33rd / 424th District Courts

The Honorable Greg Abbott
Attorney General of Texas
Attn: Opinion Committee
P.O. Box 12548
Austin, Texas 78711-2548

Re: Is the Texas grandparent access statute, Section 153.433 of’the Texas Family Code, unconstitutional based on the United States Supreme Court ruling in Troxel v. Granville, 530 U.S. 57 (2000)

Dear General Abbott:
The purpose of this letter is to request an opinion on whether Section 153.433 of the Texas Family Code is unconstitutional based on the United States Supreme Court ruling in Troxel v. Granville, 530 U.S. 57 (2000).

Section 153.433 of the Texas Family Code provides that a court shall order reasonable access to a grandchild by a grandparent if at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated, and access by the grandparent is in the best interest of the child, and at least one of six specific fact situations is present. The statute was originally permissive but in 1997, the 75th Legislature made the provision mandatory, requiring a court to order access if the prescribed factors are present.

In the case of Troxel v. Granville, the United States Supreme Court found the grandparent access statute in Washington unconstitutional because the statute’s language violated the Due Process Clause of the Fourteenth Amendment. The Court referred to the statute as “breathtakingly broad” and found that the statute, as applied to Granville, unconstitutionally infringed on the fundamental right of parents to make decisions regarding the care, custody, and control of their children. The Court did specifically limit its holding to the application of the Washington statute to the facts of that case. See Troxel, 530 U.S. at 73.

Since 2000, several Texas appellate courts have considered cases involving challenges to the constitutionality of Section 153.433, Family Code. Although the courts have reached somewhat different conclusions, no decision has directly held the statute to be unconstitutional. In re C.P.J, No. 05-02-01639XV (Tex. App - Dallas 2003).

I respectfully request an opinion on whether the Texas grandparent access statute, Section 153.433 of the Texas Family Code, is unconstitutional based on the United States Supreme Court ruling in Troxel v. Granville, 530 U.S. 57 (2000).

Sincerely
/s/ Jeff Wentworth
Chairman
Senate Jurisprudence Committee