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                       E                    T   GENE




      Honorable B. Truman Ratliff     Opinion No. WW-1124
      County Attorney
      Delta County                    Re:   Whe-the=the County Clerk
      Cooper, Texas                         has authority to correct
                                            the misspelling of the
                                            name of one of the parties
                                            to a marriage license, sub-
                                            sequent to the recordation
                                            thereof and related
      Dear Mr. Ratllff:                     questions.
                 You request an opinion on questions listed as
      follows:
                 (1)   If the marriage records of a county
                       misspell the name of one of the par-
                       ties, may the County Clerk several
                       years later correct same, and if so
                       what procedure would he follow.
                       (a)   If the original marriage
                             license is not available,
                             would the answer be the
                             same.
                 (2)   If for   some reason marriage records
                       do not   show the issuance and return
                       of the   license, is there any way a
                       County   Clerk can issue and record
                       such a   license based on affidavits.
                1) We find no statutory provision that expressly
      authorizes a County Clerk to correct a misspelling of the
      name of one of the parties as it appears on the marriage
      records of the county. Altering records without authority
      of law is a criminal offense under Article 1002, Vernon's
      Penal Code. However, the Court in the case of Holmes v.
      Yates, 122 Tex. 428, 61 S.W.2d 771 (1933) held that an officer
      may correct mistakes in his official records upon proper show-
      ings. A record which is properly amended stands as though it
Honorable B. Truman Ratliff, Page 2 (Ww-1124)


had never been 'defective. Cowan v. Ross, 28 Tex. 227 (1896).
          The issue as to what would constitute a proper show-
ing in this instance has not been resolved in the statutes or
cases studied. Nevertheless, it is our opinion that a mere
clerical error such as a defect of spelling occurring in the
marriage records could be corrected on the basis of the recit-
als appearing in the original marri%:;elicense.

          a) It is our opinion thut the County Clerk, in the
absence of the original marriage lic:ense,cannot change the
spelling of the name of one of the parties as it appears in
the marriage records of the County. There is no statutory
authority which woul:dpermit a County Clerk to alter or estab-
lish a marriage record where the original is lost, destroyed,
or otherwise unavailable.
           2) The only statutory  provisions authorizing the
issuing and recordin of marriage licenses are Articles 4604,
4604~~ 4604d and 460 itof Vernon's Civil Statutes. ~11 these
Articles contemplate a marriage license being issued prior to
a ceremonial marriage and only by first satisfying certain
legal requirements. No where in these provisions is there any
authority for the issuance and recordation of marriage licenses
subsequent to marriage on the basis of affidavits. The Legisla-
ture has provided a procedure whereby a delayed birth certificate
can be issued and recorded on the basis of affidavits, Rule
51a, Article ?477, Vernonts Civil Statutes, but as yet the Leg-
islature has not seen fit to provide such a procedure by which
marriage licenses may be issued or recorded.

                       SUMMARY

          A County Clerk may correct the misspelling
          of the name of one of the parties as it
          appears in the marriage records if the cor-
          rect spelling of the name of the individual
          concerned can be established by making refer-
          ence to the original license. However, if
          the license is unavailable, the Clerk is not
          authorized to make such a change in the
          marriage records. Als'owhere there is no
          record of the issuance and return of a
Honorable B. Truman Ratliff, Page 3    (WW-1124)


            marriage license, a County Clerk is not
            authorized to issue and record such a
            license based on affidavits.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas


                                By
                                 (&dkYt$wm/&a-p
                                    I. Raymond Williams, Jr.
                                    Assistant

1RWjr:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
IXldleyD. McCalla
Jack N. Price
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Howard W. Mays
