Untitled Texas Attorney General Opinion ( 1961 )

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E T GENE
Honorable B. Truman Ratliff Opinion No. WW-1124
County Attorney
Delta County Re: Whe-the=the County Clerk
Cooper, Texas has authority to correct
the misspelling of the
name of one of the parties
to a marriage license, sub-
sequent to the recordation
thereof and related
Dear Mr. Ratllff: questions.
You request an opinion on questions listed as
follows:
(1) If the marriage records of a county
misspell the name of one of the par-
ties, may the County Clerk several
years later correct same, and if so
what procedure would he follow.
(a) If the original marriage
license is not available,
would the answer be the
same.
(2) If for some reason marriage records
do not show the issuance and return
of the license, is there any way a
County Clerk can issue and record
such a license based on affidavits.
1) We find no statutory provision that expressly
authorizes a County Clerk to correct a misspelling of the
name of one of the parties as it appears on the marriage
records of the county. Altering records without authority
of law is a criminal offense under Article 1002, Vernon's
Penal Code. However, the Court in the case of Holmes v.
Yates, 122 Tex. 428, 61 S.W.2d 771 (1933) held that an officer
may correct mistakes in his official records upon proper show-
ings. A record which is properly amended stands as though it
Honorable B. Truman Ratliff, Page 2 (Ww-1124)
had never been 'defective. Cowan v. Ross, 28 Tex. 227 (1896).
The issue as to what would constitute a proper show-
ing in this instance has not been resolved in the statutes or
cases studied. Nevertheless, it is our opinion that a mere
clerical error such as a defect of spelling occurring in the
marriage records could be corrected on the basis of the recit-
als appearing in the original marri%:;elicense.
a) It is our opinion thut the County Clerk, in the
absence of the original marriage lic:ense,cannot change the
spelling of the name of one of the parties as it appears in
the marriage records of the County. There is no statutory
authority which woul:dpermit a County Clerk to alter or estab-
lish a marriage record where the original is lost, destroyed,
or otherwise unavailable.
2) The only statutory provisions authorizing the
issuing and recordin of marriage licenses are Articles 4604,
4604`` 4604d and 460 itof Vernon's Civil Statutes. ~11 these
Articles contemplate a marriage license being issued prior to
a ceremonial marriage and only by first satisfying certain
legal requirements. No where in these provisions is there any
authority for the issuance and recordation of marriage licenses
subsequent to marriage on the basis of affidavits. The Legisla-
ture has provided a procedure whereby a delayed birth certificate
can be issued and recorded on the basis of affidavits, Rule
51a, Article ?477, Vernonts Civil Statutes, but as yet the Leg-
islature has not seen fit to provide such a procedure by which
marriage licenses may be issued or recorded.
SUMMARY
A County Clerk may correct the misspelling
of the name of one of the parties as it
appears in the marriage records if the cor-
rect spelling of the name of the individual
concerned can be established by making refer-
ence to the original license. However, if
the license is unavailable, the Clerk is not
authorized to make such a change in the
marriage records. Als'owhere there is no
record of the issuance and return of a
Honorable B. Truman Ratliff, Page 3 (WW-1124)
marriage license, a County Clerk is not
authorized to issue and record such a
license based on affidavits.
Yours very truly,
WILL WILSON
Attorney General of Texas
By
(&dkYt$wm/&a-p
I. Raymond Williams, Jr.
Assistant
1RWjr:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
IXldleyD. McCalla
Jack N. Price
REVIEWED FOR THE ATTORNEY GENERAL
BY: Howard W. Mays