# 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 ofthe Department of Public Welfare under Title 2ofthe Family Code. Dear Mr. Vowell:

You have asked **our** opinion on 23separate questions. involving your Department’s responsibilities under Title 2ofthe Family Code. **Your** first question is:

Does the general rule and regulatory authority contained inArticle 695c, V.T. C.S., authorize the State Department ofPublic Welfare to make **rules** and regulations to carry **out** ite responsibilities as set out in Title 2ofthe 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. Infact we found 29separate 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 ofthe rule making authority will provide abasis for many types of rules to govern the

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

Department’s administration ofits varied responsibilities under Title 2 ofthe 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. Inaddition 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 inArts. 695~ and 6252-13 would be sufficient to sustain many ifnot 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 onArticle 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,rdLeg., ch. 543, Sec. 3, p. 1458). Its provisions are now found in Chapter 16ofthe Family Code. Article 4613-2concerns adoption of hard-to-place children, and it has not been repealed. You state that the repeal ofArticle 46a coupled with the failure toincorporate Article 46b-2 in the Code results in numerous “gaps ” in the latter **statute., You**  **ask:**

Dothese gaps have the effect ofrendering Article 4610-2 invalid? Ifnot, then will the procedure prescribed in Chapter 16ofthe Code be applicable, or will Article 46b-2, ofnecessity, b,einterpreted **without** any correlation to the present Article 46a or tothe Code?

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

We have discovered no “gaps” inArticle 46b-2. Any adoption is governed by the requirements of Chapter 16ofthe Family Code, except as modified byArticle 46b-2. We attach no consequence to the fact that these **two statutes**  now appear in different locations in compilations ofthe laws ofthis 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 ofthis Act.”

**Your** remaining questions are grouped under the heading “Central Record File. ” Section 11.17ofthe Family Code requires that the Department maintain a central record file on all suits affecting the parent-child relationship. The definitions section of Chapter 11ofthe 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 ofa managing conservator or apossessory conservator, access to or support ofa child, or establishment or termination ofthe 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 ofparental rights (Ch. 15, Family Code)

c. Divorce, annulment, or suit to declare ama,rriage void where children are involved. (53.5,5,Family Code) d. Cases of separation involving the custody and support ofchildren (Art. 4639b, V.T. C.S.)

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

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

f. Conservatorship (Ch. 14, Family Code) g. Removal ofdisabilities ofminority (Ch. 31, Family Code) h. Habeas Corpus (Section 14.10, Family Code) i. Uniform Reciprocal Enforcement ofSupport Act (Ch. 21, Family Code) j. Change ofname ofminor, ifthe 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 tomaintain the Central Record File on all the types of suits listed above? Are there any other types of suits onwhich 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 ofTitle 2ofthe Family Code. That Subtitle sncanpaases Chapters 11through 17. Ofthe types ofcases you mention, removal ofdisabilities cases, (Ch. 31), Uniform Reciprocal Enforcement ofSupport Act cases (Ch. 21), and change ofname suits (Ch. 32) do not arise under Subtitle A, and therefore are not &Is affecting the parent-child relationship under the definition ofSection 11.01(5). Separation cases (Art. 463913)are discussed in response toyour twentyfirst question. Cases involving divorce, annulment or adeclaration that amarriage is void arise under Section 3.55ofthe Family Code, butwhere children are involved, that section generally requires that the suit for divorce “include a suit affecting the parent-child relationship under

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

Subtitle A, Title 2of[the Family C]ode. ” Itis our conclusion that under 511.17 the Department is required to keep records ofthe types ofcases you listed except for removal of disabilities cases, Uniform Reciprocal Enforcement ofSupport Act cases, and change ofname suits. Inaddition **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 ofthe particular case. These suits arise under Chapter 17.

Your fourth question states:

Section 11.17(a) ofTitle 2ofthe Family Code provides that the clerk of each court having jurisdiction ofsuits affecting the parent-child relationship must transmit specified information to the State Department ofPublic Welfare. This provision seems to give the district clerk discretionary power in transmitting information, allowing him to transmit information that inhis opinion affects the parentchild relationship. Does this uncertainty, ifit is an uncertainty, render this portion of Title 2unconstitutional 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 ofthe 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? Ifso, then is the department’s obligation fulfilled when it receives and makes a record ofsuch proceeding, or do all ofthe other provisions relating to the Central Record File apply to this type of proceeding?

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

These proceedings are tobe reported as indicated in our answer toyour third question. We see nothing to indicate other than that all the requirements ofSection 11.17apply tothe Department’s recordation of this information except for the requirements ofSubsection (b) which apply toadoption decrees.

**Your** sixth question states:

The information the clerk is required to send to the department, the content ofthe 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 ofcase 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 aprescribed form? Ifyour answer is affirmative, may the department assess agreater 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 ofthe **clerk ’** **s** duties are prescribed by the statute.

We assume the submittal to which you refer is a submittal ofa request for information bya court or an attorney rather than a submittal ofinformation by the clerk, si.nce the fee authorized in Section 11.17is to be collected for supplying rather than filing information. For the reasons discussed in our answer toyour first question webelieve the

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

Department may require that prescribed forms be used, and ifthe 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 onthe same basis that the Central Record File is maintained on other types ofsuits 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 onadoptions for retrieval purposes? Adoption records are subject todifferent 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 towhether a child had been the subject ofa suit involving the parentchild relationship are required to be answered in the negative ifan adoption is the most recent suit ofthat type onfile.

We believe the Department has authority to make aretrieval file or index ofadoption cases. Maintenance ofrecords is generally meaningless unless there is ameans oflocating 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 ameans of recovery compliance with the order might be impossible. Of **course,** the Department may not use any index or retrieval file in away 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. 1650The Honorable Raymond W. Vowel1 page 8 (H-353)

so, and the district clerks donot send the information onadoptions consummated under Article 4613-2tothe Central Record File, what is the responsibility ofthe department? Article 46b-2 is not avehicle for the consumation ofadoptions. It provides for the dissemination ofinformation onprograms for adoption of “hard-to-place children” and for financial assistance toadoptive parents. With the exception ofwaiver of certain fees, adoptions ofhard-to-place children are handled under the normal adoption statute. Since it is our opinion that the premise onwhich you base this question is mistaken, we find it unnecessary to answer it.

Your ninth question states:

Section 11.17provides for distribution ofinformation from the Central Record File as follows: The records required to be maintained by the department are confidential, and no person is entitled toaccess to or information from these records except as provided by this section or an order ofa district **court** ofTravis County for good cause. According to Chapter 11,Section 11.07, the department may, on the written request ofan attorney or a court, identi.fy the court which last had continuing jurisdiction and the docket number ofa suit. Is the department correct ininterpreting the above provisions to mean that all records inits Central File are confidential? Must the department refuse tofurnish information if the request is from any source other than an attorney **or a**  **court?**

p. 1651The 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 onan order ofa district court in Travis County and furnishing ofthe information required to be disclosed on the request ofa court or an attorney. ,Inthe absence ofa court order the Department is required to decline tofurnish the information toanyone other than an attorney **or court.** 

Your tenth question is:

Will the provisions ofthe 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 ofthe 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 tothem? Your question is extremely broad, and in the absence ofspecific 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, towit: the effect ofthe Open Record~s Act on the right ofalegislator to ex=e the material in question.

Section 3(a) ofthe 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 tothe public during normal business hours ofany governmental body, with the following exceptions only:(1)information deemed confidential by law, either

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

Constitutional, statutory, or byjudicial decision: As information in the Central Record File is deemed confidential by statute it is excepted from disclosure under Section 3ofthe Open Records Act. However, Section 3(b) ofthe Open Records Act provides inpart: (b)

. . . . This section is not authority towithhold

information from individual members or committees ofthe legislature touse for legislative purposes. Section 14**(b)** ofthe Act provides:

(c) This Act does not give authority to withhold information from individual members or committees ofthe Legislature ofthe State ofTexas to **use** for legislative purposes. While these two provisions clearly indicate that the Open Records Act does not give an agency authority towithhold information from a legislator, it does not speak to situations involving information withheld under other statutes. Whether alegislator would have a right to this information without regard to the Open Records Act would depend on the facts ofthe particular case and the statutory authority onwhich the legislator relies. Itis our opinion that alegislator, in the absence.of a court order, cannot require disclosure ofinformation declared confidential by Section 11.17. Whether he can require disclosure under another statute or in another capacity will depend on the facts ofthe 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 ofa suit

p. 1653The 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 ofa suit affecting the parent-child relationship? ” No information on the adoption ‘proceedings may be released in the absence ofan order from adistrict **court** in Travis County, and a reply ofthe 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 ofPublic Welfare has records pertaining to children covering almg period of time prior to the enactment ofTitle 2. Inanswering inquiries about one ofthese 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,dreply that “the child has not been the subject ofasuit affecting the parent-child relationship? ” May the department instead use the wording “the department has no record ofasuit 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.heCode to suggest that the Department is required to use the exact language ofthe Code in responding to requests

p. 1654The 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 ofthe Act.,

Your thirteenth question is:

Ifany instrument is filed in the court after the effective date ofthe act which brings a suit that was pending onthe effective date ofthe act within the scope ofthe 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 ofthe Code relating to confidentiality and procedures for obtaining information from the department refer t6the information the department had prior to January 1, 1974, as well as to the information obtained subsequently? Section 4ofActs 1973, 63rd Legis.,ch. : 543, p. 1459, the Act enacting Title 2ofthe 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 ofthe 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 ofthis Act shall be treated as valid. (b) Any action or suit commenced after January 1, 1974, that has as its object the modification ofan order,

p. 1655The 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 ofthis Act, and shall be treated as the commencement ofa suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction. The data required to be furnished tothe Department for the Central Record File are a copy ofthe court’s decree, the name and all prior names ofthe 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 ofthe court last having jurisdiction ofthe child in a suit involving the parent-child relationship and the docket number ofthe suit. The purpose ofmaintaining this file and informing attorneys and courts of prior suits involving a child is to ease the administration ofthe Code’s provision that, except in cases ofadoption, once a court acquires jurisdiction ofa suit affecting the parent-child relationship it retains exclusive, continuing jurisdiction over similar suits involving that child, Considering the language and purpose ofthe statute, we see no requirement that the Department include information attributable to pre-January 1, 1974, cases in its Central Record File. Neither dowe see any prohibition ofan integration ofthis information, although it would generally, if not always, be irrelevant to the request ofan attorney or court under Section 11.17 ofthe Act. Whether the irfo:rmation would be confidential would depend on the facts ofthe 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 ofPublic Welfare [that the child has not been the subject ofa 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. 1656The Honorable Raymond Vowel1 page 14 (H-353)

Is it mandatory that the department report to the court or may the department exercise discretion as towhether it will report to the court or the attorney? The above’, provision also itnplies that the court has jurisdiction if it has been informed bythe department that no other court has jurisdiction, even ifthe department’s answer may be erroneous. Would thejudgment or decree based onfaulty informa* tion concerning jurisdiction render the decree invalid? The statutory scheme contemplates that the Department communicate information onprior suits toattorneys 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 tothe petition. Section 11.17 (b).

Ifa 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 avalid order since Section 11,06(d) provides: (d) Ifa 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) ofthis code, the court previously having jurisdiction over the child, ona motion ofany party or on the court’s motion, shall transfer the proceeding to the court which has acquired jurisdiction under Section 11.05(c) ofthis 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. Itwill be necessary in

p. 1657The 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 ofa 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 ofthe records necessary for the direct administration ofits programs7 The Department is permitted to make reasonable rules and regulations concerning the custody and use ofits records. Article 695~ $33(2). We believe that use ofthe files for the purpose ofthe Department’s directly bringing suits affecting the parent-child relationship would be reasonable. Furthermore a suit ofthe type you describe would be filed by an attorney for the Department who would be entitled tothe 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 onthe Central Record File because ofa suit to terminate the parent-child relationship and is subsequently adopted, then the child is nolonger subject to the continuing jurisdiction ofthe 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. 1658The Honorable Raymond W. Vowel1 page 16 (H-353)

Ifa case is reported when the child is under 18and he reaches 18terminating thejurisdiction ofthe court, is the department responsible for closing that case? Is the closing ofa case and the removal ofthe 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 apart ofthe Central Record File indefinitely since noprovision 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 todecline to produce records ofany 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 ofa 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 ofits 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? Ifso, are the records subject to the various statutes governing storage of records by&at body including TEX. REV. CIV. STAT. ANN. art. 5441bgoverning disposition ofvalueless records and TEX. REV. CIV. STATE. ANN. art. 5441agoverning preservation of records?

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

We believe that there is ample authority for the Department to arrange for storage ofits records bythe Texas Library and Historical Commission. The Interagency Cooperation Act, Article 4413 (32), V.T. C.S. See also, The Preservation ofEssential 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 ofthe two statutes you mention, applies to all public records ofthe State. Article 5441b, the other statute about which you inquire, applies only to records consigned by law to the custody ofthe 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 ofadocument maintained .bythe department is admissible in evidence as the original document. Since the Code is silent as to the’period oftime the department is required to keep the records received within the scope ofthis law, may the department establish the length oftime the original records and/or the microfilm are to be retained? Inthe absence. ofrule and regulatory authority, is the department required to retain the records and/or microfilm indefinitely? Is the department authorized tohave 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 oftime, 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? Ifnot indefinitely, then under what authority may the department ever destroy the record and microfilm?

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

We believe the Department has ample rule making authority, as discussed in response toyour 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 ofArticle 5441a.

**Your** nineteenth question states:

Inadoption cases, it is the department’s interpretation ofthe Code that all ofthe original instruments filed in the court will betransmitted to the State Department ofPublic 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 ofthis, is the department authorized under the Code to destroy the original **court** papers after they have been’microfilmed on the adoption cases? Ifthese official original records are to be destroyed, then is there any general law which prescribes the length oftime that the department must retain the official adoption records it receives from the courts? Is there any,prescribed period oftime that the department is required to retain the official records before thay can be destroyed? Is there any length oftime prescribed for retaining the microfilm ofsuch records? Must the department retain either the original record or the microfilm for an indefinite period oftime? The department has no system for microfiliming records, but may contract for this purpose. Inview ofthe requirement that the records in adoptions must be sealed upon receipt, would it be a breach ofthe requirement of confidentiality for the department tohave them microfilmed by an outside contractor? May the department

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

request the State Director and Librarian to provide microfilming? A file on an adoption is adistrict **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 ofArticle 5441bwhich require, inter alia, the permission ofthe State Librarian and the Director ofthe Records Management Division. The Preservation ofEssential 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 atArticle 1899a, V.T. C.S.

Although in the absence ofa specific proposal we cannot say that the Department is precluded from contracting with an outside contractor for the microfilming’ ofits records, we believe confidentiality could be best maintained byaproper contract with&e Library and Historical Commission. For example, confidential records are recognized and protected under Section 7ofthe Preservation of Essential Records Act.

Your twentieth question states:

Chapter 11,Section 11.05 relates to the continuing jurisdiction ofa suit affectirgthe parent-child relationship and Section 11.06 provides for the transfer of proceedings. Apparently no provision is made for notifying the Department ofPublic Welfare ofthe change. Without proper notice, any information subsequent toa change given bythe department would be erroneous. We were unable to find a section requiring that the department be notified ofplacing responsibility onanyone for so notifying the department in case ofchange or even dismissal ofa suit. Inthe absence ofaprovision in the law requiring it,

p. 1662The 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 aproblem that was outside the contemplation ofthe statute’s drafters. Whenever a suit is pending the Department’s information will be out ofdate whether atransfer is involved or not. We can find no statutory requirement that the Department be notified ofatransfer ofa suit prior to entry ofa decree, and we know ofno responsibility onthe part ofthe Department to acquire such information. An order dismissing a suit, however, will be reflected inadecree which must be reported tothe Department.

**Your** twenty-first question states:

Section 3ofthe Code repeals certain specific articles ofthe current **statutes.** Article 4639b, TEX. REV. CIV. STAT. ANN., which provides in essence for the determination of custody and support ofchildren in cases ofseparation without the necessity offiling apetition for divorce, was not repealed. Will this article continue to be in effect after the Code becomes effective January 1, 19747 Ifyour answer is affirmative, then is the department supposed to receive a copy ofthe 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 toall other provisions relating tothe Central Record File? As Article 463913was neither expressly nor impliedly repealed by the enactment ofthe Family Code, it remains in force. However, the relief sought in an action under that statute is generally outlined in chapter 14ofthe Family Code. Infact, where the parents ofa child are separated the Court is directed to appoint amanaging conservator for the child under Section 14.01(a). Since the relief eought under anArticle 4639b

p. 1663The 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 ofthe service it provides through the Central Record File. The question states:The State Department ofPublic Welfare r,eceived no

state appropriation for the specific purpose ofestablishing and maintaining a Central Record File. A “reasonable fee” for furnishing the court or the~attorney the information about the continuing jurisdiction ofthe suit affecting the parent-child relationship would be wholly inadequate to establish and maintain such afile. Furthermore, the department is reluctant to charge the court afee 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? Ifafee is charged, could it be deposited to the credit ofthe 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 offunds generated by charges to users ofthe File were answered byAttorney 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 afee in some cases but not in others so long as the distinction was not arbitrary and capricious. For example, distinction between charges

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

toattorneys and to courts probably would be reasonable.

**Your** final question was presented in asupplemental request and concerns disposition hearings for juveniles under Section 54.04 ofthe Family Code. You **ask** ifa suit involving an order ofthe Juvenile Court committing a child in need, ofrehabilitation to the custody ofa 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 ofSection 11.05. As indicated in response toyour third’question a suit affecting the parent-child relationship is, inter alia, one brought under Subtitle A ofTitle 2ofthe Family Code. As Section 54.04 is in Title 3it does not fit the statutory definition, and **your** question must be answered in the negative. SUMMARY (1)The Department may make rules and regulations toaid it in the administration ofits responsibilities under Title 2ofthe Family Code. (2) A suit affecting the parent-child relation can only be one brought under Subtitle A ofTitle 2ofthe Family Code. (3) Adoptions ofhard-to-place children are handled onthe same basis as other adoptions for Central Record File purposes. **(4)** The Open R&or& Act does bot give an’agency the right towithhold information from alegislator, buthis 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. 1665The 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 ofthe file. Very truly yours,

7 DAVID M. KENDALL, Chairmafi Opinion Committee

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