                      November 22, 1949

Hon. R. V. Rayford           Opinion I?o.V-951.
Counts Auditor
Rusk County                  Re: Several questions re-
Henderson, Texas                 latlve to the funo-
                                 tlons of the Count
                                                   5
                                 Clerk under Fi.B.58
                                 51st Leg., lwqlliri~
                                 premarital physical
Dear Sir:                        examln.stlons.
          Reference Is made to your recent-requestwhich
reads in part as follows:
         "Our County Clerk, Roy B. Cole, hss re-
    quested that I ask for an Opinion In regard
    to the new q arrlage~lawwhloh'was passed un-
    der H.B.588 of the ?lst Legislature:
         "Sec. 7: Before the County Clerk shell
    lssue.any marriage license he shall file In
    his offloe the certificates or alternate court
    Order required by this Act, and, previous to
    the Issuance of the license, he shall certl-
    fy upon the reverse side of the said lloense,
    that all certificates;or the Court order re-
    "p;;zd ~bythis Aot have been ;soreceived end
         . The statement of the %ounty.Clerk
    shall also show the dates of the ex&nlnatlon
    of both parties to the marital contract un-
    less same has been suspended by Court order.
         "There is no State approved Laborstory In
    Rusk County. Therefore, the physicians have
    to take the.blood and send it out of the Coun-
    ty to be tested, which requires from 2 to 4
    days to get a report baok. What date shell
    the County Clerk put o&his oertlfloete? The
    Physician takes the blood and dates his oer-
    tlfloate that date. The report is dsted some
    two or three days later from the laboratory,
    and received by the Doctor probably 2 days
    later. Now should the Clerk use the physl-
    clan's date, or should the Clerk's certificate
Hon. R. V. Rayford, page 2   (v-951)


     be dated the date the blood was tsken in
     other words, or on the date the test wss
     actuallymade?
         "Sec. 10. Marriage licenses issued under
    the provisions of this Act shell become Invalid
    and of no effect unless the msrrlage be soLem-
    nlzed wlthln fifteen (15) days from the date of
    the examination,snd no person suthorlzedto
    solemnizemarriages shsll perform said marrl-
    age after the expiration of fifteen (15) days
    from the dste of examination 8s disclosed by
    the County Clerk's certificate oalled.forby
    Section 7 of this Act and if he does so, he
    shall bqpunlshed as provided for herein.
        "'In Caseythe Clerk has~'returnedand pre-
    sented to hfm for filing a marriage license
    where the deremony has been solemnlied after
    the 15 day period, shall,he file and record
    this license in the usual way, or,what proce-
    dure shall~he'take.lno.aseone is presented
    for filing sfter the 15 day period has lapsed?
    Is 'itthe duty of the Clerk to call .attentlon
    to the fact thst it hss been solemnized after
    the 15 day,perlod? If you.recall, the marri-
    age license itself pro~vldesfor 60 dsys.
         "Sin& them is no fee provided for the
    certificatewhich la now required to be at-
    tached to.,thelicense under this new law, will
    the .Clerk%j$ intltled'tb,~a56#.'fee“rovlded
    for in Ar$..,;:3930,
                       *lc,h *ads as fp1 lows; 'Each
    certlfioate:;to any,faot or raots ~contaln&din
    the reoordti".
                of his 'officewith certlflcste and
    seal, when not otherwise provlded for ...$.50.'
         "Sec. 8: Any Judge of a County or Dls-
    triot Court~wlthlnthe County in which the ll-
    oense is .t.o
                be issued is authorized and empow-
    ered, on:joint applloatlonby both-applicants
    for a marz$age license, to wslve .the.reqtire-
    mentd ~8s'to medical exsmlnat+ons,laboratory
    tests and ~~ertlfloate~and to order the County
    Clerk to issue the license, if the Judge is
    satisfiedbg'proof that sufficient cause for
    such action exists and that the public health
    and welfare will not be Injuriously affected
    thereby. The order of the Court shall be
Hon. R. V. Rayfoti, pege .3. (V-951)


    filed by the County~,Clerkin lieu of the cer-
    tificate form. All mo,ords connected there-
    with shall be held in sbsolute confidence and
    shall not be open $0 public inspectionand the
    hearings on the spplloatlonshall not be made
    public.
         "Now, slnoe these Court Orders and re-
    cords are held confide~tlallyand not open to
    the public, wlll..I$~&s.cleoessary
                                     for the Coun-
    ty Clerk to provldq:+ epeclal docket to enter
    these orders on,'slyj.aspeolsl minute to re-
    cord the ordere, which shall be withheld from
    public inspection?"
         Section 1 of 'he Act provides:
         'No marriage l.lcenseshall be issued un-
    less each applicant files with the county clerk
    a certificate from :aduly qualified phys~lclan
    licensed to practice medicine and surgery in
    Texas, or ln'any.stateor in any ter&tory of
    the United States where applicantsmsy reside
    but who wish to marry in Texas. The oertlfi-
    cate shall state'that .thespplloant has been
    given an actual and thorough examlnatlon,in-,
    cludlng a standard serologic test for syphilis.
    The examination shall not.have been more than
    fifteen (15) days prior to the date of lssu-
    ante of such lloense.and the certificateshall
    show that the results of such examination,
    tests and history showed that the person ex-
    amined was free from any Infectious condition
    of syphilis..Ho physlclan shell Issue such
    Certificate to any person whom he knows or has
    reasons to believe 1s Infected with any oondi-
    tlon of syphilis t?iatwould be Infectious or
    who has any ollnlcal evidence of infectious
    venereal disease."
         The above section provides that the certificate
by the physician "shall show the results of such examlna-
tlon, tests end .historyshowed that the person examined
was free from any lnfeatlous condition of syphFlls."Such
certlflcatecannot be made by the physlolsn until the re-
port is received from .thelaboratory which makes the
standard serologlo test required by Section 1.
         In other worda, the examination by the dootor
.




        Hon. R. V. Rayford, page 4. (V-951)


        cannot be consummatednor the certificatedated without
        the laboratoryreport.   Therefore, we believe that the
        Clerk should certify the date which appears in the phy-
        slclan~s certlflcate.
                     In regard to your second question, Article
        4606,    Vernon*s civil Statutes, ls as follows:
                     "The clerk shall record all licenses so
                issued by him In a well bound book kept for
                that purpose. It shall be the duty of the
                person solemnizing the rites of matrimony to
                lndorse the same on the license and return
                it to the county clerk within sixty days af-
                ter the celebration aforesaid;such return
                shall be recorded with the license.
                  Although Section 10 of House Bill 588 provides
        thst "No person authorized to solemnlze marriages shall
          rfora said marriage after the expiration of fifteen
         15)
        'i" days from the date of examination as disclosed by
        the County.Clerk'scertificate,"neverthelessthe plain
        provision of Article 4606 provides that the return shall
        be recorded with the license upon receipt of same. In
        view of the foregoing, it is our oplnlon that the Clerk
        should record the marriage license even though the mar-
        rlsge ceremony has been solemnized after the fifteen day
        period.
                     Article 3930, V.C.S., provides in part as fol-
    /   lows:
                     "Clerka of the county Court shall re-
                celve.the following fees: i . .
                     "Each certlficste to any fact or facts
                contained In the records of his office, with
                certificate and seal, when not otherwisepro-
                vided for - .50.”
                    Section 5 of Article 3912e, V.C.3., provides:
                     "It shall be the duty of all officers
                to'chsrge and collect in the manner authorlz-
                ed by law all fees and commlsslons which are
                permitted by law to be assessed end collected
                for all official service performed by them.
                As and when such fees are collected they shall
                be deposlted in the Officers' Salary Fund, or
                funds provided in this Act. . . ."
.
                                                           27)
     Hon. R. V. Rayford, page 5 (V-951)                       .’


               In view of the foregoing,you are respectfully
     advised that it is the duty of the County Clerk to col-
     lect a fee of fifty cents for issuing the certificateon
     a marriage license under the provisions of House Bill 588,
     Acts of the 51st Legislature, 1949, and deposit same in
     the Officers'Salary Fund of the county.
               Since Section 8 ,ofHouse Bill 588 which pro-
     vides that all records connected with the court order
     shall be held in absolute confidenceand shall not be
     open to the public Inspection, it would necessarilyfol-
     low that the County Clerk should have a Special Docket
     end Minute Book in which to enter and record these or-
     ders. If an order is entered on the regular Docket or
     the Minutes recorded in the regular Minutes In the Coun-
     ty Clerk's office, the same would be open to public In-
     spection.
                            SUMMARY           _.

              The County Clerk should certify on the
         reverse side of the marriage license the
         date which appears In the certificate of the
         physician who examines the applicant. Sec.
         1, H.B.588, Acts 51st Leg., 1949.
              The County Clerk should record the marrl-
         age license and return even though the marriage
         ceremony has been solemnized after the fifteen
         day period. Art.4606, V.C.S.
              The County Clerk is entitled to collect
         a fee of fifty cents for issuing the certlfl-
         oate on a marriage lloense. Art.3930,V.C.S.
              The County Clerk should hsve a Special
         Docket and Minute Book In which to enter and
         record the court orders provided for In Seo-
         tion 8 of House Bill 588, Acts of the 51st
         Legislature, 1949.
                                       Yours very truly,
                                  ATTORNEY GENERAL OF TEXAS
     APPROy   w
    G+=-
      IRST ASSISTANT                        ,aw,k
     ATTORNEY GENERAL             Bg      4fruoe Allen
     BA:mw                                   Assistant
