Honorable Richard Hoerster

County Attorney Gillespie County" Fredericksburg,Texas "

Dear Mr. Hoerater,: OpinionNo. C-407
Re: Whether a County Clerk is authorized to is- ;suea duplicate marriage license 'underthe facts stated.
Your letter requesting an opinion states the following facts:~A man an&a woman came to the county clerk's office in Gillespie County sometime during'theyear 1962 and took out a license to marry. A ceremohywas performedby a duly ordained minister acting under authority of the license issued. The return on the licensewas made by the minister, and itwas placed in the mails. It. was never 'received by the County Clerk. The man and woman now request~thata dupl~icate licensebe issued and made a matter of record upon the return being againmade thereon by the minister. The clerk has a stub record that the original licensewas issued.

Your question in regard to these facts is stated as follows:
"Can the Clerk lawfully issue a duplicate license

and then record itwhen theminister has endorsed the return?" The only statutory provisionsauthorizing the issuing and recording of marriage licenses are Articles 4604. 4604c, 46048, 4606 of Vernon's Civil,Statutes. All of these articles contemplate a marriage licensebeing issuedprior to a ceremonial marriage, and apparently theyhave been faithfullycompliedwith in everythingrequired, except insofaras the loss of the license in the U..S. Mails made strict compliancewith Article 4606 impossible.
493o-Hon. Richard Hoerster, Rage lwo (c-407)

The problemrepresentedby the fact situationbefore us is one of first impression in this state. Moreover, our research in the law of other jurisdictions failed to reveal a case in point. .: ,, Article 4606, Vernon's Civil Statutes provides as follows: :~ ,.

"Theclerk shall record all licenses so issued by hfm in a well bound book kept for that purpose. It shall be the duty of the person solemnizing the rites of matrimony to endorse the same on the license and return it to **the** county clerk within sixty days after the celebration aforesaid: such return shall be recordedwith the license."
It has alreadybeen held by this office thatArticle 4606 is tobe treatedas merely making provision for the return and filing of the license and as directory to officials involved. Attorney General's OpinionV-951 (1949). Implicit in such decisionwas theholding **that** where, as in the instant case, the parties themselveshave faithfullyperformedal& acts necessary on their part to establish a ceremonial or statutory marriage, neither the malperformance of ministerial acts by third personsnor their inability to perform such acts,will invalidate,theparties' attempts.

Loss of recoraswill not vitiate a ceremonialmarriage nor reduce it to the status of a common law marr,iage, but "it will be presumed that proceedingsnecessary to its validity were regular and valid." Clavton v. Havwood 133 S.W. 1082 (Tex. Civ.App. 1911).

We **think** without a doubt the intent of the Legislature in draftingArticle 4606 was primarily to provide proof of statutorymarriage for record, and that it was never intended that loss of the license shouldmake placing a marriage of record tmpossible,but that such was the result of an oversight on the part of **the** Legislature,

Nevertheless,althoughwe are clear as to what the answer to the question should be from the analysis above, we believe that the courts of this state are without power to

'-1931-Hon. Richard Hoerster, Page'Three (C-407)

construct a remedyby authorizing the issuance of a duplicate license. We know of no case which would permit a licensing authority to issue licenses except as providedby statutory law.'Your question is thereforeanswered in the 'negative.

However, in the case of Briohtmanv. Commanche County, 63 S.W. 857, 94 Tex. 599 (1901),itwas held thatwhere the fact situation is such that a choice must be made between no record, and a record that does not strictly complywith statutory requirements, the command of the legislature isbest satisfied through the recording agent acting upon and making a record with thatwhich stands inhis office in place of a missing document. Applying 'therule of the Briqhtman case to the factsbefore us, and recognizing thatthis is an unusual fact situation, it'is our opinion that the clerk should place in the marriage records in lieu of the lost license such affidavits as may be furnishedhim, togetherwith ~acopy of the license stub and his own certificate that a licensewas in fact issued to the parties, thus providing some record of the ceremonialmarriage.

SUMMARY
A County Clerk has no authority to issuemarriage licenses except as providedby statute. He therefore could not issue and record a 'marriagelicense except as providedby Articles 4604, 4604c, 4604d, and 46C6, V.C.S. However, the contemplation of Article 4606, V.C.S., was that some record of a statutorymarriage be kept, and under the rule of Briqhtman v. Commanche Countv, citation supra, the clerk should 'illace in the marriage records-in lieu of a lost license underwhich a marriage has been performed -such affidavits as may be furnished,himof the fact of the ceremony, together with such records'as,hehas that a license was in fact issued to **the** parties.
Yours very truly, WAGGONER CARR Attorney General

LCjr:clg w *~-it Larry C ddock, Jr. Assistant -1932-Ron. Richard Hoerster, Page Four (C-407)

APPROVED: OPINIONCOMMITTEE
W. V. Geppert, Chairman Malcolm Quick George Black Grady Chandler Sam Kelley APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone

-1933-