*1 2 and HAMILTON, privileged Sections (dissenting). was under ment Justice Statutes, Texas Civil of Art. Vernon’s respectfully I dissent. judgments below and would reverse petitioner. judgment render in the published article my opinion the 1967, Chronicle, October Denton Record impression convey public at proceedings report that it was meeting on Denton Council City had so just as much

evening of October “An Report,” or been headed “A the article SERVICE, INC., LUTHERAN SOCIAL meeting. Proceedings” at said Account Relator, to indicate in the article nothing There is statement alleged libelous suggest that the MEYERS, Judge al., James R. et report or account part of was not Respondents. say meeting. I would happened at what No. B-2282. raised as of fact no issue that there is inter- been statement would how the Supreme Court Texas. ordinary reader. by the preted Nov. 1970. disagree I likewise Rehearing Denied Dec. raised was of fact that an issue holding meeting concern- said at as what bankrupt. As said developer being

ing the wit- majority opinion, some

in the qualification without testified

nesses that the effect

they heard statements and that B. gone bankrupt, D.

developer had bankrupt. There was one gone

Boyd had anyone stated that if

witness who testified meeting developer of

during bankrupt did hear

Sequoia Park was he not not evidence that the statement

it. developer made that the was bank-

rupt does fact issue on raise question. reporter himself tes-

tified that “No ever Mr. mentioned one name,

Boyd’s always ‘develop- said

er’ bankrupt.”' quoted everything

alleged at the libelous statement was said except developer,

meeting the name undisputed

and if it is the name Sequoia developer Parks Sub- see Boyd, is difficult to

division D. B. oth- true turn an how that statement could McGee, and filed J., dissented into one not privileged statement erwise Pope, joined. JJ., in which Hamilton privileged. opin- Greenhill, J., dissented and filed McGee, Hamilton, Pope ion in original opinion agree with the joined. JJ., holding alleged libelous state-

A brief statement of the unusual circum- surrounding stances this is neces- case in- sary; regard out the individuals for their names. volved we shall not use true 1970, February, gave birth girl In a minor wedlock; in this state a child out of days two a con- later the mother executed be- expressed sent form in she her interests lief that it was in the child’s best that it be released to Lutheran Social Serv- Inc., adoption. ice, purpose for consent, regular a in accordance statute, 6(d), with the Article Section Statutes, Vernon’s Annotated Civil Shortly proceeding. in this challenged placed the child thereafter par- prospective adoptive in the home ents, referred (hereinafter where to as still Doe”) resides. “Jane course, their usual If events had run in the home have resided Doe would Jane adoptive parents of her months, and then the six have filed an been probability in all have which would however, tragic Events, a granted. took 1970, Doe’s natural April, turn. In Jane mother, parents, along the mother’s all killed in a common disaster. were apparently Doe’s were grandparents Jane left persons means, said to have and are Goldston, Coffee, Ritter & Donald N. ille- though an Doe, estate. even Jane Goldston, Austin, for relator. adopted she is gitimate and even if heir of presumptive other is the Davis, Clark, Byrd, Eisenberg Tom & this estate. Roberts, Austin, H. Davis and Bob respondents. 1970, rise giving the lawsuit June, In original proceeding was John Martin, Gen., Atty. Crawford Jack Doe his Doe and wife. Jane John Austin, Sparks, Atty. Gen., in- Asst. is, is the brother he great-uncle; Doe’s tervenor. natural mother. Doe’s the father of Jane his named is the executor Doe John SMITH, Justice. and, proceeding, in another will brother’s but petition; construction has filed will original This is in man- an proceeding was for question damus. The for decision wheth- petition for Doe. The power er a district court has the to order Jane filed on Doe was duly child-placement agency licensed June Jane Travis Coun- District Court of in the 98th persons deliver citation to the with whom certain motions ty. response to adoption, Judge the District petition, requests Pro- Texas Rules Civil under Rule order, signed cedure. June Pro- opin- in this a “Petition for Writ of order states that the is of the Court Prayer Mandamus.” The temporary hibition ion that the Does’ motion for and/or requests that this Court: thereon that Petition restraining hearing order and granted, orders that the re- should be its “issue Prohibition or Writ ofWrit having person persons lator and “that District directing the of Mandamus *3 possession, custody or over control any sign and enter Order Judge not to duly appear” cited on Doe to Jane 181,580 in District Cause No. date, tempo- stated why “to show cause of will have the effect Court which rary restraining injunction order and employed any Agency one quiring or restraining temporarily should not issue of any copy Agency to forward Services, Lutheran enjoining Social or issued out of such cause Citation Inc., any person adopt- other from and/or filed the Petition therein [Mr. ing, causing adopted instituting or person persons to the or Mrs. Doe] John any prosecuting proceeding or has such Agency with whom the hearing of same Doe until further Jane child for or which will this order of Court.” The order also per- any notifying the effect of such directed that upon “service of citation said persons pendency son or of such of person persons having possession, or Court, that District custody or control of isDoe allowed Jane its also issue Honorable Court will and ordered serving Lutheran Social of Mandamus or its Pro- Writ Writ of Inc., Services, by serving Mr. Rolf Nor- directing Judge hibition the District man, Austin, Director, its Executive 29, 1970, re- his of dissolve Order June Texas, or- with instructions and a further quiring the Executive of the Director der this Court that Mr. Norman for- immediately Agency to forward immediately ward per- person said or person possession, persons having or having sons possession, custody con- or copy custody or control of such child the trol of copy Doe the citation Jane upon him Citation and Petition served and petition upon served him under Rule ** 106, under Rule T.R.C.P. 106,Texas Rules of Civil Procedure.” The Sheriff’s return shows that citation .the heavy one. is a burden Relator’s 29, was served 1970, on as directed. June within order one Judge’s the District must discretionary the relator powers, his 30, 1970, a motion Relator filed On June discre abuse of that it is a “clear show above, and the order discussed to dissolve 182, Tunks, 328 160 Tex. v. tion.” Crane on hearing of the motion continuance Iley v. see also (1959); S.W.2d restraining injunction temporary 311 S.W.2d Hughes, 158 Tex. hearing held a order. The District Court has that the relator (1948). holdWe July 1, at on on Relator’s motion argues, agency test. The satisfied that stipulated cer- which time the con acquired the essence, that after point. relevant at tain facts not mother, agency Doe’s sent from Jane hearing consequence As a District and the parentis, stood in loco 1, 1970, Judge determined the District July interfere powerless to Judge was for a continuance motion that Relator’s ordering notification process by placement that his motion granted, but should be adoptive parents. de- 29 should order of dissolve the Catholic June relies agency primarily order, another drafted Judge nied. Inc., Galveston, the Diocese Charities of terms of the reiterating June 21, 337 S.W.2d Harper, 161 Tex. from above, refrained but outlined that: we held (1960), which Relator so later order signing the parents have surrendered To “where Court. validity in this its might test agency custody their child to has Relator purpose accomplish that custody Department child from the its by the State

licensed parents the natural place award children Public Welfare persons upon proof their written or other and have abuse, neglect, ill treatment agency may place 46a, adoptive parents. Article Sec- adoption, consent is sub- child for fraud, 10(c) tion Vernon’s Annotated Civil only Stat- ject by proof of to revocation utes, child-placing makes the records overreaching misrepresentation, confidential, agencies empowers but like.” at 114-115. S.W.2d open to direct stated, of that course “inspection copy.” records and/or adop- regarding the consent section provisions These are statutory indicative statute, Article Vernon’s sec. has Legislature the wide discretion the *4 Annotated Civil Statutes: act, in granted the the courts to when opinion court’s the the best interest of child is obviously the statute “The effect of thereby. would be served parental the that after consent loco stands in child-placing agency the Collins, In Davis 216 147 Tex. is clothed with parentis to the child the dis- (1949), S.W.2d affirmed the give withhold authority the pe- trict adoption court’s of an dismissal judg- entry of a necessary to the consent persons tition not re- filed who had 112—at adoption.” S.W.2d ment for person ceived the consent of the who occu- 113. pies in position the same as the this agency statutory case. that the scheme heldWe relator is the on which latter statement It that, petition in order for the reliance; that statement places greatest granted they the be must received however, the interpreted outside cannot not, and, since they had were of that In Catholic Charities facts case. ineligible adopt response the child. In had dispute parent who the between a was petitioners’ to the argument that the ef- custody child and relinquished of her holding fect our deprive was Our custody. gained had agency which power court of in act the child’s best loco stood in agency statement interest, in the absence of consent ad- as an understood parentis must be custodian, child’s we stated: agency between judication opinion nothing in parent; natural (al- has been held in other States “[I]t duty of traditional role and limits the decided has not been though matter interest guardian best that, guardian or cus- State) if a its control. children who come under his give of a refuses to con- todian child Act, Adoption Article Neither does adoption, feels sent to an and the court 46a, purport to limit traditional func- the best that an serve fact, tion The statute court. child, justi- the court interest peatedly supervisory accords to courts had if the consent fied 46a, discretionary powers. Article Section Adoption given. C.J.S., been See Statutes, Vernon’s Annotated Civil Children, 24, page 393. § example, empowers the court to waive requirement to be Legislature usual that the child in the “The enactment adopted live the home of en- statutes under consideration prior legal neg- for six protect months the interests of deavored children, is satisfied that “when lected abandoned petitioner and inef- home statutes enacted would be weak are Legislature suited each Article if also other.” ficient had thereby empowered Section Vernon’s Annotated Stat- the courts to exer- Civil utes, empowers authority the court to remove cise their discretion car- rying ex- legislative out intent as of the State and national Constitutions. pressed rights To problems avoid statutes. such constitutional para- welfare of the chapter probate children are the we hold that 10 of the adop- things mount deprive to be considered code of 1939 does not circuit tion custody and child 216 S.W. comprehensive cases.” court of its historic and 2d power at 811. custody disputes decide con- children, cerning legitimate illegiti- scope discretionary of the court’s mate.” 154 at 38. N.W.2d power to serve the child’s best interests carefully reviewed in the well-rea- T., require soned This case does In re Mark 8 Mich. Michigan App. court. holding broad made (1967). N.W.2d 27 case the that this is not illegitimate natural father It should be remembered of an who, adjudication although of the merits of marrying never mother, only ques child’s Doe. had established a viable John family child, Dis relationship before Court whether the with the discretionary power to Judge awarded trict had the though even the child’s adoptive parents mother order the had consented that the child adopted and the child had been served with citation under Rule *5 probate the home A We hold that he did. hold parents. We further that judge his order was not a of that pur- had entered a termination clear abuse order statute, discretionary power, the as it must be if Michigan suant the effect extraordinary finding remedy of mandamus will adoption petition that the lie. filed, adoptive parents in- had been

vestigated place- the consented emphasizes disruptive The relator the agency. ment The ter- effectively order effect the District Judge’s order will have minated agency’s rights the over the child. upon prospec- the lives of the child and the The held, regarding scope court the adoptive parents, tive during the delicate power a court’s to act in the best child’s period adjustment recognized which we interests: great importance to be of in the Catholic Charities supra. argues The relatqr “[Cjhancery’s power concerning Judge’s necessarily that the in- order will legitimate welfare of illegitimate prospective adoptive form the child and its children not disappear upon does parents family background. of the child’s lease of adoption, the child or accepted All of this contravenes usual placement agency consent of a peti- ato policies child-placing agencies. We adoption, tion for or even the en- agree with the relator that none of this

try by probate court of a termina- desirable, but must recognize * * * tion order. We so hold be- adoption process disrupted usual will cause, fundamentally, any holding other any peculiar tragic event due to would judicial power. create a vacuum of surrounding circumstances The this case. * * * Michigan’s adoption “If statute District him Judge had the facts before confers on an agency the absolute and complained when he of. issued the judicially power unreviewable to decide prior had stipulated, enjoy who shall custody of 1, 1970, the child hearing July Doe John whether, by whom, and when the child independent was the executor of the estate may adopted, subject only to con- left by grandparents. Doe’s The ad- Jane court, firmation there arise estate, ministration of that of which Jane serious questions constitutional under is presumptively only heir, Doe will both process equal the due protection necessarily prospective adoptive inform of the law clauses judicial articles parents background. Doe’s Jane argues

Relator that not only will Rule Texas Rules Procedure.” of Civil prospective adop- Judge’s stating question order inform the so parents background, Doe’s pass upon tive does not or not whether Jane great uncle, Doe will also inform Mr. and aunt great Mrs. who are John identity strangers of the child’s whereabouts and the any adoption proceeding, true prospective adoptive parents. We any have standing jurisdic- invoke the do de- agree. The citation which was any any adoption tion of district Norman, Direc- livered to Rolf Executive proceeding to thus obtain this extraordi- relator, nary hold, him to ancillary tor forward relief. I would under parents, ad- prospective adoptive particular case, facts having jurisdiction dressed to “The Person or Persons trial had no and there- possession, custody and control of fore power grant any without an- Jane cillary citation or the order Nothing hold, Doe.” relief. would further as- in- requires suming the relator to complained arguendo the district court identity of those Doe of the had jurisdiction, form or- judge’s John citation, der persons. only which has was an abuse of discretion. citation, any does not effect of other usual Service, hear- is a Child attend the Lutheran Social Inc.

require persons to those 695c, Placing as defined Article injunction. temporary on the Statutes, and opportunity Annotated Civil merely gives them Vernon’s citation Depart duly If the Texas they if wish. licensed as such participate to attend and attend, Texas courts they either ment of Public they may do so Welfare. decide to that, (in choose held where person counsel. have child, mother) latter, illegitimate child’s case of an their identities and the need not be revealed to whereabouts John together agency, not to at- such licensed with writ may even choose They Doe. *6 place agency may fact that ten consent that such hearing in view of the tend the adoption, consent cannot represented their the child for vigorously the relator has proof of be revoked absent presumably thereafter point, interests and will to fraud, overreaching misrepresentation or to so. continue do and the Catholic Charities like. Prayer stated, Relator’s reasons For the Galveston, Harper, 161 Diocese of v. Inc. is denied. mandamus for a writ (1960); Carrell Tex. 111 S.W.2d Inc., Bureau, Hope Cottage-Children’s v. GREENHILL, J., opinion Dissenting (Tex.Civ.App. S.W.2d — Eastland Mc- HAMILTON, POPE which in Harper Hope e.); v. writ ref’d n. r. GEE, join. JJ., Bureau, Inc., Cottage 389 S.W. Children’s McGEE, J., opinion Dissenting 1965, no (Tex.Civ.App. 2d 123 — Dallas POPE, join. JJ., HAMILTON Brown, which writ); Kamleh 389 S.W.2d v. I writ) (Tex.Civ.App. no — Waco holding no Texas cases to have found McGEE, (dissenting). Justice admit contrary. Respondents candidly dissent. respectfully of no evi their brief: “that we know contend dence which we could assumes, with- first The given by natural parental consent [the ju- has court discussion, that out or by her death has been voided mother] to state: “[t]he goes then risdiction initially obtained the consent was district a is whether decision question duress, fraud, misrepresentation. or duly a to power has court fact that challenge do Neither we deliver agency child-placement licensed parentis stands loco relator whom persons citation child.” under adoption, child placed a have great The aunt great uncle have As this Court did the Catholic Chari- a petition cannot file for an ties intention should look to the containing two of the elements essential Legislature in enacting the 1951 required 46a, by Section Ver- la, Article Amendment to 6 Art. created which § non’s Annotated Civil reads Statutes which exception new necessity con- part as follows: sent parents specific natural adoption. part The Act now reads in leave Every petition for la: “Section follows: shall set forth minor child adopt a petitioner parents child; facts relative among “Consent excep- following information tions” and child * * * or about which (S) date on Except provided “Sec. otherwise home child was minor section, in this per- shall be consent petitioners; (6) written what except mitted with the written consent of nat- papers been obtained from the * ** living parents of the child ob- or none parent

ural if (e) In the placed by case of tained, exception specify then which parents in a child-placing or agency insti- ap- necessity consent for such Department tution licensed State ** plicable (Emphasis added). place Public Welfare children for adoption, it shall be sufficient for the liv- la, as does Section Section Subsection ing parents to writing consent (5), contemplates possession of the child agency such place institution prospective adoptive home adoption, and no further con- parents. sent shall living par- of such ent.” great peti aunt uncle’s great parental tion for adoption neither includes emergency per- clause that Act is papers specifies exception consent nor tinent in revealing legislative purpose their would authorize absence. part intention. reads in It as follows: Therefore, district on form alone the many petitions “The fact jurisdiction properly was never invoked. being now filed do not suffi- re disclose The written parent when cient information to Rasco, enable the quired State jurisdictional. Stinson *7 Department of Public Welfare effi- (Tex.Civ.App. 316 S.W.2d 900 — Dallas ciently perform responsibilities placed the 1958, writ); Buchanan, no 303 Wilde v. by law; present on it the that the 1957, fact S.W.2d 518 (Tex.Civ.App. — Austin persent adoption expressly laws do not curiam, writ r. e.), per ref’d n. aff’d 157 permit parents place children for 606, Tex. 305 (1957); S.W.2d 778 Smith adoption with a licensed child-placing Curtis, (Tex.Civ.App.— 223 S.W.2d 712 agency or institution and Harris, Dallas 1958, no writ); Pearce v. confer institution the power to consent the (Tex.Civ.App. S.W.2d 859 Paso — El adoption without 1939, disclosing the nat- writ); no of Adoption C.J.S. parents ural the names the Children 35 (1936). facts Under the of § ” * * * parents (Emphasis mine.) of this the only consent 1951, 249, Tex.Laws ch. 6 at 388. the § natural mother was Plac to the Child ing Agency exceptions provid —one 46a, rely 10(c), on Art. Respondents Sec. ed for under 46a, Article 6(d) Secs. and provides: (e). hold consent of here, adoption pro- Placing Child files and records Agency Lutheran So “The Service, cial filed and main- ceedings Inc. is a which are with jurisdictional require Agencies that by Child-Placing ment. tained li- and Department of Public Welfare Department by the are licensed State Agencies be Child-Placing also with censed of Public Welfare accordance of protected; and the condition Act crowded Public Welfare of open inspection emergency create an amended, shall be calendar public necessity any imperative an copy by person except and/or requiring be bills to the Child Constitutional Rule directing of days in House read on three several each inspection Placing permit be sus- suspended, hereby and the same copy (Em- the records.” and/or of pended; and this Act shall take effect phasis supplied by respondents). in force from after of caption clauses emergency passage, (Em- is so enacted." leg- pertinent revealing that Act are phasis 1965, ch. mine). Tex.Laws purpose islative and intention: 5, at 324. § An “Caption: Amending Section Act emergency caption Both the Page Chapter of Bill Senate No. purpose of the true indicate clause of State 300, General Laws the confiden- protection of Act Texas, Legislature, Acts the 42nd limit I would records. of these tiality amended, Session, 1931, as be- Regular per- “to discretion the court’s exercise of ing codified of Article as Section 10 rec- copy of the inspection mit the and/or Statutes; 46a, pro- Vernon’s Texas Civil ju- the court whose ords” viding confidentiality invoked properly has been risdiction Department filed records State complies with filing petition that of a Welfare; providing Public 1, accompanied requirement of Section filed confidentiality of records required Section proper a consent Agencies; with licensed Child-Placing Art. 46a. amending the Revised Civil Statutes law, at common Adoption unknown Texas, 1925, adding Article new a creature exclusively is therefore relating to of certain confidentiality Adop- The Texas Legislature. the Texas pleadings, relat- records documents requires parental tion Act dependency hearing concerning to a provides Act further adoption, but wedlock; providing child born out no shall further consent clause; clause; repealing savings parents if the natural declaring (Em- emergency.” Placing Child a licensed their child with phasis mine). Charities Catholic Agency. Under consent, their case, supra, giving after present “Sec. 5. The fact that Stat- protec- further provision nothing utes make there is ir- final and do; their consent nature can confidential pa- when De- Under Article records with the State revocable. *8 Placing partment given is a Child of and licensed rental to Public Welfare consent natural Child-Placing Agency ties between the Agencies; the fact the can Department There the of and the are terminated. Public Welfare child State basis, of Agencies be no under the facts Child-Placing legal and licensed allow many Adoption information case to the Act to requests ceive construe uncle), great records, strangers great (the such the aunt from confidenti- who Department after death of the natural mother of such ality records Placing given al- has her a Child protected in the are not consent to Agency Agency, accomplish similar in the courts to which though records filed permit it courts this State would protected imperative are makes of living. to office natural mother while such records State do great great revoking adoption aunt and uncle are with- as a basis for serve any standing pursue adoption out acquisition large to of a consent. The by have father circumstance filed. natural would estate is not a child to a standing require no seek which should us to abandon child born child requirements Legislature. out wedlock unless the by laid down our legitimized was by marriage par- Legislature has enacted into law Holy ents. so may We held in Home In- upon conditions which a minor child Kaska, fancy and, v. (Tex.Sup. adopted S.W.2d 208 those are until conditions met, 1965). That noted that ad- fitness qualifications Texas of the heres respective to the common parties law rule that a fa- are incidental. would I has, ther by nature of the hold paramount import- blood relation- the issue of ship alone, ance, child, no rights only in his illegitimate welfare could (page 210): child early “There is an de- be raised in proceedings filed cision holding prior jurisdiction prop- that the father has a right erly to letters of guardianship petition containing invoked where mother deceased, Roberts, essential Barela information v. Section la, Tex. 554 [1870], per- but it is Art. 46a. thing one mit the father responsibil- assume the Currie, Holloway 388 S.W.2d In ities imposed by guardian law writ), no (Tex.Civ.App. — Waco an entirely different recognize matter Relations, of Domestic action of Court rights custody when there is no cor- neither adoption (where an denying responding duty to support.” would We adopted sought child to be parents of the permit the father to seek the informa- had Judge nor the Juvenile being tion sought in filing case an grant adoption) without consented adoption proceeding. reasoning The same adopt petition to hearing on the ing a full applicable designated this action, con the face of written affirmed. adoption proceedings, stran- other to an authorized sent the mother gers, the great great aunt and uncle. hold that Agency, would Placing Child otherwise, Stated it logical would be as no uncle have great aunt great court, district not having jurisdiction proceedings, standing to initiate “adoption of the proceeding” in the ab- legal in this situation where particularly sence of a containing the statu- prospective custody of the tory requirements accompanied by written complaint and no adoptive parents’ home parents, grant the natural Plac propriety is made of the Child father illegitimate ancillary actions, other than a refusal Agency’s relief to learn the whereabouts of his child of the child and disclose the whereabouts and the names of prospective parents par adoptive prospective the names of whom child was ents. by a licensed Child Placing it would be to furnish this information ato great aunt great Inasmuch great aunt great uncle. child, adopt this standing to uncle have adop- permit strangers to initiate having jurisdiction the trial court unless might that the proceedings, well be adoption proceedings concludes stronger natural father in a per- would be not fit adoptive parents are prospective position great than either the aunt child, it be cruel adopt sons great uncle and the in the best and not all concerned *9 parents. present let permit We should not events occur- the interest the child to of subsequent to the mother’s action ring adoption to continue. Stran- giving consent of contem- delivering custody proceedings, as gers adoption to Placing Agency permitted the child to the Child plated by should not be Art. procedure disrupt to the normal relation to that of the (62 years this of statute. He concluded age). of child be best interest the would majority opinion candidly The admits by denying petition. the served opinion relying that it is on dictum the from Collins, petition trial denied Davis Tex. The court the the of S.W. 2d (1949). pertinent that that the is Collinses dismissed of inter- decision at appeal. all in this venors. The support would the intervenors did position appeals The court of dissenting relator’s civil the of this reversed opinion. judgment of the court and rendered judgment petition the the of Collinses there an abandoned was the Davis case In granted. reversed judg- the mentally deficient was whose mother child appeals ment of the court civil and af- ac- institution. In of a and a ward State firmed that of the trial court. An- Vernon’s with Article cordance partial The the Statutes, quotation the from Davis rights of notated Civil opinion case in the is appearing terminated parents had been natural child’s pure petition dictum. care, The court, custody and for juvenile the Collinses specific was denied on the transferred were of the child control ground they had for received Davis, consent Probation Officer Chief Sam adopt statutory from the respon- authority. County. placed The law Dallas Davis had his consent give consent his sibility on Davis That intervenors. dictum is placed directed was After child adopt the child. guardian situation where refuses Davis, the child placed custody he give consent. wife, our case consent who and his home of Collins freely given the propriety caring for for paid were allowance —and action questioned. is not even remained Collins The child child. August years. On for four home almost above, quotation from As noted 27, 1947, from the child Davis removed Sam majority opinion is a in the Davis case placed it another home and Collins partial is taken out context. one and peti- original filed an The home. Collinses dependent neglect- Keep in mind that a November ed child was involved Davis case. the child had people in whose home The opinion dealing That with Article is subsequently been intervened. part as which reads in follows: court, petition in which the district “ filed, appointed a ‘suitable guardian Sam Davis change may court “The person’ investigate time, ‘the former environ- if, it made any is at child of such ment and child antecedents change tois the court appear to purpose ascertaining he (she) whether of the child.” interest best ” proper adoption,’ is subject opinion imme- the Davis portion of petitioner the “home of the to determine quotation in ma- diately preceding it is whether for the suitable home child.” reads follows: jority reported Davis that he no Sam found that if argue “Respondents fault with peti- Collinses’ home with [Collinses] themselves, a child withholds his tioners but recommended the custodian pow- adoption, the be denied to an for three reasons: its action (1) act, though Davis, The consent of even Sam as custo- erless interest of dian the best of the child under order of juve- un- provisions nile court statute received; had never been (2) child. longer resided in der which home petitioners; argument. It (3) cognizance refute should awarded change guard- taken of the that a provided child’s age tender therein (5 years) *10 ap- ianship any great great can made time it aunt and uncle cannot show be at pears necessary why to secure the best inter- this information be relevant or would material, granting est the child. hence the of such ancil- Article 2336.” See lary was a requiring relief such disclosure by Davis reasons three The Tunks, clear abuse discretion. Crane v. the Collinses to refusing give consent (1959). 160Tex. 328 S.W.2d 434 granting bar would by also their in this base being sought case adoption case, T., Why should an out-of-state re Mark 8 Mich. uncle. great great aunt hopes App. (1967), of the which 154 N.W.2d unduly arouse this Court support their their uncle, does decision. Under great aunt when great corpus proceed- facts of that and bound a habeas are to fail efforts doomed by of an heartaches, illegitimate natural father expense and confusion cause child, custody themselves, par- to obtain of the it would prospective adoptive appear that under Texas recognizing law ents and the ? common marriages law (Michigan does law adoption no more is petition for not) the child be illegitimate would not purpose a sham case than child and therefore the consent of the nat- information, confidentiality obtaining ural place father to child for same protected by is statute. The necessary. only be In that case August trial his order judge in consent of the mother had been obtained companion (for case construction Placing Agency. Child In the instant statutory require- will) recognized case, it undisputed that the child was confidentiality ment records protecting born out of wedlock—and consent of the Placing Agency modified Child mother alone is under Article Agen- Placing its order requiring Child 6(d). Sec. sought grant- cy copy serve will construction ed in re In Mark T. because the natural petition on the child and the father had not place consented to his child provide under Tex.R.Civ.P. 106 with a child placing agency citation, that the being return after dis- he because had established a “viable played examined the court family relationship”, which would be camera, envelope would be sealed in an garded as a marriage common law under court, filed with the such enve- clerk of Texas (The law. great great aunt and lope to remain sealed and to be its contents contend, uncle do not nor are able to person revealed no except under order allege that they have established a viable plaintiff due notice to the family after with relationship this child). (the great uncle), (Luther- intervenors every would hold that trial does Service, an Social Inc. and A Nor- Rolf determining what have discretion man), anyone and to might appoint- who adoption pro- should taken in an action ed represent the trial court the minor child; ceeding for the best interest of child. That protects order the confiden- rather, only but can discretion tiality of protected by information juris- exercised court which Adoption Statute, 46a, yet it Art. assures diction proper peti- has been invoked pro- interests of the child will be tion filed in accordance with Article 46a tected in the estate. The will contest case compliance statutory full proceed can then to trial. The information requirements thereof. (identity and whereabouts of the child) relevant and material will construc- if it that the district Even is assumed tion case necessary because she party— judge’s court had the trial jurisdiction, yet the identities on his was an abuse discretion adoption proceedings protected. part. cites majority opinion will remain Crane case, Tunks, Having standing proposition that rela- supra, *11 for the extra- rate in a trial on the damage tor’s burden issue. Defendant one, heavy is a that relator a ordinary sought directing relief mandamus the district judge judge separate of the trial set aside his for a must show action order a of said trial of the was “clear abuse discretion.” We and to damage issue declare 440): Despite (Page in that case mistrial. of 328 the conclusion of S.W.2d the ma- jority that the judge trial not author- a man- general rule “While separate ized order trials of liability and action control not issue to will damus damages, the gave Court two reasons for * ** in a matter an inferior its holding (pages 651-652): may issue discretion, writ involving (1) “This Court will not issue writs of abuse a clear case correct proper in a mandamus to control or revise exer- Burlap Bag & Southern of discretion. cise discretion trial courts in the 418,38 Tex. S.W. Boyd, supra v.Co. [120 performance of purely judicial as distin- Berry, 156 v. (1931)], Womack 2d 565 guished from ministerial acts.” 677, 682 Tex. S.W.2d [1956].” “ * * * (2) yet There is another rea- the Tunks granted The mandamus why the son writ of mandamus will not trial held the failure case. We issue. Relator has an adequate remedy re- tax income judge to examine by appeal, and writs of mandamus will itof were parts determine what turn not issue to forestall or to correct errors releyant de- requiring before and material of a trial court committed in the course produce the return examina- fendant to of a trial when parties have an ade- by plaintiff was an abuse copying tion and quate remedy by appeal.” ours, case, of discretion. In that us The in the case before does relator of his stayed execution trial court remedy adequate by way not have Supreme apply until could relators con- by appeal after appeal. remedy Surely this Texas relief. Court adequately trial will clusion confidentiality regard does not protect who the interest of important returns more tax income ruling of injured by the erroneous will confidentiality of documents than the trial court. adoption proceedings. information in this opinion case majority author of confusing It to note that author his dissent basing his decision on in this case opinion wrote Tunks. v. Crane Iley Hughes. v. dissenting opinion the facts of this Under and circumstances Iley 158 Tex. Hughes, I submit his discretion court abused relied (1948), 311 S.W.2d 648 by ordering of confidential ma- disclosure point. That is not in majority, strangers protected by terial statute who page 649) : (311 states S.W.2d adoption proceedings disrupt will lawful original at in this question “The issue previously undertaken a Child Plac- this this: Does proceeding in Court is having the consent of the nat- Pro- Civil 174(b), Texas Rules Rule judge mother. this trial Though ural cedure, separate trial of the authorize a protect rights liability issues damage issues child in the will construction case by injuries? damages personal suit the return citation to be sealed quiring it does hold not.” We guardian ad and to remain sealed until hearing appointed been and a litem had liability issues in jury answered held, or- has effect same agree plaintiff but was unable favor ma- the confidential dered the release of The trial court over- damage issues. on the giving without terials motion for mistrial ruled defendant’s her or adoptive parents or interlocutory plaintiff’s motion for granted guardian right be heard. liability sepa- issues and a judgment is, however, Article requires that files all not a case wherein § adoptions and records kept must be con- Court is decide whether *12 By Agen- fidential. Placing this the Child the trial court abused his This discretion. cy con- judge adop withhold information trial had no of the jurisdiction cerning suit, of this tion purported child. hence his is void. order information would identity By procedure purported include devious prospective parents whereabouts of the proceedings, they had reciprocal institute, include standing information great about aunt and lineage. information, child’s The trial order great indirectly, court’s uncle seek re require Placing Agency the Child garding identity and whereabouts to violate the law—a clear abuse of discre- prospective adoptive the child and the tion. Placing Agency parents If the Child with whom the of the comply forced to placed with that order and de- by Agency. Placing the Child ordered, liver the as respondent judge trial acted a mat everything will know power. included ter over which he had no petition. appear If they Craik, to contest (Tex. Crouch v. S.W.2d case, identity their Sup. by will revealed. 1963), opinion in an written Although great great aunt uncle majority opinion author of the in this rights have no or standing, they would (page said 314): received this confidential information. “The writ mandamus and writ appear do not appear or by counsel prohibition will issue for reasons only it is unclear happen what will to be now stated. The respondent, Craik them, since the requires judge], power was without “ [district * * * person persons having or enter the order granting injunction. possession, custody or control over Jane Therefore, void, the order * * duly Doe be cited appear situation, such a (sic) court does risk, They rate, run at any that the trial hesitate jurisdiction to exercise its compare will unfavorably them grant prayed (Emphasis the writs for.” great aunt great uncle, who will mine). undoubtedly present. grant I would the writ of mandamus. The Court has prob resolved similar lems issuing the extraordinary writs POPE, HAMILTON and concur. JJ., prohibition or mandamus correct rul the trial (1) when the order GREENHILL, (dissenting). Justice complained isof interlocutory di and no appeal rect therefrom is available, and I concur in opinion Mr. dissenting (2) remedy when the by appeal after con McGee in so it hold far as would Justice clusion of the trial pro will not adequately that there has been an abuse of discre- tect the interest party who would the trial conceive of judge. can I injured by rulings erroneous where, facts management Marks, court. In Maresca v. 362 S.W. matters, trust or related might become 2d 299 (Tex.Sup.1962), (page we said necessary information for the confidential ): involved to 301 be revealed. Even in that event, the confidential information should litigant “A so subjected to an invasion possible. closely kept be as privacy of his has a legal right clear an here, extraordinary remedy however, can my since there The facts not in do appeal; be no privacy relief once warrant the in- disclosure of broken by inspection copying formation. A rich child is entitled to adversary of income right privacy prescribed Leg- tax returns poor cannot be islature the retrieved.” same one. her obviously did not want child’s mother can- family, her within legal success of

not conceive of the great aunt

proposed Diocese

uncle. Catholic Charities Galveston, Inc., Harper, 161 Tex. in some (1960). While S.W.2d identity litigation

future of the fact

of the child and the disclosure *13 required, I see illegitimacy might

of her

no reason under the circumstances before right jeopardize in a

child to the to a life chance normal

normal home. dis- acknowledging jurisdiction determining its “abuse

trict court and

discretion,” always process there is overwhelming and in the num-

weighing; Dallas, appel- Scoggins, Donald R. cases, ber of the decision of a lant. respected his exercising discretion Tolle, Wade, Atty., B. Henry Dist. John Here, however, harm potential upheld. Westmoreland, Schulz, Harry Jr., W. T. J. parents) adopting her (and to the child Mason, Attys., Jr., Edgar A. Asst. Dist. disclosing outweighs good so far Vollers, Atty., Dallas, and D. State’s Jim seems confidential information what Austin, State. ap- proceeding that

to me a fruitless pears of discretion. to me to be an abuse

OPINION HAMILTON, McGEE, JJ., POPE DOUGLAS, Judge.

join. from a appeal conviction This is punishment

robbery assault. years. by the at fifteen jury assessed sufficiency of the evidence challenged. that a man armed

The record reflects pistol appellant robbed Eddie ROBINSON, Appellant, Janies Edward his just after he had cashed L. Williams pay check. Texas, Appellee. The STATE of his he testified that appellant No. 43342. he house when saw way to his aunt’s police entered that later the police and Appeals of Texas. Court of Criminal arrested him. house and Dec. after he testified Abshire

Officer pa- he witness complaining talked run appellant the area and saw trolled into the house He then went into a house.