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 ofpenal statute concerning importation ofminors for “placing out. ” V. T.C.S., art. 695a. sets. 6and 7.
You have requested our opinion on themeaning of sections 6and 7 ofarticle 695a. V. T. C. S. This is apenal statute concerning the importation ofa child into this state for thepurpose of “placing him out or procuring his adoption. ” We find itunnecessary to address your specific questions for in our view sections 

### band 7ofarticle 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 ofanother, to bring or send into this State any child~below the age of sixteen (16)years for the purpose ofplacing him out or procuring his adoption without first haying obtained the consent of the Department ofPublic Welfare. Said consent shall be given on a regular form to be prescribed by the Department ofPublic Welfare and no : person shall bring any such chiid intothis State without such permit and without haying filed with the Department ofPublic Welfare abond payable tothe State, ona form to beprescribed by the Attorney General, and approved bythe Department ofPublic Welfare, inthe penal sum ofOne 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 ofmind or body; that hewill remove any

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

such child who becomes apublic charge or pay the expense of removal of such charge, who, inthe opinion ofthe Department of Public Welfare, becomes a menace to the community prior to this adoption or becoming oflegal age; that he will place the child under * awritten 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 ofplacing him ina foster home, the person so bringing or sending such child shall first notify the Department ofPublic Welfare ofhis intention and the Department ofPublic Welfare shall immediately notify the County Child Welfare Board, who shall make a report tothe Department ofPublic Welfare onthe person whom it is indicated will have charge ofthe 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 ofthe Department ofPublic Welfare, suitable tohave charge of such child. Such notification shall state the name, age and description aCthe child, the name and address of the person towhom the same is tobe placed, and such other information as may be required by the Department of Public Welfare, and the same .~.. shall be sworn toby such person. The Department ofPublic 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, tomake a report at certain stated times, and inthe event such reports are notmade, such Department ofPublic Wel.fare shall be authorized to deport said child f~romthis State and the expenses thereof shall be recovered under said bond: provided, however, that nothing herein shall be deemed toprohibit a resident ofthis 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 ofthis Act.

p. 2591.

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

Sec. 7. Ifany person shall bring into this State or .direct, conspire, or cause to bebrought into or sent into .thiaState any child in violation ofthe foregoing section. he shall be guilty ofamisdemeanor andupon conviction

. thereof shall be fined in a sum notleas than Twenty-five ($25.00) Dollars nor more than One Thousand ($1,000. 00) Dollars, or by confinement inthe County Jail not exceeding ,twelve months, or by both such fine and imprisonment. This Depression-era statute was enacted in 1931as a part of the act creating the Division of Child Welfare in the Board ofControl (later transferred to the Department of Public Welfare. art. 695e, V. T. C.S. ). Acts 1931, 42nd Leg., ch. 194, $s6. 7at pp. 324-325. Its purpose, as indicated byits title and emergency clause, was described in Attorney General Opinion O-2768 (1940) as follows:

‘By the passage ofthis Act, the Legislature sought to correct an existing evil; namely, the importation ofdefective, 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 ofchildren who might become public charges. The freedom to travel throughout the United States has long been recognized as abasic wrightunder the Constitution; Passenger Cases. 7How. 283 (U.S. 1849); Crandall v. Nevada, 6 Wall. 35 (U.S. 1868); Paul v. Virginia 8Wall. 168 (U.S. 1869): Ward v. Maryland, 12Wall. 418 (U.S. 1871); SlaughterHouse Cases, 16Wall. 36 (II.S. 1873); Twining v. New Jersey< 211U.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, 314U.S. 160 (1941).

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

InShapiro v. Thompson, 394 U.S. 618 (1969). the United States Supreme Court held unconstitutional state statutory provisions which imposed durational residence requirements onwelfare benefits. Inthat case the Court said: [T]he purpose ofinhibiting migration by needy

persons into the State is constitutionally impermissible. 394 U.S. 618, 629 (1969). The Supreme Court reemphasized its holding inShapiro v. Thompson, supra, inMemorial Hospital v. Maricopa COUP. 415 U.S. 250. 94S.Ct. 1076 (1974). stating:

: . . to the extent the purpose of,therequirement is to inhibit the immigration of indigents generally. that goal is constitutionally impermissible.

. . . 94 S.Ct. 1076. at 1085. The right ofinterstate travel being a “basic constitutional freedom, ” the Court inMaricopa County required a compelling state interest to support a duration&l residency requirement for receipt ofmedical benefits. The requirement was viewed as having a sufficient impact upon the right to travel to necessitate strict scrutiny. While none ofthese cases have dealt with aminor’s,-right to travel, we believe that minoia do have such a right, at least when they travel with the permission ofthe person who is responsible for them. We reach this conclusion inlight of several United States Supreme Court decisions which have extended such fundamental rights tominors. 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 ofEducation v. Barnette, 319 U.S. 624 (1943). Since article 695a. sections 6 and 7. attempt toprohibit entry into the State by some minors and inhibit entry bymany. 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 ofthe statute is conatitutionally impermissible and it cannot be considered such aninterest. In our view, sections 6 and 7ofarticle 695a are unconstitutional.

p. 2593. The Honorable Raymond W. Vowell. page 5 (H-582)

Due to the statute’s unconstitutionality as aninfringement onthe right to travel, we find itunnecessary 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 notimply that the state is without power to regulate the placement ofchildren 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 7ofarticle 695a. V. T. C.S., are unconstitutional as impermissible infringements on the right totravel.

Attorney General ofTexas APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

p. 2594