Hon. John H. Winters, Executive Director State Department of PublicWelfare Austin, Texas OpinionNo. V-497.
Re: The necessity for individuals and countyagencies, who place a child for adoption, to secure a license from theChild Welfare Division of the State Department of PublicWelfare.
Dear Sir:

ion on Reference ismade to your request for an opinthe above-captioned subject, from which we quote, in part, as follows:

"The question has arisen as to thenecessity for licensing Individualswho place children. Occasionallyarrangements are made throughan attorney or a physician for the placement of a child for adoption, l?o doubt, the attorney or thephysician considers his action in placing the child as being to the best Interest of the childand the potentialadoptive 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 theaction is taken gratultouslyat the request of the natural or adoptive parents.
"Ithas always been the Interpretation of theDepartment of PublicWelfare that under the statute any person or agency which places a child for adoptionmust have a lltense and that the degree or number of children placed would not alter the situation. In otherwords, it has been our interpretation that individualsas well as organizedagencies 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 ofArticle 4442-a SO that a licenseby the Child Welfare Division of the State Department of PublicWelfare is required? Does it alter the fact that the attorney or thephysician Is acting in his professional capacity in serving either the natural parents or the foster'applicants?
"In OpinionBo. R-702 you answered our question regarding the inspectionand llcening of commercialboarding homes for chlldren. In that opinlon referencewas also made to the responsibility of the State Department of PublicWelfare in relation to theboarding homes selected by County Probation Departments inmetropolitan areas for the temporarydetention of children pending investigationand 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 otherwisewhere 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 othervisevhere they do so wlthout a court order directing the placement?" !Che pertinent excerpt fromArticle 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'sboarding home, or child placing agency, or other place for the care or custody of childrenunder fifteen years of age, or who.shall solicit funds In this State for any such place or institution, shall obtainan annual license from the State Board of Health, which license shall be issued without fee, and under such reasonable and uniform rules and regulationsas saidHon. John H. Winters, Page 5, v-497D

Board shall prescribe

. . ."
As you have noted, Article 695e, V. C. S., transferred the foregoingauthority and duty of litensing such agencies to the Child Welfare Division of the State Department of PublicWelfare.

Your first question refers to theapplicability of the licensing statute to attorneys or physicianswho, acting in theirprofessional capacity, place or assist in the placement of a child on occasions. It is our opinion that thenecessity of securing such a child-placing license from the Child Welfare Division does not apply in the Instancesyou havementioned.

We quote the following from 57 Corpus Juria 215, Section 70:

” a D * The performance of a single act, or even a number of Isolatedacts, pertaining to a particularbusiness, does not constitute engaging in or carrying on such business within themeaning of a law imposinga 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 'Everyperson

. 0 Dw-hoshall own, placing agency." manage or conduct

. . .a child It does not state thata license Is required of every person who places a child. In order to constitutea situationnecessitating the procurement of a child-placing license, the agency or instltutionmust be capable of being owned, conducted or managed, and must have for itsmotivating or primary purpose the conduct of a business or occupation of placing children. It is the nature of theagency which brings Itwithin the scomthe llcenslna atatute, and iimust be characterizedby 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 Packingand Provision Company, decided by the Supreme Court of Utah, 102Utah T51, 130 P (2d) 951, the contentionwas made that a State-licensed engineerhad to securea StateHon. John H. Winters, Page 4, v-497.

licenseas an architect because he performeda remotely related but Isolatedarchitectural function in the course of his engineeringpractice. The court used the following language in holding that it was not necessary to secure an architectural license:

“Themere fact that a licensedprofession 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 callingmight overlap In some degree, he might not only have to obtainnumerous licenses In different fields to engage In the field in which he is specially trainedand qualified, but he might be prevented from engaging in the field In which he is particularlywell qualified for the reason he could not meet all of the qualifications for license in other fields.” (Emphasis added)
Your second question inquiresas to theapplicability of the licensing stakute to “countyagencies 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 variouspopulation brackets to establish County Juvenile Boards, which are to be distinguished from probation officersauthorized by the “Adult Probationand Parole Lsw,” Article 781b, V.C.C.P., pertaining exclusively to adults.

The same considerationsapply to County Juvenile Boards, County Juvenile Officersand County Probation Officers, authorized by Articles 5179-5142b,V.C.S., as apply to individualsdiscussed in answer to your first question. An individualact, or several Isolatedacts, of placing a child does not constitute the officer or board a child-placingagency,

We are not passing on the authority of such county agencies as you havementioned to place children for adoption, as such a consideration isnot applicable to your Inquiry..’

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

SUMMARY Article 4442a, V. C. S., insofar as It requiresa license of child-placing agencies, does not apply to attorneys, physicians, county juvenileboards, couuty juvenile officers, or county ,probation officerswho occasionallyplace a child for adoption or for custodypending adoption. Your3 very truly,

ATTORNEY GERRRAL OF TRXAS

BY Assistant

APPROVED: , 

# P o4L.J

AT%Y GENERAL.
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