Honorable Richard Hoerster
County Attorney                         Opinion No. C-407
Gillespie County"
Fredericksburg, Texas      "            Re:   Whether a County Clerk
                                               is authorized to is-
                                              ;sue a duplicate marri-
                                               age license 'under the
Dear Mr. Hoerater,:                            facts stated.

        Your letter requesting an opinion states the following
facts:~ A man an&a woman came to the county clerk's office in
Gillespie County sometime during'the year 1962 and took out a
license to marry. A ceremohy was performed by a duly ordained
minister acting under authority of the license issued. The re-
turn on the license was made by the minister, and it was placed
in the mails. It.was never 'receivedby the County Clerk. The
man and woman now request~that a dupl~icatelicense be issued and
made a matter of record upon the return being again made thereon
by the minister. The clerk has a stub record that the original
license was issued.

        Your question in regard to these facts is stated as
follows:

            "Can the Clerk lawfully issue a duplicate license
        and then record it when the minister has endorsed the
        return?"

        The only statutory provisions authorizing the issuing
and recording of marriage licenses are Articles 4604. 4604c,
46048, 4606 of Vernon's Civil,Statutes. All of these articles
contemplate a marriage license being issued prior to a cere-
monial marriage, and apparently they have been faithfully com-
plied with in everything required, except insofar as the loss
of the license in the U..S.Mails made strict compliance with
Article 4606 impossible.

                               493 o-
Hon. Richard Hoerster, Rage lwo (c-407)


        The problem represented by the fact situation before
us is one of first impression in this state. Moreover, our
research in the law of other jurisdictions failed to reveal
a case in point.                .:,,

        Article 4606, Vernon's Civil Statutes provides as
follows:
                                         :~ ,.
            "The clerk shall record all licenses so issued
        by hfm in a well bound book kept for that purpose.
        It shall be the duty of the person solemnizing the
        rites of matrimony to endorse the same on the li-
        cense and return it to the county clerk within sixty
        days after the celebration aforesaid: such return
        shall be recorded with the license."

        It has already been held by this office that Article
4606 is to be treated as merely making provision for the re-
turn and filing of the license  and as directory to officials
involved.  Attorney General's  Opinion V-951 (1949). Implicit
in such decision was the holding that where, as in the instant
case, the parties themselves have faithfully performed al& acts
necessary on their part to establish a ceremonial or statutory
marriage, neither the malperformance of ministerial acts by
third persons nor their inability to perform such acts, will
invalidate,the parties' attempts.

        Loss of recoras will not vitiate a ceremonial marriage
nor reduce it to the status of a common law marr,iage,but "it
will be presumed that proceedings necessary to its validity
were regular and valid." Clavton v. Havwood 133 S.W. 1082 (Tex.
Civ.App. 1911).

        We think without a doubt the intent of the Legislature
in drafting Article 4606 was primarily to provide proof of sta-
tutory marriage for record, and that it was never intended that
loss of the license should make placing a marriage of record
tmpossible, but that such was the result of an oversight on the
part of the Legislature,

        Nevertheless, although we are clear as to what the
answer to the question should be from the analysis above, we
believe that the courts of this state are without power to


                           '-1931-
Hon. Richard Hoerster, Page'Three (C-407)


construct a remedy by authorizing the issuance of a duplicate
license. We know of no case which would permit a licensing
authority to issue licenses except as provided by statutory
law.' Your question is therefore answered in the 'negative.

        However, in the case of Briohtman v. Commanche County,
63 S.W. 857, 94 Tex. 599 (1901), it was held that where the
fact situation is such that a choice must be made between no
record, and a record that does not strictly comply with statu-
tory requirements, the command of the legislature is best satis-
fied through the recording agent acting upon and making a record
with that which stands in his office in place of a missing docu-
ment. Applying 'therule of the Briqhtman case to the facts be-
fore us, and recognizing thatthis is an unusual fact situation,
it'is our opinion that the clerk should place in the marriage
records in lieu of the lost license such affidavits as may be
furnished him, together with ~a copy of the license stub and his
own certificate that a license was in fact issued to the parties,
thus providing some record of the ceremonial marriage.


                           SUMMARY

             A County Clerk has no authority to issue marriage
       licenses except as provided by statute. He therefore
       could   not issue and record a 'marriage license except
       as provided by Articles 4604, 4604c, 4604d, and 46C6,
       V.C.S. However, the contemplation of Article 4606,
       V.C.S., was that some record of a statutory marriage
       be kept, and under the rule of Briqhtman v. Commanche
       Countv, citation supra, the clerk should 'illacein the
       marriage records-in lieu of a lost license under which
       a marriage has been performed-such affidavits as may
       be furnished,him of the fact of the ceremony, together
       with such records'as,he has that a license was in fact
       issued to the parties.

                                 Yours very truly,

                                 WAGGONER CARR
                                 Attorney General


                                  w
                                      Larry
                                       *~-it C ddock, Jr.
                                      Assistant
 LCjr:clg                   -1932-
Ron. Richard Hoerster, Page Four (C-407)


APPROVED:

OPINION COMMITTEE

W. V. Geppert, Chairman
Malcolm Quick
George Black
Grady Chandler
Sam Kelley

APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




                            -1933-
