                                   February     16, 1970


Honorable Ward P. Casey                                      Opinion      No. M- 578
County Attorney
Ellis  County Courthouse                                     Re:      Discretion       of county clerk
Waxahachle,  Texas   75165                                            to refuse      to perform the
                                                                      duties     relating    to declara-
                                                                      tions of informal        marriage,
                                                                      as set forth        in Section
                                                                      1.92(c)(d)       of the Texas
Dear Mr. Casey:                                                       Family Code.

               Your recent    letter            requests our opinion relative  to
that    portion    of Section    1.92           of the Texas Family Code, as follows:

               "Does the County Clerk have the discretion
        under Section    1.92,     subsections     (c) and (d) to
        refuse   to administer      the oath to the partle,s,,
        execute   his certificate       on the declaration,       or
        record   the declaration       and deliver     the original
        of the declaration       to the parties       and transmit
        a copy to the Bureau of Vital          Statistics;     where
        there Is no legal      impediment to marriage appearing
        on the face of the form and all of the informaiion
        required    to be given on the form Is furnished?

                 Section 1.92 of the Texas Family Code (Acts 1969, 61st
Leg.,    R.S.,     ch. 888, p. 2706), provides,  In part, as follows:

                 "(b)         The declaration         form    shall      contain:
                 It
                   .    . .

                 “(6)         a certificate      of    the    county      clerk
        that the applicant made the oath and the place
        and date It was made.
                 "(c) The county clerk shall:
             "(1) determine that all necessary in-
        formation is entered on the form;

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Hon. Ward P. Casey,           page 2      (M-578)



               “(2)      administer      the   oath     to each   party;

                      ave each party            sign     the declaration
      in hii(z!es:nce    ; and

               “(4)      execute   his    certificate       on the declara-
      tion.

             “(d)     The county clerk     shall record   the declara-
      tion,    deliver   the original    of the declaration    to the
      parties,     and transmit    a copy to the Bureau of Vital
      Statistics.      ” (Emphasis added. )

               The language of Section         1.92(c)(d),    supra, clearly
Indicates      that the duties      of the county clerk       in administering
the oath,      executing    his certificate,       recording   the declaration,
delivering      the original      of the declaration       to the parties,     and
transmitting       a copy of the declaration          to the Bureau of Vital
Statistics      are mandatory,      not discretionary.        In setting    forth
the above      duties,    Section   1.92(c)(d)     speaks in terms of “shall”
not “May,”        “Shall”   is to be given a mandatory effect.             53 Tex.
Jur.2d 30,      Statutes,     Sec. 16.

           Other relevant     provisions   of the Texas statutes     ap-
plicable  to the general    duties    of county clerks  as recorders
of instruments  are:    Article    lq411 which provides   as follows:

             “They (county   clerks)    shall be ex-officio
      recorders   for their    several   counties,    and as
      such shall record     In suitable     books to be pro-
      cured for that purpose all deeds, mortgages and
      other instruments     required    or permitted    by law
      to be recorded,      . . .“(Emphasis      added.)

               Article     6591 reads:

             “County clerks     shall be the recorders       for
      their   respective    counties;     they shall provide
      and keep in their      offices     well bound books In
      which they shall record         all instruments     of
      writing    authorized   or required      to be recorded
      ‘inthe county clerk’s        off1      i   th
      hereinafter     provided." (BzEhaiis          Ed!%nTr


' All Articles referenced are to Vernon's Civil Statutes, unless
  otherwise noted.

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Hon. Ward P. Casey,        page 3 (M-578)



             Further,     Article    6594 provides:

             "When any Instrument         of writing    authorized
      by law to be recorded         shall be deposited       in the
      county clerk's     office     for record,     if the same is
      acknowledged     or proved in the manner prescribed
      by law for record,        the clerk    shall enter in a
          kt    b        Id      f      ht                in alphabetical
      &,'thE        ~~~~s E; t:z ~a,"ti~'!%"~ate             and nature
      thereof,    and the time of delivery          for record;    and
      shall give to the person depositing              the same, If
      required&    a receipt     specifying    the particulars
      thereof.      (Emphasis added.)

            Lastly,     Article     6595 provides:

              "Each recorder     shall,    without delay,         record
      every instrument       of writing     authorized      to    be
      recorded    by him, which is deposited           with      him for
      record,    with the acknowledgments,          proofs,       affl-
      davits    and certificates       thereto   attached.          . . .I'
      ‘(Emphasis added.)

            The court      in Turrentine   v. Lasane, 389 S.W.2d              336
(Tex.Clv.App.   1965,      no writ),   at page 337, stated that:

             "It is the duty of the county clerk to
      record    all deposited   written   Instruments  au-
      thorized,     required  or permitted    t be re-
      corded In his office."        (Emphasis'added.)

             The duties     of a recording   officer    are ministerial.       First
Nat. Bank v:..McElroy,       112 S.W. 801 (Tex.Civ.App.        1908, no writ).
%lnisterial"     duties     have been described      as follows:

              "It Is said that an official         duty is 'mlnis-
      terial'     when it is absolutely       certain    and imper-
      ative,     involving     merely the execution      of a set
      task,    and when the law which Imposes It prescribes
      and defines       the time, mode and occasion         of Its per-
      formance with such certainty          that nothing remains
      for judgment or discretion.           Official     action   Is
      ministerial       when It is the result      of performing
      a certain      and specific    duty arising     from fixed
      and designated        facts.   A ministerial      act is one
      which public       officials   are required     to perform
      upon a given state of facts          In a prescribed      manner,


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Hon. Ward P. Casey,         page 4   (M-578)



      in obedience   to the mandate of legal authority
      and without regard to their     own judgment or
      opinion  concerning  the propriety    or Impropriety
        f the act to be performed."      Case v. Daniel C.
      g-4,                             82b (N.J. Super.
       959) .  (EmphAsis aidEd.)

See also,    the various definitions     of "ministerial     act!' and
"ministerial    duty" in Black's     Law Dictionary    (4th Ed. 1951),
page 1148, and in 27 Words and Phrases (Perm.Ed.            1961) pages
374-404.

             In view of the foregoing,         It is our opinion    that,
where all of the information          required   to be given on the form
is furnished,      neither   the county clerk,      nor his deputies,     have
any discretion      to refuse     to perform the duties    set forth    in
Section   1.92(c)(d),      supra.

             Accordingly,     your   question   is    answered    in the   negative.

                            SUMMARY

            Neither   county clerks,      nor their deputies,
      have discretion     to refuse    to perform the duties
      set forth   in Section    1.92(c)(d),    Texas Family
      Code, relating     to declarations     of informal
      marriage,   where all information       required   to be
      given on the form is furnished.

                                     Vedtruly        yours,




                                                General       of Texas

Prepared    by Austin   C. Bray,     Jr.
Assistant    Attorney   General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,   Chairman
W. E. Allen,   Acting Co-Chairman
Malcolm Quick
Jack Sparks
Jim Swearingen
David Longoria


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Hon. Ward P. Casey,     page 5 (M-578)



MEADEF. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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