The opinion
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 Wel-
fare Division of the State De-
partment of Public Welfare.
Dear Sir:
Reference is made to your request for an opin-
ion on the above-captioned subject, from which we quote,
in part, as follows:
"The question has arisen as to the nec-
essity 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 con-
siders his action in placing the child as
being to the best Interest of the child and
the potential adoptive parents. Some attor-
neys 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 gratult-
ously at the request of the natural or adopt-
ive 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 ll-
tense and that the degree or number of child-
ren 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 gratuit-
ously come vithin the scope of Article 4442-a
SO that a license by the Child Welfare Divi-
sion 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 llcen-
ing of commercial boarding homes for chlld-
ren. 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 deten-
tion of children pending investigation and
court hearing; however, we shall appreciate
your opinion and advice concerning the depart-
ment's responsibility for lfcensing Probation
Departments which place children for adoption
or otherwise where there is no court order di-
recting the placement.
"Our question in this connection is: Are
county agencies such as Probation Departments
required to secure a license to place child-
ren for adoption or othervise vhere they do
so wlthout a court order directing the place-
ment?"
!Chepertinent excerpt from Article 4442a, V.C.S.,
on the licensing of child placing agencies, reads as fol-
lows :
%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 is-
sued 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 li-
tensing such agencies to the Child Welfare Division
of the State Department of Public Welfare.
Your first question refers to the applica-
bility of the licensing statute to attorneys or phy-
sicians who, acting in their professional capacity,
place or assist in the placement of a child on occa-
sions. It is our opinion that the necessity of se-
curing 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 The performance of a single
D *
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
Applicable to your particular inquiry, Artl-
cle 4442a, V.C.S., requires a license of 'Every person
. 0 D w-hoshall own, manage or conduct . . . a child
placing agency." It does not state that a license Is
required of every person who places a child. In order
to constitute a situation necessitating the procure-
ment of a child-placing license, the agency or instl-
tution 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 atat-
ute, and ii must be characterized by the intention to
pursue or follow the occupation of child placing. Clear-
ly, 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 follow-
ing language in holding that it was not necessary to
secure an architectural license:
“The mere fact that a licensed profes-
sion 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 li-
cense in each field into which his chosen
profession or calling might overlap In some
degree, he might not only have to obtain nu-
merous licenses In different fields to en-
gage In the field in which he is specially
trained and qualified, but he might be pre-
vented from engaging in the field In which
he is particularly well qualified for the
reason he could not meet all of the quali-
fications for license in other fields.” (Em-
phasis added)
Your second question inquires as to the appli-
cability 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 stat-
utes authorizing counties of various population brackets
to establish County Juvenile Boards, which are to be dis-
tinguished 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 Juve-
nile Boards, County Juvenile Officers and County Proba-
tion 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 child-
ren for adoption, as such a consideration is not ap-
plicable 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, couu-
ty juvenile officers, or county ,probation
officers who occasionally place a child
for adoption or for custody pending adopt-
ion.
Your3 very truly,
ATTORNEY GERRRAL OF TRXAS
BY
Assistant
APPROVED: ,
P o4L.J
AT%Y GENERAL.
DJC:jmc