
    KURTZ v. STATE.
    (No. 9497.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    1. Adoption <&wkey;20 — Adopter, to.be liable for support of child when natural parents living, must relieve parepts of their obligation to support child.
    Before obligation to support child can be enjoined upon adopter when child’s natural parents are living, adopter must do more than merely make child an heir to his estate, but he must by his own act relieve child’s natural parents of obligation to support it, and must voluntarily assume such burden himself. .
    2. Adoption &wkey;>20 — Defendant adopting child whose natural parents are living, without having parental authority and custody transferred to him, held not subject to conviction for nonsupport of child.
    Where defendant and wife adopted child, in compliance with Complete Tex. St. 1920, arts. 1, 2, but terms of articles 3-5 were not complied with, in that parental authority and custody were not transferred in writing, held that defendant could not be punished, under Pen. Code 1925, art. 602, for failing and refusing to suport such child whose natural parents are living.
    Commissioners’ Decision.
    Appeal from Bexar County Court for Criminal Cases; George G. Clifton, Judge.
    George O. Kurtz was convicted of willfully failing and refusing to provide for support ' and maintenance of a minor child, and he appeals.
    Reversed and remanded.
    A. L. Matlock, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BEERY, J.

The offense is willfully failing and refusing to provide for the support and maintenance of a minor child, and the punishment is a fine of $50.

The testimony is undisputed to the effect that the minor child in question is an adopted child of the appellant and his divorced wife, and that it is in necessitous circumstances, and that the appellant refuses to support the same. The facts are sufficient to show that the natural parents of the child are now living in Texas, and that the child was adopted by appellant and his wife while they were living together; the adoption being under articles 1 and 2 of title 1 of Vernon’s Complete Texas Statutes. It is clear from the evidence that articles 3, 4, and 5 of title 1 of said statutes have not been complied with, and these articles do not apply in the instant case'unless they are so related to articles 1 and 2 as to make an adoption under articles 1 and 2 carry with it the rights conferred upon the child by a compliance with articles 3, 4, and 5 of said title of said statutes.

It is appellant’s contention that under the laws of this state and under the facts above stated he cannot be convicted for failing to support his adopted child. The record shows that appellant and his divorced wife, before being divorced, filed in the office of the county clerk of Bexar county a , statement in writing in compliance with article 1, supra. It further shows that neither the parent nor parents of the child in question signed any instrument in writing transferring their parental authority and custody over said child so adopted to the appellant and his wife.

We think it clear, under article 5, supra, that, if the terms of article 3, supra, had been complied with, this conviction would be valid. The very terms of-article 5 make manifest the intention of the Legislature to require the same treatment from adopters toward an adopted child as is required in case of parents toward their own children. We think, however, that article 5, supra, is not applicable to the facts of this case. On the contrary, we think it would apply only in a case where the parent or parents of the child who had been adopted as provided in articles 1 and 2, supra, have by proper instrument in writing transferred théir parental authority; and we think that, when only article 1, supra, has been complied with, there is no obligation on the part of the person adopting a child to support same when its natural parents are shown to be living. Under article 1, supra, the person adopted becomes the legal heir of the party adopting him, and derives no other benefit from such-act on the part of the party so adopting. Property rights growing out of this question have been passed on by our Supreme Court in the following cases: Eckford v. Knox, 67 Tex. 200, 2 S. W. 372; Harle v. Harle, 109 Tex. 217, 204 S. W. 317, 15 A. L. R. 1261; Walton v. Yturria, 109 Tex. 220, 204 S. W. 315, L. R. A. 1918F, 1079.

The foregoing cases were concerned only with the statute as detailed in articles 1 and 2 thereof, but we think it clear that, before the party could claim the rights -and privileges given him under article 5 of the statute, it would be essential -that article 3 be fully complied with, otherwise á party acting under article 1 might, adopt any child whose parents are living for the purpose only of making such child the heir to his estate; the child might continue to live with its own parents, and, while they might not be averse to allowing it to inherit its neighbor’s property at his death, they might seriously object to surrendering parental control over it, and would be loath to dispense with its association, and of course there would be no statute and no rule of law -that would require them to make this sacrifice contrary to their own voluntary will, and yet, if every person who adopted an heir under article 1 must be held accountable under article 5 for the support, maintenance, and humane treatment of such a child, then, under the conditions above stated, a party whose only offense has been the gratuitous act of making his neighbor’s child his heir, could be criminally prosecuted while living for failing to support such child, although it remained in another’s custody. We think the illustration makes it manifest that such was not the legislative intent when article 602 of the P. O. was enacted. On the contrary, we think it equally certain that it is only where the transfer of parental authority and custody over the child has been made in conformity with article 3 that the obligations imposed by article 5 apply.

We are not called upon to decide and do not decide as to the construction to be given to the statute above mentioned, where the parents of the child-in question are dead. But, where the parents of the child are living, to hold that a party who had done nothing more than to comply with article 1, supra, may be punished under article 602, P. C., would be to bold that, simply because be bas seen fit to mate one to wbom be owes no sucb natural duty bis beir when dead, be thereby takes upon bimself tbe additional burden of supporting sucb person while living. This would be in effect to repay gratuitous generosity with ingratitude, and would make a mere gratuity a weapon of offense in tbe bands of a belligerent beneficiary. Before the obligation to support sucb child can be enjoined upon tbe adopter when tbe child’s natural parents are living, tbe adopter must do more than merely make him an beir to bis estate. He must by bis own act relieve tbe child’s natural parents of tbe obligation to support it, placed upon them by nature and by law, and be must voluntarily assume that burden bimself.

So believing, we hold that tbe facts above stated, are insufficient to support tbe verdict, and tbe judgment is therefore reversed, and tbe cause remanded.

PER GURIAM,

The foregoing opinion of tbe Commission of Appeals bas been examined by tbe judges of tbe Court of Criminal Appeals and approved by the court. 
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