April 15, 1975 

The Honorable Raymond W. Vowel1 

Commissioner 

Department of Public Welfare 

John H. Reagan Building 

Austin, Texas 78701 

Dear Commissioner Vowell: 

Opinion No. H- 582 

Re: Meaning of penal 

statute concerning 

importation of minors 

for “placing out. ” 

V. T. C. S., art. 695a. 

sets. 6 and 7. 

You have requested our opinion on the meaning of sections 6 and 7 

of article 695a. V. T. C. S. This is a penal statute concerning the importation of a child into this state for the purpose of “placing him out or procuring his adoption. ” We find it unnecessary to address your specific 

questions for in our view sections b and 7 of article 695a. V. T. C. S., are 

clearly unconstitutional. These sections provide: 

Sec. 6. It shall be unlawful for any person, for 

himself or as agent or representative of another, to 

bring or send into this State any child~below the age 

of sixteen (16) years for the purpose of placing him out 

or procuring his adoption without first haying obtained 

the consent of the Department of Public Welfare. Said 

consent shall be given on a regular form to be prescribed by the Department of Public Welfare and no 

: person shall bring any such chiid into this State without 

such permit and without haying filed with the Department 

of Public Welfare a bond payable to the State, on a form 

to be prescribed by the Attorney General, and approved 

by the Department of Public Welfare, in the penal sum 

of One Thousand ($1,000. 00) Dollars. conditioned that 

the person bringing or sending such child into this 

State will not send or bring any child who ia incorrigible 

or unsound of mind or body; that he will remove any 

p. 2590 
The Honorable Raymond W. Vowell, page 2 (H-582) 

such child who becomes a public charge or pay the 

expense of removal of such charge, who, in the 

opinion of the Department of Public Welfare, becomes 

a menace to the community prior to this adoption or 

becoming of legal age; that he will place the child under * 

a written contract approved by the County Child Welfare 

Board and the Department of Public Welfare; and that 

the person with whom the child.isplaced shall be reaponaible for his proper care and training. Before any 

child shall be brought or sent into the State for the 

purpose of placing him in a foster home, the person so 

bringing or sending such child shall first notify the 

Department of Public Welfare of his intention and the 

Department of Public Welfare shall immediately notify 

the County Child Welfare Board, who shall make a report 

to the Department of Public Welfare on the person whom 

it is indicated will have charge of the child, and shall 

obtain from the Department of Public Welfare a Certificate stating that such home is, and such persoa~or persona 

in charge, are in the opinion of the Department of Public 

Welfare, suitable to have charge of such child. Such notification shall state the name, age and description aC the 

child, the name and address of the person to whom the 

same is to be placed, and such other information as may be 

required by the Department of Public Welfare, and the same .~.. 

shall be sworn to by such person. The Department of Public 

Welfare shall require~the person sending said child into 

this State, or the person who is in charge of the same after 

he has been brought here, to make a report at certain 

stated times, and in the event such reports are not made, 

such Department of Public Wel.fare shall be authorized to 

deport said child f~rom this State and the expenses thereof 

shall be recovered under said bond: provided, however, 

that nothing herein shall be deemed to prohibit a resident 

of this State from bringing into the State a relative or 

child for adoption into his own family. The Department 

of Public Welfare and Child Welfare Boards shall not 

allow minors to come into and be brought into this State 

in violation of this Act. 

p. 2591 
. 

The Honorable Raymond W. Vowell. page 3 (H- 582) 

Sec. 7. If any person shall bring into this State or 

.direct, conspire, or cause to be brought into or sent into 

.thia State any child in violation of the foregoing section. 

he shall be guilty of a misdemeanor and upon conviction 

. thereof shall be fined in a sum not leas than Twenty-five 

($25.00) Dollars nor more than One Thousand ($1,000. 00) 

Dollars, or by confinement in the County Jail not exceeding 

,twelve months, or by both such fine and imprisonment. 

This Depression-era statute was enacted in 1931 as a part of the act 

creating the Division of Child Welfare in the Board of Control (later 

transferred to the Department of Public Welfare. art. 695e, V. T. C.S. ). 

Acts 1931, 42nd Leg., ch. 194, $ s 6. 7 at pp. 324-325. Its purpose, as 

indicated by its title and emergency clause, was described in Attorney 

General Opinion O-2768 (1940) as follows: 

‘By the passage of this Act, the Legislature sought 

to correct an existing evil; namely, the importation 

of defective, illegitimate, dependent, neglected or 

delinquent children into this State by irresponsible 

persona or agencies. More than frequently, these 

children became public charges and occasioned an 

overcrowded condition in our State Institutions. 

We believe the statute seeks to achieve unconstitutional purposes. It 

attempts to deter the entry into this state of children who might become 

public charges. 

The freedom to travel throughout the United States has long been 

recognized as a basic wright under the Constitution; Passenger Cases. 7 How. 

283 (U.S. 1849); Crandall v. Nevada, 6 Wall. 35 (U.S. 1868); Paul v. Virginia 

8 Wall. 168 (U.S. 1869): Ward v. Maryland, 12 Wall. 418 (U.S. 1871); SlaughterHouse Cases, 16 Wall. 36 (II. S. 1873); Twining v. New Jersey< 211 U.S. 78 

(1908); Edwards v. California, 314 U.S. 160 (1941). 

A California statute making it a crime to transport non-resident 

indigents into the state was struck down as unconstitutional- in Edwards v. 

California, 314 U.S. 160 (1941). 

p. 2592 
The Honorable Raymond W. Vowell, page 4 (H-582) 

In Shapiro v. Thompson, 394 U.S. 618 (1969). the United States Supreme 

Court held unconstitutional state statutory provisions which imposed durational residence requirements on welfare benefits. In that case the Court 

said: 

[T]he purpose of inhibiting migration by needy 

persons into the State is constitutionally impermissible. 394 U.S. 618, 629 (1969). 

The Supreme Court reemphasized its holding in Shapiro v. Thompson, 

supra, in Memorial Hospital v. Maricopa COUP. 415 U.S. 250. 94 S. Ct. 

1076 (1974). stating: 

: . . to the extent the purpose of ,the requirement 

is to inhibit the immigration of indigents generally. 

that goal is constitutionally impermissible. . . . 

94 S. Ct. 1076. at 1085. 

The right of interstate travel being a “basic constitutional freedom, ” the 

Court in Maricopa County required a compelling state interest to support a 

duration&l residency requirement for receipt of medical benefits. The 

requirement was viewed as having a sufficient impact upon the right to travel 

to necessitate strict scrutiny. 

While none of these cases have dealt with a minor’s,-right to travel, we 

believe that minoia do have such a right, at least when they travel with the 

permission of the person who is responsible for them. We reach this conclusion in light of several United States Supreme Court decisions which have 

extended such fundamental rights to minors. Tinker v. Des Moines 

Independent Community School District, 393 U.S. 503 (1969); In re Gault, 

387 U.S. 1 (1967); West Virginia State Board of Education v. Barnette, 319 

U.S. 624 (1943). 

Since article 695a. sections 6 and 7. attempt to prohibit entry into the 

State by some minors and inhibit entry by many. in our opinion the statute 

infringes.on their right to travel and must be supported by a compelling 

state interest. As previously noted, the purpose of the statute is conatitutionally impermissible and it cannot be considered such an interest. In 

our view, sections 6 and 7 of article 695a are unconstitutional. 

p. 2593 
. 

The Honorable Raymond W. Vowell. page 5 (H-582) 

Due to the statute’s unconstitutionality as an infringement on the right 

to travel, we find it unnecessary to address its possible unconstitutionality 

under several other doctrines. See, -, Harper v. Virginia Board of 

Elections, 383 U.S. 663 (1966); Robinson v. California, 370 U.S. 660 (1962); 

Toomer v. Witsell, 334 U.S. 385 (1948). 

By holding this statute unconstitutional. we do not imply that the state 

is without power to regulate the placement of children brought into this 

state for that purpose. Without specifying how a statute might be drawn to 

avoid constitutional problems, it is simply our opinion that this particular 

statute is unconstitutional. 

SUMMARY 

Sections 6 and 7 of article 695a. V. T. C. S., are 

unconstitutional as impermissible infringements on 

the right to travel. 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

p. 2594