February 

### 16,1970

Honorable WardP. 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 nolegal 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 

### theapplicantmadethe oath and the place 

### anddateItwasmade. "(c) Thecountyclerkshall: "(1) determinethatallnecessaryinformationisenteredontheform;
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Hon. WardP. Casey, page 2 (M-578)

“(2) administer the oath to each party;
in hii(z!es:nceave 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 acopy 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 amandatory effect. 53Tex. 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 

### ‘inthecounty clerk’s off1 i th hereinafter 

### provided." (BzEhaiis Ed!%nTr



### 'AllArticlesreferencedaretoVernon'sCivilStatutes,unless otherwisenoted.
-2758-Hon. WardP. Casey, page 3(M-578)

Further, Article 6594 provides: "Whenany Instrument of writing authorized by law to be recorded shall be deposited in the county clerk's office for record, if the sameis 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& areceipt specifying the particulars thereof. (Emphasis added.) Lastly, Article 6595 provides: "Each recorder shall, without delay, record every instrument of writing authorized to be recorded byhim, which is deposited with himfor 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, nowrit), 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 arecording officer are ministerial. First Nat. Bank v:..McElroy, 112 S.W. 801 (Tex.Civ.App. 1908, nowrit). %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, andwhenthe lawwhich Imposes It prescribes and defines the time, modeand 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. Aministerial act is one which public officials are required to perform upon agiven state of facts In aprescribed manner,
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.

Hon. WardP. Casey, page 4 (M-578)

in obedience to the mandate of legal authority andwithout regard to their ownjudgment 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 LawDictionary (4th Ed. 1951), page 1148, and in 27Words 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 byAustin C. Bray, Jr. Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman W.E. Allen, Acting Co-Chairman Malcolm Quick Jack Sparks JimSwearingen David Longoria

-2760-Hon. WardP. Casey, page 5(M-578)

MEADE F. GRIFFIN Staff Legal Assistant ALFREDWALKER Executive Assistant NOLAWHITE First Assistant

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