Honorable W. A. Davis , 

State Registrar 

Texas State Board of Health 

Dear Dr. Davis: Opinion No. O-2347 

Re: Whether or not the local Reglstrar should aocept evidence of 

the marriage of a Negro and 

Mexican as a basis for accepting the corrected birth certificate of a child born to them 

prior to the marriage. 

Your request for a legal opinion has been received 

and is as follows: 

'There was registered in 1925 a birth 

certiclcate for an illegitimate child born to a 

Mexican woman. 

"Since that birth the putative father, a 

negro, married the mother, 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 certificate to correct the leg-1 status'of the 

child showing that the child is legitimate, the 

father a negro, and the mother a Mexican. 

'Please advise me if the Local Registrar 

should accept evidence of such a marriage in New 

Mexico as a basis For accepting the correcting 

certificate; and, should the State Registrar accept such a certificate and attach It to the 

original as 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 "putative father", 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 into by 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 invalid because 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 spouse was dead or had been 

divorced. Such a marriage is not a legal marriage but by 

force of statute (Rev. Civ. Stat. Art. 2581) children born 

of such marriage are declared to be legitimate. 

So that, If there had been a'"putatlve" marriage 

between the man and woman In this case prior to the birth 

of the child in question, the birth certificate should have 

shown the child to be legitimate. 

We assume, however, that you used the word "putative" in your letter in the popular sense and 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 "common law marriage" -- that is, one entered 

into by competent parties 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 the man and 

woman In question had entered Into a common law marriage 

prior to the child's birth, it would, of course, be legitlmate, and the birth record is wrong. 

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 public morals and should, like 

every other civil statute, be liberally construed to effectuate Its purpose. Subdivision (26) of the Article provides: 

"Y * * 

"Upon the marriage of a mother of a child, 

or children, her husband may file with the local 

_ registrar the certificate of marriage, to which 

may be attached a birth certificate for each child 

showing the father's name and other data referring 

to him as the father of the child or children. 

When the local registrar is satisfied that the marriage has occurred and that the statements made on 

the birth certificate are true and correct, he 

shall place his file date and signature on the 

certificate and forward it to the State Bureau of 

Vital Statistics. The State Registrar shall attach 

the certificate as a correction to the certificate 
Honorable W.~A. Davis, page 3 O-2347 

of the natural birth of the child; and provided 

further, that neither the State Registrar nor a 

local registrar shall, except where ordered by 

a court of competent Ju.??iSdiCtiOn, make a certificate of, or furnish any Information to any 

oerson as to the birth certificate of 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 statute will authorize the 

course suggested by you; that is, you, as State Registrar, 

shouldaccspt satisfactory evidence of the marriage and attach 

the same to the original birth certificate. 

You are not concerned with the legal effect of such 

procedure as 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/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By RWF Chairman