Untitled Texas Attorney General Opinion ( 1970 )

February 16, 1970
Honorable Ward P. Casey Opinion No. M- 578
County Attorney
Ellis County Courthouse Re: Discretion of county clerk
Waxahachle, Texas 75165 to refuse to perform the
duties relating to declara-
tions of informal marriage,
as set forth in Section
1.92(c)(d) of the Texas
Dear Mr. Casey: Family Code.
Your recent letter requests our opinion relative to
that portion of Section 1.92 of the Texas Family Code, as follows:
"Does the County Clerk have the discretion
under Section 1.92, subsections (c) and (d) to
refuse to administer the oath to the partle,s,,
execute his certificate on the declaration, or
record the declaration and deliver the original
of the declaration to the parties and transmit
a copy to the Bureau of Vital Statistics; where
there Is no legal impediment to marriage appearing
on the face of the form and all of the informaiion
required to be given on the form Is furnished?
Section 1.92 of the Texas Family Code (Acts 1969, 61st
Leg., R.S., ch. 888, p. 2706), provides, In part, as follows:
"(b) The declaration form shall contain:
It
. . .
“(6) a certificate of the county clerk
that the applicant made the oath and the place
and date It was made.
"(c) The county clerk shall:
"(1) determine that all necessary in-
formation is entered on the form;
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. -..
Hon. Ward P. Casey, page 2 (M-578)
“(2) administer the oath to each party;
ave each party sign the declaration
in hii(z!es:nce ; and
“(4) execute his certificate on the declara-
tion.
“(d) The county clerk shall record the declara-
tion, deliver the original of the declaration to the
parties, and transmit a copy to the Bureau of Vital
Statistics. ” (Emphasis added. )
The language of Section 1.92(c)(d), supra, clearly
Indicates that the duties of the county clerk in administering
the oath, executing his certificate, recording the declaration,
delivering the original of the declaration to the parties, and
transmitting a copy of the declaration to the Bureau of Vital
Statistics are mandatory, not discretionary. In setting forth
the above duties, Section 1.92(c)(d) speaks in terms of “shall”
not “May,” “Shall” is to be given a mandatory effect. 53 Tex.
Jur.2d 30, Statutes, Sec. 16.
Other relevant provisions of the Texas statutes ap-
plicable to the general duties of county clerks as recorders
of instruments are: Article lq411 which provides as follows:
“They (county clerks) shall be ex-officio
recorders for their several counties, and as
such shall record In suitable books to be pro-
cured for that purpose all deeds, mortgages and
other instruments required or permitted by law
to be recorded, . . .“(Emphasis added.)
Article 6591 reads:
“County clerks shall be the recorders for
their respective counties; they shall provide
and keep in their offices well bound books In
which they shall record all instruments of
writing authorized or required to be recorded
‘inthe county clerk’s off1 i th
hereinafter provided." (BzEhaiis Ed!%nTr
' All Articles referenced are to Vernon's Civil Statutes, unless
otherwise noted.
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Hon. Ward P. Casey, page 3 (M-578)
Further, Article 6594 provides:
"When any Instrument of writing authorized
by law to be recorded shall be deposited in the
county clerk's office for record, if the same is
acknowledged or proved in the manner prescribed
by law for record, the clerk shall enter in a
kt b Id f ht in alphabetical
&,'thE ````s E; t:z ~a,"ti~'!%"~ate and nature
thereof, and the time of delivery for record; and
shall give to the person depositing the same, If
required& a receipt specifying the particulars
thereof. (Emphasis added.)
Lastly, Article 6595 provides:
"Each recorder shall, without delay, record
every instrument of writing authorized to be
recorded by him, which is deposited with him for
record, with the acknowledgments, proofs, affl-
davits and certificates thereto attached. . . .I'
‘(Emphasis added.)
The court in Turrentine v. Lasane, 389 S.W.2d 336
(Tex.Clv.App. 1965, no writ), at page 337, stated that:
"It is the duty of the county clerk to
record all deposited written Instruments au-
thorized, required or permitted t be re-
corded In his office." (Emphasis'added.)
The duties of a recording officer are ministerial. First
Nat. Bank v:..McElroy, 112 S.W. 801 (Tex.Civ.App. 1908, no writ).
%lnisterial" duties have been described as follows:
"It Is said that an official duty is 'mlnis-
terial' when it is absolutely certain and imper-
ative, involving merely the execution of a set
task, and when the law which Imposes It prescribes
and defines the time, mode and occasion of Its per-
formance with such certainty that nothing remains
for judgment or discretion. Official action Is
ministerial when It is the result of performing
a certain and specific duty arising from fixed
and designated facts. A ministerial act is one
which public officials are required to perform
upon a given state of facts In a prescribed manner,
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I .
Hon. Ward P. Casey, page 4 (M-578)
in obedience to the mandate of legal authority
and without regard to their own judgment or
opinion concerning the propriety or Impropriety
f the act to be performed." Case v. Daniel C.
g-4, 82b (N.J. Super.
959) . (EmphAsis aidEd.)
See also, the various definitions of "ministerial act!' and
"ministerial duty" in Black's Law Dictionary (4th Ed. 1951),
page 1148, and in 27 Words and Phrases (Perm.Ed. 1961) pages
374-404.
In view of the foregoing, It is our opinion that,
where all of the information required to be given on the form
is furnished, neither the county clerk, nor his deputies, have
any discretion to refuse to perform the duties set forth in
Section 1.92(c)(d), supra.
Accordingly, your question is answered in the negative.
SUMMARY
Neither county clerks, nor their deputies,
have discretion to refuse to perform the duties
set forth in Section 1.92(c)(d), Texas Family
Code, relating to declarations of informal
marriage, where all information required to be
given on the form is furnished.
Vedtruly yours,
General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
Malcolm Quick
Jack Sparks
Jim Swearingen
David Longoria
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Hon. Ward P. Casey, page 5 (M-578)
MEADEF. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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