Honorable Richard Hoerster 

County Attorney 

Gillespie County" 

Fredericksburg, Texas " 

Dear Mr. Hoerater,: 

Opinion No. C-407 

Re: Whether a County Clerk 

is authorized to is- 

;sue a duplicate marriage license 'under the 

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'the year 1962 and took out a 

license to marry. A ceremohy was performed by a duly ordained 

minister acting under authority of the license issued. The return on the license was made by the minister, and it was placed 

in the mails. It. was never 'received by the County Clerk. The 

man and woman now request~that a dupl~icate license be issued and 

made a matter of record upon the return being again made thereon 

by the minister. The clerk has a stub record that the original 

license was issued. 

Your question in regard to these facts is stated as 

follows: 

"Can the Clerk lawfully issue a duplicate license 

and then record it when the minister has endorsed the 

return?" 

The only statutory provisions authorizing 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 license being issued prior to a ceremonial marriage, and apparently they have been faithfully complied with in everything required, except insofar as the loss 

of the license in the U..S. Mails made strict compliance with 

Article 4606 impossible. 

493 o- 
Hon. Richard Hoerster, Rage lwo (c-407) 

The problem represented by the fact situation before 

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: 

:~ ,. 

"The clerk 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 recorded with the license." 

It has already been held by this office that Article 

4606 is to be treated as merely making provision for the return and filing of the license and as directory to officials 

involved. Attorney General's Opinion V-951 (1949). Implicit 

in such decision was the holding that where, as in the instant 

case, the parties themselves have faithfully performed al& acts 

necessary on their part to establish a ceremonial or statutory 

marriage, neither the malperformance of ministerial acts by 

third persons nor their inability to perform such acts, will 

invalidate,the parties' attempts. 

Loss of recoras will not vitiate a ceremonial marriage 

nor reduce it to the status of a common law marr,iage, but "it 

will be presumed that proceedings necessary 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 drafting Article 4606 was primarily to provide proof of statutory marriage for record, and that it was never intended that 

loss of the license should make placing a marriage of record 

tmpossible, but that such was the result of an oversight on the 

part of the Legislature, 

Nevertheless, although we 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 remedy by authorizing the issuance of a duplicate 

license. We know of no case which would permit a licensing 

authority to issue licenses except as provided by statutory 

law.' Your question is therefore answered in the 'negative. 

However, in the case of Briohtman v. Commanche County, 

63 S.W. 857, 94 Tex. 599 (1901), it was held that where the 

fact situation is such that a choice must be made between no 

record, and a record that does not strictly comply with statutory requirements, the command of the legislature is best satisfied through the recording agent acting upon and making a record 

with that which stands in his office in place of a missing document. Applying 'the rule of the Briqhtman case to the facts before 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 

furnished him, together with ~a copy of the license stub and his 

own certificate that a license was in fact issued to the parties, 

thus providing some record of the ceremonial marriage. 

SUMMARY 

A County Clerk has no authority to issue marriage 

licenses except as provided by statute. He therefore 

could not issue and record a 'marriage license except 

as provided by Articles 4604, 4604c, 4604d, and 46C6, 

V.C.S. However, the contemplation of Article 4606, 

V.C.S., was that some record of a statutory marriage 

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 under which 

a marriage has been performed -such affidavits as may 

be furnished,him of the fact of the ceremony, together 

with such records'as,he has that a license was in fact 

issued to the parties. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

LCjr:clg 

w 

Larry *~-it C ddock, Jr. 

Assistant 

-1932- 
Ron. Richard Hoerster, Page Four (C-407) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Malcolm Quick 

George Black 

Grady Chandler 

Sam Kelley 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

-1933-