                                  GENERAL




Honorable Jbhn R. Shook
CrFtiinalDistrict Attorney
Bexar County
San Antonio, Texas
Dear Sir:              Attention: Hon. L-;J. Glttinger, FLrst
                                  Assistant
                       Opinion No. O-4637
                       Re: Can a delayed certificate of bFrth
                            be f ilea u&er~the provisions,6f
                            House Bill 614,~ Acts of~'the46th
                            Legislature as amended by House
                            Bill 974, Acts of the-47th Legls-
                            lature (codified as Rule 51a,
                            Article 4477 V.C.S.) although the
                            person whose birth is sought t6
                            be established is no longer living?
       You have requested.the opinion of this department upon
the above stated question, citing three specific cases illus-
trating the desirability, and even the practical necessity,
of filing a birth certificate as a means of establishing proof
of the citizenship of a person who is now deceased.
       The applicable provisions of House Bill 614, Act? of
of the 46th Legislature, as amended by the 47th Legislature,
are as follows:
      "And provided further, that any citizen of
   the State of Texas wishing to file the record
   of any birth or death that occurred in Texas,
   not previously registered, may submit to the
   Probate Court in the County where such birth or
   death occurred, a record of such birth or death
   written on the adopted forms of birth ,anddeath
   certificates; and provided further that any
   citizen of the State of Texas wishing to file
   the record of any birth or death that occurred
   outside of the State of Texas, not previously
   registered, may submit to the Probate Court In
   the County where he resides a record of that
   birth Or death written on the adopted forms of
   birth and death certificates. The certificate
   shall be substantiated by the affidavit of the
                                                  .~
Honorable John R. Shook, Att'n: L. J. Glttinger, page 2    Q-4637


    medical attendant present at the time of the
    birth, or~in case of death, the affidavit of
    the physician last in attendance upon the de-
    ceased, or the undertaker tihoburied the body.
    Uhen the afflddvit~~ofthe medical attendant or
    undertaker cannot be secured,,the certifichte
    shall be supported by the affidavit of some per-
    son who was acquaintea,with the facts surround-
    ing the birth otideath, at the time the birth
    or death occurred, with a second affidavit of
    some person who is acquainted with the facts
    surrounding the birth or death, and who IS not
    related to the individual by bloodor marriage.
    The Frobate Court shall require such other in-
     formation or evidence as may be deemed necessary
    to edablish~the citizenship of the individual
     filing the certificate, and the truthfulness of
    the statements made in that record. -The Clerk
    of the said Coilrtshall forward thB ct3rtlficate
    to the State Bureau of Vital Statistic5 wYth an
    order from the Court to the-State Registrar that
    the record be, or be not, accepted. The State
    Registrar is authorized to accept-the certificate
    when varified in the above manner, ana shall
    issue certified copies of such records as pro-
    vide& for in Sbction 21 of this~Act. Such certi-
    fild copies'sh&ll be prima facie evidence In all
    Courts and places of the facts stated thereon.
    The State Bureau of Vital Statistics shall fur-
    nish the forms upon which such records are filed,
    and no other form shall be use& for that purpose."
      hit will be noted that this statute provides that delayed
birth certificates may be filedby""any citizen of the State     '~
of Texas", whether such birth occurred within the State of Texas
or outside of the State of Texas. We agree with you in your
opinion that this law contemplates that the birth certificate
may be filed by someone other than the person whose birth is
being recorded. Nor do we find any provision in this statute
or in any other law which prohibits the filing of a birth cer-
tificate evidencing the birth of a person who is deceased at
the time the oertificate is filed. The statute conveys a
right which is not limited to cases in which the person whose
birth IS being recorded is living at the time of the filing of
such record.
       We are therefore of the opinion that a delayed certifi-
cate of birth may be filed under the provisions of said Rouse
Bill 614, as amended, although the person whose birth is sought
to be established is no longer living.
Honorable John R. Shook, Att'n: L.J. Gittinger, page 3   O-4637


                              Yours very truly
                            ATTORNEY GENERAL OF TEXAS

                              By s/W. R. Allen
                                   W. R. Allen
                                   Assistant
WRA:GO:wc

APPROVED JUN 12, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
