Honorable W. A. Davis ,

State Registrar Texas State Board ofHealth
Dear Dr. Davis: OpinionNo. O-2347 Re: Whether or not the localReglstrar should aocept evidence of the marriage of a Negro and Mexican as a basis for accepting the correctedbirth certificate of a childborn to them prior to the marriage.
Your request for a legal opinionhas been received and is as follows:

'Therewas registered in 1925 a birth certiclcate for an illegitimatechild born to a Mexicanwoman. "Since that birth the putative father, a negro,married themother, a Mexican, in Las Cruces,New Mexico. There is now presented,as provided for in Rule 46a Art. 4477,R. C. S., 1936, as amended by the 46th Leg., R. 3 1939, a certificateto correct the leg-1 status'ofthe child showing that the child is legitimate, the father a negro, and the mother a Mexican. 'Pleaseadvise me if the Local Registrar shouldaccept evidence of such a marriage inNew Mexico as a basis For accepting the correcting certificate;and, should the State Registrar accept such a certificateand attach It to the originalas a correction."
Your letter Is somewhat confusing, from a purely legal standpoint, fn this respect: You refer to the father of the child as the "putativefather",and further state that the birth certificate showed the status of the child as illegitimate. This is a contradiction of legal terms.

A "putative"marriage is one entered intoby a man and woman in good faith upon the part of one or both, but.. .

Honorable W. A. Davis, page 2 O-2347

which marriage Is invalidbecause of some legal impediment or vice unknown to them or to one of them. For instance, one of the parties may have at the time a living spouse, believing, however, that such spousewas dead or had been divorced. Such a marriage is not a legal marriagebut by force of statute (Rev. Civ. Stat. Art. 2581) childrenborn of suchmarriage are declared to be legitimate.

So that, If there had been a'"putatlve"marriage between theman and woman In this case prior to the birth of the child in question, the birth certificate shouldhave shown the child to be legitimate.

We assume, however, that you used the word "putative" in your letter in the popular senseand not In the strictly legal.

sense, and that at the date of the birth of this child there had been no sort of marriage or attempted marriage between the parents.

A "commonlawmarriage" -- that is, one entered intoby competentparties in good faith, but without the formalities of law to sanction it -- Is a legal and valid marriage, under the laws of Texas. So that, If theman and woman In question had entered Intoa common law marriage prior to the child'sbirth, itwould, of course,be legitlmate, and the birth record iswrong.

What we have said has been a digression from the direct question you propound,and we proceed to answer that.

Article 4477 of the Revised Civil Statutes is a wholesome Act to protect the publicmorals and should, like every other civil statute,be liberally construed to effectuate Itspurpose. Subdivision (26) of the Article provides:

"Y * * "Upon the marriage of a mother of a child, or children, her husbandmay filewith the local

_ registrar the certificate of marriage, towhich may be attached a birth certificate for each child showing the father'sname and other data referring to him as the father of the child or children. When the local registrar is satisfied that themarriage has occurred and that the statementsmade on the birth certificateare true and correct,he shallplace his file date and signature on the certificateand forward it to the State Bureau of Vital Statistics. The State Registrar shall attach the certificateas a correction to the certificateHonorable W.~A. Davis, page 3 O-2347

of the naturalbirth of the child; and provided further, that neither the State Registrar nor a local registrar shall, exceptwhere orderedby a court of competent Ju.??iSdiCtiOn, make a certificate of, or furnish any Information to any oerson as to the birth certificateof an illegitimate'~child, but shall issue a certified copy of the birth certificate filed after the marriage of the mother of the child." This provision of the statutewill authorize the course suggestedby you; that is, you, as State Registrar, shouldaccspt satisfactory evidence of themarriage and attach the same to the originalbirth certificate.

You are not concernedwith the legal effect of such procedureas to the legitimacy of the child, its right of inheritance,or other legal right whatsoever, and we are not passing upon any such questions. Very truly yours ATTORNEY GENERAL OF TEXAS

By s/Ocie Speer Ocie Speer Assistant
OS-MR-WC

APPROVED MAY 20, 1940 s/GeraldC. Mann ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy RWF Chairman