Hon. John H. Winters, Executive Director 

State Department of Public Welfare 

Austin, Texas 

Opinion No. V-497. 

Re: The necessity for individuals 

and county agencies, who place 

a child for adoption, to secure 

a license from the Child Welfare Division of the State Department of Public Welfare. 

Dear Sir: 

ion on 

Reference is made to your request for an opinthe above-captioned subject, from which we quote, 

in part, as follows: 

"The question has arisen as to the necessity for licensing Individuals who place 

children. Occasionally arrangements are 

made through an attorney or a physician for 

the placement of a child for adoption, l?o 

doubt, the attorney or the physician considers his action in placing the child as 

being to the best Interest of the child and 

the potential adoptive parents. Some attorneys contend they can serve their clients 

in their legal capacity in this respect. 

Usually, there is no fee charged for the 

placement, but the action is taken gratultously at the request of the natural or adoptive parents. 

"It has always been the Interpretation 

of the Department of Public Welfare that 

under the statute any person or agency which 

places a child for adoption must have a lltense and that the degree or number of children placed would not alter the situation. In 

other words, it has been our interpretation 

that individuals as well as organized agencies 

came within the scope of the statute. 
Hon. John H. Winters, Page,2, V-497. 

"OuP question is: Does an Individual 

who places a child either for pay or gratuitously come vithin the scope of Article 4442-a 

SO that a license by the Child Welfare Division of the State Department of Public Welfare 

is required? Does it alter the fact that the 

attorney or the physician Is acting in his 

professional capacity in serving either the 

natural parents or the foster'applicants? 

"In Opinion Bo. R-702 you answered our 

question regarding the inspection and llcening of commercial boarding homes for chlldren. In that opinlon reference was also made 

to the responsibility of the State Department 

of Public Welfare in relation to the boarding 

homes selected by County Probation Departments 

in metropolitan areas for the temporary detention of children pending investigation and 

court hearing; however, we shall appreciate 

your opinion and advice concerning the department's responsibility for lfcensing Probation 

Departments which place children for adoption 

or otherwise where there is no court order directing the placement. 

"Our question in this connection is: Are 

county agencies such as Probation Departments 

required to secure a license to place children for adoption or othervise vhere they do 

so wlthout a court order directing the placement?" 

!Che pertinent excerpt from Article 4442a, V.C.S., 

on the licensing of child placing agencies, reads as follows : 

%ec. 1. Every person, association or 

corporation, whether operating for charity 

or revenue, who shall own, conduct or manage 

a day nursery, children's boarding home, or 

child placing agency, or other place for the 

care or custody of children under fifteen 

years of age, or who. shall solicit funds In 

this State for any such place or institution, 

shall obtain an annual license from the State 

Board of Health, which license shall be issued without fee, and under such reasonable 

and uniform rules and regulations as said 
Hon. John H. Winters, Page 5, v-497 D 

Board shall prescribe . . ." 

As you have noted, Article 695e, V. C. S., 

transferred the foregoing authority and duty of litensing such agencies to the Child Welfare Division 

of the State Department of Public Welfare. 

Your first question refers to the applicability of the licensing statute to attorneys or physicians who, acting in their professional capacity, 

place or assist in the placement of a child on occasions. It is our opinion that the necessity of securing such a child-placing license from the Child 

Welfare Division does not apply in the Instances you 

have mentioned. 

We quote the following from 57 Corpus Juria 

215, Section 70: 

” 

a D * The performance of a single 

act, or even a number of Isolated acts, 

pertaining to a particular business, does 

not constitute engaging in or carrying on 

such business within the meaning of a law 

imposing a license or tax thereon, unless 

an Intent to engage In the business is 

clearly apparent 0 . 011 

cle 4442a, 

Applicable to your particular inquiry, ArtlV.C.S., requires a license of 'Every person 

. 0 D w-ho shall own, 

placing agency." 

manage or conduct . . . a child 

It does not state that a license Is 

required of every person who places a child. In order 

to constitute a situation necessitating the procurement of a child-placing license, the agency or instltution must be capable of being owned, conducted or 

managed, and must have for its motivating or primary 

purpose the conduct of a business or occupation of 

placing children. It is the nature of the agency 

which brings It within the scomthe llcenslna atatute, and ii must be characterized by the intention to 

pursue or follow the occupation of child placing. Clearly, this is not true of attorneys and physicians. 

In the case of Smith v. American Packing and 

Provision Company, decided by the Supreme Court of Utah, 

102 Utah T51, 130 P (2d) 951, the contention was made 

that a State-licensed engineer had to secure a State 
Hon. John H. Winters, Page 4, v-497. 

license as an architect because he performed a remotely 

related but Isolated architectural function in the course 

of his engineering practice. The court used the following language in holding that it was not necessary to 

secure an architectural license: 

“The mere fact that a licensed profession extends in some degree Into the field 

of some other licensed occupation, does not 

require the licensee to have a license In 

each of the fields into which his profession 

may overlap, unless the statutes impose such 

requirement. If a person had to have a license in each field into which his chosen 

profession or calling might overlap In some 

degree, he might not only have to obtain numerous licenses In different fields to engage In the field in which he is specially 

trained and qualified, but he might be prevented from engaging in the field In which 

he is particularly well qualified for the 

reason he could not meet all of the qualifications for license in other fields.” (Emphasis added) 

Your second question inquires as to the applicability of the licensing stakute to “county agencies 

such as Probation Departments D We shall assume that 

you have reference to county agencies provided for under 

Title 82, V. C. S., on Juveniles, wherein are found statutes authorizing counties of various population brackets 

to establish County Juvenile Boards, which are to be distinguished from probation officers authorized by the 

“Adult Probation and Parole Lsw,” Article 781b, V.C.C.P., 

pertaining exclusively to adults. 

The same considerations apply to County Juvenile Boards, County Juvenile Officers and County Probation Officers, authorized by Articles 5179-5142b, V.C.S., 

as apply to individuals discussed in answer to your first 

question. An individual act, or several Isolated acts, 

of placing a child does not constitute the officer or 

board a child-placing agency, 

We are not passing on the authority of such 

county agencies as you have mentioned to place children for adoption, as such a consideration is not applicable to your Inquiry. 
.’ . 

Hon. John H. Winters, Page 5, V-497. 

SUMMARY 

Article 4442a, V. C. S., insofar as 

It requires a license of child-placing 

agencies, does not apply to attorneys, 

physicians, county juvenile boards, couuty juvenile officers, or county ,probation 

officers who occasionally place a child 

for adoption or for custody pending adoption. 

Your3 very truly, 

ATTORNEY GERRRAL OF TRXAS 

BY 

Assistant 

APPROVED: , 

P o4L.J 

AT%Y GENERAL. 

DJC:jmc