Honorable W. A. Davis       ,
State Registrar
Texas State Board of Health
Dear Dr. Davis:         Opinion No. O-2347
                        Re: Whether or not the local Regls-
                             trar should aocept evidence of
                             the marriage of a Negro and
                             Mexican as a basis for accept-
                             ing the corrected birth certi-
                             ficate of a child born to them
                             prior to the marriage.
          Your request for a legal opinion has been received
and is as follows:
          'There was registered in 1925 a birth
    certiclcate for an illegitimate child born to a
    Mexican woman.
          "Since that birth the putative father, a
    negro, married the mother, a Mexican, in Las
    Cruces, New Mexico. There is now presented, as
    provided for in Rule 46a Art. 4477, R. C. S.,
    1936, as amended by the 46th Leg., R. 3     1939,
    a certificate to correct the leg-1 status'of the
    child showing that the child is legitimate, the
    father a negro, and the mother a Mexican.
          'Please advise me if the Local Registrar
    should accept evidence of such a marriage in New
    Mexico as a basis For accepting the correcting
    certificate; and, should the State Registrar ac-
    cept such a certificate and attach It to the
    original as a correction."
          Your letter Is somewhat confusing, from a purely
legal standpoint, fn this respect: You refer to the father
of the child as the "putative father", and further state that
the birth certificate showed the status of the child as
illegitimate. This is a contradiction of legal terms.
          A "putative" marriage is one entered into by a man
and woman in good faith upon the part of one or both, but
                                                             ..   .




Honorable W. A. Davis, page 2         O-2347


which marriage Is invalid because of some legal impediment
or vice unknown to them or to one of them. For instance,
one of the parties may have at the time a living spouse,
believing, however, that such spouse was dead or had been
divorced. Such a marriage is not a legal marriage but by
force of statute (Rev. Civ. Stat. Art. 2581) children born
of such marriage are declared to be legitimate.
          So that, If there had been a'"putatlve" marriage
between the man and woman In this case prior to the birth
of the child in question, the birth certificate should have
shown the child to be legitimate.
          We assume, however, that you used the word "puta-
tive" in your letter in the popular sense and not In the
strictly legal.sense, and that at the date of the birth of
this child there had been no sort of marriage or attempted
marriage between the parents.
          A "common law marriage" -- that is, one entered
into by competent parties in good faith, but without the
formalities of law to sanction it -- Is a legal and valid
marriage, under the laws of Texas. So that, If the man and
woman In question had entered Into a common law marriage
prior to the child's birth, it would, of course, be legitl-
mate, and the birth record is wrong.
          What we have said has been a digression from the
direct question you propound, and we proceed to answer that.
          Article 4477 of the Revised Civil Statutes is a
wholesome Act to protect the public morals and should, like
every other civil statute, be liberally construed to effec-
tuate Its purpose. Subdivision (26) of the Article provides:
          "Y * *

         "Upon the marriage of a mother of a child,
   or children, her husband may file with the local
 _ registrar the certificate of marriage, to which
   may be attached a birth certificate for each child
   showing the father's name and other data referring
   to him as the father of the child or children.
   When the local registrar is satisfied that the mar-
   riage has occurred and that the statements made on
   the birth certificate are true and correct, he
   shall place his file date and signature on the
   certificate and forward it to the State Bureau of
   Vital Statistics. The State Registrar shall attach
   the certificate as a correction to the certificate
Honorable W.~A. Davis, page 3            O-2347


    of the natural birth of the child; and provided
    further, that neither the State Registrar nor a
    local registrar shall, except where ordered by
    a court of competent Ju.??iSdiCtiOn,
                                       make a cer-
    tificate of, or furnish any Information to any
    oerson as to the birth certificate of an illegit-
    imate'~ child, but shall issue a certified
    copy of the birth certificate filed after the
    marriage of the mother of the child."
          This provision of the statute will authorize the
course suggested by you; that is, you, as State Registrar,
shouldaccspt satisfactory evidence of the marriage and attach
the same to the original birth certificate.
          You are not concerned with the legal effect of such
procedure as to the legitimacy of the child, its right of
inheritance, or other legal right whatsoever, and we are not
passing upon any such questions.
                                  Very truly yours
                                ATTORNEY GENERAL OF TEXAS


                                  By s/Ocie Speer
                                       Ocie Speer
                                        Assistant
OS-MR-WC

APPROVED MAY 20, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By RWF Chairman
