported when the child is under 18 and 

he reaches 18 terminating the jurisdiction of the court, 

is the department responsible for closing that case? 

Is the closing of a case and the removal of the record 

from the Central Record File dependent upon receiving 

information from the clerk to close the case? Is the 

department required to continue cases received and 

ma’de a part of the Central Record File indefinitely 

since no provision is made for removing them, except 

in adoptions 7 

The Department will be required to correlate its records on adoption 

cases with its other records in the Central Record File since an adoption 

ends a court’s continuing jurisdiction over a child and any subsequent suit 

is to be handled as if no adoption case or any prior case affecting the parentchild relationship had been filed. Sections 11.05(b), 11.17(b). Furthermore, 

the Department is specifically required to close the records concerning 

that child and to decline to produce records of any prior proceedings 

concerning the child except in the unusual situation specified in the Act. 

Sec. 11.17(b) and (d). Clearly it is impossible for the Department to 

comply with the statute in the absence of a correlation or integration of 

the files. 

The method to be used in closing individual files is within the rulemaking authority the Department has under Article 695c, $ 33(2) in relation to the custody of its records. 

Your seventeenth question states: 

The Code does not provide for storage of records. 

May the department arrange for storage of records 

with the Texas Library and Historical Commission? 

If so, are the records subject to the various statutes 

governing storage of records by&at body including 

TEX. REV. CIV. STAT. ANN. art. 5441b governing 

disposition of valueless records and TEX. REV. CIV. 

STATE. ANN. art. 5441a governing preservation of 

records? 

p. 1659 
The Honorable Raymond Vowel1 page 17 (H-353) 

We believe that there is ample authority for the Department to 

arrange for storage of its records by the Texas Library and Historical 

Commission. The Interagency Cooperation Act, Article 4413 (32), 

V. T. C. S. See also, The Preservation of Essential Records Act, 

Article 5441d, V. T. C. S. Whether a statute would apply to records of 

the Department maintained by the Library and Historical Commission 

would depend on the wording.of the particular statute. Article 5441a, 

which is one of the two statutes you mention, applies to all public 

records of the State. Article 5441b, the other statute about which you 

inquire, applies only to records consigned by law to the custody of the 

State Librarian. 

Your eighteenth question states: 

Chapter 11, Section 11.17 (e) provides that: 

(e) The department may utilize microfilm 

or other suitable means for maintaining the 

central record file. . A certified reproduction 

of a document maintained .by the department 

is admissible in evidence as the original 

document. 

Since the Code is silent as to the’period of time the department is required to keep the records received within 

the scope of this law, may the department establish the 

length of time the original records and/or the microfilm 

are to be retained? In the absence. of rule and regulatory 

authority, is the department required to retain the 

records and/or microfilm indefinitely? Is the department authorized to have the decrees microfilmed 

immediately upon receipt and destroy the official record 

immediately, or is there any law which requires the 

department to retain the original record for any period 

of time, either before or after it is microfilmed? After 

it is microfilmed and the original record destroyed, 

then is the department required to retain the microfilm 

indefinitely? If not indefinitely, then under what authority 

may the department ever destroy the record and microfilm? 

p. 1660 
The Honorable Raymond W. Vowel1 page 18 (H-353) 

We believe the Department has ample rule making authority, as 

discussed in response to your fifteenth and sixteenth questions, to establish 

procedures for copying and maintaining its records and files. Of course, 

any~. destrirtion of records, whether original or microfilm, must comply 

with the requirements of Article 5441a. 

Your nineteenth question states: 

In adoption cases, it is the department’s interpretation 

of the Code that all of the original instruments filed in 

the court will betransmitted to the State Department 

of Public Welfare for filing, leaving no official records 

in the local district courts as previously provided by 

law. 

The requirement that they be sealed upon receipt implies 

that the adoption records are never to be destroyed. In 

view of this, is the department authorized under the 

Code to destroy the original court papers after they 

have been’microfilmed on the adoption cases? If these 

official original records are to be destroyed, then is there 

any general law which prescribes the length of time that 

the department must retain the official adoption records 

it receives from the courts? Is there any,prescribed 

period of time that the department is required to retain 

the official records before thay can be destroyed? Is 

there any length of time prescribed for retaining the 

microfilm of such records? Must the department retain 

either the original record or the microfilm for an 

indefinite period of time? 

The department has no system for microfiliming records, 

but may contract for this purpose. In view of the requirement that the records in adoptions must be sealed upon 

receipt, would it be a breach of the requirement of 

confidentiality for the department to have them microfilmed by an outside contractor? May the department 

p. 1661 
The Honorable Raymond W. Vowel1 page 19 (H-353) 

request the State Director and Librarian to provide 

microfilming? 

A file on an adoption is a district court record, and it is contemplated 

that it will be permanently preserved. Article 1899a, § 2(5). ‘Before copies 

are made and originals are destroyed the Department must comply with the 

provisions of Article 5441b which require, inter alia, the permission of the 

State Librarian and the Director of the Records Management Division. The 

Preservation of Essential Records Act also may be applicable, Furthermore, in copying adoption records and retaining duplicates rather than 

originals the Department should be guided by the requirements established 

for district clerks for preserving this type of record. Those guidelines 

are found at Article 1899a, V. T. C. S. 

Although in the absence of a specific proposal we cannot say that 

the Department is precluded from contracting with an outside contractor 

for the microfilming’ of its records, we believe confidentiality could be 

best maintained by a proper contract with&e Library and Historical 

Commission. For example, confidential records are recognized and 

protected under Section 7 of the Preservation of Essential Records Act. 

Your twentieth question states: 

Chapter 11, Section 11.05 relates to the continuing 

jurisdiction of a suit affectirgthe parent-child relationship and Section 11.06 provides for the transfer of 

proceedings. Apparently no provision is made for 

notifying the Department of Public Welfare of the 

change. Without proper notice, any information 

subsequent to a change given by the department 

would be erroneous. We were unable to find a 

section requiring that the department be notified 

of placing responsibility on anyone for so notifying 

the department in case of change or even dismissal 

of a suit. 

In the absence of a provision in the law requiring it, 

p. 1662 
The Honorable Raymond W. Vowel1 page 20 (H-353) 

who is responsible for seeing that the correct 

information is transmitted to the department - 

the department or the court? 

We do not believe the situation you describe involves a problem 

that was outside the contemplation of the statute’s drafters. Whenever a 

suit is pending the Department’s information will be out of date whether 

a transfer is involved or not. We can find no statutory requirement that the 

Department be notified of a transfer of a suit prior to entry of a decree, 

and we know of no responsibility on the part of the Department to acquire 

such information. An order dismissing a suit, however, will be reflected 

in a decree which must be reported to the Department. 

Your twenty-first question states: 

Section 3 of the Code repeals certain specific articles 

of the current statutes. Article 4639b, TEX. REV. 

CIV. STAT. ANN., which provides in essence for 

the determination of custody and support of children 

in cases of separation without the necessity of filing 

a petition for divorce, was not repealed. 

Will this article continue to be in effect after the Code 

becomes effective January 1, 19747 If your answer is 

affirmative, then is the department supposed to receive 

a copy of the decree or order from the clerk together 

with other identifying information so that it may be 

placed in the Central Record File? Is it subject to all 

other provisions relating to the Central Record File? 

As Article 463913 was neither expressly nor impliedly repealed by 

the enactment of the Family Code, it remains in force. However, the 

relief sought in an action under that statute is generally outlined in 

chapter 14 of the Family Code. In fact, where the parents of a child are 

separated the Court is directed to appoint a managing conservator for the 

child under Section 14.01(a). Since the relief eought under an Article 4639b 

p. 1663 
The Honorable Raymond W. Vowel1 page 21 (H-353) 

suit is controlled by Chapter 14, we believe it is a suit affecting the parentchild relationship and subject to report, 

Your twenty-second question involves the permission given the 

Department in Section 11,17(c) to charge a ,reasonable fee to cover the 

cost of the service it provides through the Central Record File. The 

question states: 

The State Department of Public Welfare r,eceived no 

state appropriation for the specific purpose of establishing 

and maintaining a Central Record File. A “reasonable 

fee” for furnishing the court or the ~attorney the information about the continuing jurisdiction of the suit affecting 

the parent-child relationship would be wholly inadequate 

to establish and maintain such a file. Furthermore, the 

department is reluctant to charge the court a fee for 

such a service, since the department is dependent 

upon the courts for many services which they furnish 

without charge, 

May the department furnish the information without 

charge in all cases? If deemed feasible by the department, could it charge in some instances and not in 

others? If a fee is charged, could it be deposited to 

the credit of the Central Record File for its maintenance 

and operation and used for that purpose, or must it be 

deposited into the General Revenue Fund? 

Your question concerning the deposit and~use of funds generated 

by charges to users of the File were answered by Attorney General Opinion 

H-211 (1974). The statute provides that the Department “may charge a 

reasonable fee, ” and we believe this language permits the Department 

to decline to charge any fee. Furthermore, we believe the Department 

could charge a fee in some cases but not in others so long as the distinction 

was not arbitrary and capricious. For example, distinction between charges 

p. 1664 
The Honorable Raymond W. Vowel1 page 22 (H-353) 

to attorneys and to courts probably would be reasonable. 

Your final question was presented in a supplemental request and 

concerns disposition hearings for juveniles under Section 54.04 of the 

Family Code. You ask if a suit involving an order of the Juvenile Court 

committing a child in need, of rehabilitation to the custody of a relative 

or other fit person is a case affecting the parent-child relationship and 

as such is subject to reportb the Department and to the continuing 

jurisdiction concept of Section 11.05. As indicated in response to your 

third’question a suit affecting the parent-child relationship is, inter alia, 

one brought under Subtitle A of Title 2 of the Family Code. As Section 

54.04 is in Title 3 it does not fit the statutory definition, and your question 

must be answered in the negative. 

SUMMARY 

(1) The Department may make rules and regulations 

to aid it in the administration of its responsibilities 

under Title 2 of the Family Code. 

(2) A suit affecting the parent-child relation can 

only be one brought under Subtitle A of Title 2 of the 

Family Code. 

(3) Adoptions of hard-to-place children are handled 

on the same basis as other adoptions for Central Record 

File purposes. 

(4) The Open R&or& Act does bot give an’agency the 

right to withhold information from a legislator, but his 

right to access may be affected by other statutes. 

(5) The Department is required to furnish certain 

Central Record File information to attorneys as well 

as to courts, 

p. 1665 
The Honorable Raymond W. Vowel1 page 23 (H-353) 

(6) The Department may contract with the 

Texas Library and Historical Commission for 

the storage and preservation of the file. 

Very truly yours, 

7 

DAVID M. KENDALL, Chairmafi 

Opinion Committee 

p* 1666