            THEATKTORNEY                   GENERAL
                            OF    TEXAS




HonbPabl& W. A; Davis, State         Registrar
Texas State Bb&d of Health
Austin 2, Texas
                                                                    .
Dear Sir:                        Opinion No. 0-6751"'
                                 Re: Questions relative      to operatloti
                                      under provisions     of House Bill
                                      No. $15, enacted bg the 49th"
                                      Legislature    as an amendmeht to
                                       subdivision   25 of Rule 47a of
                                      Article    4477, V.A.C.S.
         We are in receipt   of your recent request          for an
oplnlofi of' this d,epartment on the above subject.           Your ques-
tions are as follows:
         "(1)  Does this act (House Bill No. 415) apply
    to the County Clerk?    If not, is the County CleFk
    authorized by law to issue such copies without a
    court order?
         "(2)  Should the request for such a copy be
    submitted as a formal petitIon    to the court?    If
    so, what fees should be collected    in connection
    wlth~ the consideration of the petition   and the
    issuance of the order?
            “(3) May such a request     be considered     and order
    issued    by a court    not In sesslon?
          "(4)   Does the term Ia court of competent          jur-
    isdiction'    Include the District Court?
          “(5) Does 'a court of competent jurisdiction1
    have authority to issue an order applying to a
    certificate   from a county other than that in which
    the court is located?
        “(6) May an llleg~timate   person, his guardian,
    or his legal representative  secure such a copy with-
    out a court    order?

    his ~,7~al~y     any other person than an Illegitimatti,
                   , or legal representative secure such a
    copy?
Honorable   W.A. Davis   - page 2            o-6751


         "(8) What procedure must the mother of an illegl-
    timate adopt in order to secure a copy of her child’s
    birth certificate?”
         The pertinent part ‘of the statute     involved,   before
Its recent amendment, appeared as follows:
        Art.   4477, V.A.C.S.T.
                                “(25)ana provided that the name
         --P.-fa her or any
    of the                 * - Fnformatlon by whtch he might be
    identified,     shall not beg written into the birth or
    death certificate       of any illegitimate    child,   and
    provided further,       that any statem’ent the father bf
    hn llltigitimate     child wishes to make as to its parent-
    age, -Y,     when  placed    in the form of an Fifflaavit,
    be attached to the original         birth record.     Neither
    the State Registrar       nor any local Registrar      shall
    issue a certified       copy of any birth or death certi-
    ficate    wherein a child OP an adult is stated to be
    Fllegitlmate,     unless such certFfied      copy is ordered
    by a court of competent jurisalction.”
        The 49th Legislature     amended said subalvision   (25) of
Rule 47a of Article     4477, V.A.C.S,T,, supra, by the enactment
of House Bill No. 415 (on page 618, 1945, Vernon’s Texas Ses-
sion Law ServLce) which became effective       as a law June 18,
1945, the provisions‘of     same being as follows:
                           “Chapter   354
                           “H.B. No. 415
         “An act to amend Section 3 of Chapter 4, Acts of
            the First Called Sessfon, Forty-first        Legis-
            lature,    1929, (suba,ivision   25 of Rule 47a’ of
            Article    4477, Vernon’s Annotated Civil Statutes)
            so as to give a Court of competent jurisdiction
            and the county court in the county where the
            birth or death occurred authority to order the
            County Clerk and the State Registrar        to issue
            a certified     copy of any birth or death certlfi-
            cate wherein a child or adult is stated to be
            illegitimate,     and authorizing   the County Clerk
            to deliver,     at the request of said illegitimate
            person or of their guardian or legal representa-
            tive, a certifi,ed    copy of such certificate;     and
            declaring     an emergency e
    “BE IT ENACTm BY !tHE LEGISLATURE
                                    OF THE STATE OF TXKAS“.
Honorable   W. A. Davis,   page 3           o-6751


         ('Section 1. That Section 3 of Chapter 4, Acts
    of the First Called Session, Forty-first    Legislature,
    1929, (subalvi9lon  25 of Rule 47a of Article    4477,
    Vernon's Annotated CiVll Statut'es) be and the same
    is hereby amended so as to hereafter    read as follows:
          "SectIon   3. That Section 14 df Chapter 41
    of the Acts of the Fortieth     Legislature;  passed at
    its~'First Called Session,   be, and the same is here-
    by amended by Bdding'thereto      SubdIvision 25, which
    subdivision    shall read as follows:

          “I(25) And provided that the name of the father,
    or"any information by which he might be laentlfied,
    shall not be written into the birth OP death certi-
    ficate   of any illegitimate     child;  and. proviaed;~
    further,    that any statement thst the father of an
    Lllegltimate    child. wishes to make as to its parent-
    age, may, when placed fn the form of an affidavit,
    be attached to the original       birth record.     Neither
    the State Registrar nor any local Registrar          shall issue
    a certified    copy of any birth or death certificate,
    wherein a child or an adult Is stated to be illegi-
    tlmate, unless such certified        copy Is ordered by
    the County Court in the county In which said child
    was born or died., or by a Court of competent juris-
    diction,    or by s&M lllegI.tlmate     person or the guardian
    or legal representative      thereof.'
          "Sec. 2.    The fact that there is confusion as to
    whether the County Court would have authority           to
    enter an order authorizing        the County Clerk or State
    Registrar    to issue certified     copies of birth or'aeath
    certificates     of illegltlmate    persons, and the fact
    that said Illegitimate       person cannot get a certifi-
    cate of its birth upon request,         nor can a certificate
    of death be obtained except upon order of the Court,
    create an emergency and an imperative public necessity
    that the Constitutional       Rule requiring   bills  to be
    read bn three several days in each House be suspended,
    and. said Rule is hereby .suspendecI, and this Act shall
    take effect    from and after its passage, and it Is so
    enacted."
          For reasons hereinafter   stated, the only effect    of the
above amendment is to authorize the County Court in the county
in which the illegitimate     child was born or died to order the
issuance'of   certified  copies of birth or death certificates
wherein a person is stated to be lllegltlmate,      and to prohlblt
the issuance of same by the State Registrar without such order.
.
    Honorable   W. A. Davis,   page 4            O-6751


    Under the old law (subaivislon        25 of Rule 47a of Art. 4477)
    wherein Mzthority to order the issuance of instruments of this
    nature w&3 given only to a "court of competent jurisdlctibn",
    this department held In Opinion No. O,-5103to the effect             that
    the district     courts had such jurisdiction     under and by vii+ue
    of S@ction 8 of Art. 5 of the Constitution         of Texas In that
    the action involved was one for which jurisdiction           is nbt
    prbvlaed by law. Alsb, ln otir Opinion No. 5103-A it was held
    that a County Court was"not a court of competent jurisaictlon
    within the meaning of said statute.          Now, since the enactment
    of the above amendment the County Court ln'the county fn whlcb
    the illegitimate      'person was born or died has exclusive      orIgIna
    jurltiaiction    of'an action to procure the birth or death cer-
    tificate     of such illegitimate    person and as jurlsd-ictron     is
    now'provided by law, the district         court no longer is a "court
    of competent jurisdiction"        in respect to original   jurisdlc-
    tion.     See Opinion No. O-6783, a copy of which has been fur-
    nished you.
               Sald House Bill No. 415, supra, is defective          insofar
    as same by Its title      attempts to give the County Clerk author-
    ity, under circumstances        thereln set out, to issue such birth
    or death certificates,       for the reason that no mention Is mad@
    ih the body of the bill of the County ClePk. However, the fact
    that the title     of said bill Is broader than the body does not
    render the bill void as to the provislons           contained therein
    which were also contained In the title.            See 39 Tex. Jur. 99.
    But we deem it unnecessary that any such authority be given
    the County Clerk to Issue certifies          copies of any record con-
    talned in his office      as the County Clerk has had such author-
    Fty since the creation       of his office,    given by general law.
    We believe this view is amply sustained by our Opiniotis Nos.
    o-1386 ana O-3775. The title          of said House Bill 415 also
    states among other things that such bill Is to give the' county
    court authority      to order the State Registrar       ?.o issue a
    certified    copy of any birth or death certificate         wherein a
    child or adult is stated to be illegitimate",            but does not
    Include any authority      for the State Registrar without acourt
    order to issue such certified         copies at the request of the
    illegitimate     person or his guardian or legal representative,
    It follows then that the provision          in the body of said Bill
    purporting to give said State          Registrar   power to issue such
    certified    copies wlthout a court order at the request of the
    illegitimate     person or his guardian or legal representative
    Is Invalid and of no force end effect,            It also follows that
    the provision     in the body of such Bill purporting to give
    "any local Registrar"      such authority     Is also Invalid as same
    is not contained in the title         of said Bill.     39 Tex. Jur.
    100-101.
Honorable   W. A. Davis     - page 5               o-6751



         Therefore,   each of the following  paragraphs answer the
correspondingly    numbered questions submitted by you.
        (1)   Said House Bill No. 415 confers no power on
    the County Clerk, neither does it restrict   him in'any
    way from issuing certified  copies of records contained
    in his office.
         (2)  The filing  of a petition Is the general way
    in which an action for judgment i.s commenced in the
    County Court.    See Tex. Jur. 684.  We believe   this
    the proper method to pursue when seeking to obtain
    said order.    The same fees should be collected   as pro-
    vided by statute for other similar civil     suits filed
    in such court.
         (3)  It Is a general rule that, in the absence'of
    some law permitting court action at another time'; all
    judicial  proceedings   should be conducted during a
    term while the court'is    in session,    There is no
    law permitting this action to be held In vacation by
    the County Court,     11 Tex. Jur. 800.

        (4)    No,   this   Is fully   explained     herelnbefore.

          (5)   Th ere is no court of competent jurisdiction
    in these matters other than the county court of the
    county In which the Illegitimate     person in question
    was born or died.      Such county court may direct its
    order to the county clerk of the county in which such
    illegitimate     person was born or died, or to the State
    Registrar    in Travis County, Texas,

         (6)  No, if It is assumed you mean securing   a copy
    of the birth or death certificate  of an illegitimate
    person from the State Registrar.
        (7) Not without an order of the County Court of
    the county in which the illegitimate person was born
    or died.
                n order to obtain such copy from the State
    ReglL!iar' , she must obtain a court order as explained
    in our answer to question No. 2 herein,
        Of the opinions referred to herein, No. O-3775 was ad-
dressed to you; a copy of No, O-6783 has been sent you; and we
herewith enclose copies of Nos. O-1386, O-5103 and 0-5103-A.
Honorable W. A. Davis   - page 6              o-6751



                                   Yours very truly
                               ATTORNEYGENERAL
                                            OF TIUCAS


                                   BY
                                        Robert~'L.   Lattimore,   Jr.,
                                        Assistant

RLL:zd/jd/wc
Encl.

APPROVED NOV. 8, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
APPROVEDOpinion Committee by BWBChairman
