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 declarations 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 information is entered on the form; 

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. -.. 

Hon. Ward P. Casey, page 2 (M-578) 

“(2) administer the oath to each party; 

in hii(z!es:nce 

ave each party sign the declaration 

; and 

“(4) execute his certificate on the declaration. 

“(d) The county clerk shall record the declaration, 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, 

not “May,” 

Section 1.92(c)(d) speaks in terms of “shall” 

“Shall” is to be given a mandatory effect. 53 Tex. 

Jur.2d 30, Statutes, Sec. 16. 

Other relevant provisions of the Texas statutes applicable 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 procured 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 

‘in the 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, affldavits 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 authorized, required or permitted t be recorded 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 'mlnisterial' when it is absolutely certain and imperative, 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 performance 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) 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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