Hon. W. A. Davis                  Opinion No. O-3.525
State Registrar                   Re: Whether or not an ille-
Texas
    . . State
          -   Board of Health     gitimate
                                  ..       child
                                              . . born. to , .a
Austin, Texas                     aivorcea motner takes tne
                                  surname of her divorced hus-
Dear Mr. Davis:                   band or her maiden name?
          We beg to acknowledge receipt   of your letter   of
June 4, 1941, as follows, to-wit:
          “Will  you please advise me as to the legal
     name of an illegitimate  child born to a divorced
     mother, who retained the name of her former hus-
     band? Should such a child take the surname of
     her divorced husband, or her maiden. name before
     she married?”
            As a relic of the CommonLaw of marriage, the wife,
upon her marriage, takes the name of her husband.     This is
the legitimate   fruit of the CommonLaw conception,   that upon
marriage the identity   of the wife as a juristic  person was
merged in that of her husband.
          There is no statute of Texas touching the question
but it has been decided by the Supreme Court that the rule oh
the CommonLaw, in the absence of a statute,   governs the mat-
ter.
            “Upon marriage the law confers upon the wife
     the name of her husband, and this continues to be
     her lawful name till    changed by a subsequent mar-
     riage,   or by the decree of a competent court as
     on final disposition    of the divorce proceeding
     where such change of name is specially    prayed for,
     -- a relic   of the CommonLaw fiction   of unity.
     While there is nothing in our statute compe~lling
     the wife to take or assume the name of her husband,
     yet by operation of law her husband’s surname be-
     comes her’s upon marriage.     It has been held that
     she is not bound by a judgment in a suit against
     her in her name, as where she is cited therein by
     publicat ion D In such case she is not a party to
     the suit 0u -- Speer’s Law of Marital Rights (3d
     Ed.) p. 28, X 26.
Hon. W. A. Davis,    page 2   (O-3525)


          The text    quoted cites   Murphy v. Coffey,        33 Tex.
508, and Freeman v. Hawkins, 77 Tex. 1498.
           The case of Barkley v. Dunke, 87 S.W. 1147, by
our Supreme Court illustrates    the effect  of marriage upon
the status of the wife in this, that there had been a void
marriage because the husband had a living wife, neverthe-
less the court held that the marriage had the statutory ef-~
feet to emancipate the woman from the disability      of infancy,
which status began with and abided beyond the marriage sta-
tus.  There had been a dissolution     of the attempted marriage
in that case.   See Speer's   Law of Marital  Rights (3d Ed.)
page 27, X 25.
           From these authorities it follows that your ques-
tion should be answered to the effect   that in the case you
put the illegitimate  child takes the name of its mother,
which, of course, in the case you state is the same as that
of her divorced husband.
                                         Very truly   yours
                                         ATTORNEY
                                                GENERAL
                                                      OF TEXAS
                                         By /s/ Ocie Speer
                                         Ocie Speer, Assistant
APPROVED
       JUN 11, 1941
FIRST ASSISTANTATTORNEY
                      GENERAL
APPROVED:OPINIONCOMMITTEE
BY:     BMB, CHAIRMAN
OS:m:vb
