.   -


                       THE       ATBXDRNEY GENERAL
                                    OF TEXAS
                                 AUSTIN.    T-s      78711


                                    October 26, 1977




        Honorable Joe Resweber                       Opinion No. H-1078
        County Attorney for Harris County
        Houston, Texas 77002                         Re: Duties of a hospital
                                                     district in preparation of
                                                     birth certificates.
        Dear   Mr.   Resweber:

             you have requested our opinion on three questions regard-
        ing the duties of a hospital district in the preparation of
        birth certificates.  you first ask how the district should.
        treat the question of legitimacy in the preparation of birth
        certificates.

             The 65th Legislature enacted two bills amending the pro-
        visions of article 4477, V.T.C.S., relating to birth certifi-
        cates for illegitimate children.  S.B. No. 30, Acts 1977,
        65th Leg., ch. 14, at 30; H.B. No. 1784, Acts 1977, 65th Leg.,
        ch. 837, at 2089. Formerly, rule 47b of article 4477 required
        that the item on legitimacy status be recorded on the standard
        birth certificate form under the section entitled "For Medical
        and Health Use Only," and that section was not "considered a
        part of the legal certificate of birth." Senate Bill 30 de-
        leted the provision on recording of legitimacy status. Later
        in the session, the Legislature adopted House Bill 1784, which
        also deleted the item on legitimacy and in addition amended
        rule 47a to allow any person to have any indication of ille-
        gitimacy removed from his or her birth certificate.  The bill
        analysis for House Bill 1784 referred to Senate Bill 30 "which
        removed any mention of illegitimacy from birth records" but
        made no provision regarding existing records. We believe
        that the Legislature in enacting Senate Bill 30 and House Bill
        1784 intended that information about legitimacy status should
        no longer be included on birth,certificates.  The Department
        of Health Resources has revised the standard certificate of
        birth to delete the legitimacy item, thus carrying out the
        Legislative intent. The hospital district should therefore not
        record any information about legitimacy status on birth certi-
        ficates.

             Senate Bill 30 amends rule 47a to provide that if the
        mother "was not married at the time of conception or birth of
        the child or has not subsequently married the father, and no
        man has been declared the father by court order,"


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Honorable Joe Resweber   - Page 2    (H-1078)



          the name of the father, or any informa-
          tion by which he might be identified,
          shall not be written into the birth . . .
          certificate. . . .

House Bill 1784 makes the same provision in affirmative language:
where the mother was married at conception or birth, or where
paternity has been established in a judicial proceeding, the
"name of the father or any information by which he might be
identified may be written in the birth . . . certificate."
Although House Bill 1784 uses different language from Senate
Bill 30, the legislative history indicates an intent to permit
inclusion of the father's name on the birth certificate of an
illegitimate child only under the stated circumstances.   The
bill analysis states that the language of House Bill 1784
conforms with Senate Bill 30. The hospital district should
not write the father's name into the birth certificate of an
illegitimate child except under the circumstances stated in
rule 47a as amended by House Bill 1784.

     Your next question is whether a hospital district may enter
on a birth certificate a last name for a child that is not the
same as the last name of the mother.  The Department of Health
advises registrars of births that in cases where rule 47a re-
quires the exclusion of the father's name from the certificate,
they should not record his surname as the child's surname, since
that would tend to identify him. In view of the well established
custom of giving a child the family name of his father, see
Presley v. Wilson, 125 S.W.Zd 654 (Tex. Civ. App. -- Dal=    1939,
writ dism'd judgmt car.); Young v. State, 17 S.W. 413 (Tex. Civ.
App. 1891); In re Cohen, 255 N.Y.S. 616 (Sup. Ct. 1932), we cannot
say that the Departmental construction of the statute is unwar-
ranted. Thus, the child should not be given the father's sur-
name on the birth certificate, where that will tend to identify
the father. Of course, whether or not the name will identify
the father depends on all the surrounding facts.

     The statute does not require the mother to give her child
any particular surname. Nor does the Department have any policy
or regulation with respect to the naming of illegitimate children.
The courts of some states have indicated that anillegitimate
child takes its mother's surname, Buckley v. State, 98 So. 362
(Ala. Ct. App. 19231, while others have noted that this does
not necessarily happen, People v. Gray, 96 N.E. 268 (Ill. 1911);
In re Garr's Estate, 86 P. 757, 760 (Utah 1906). The law in
Texas remains unsettled.  See Pintor v. Martinez, 202 S.W.2d
333 (Tex. Civ. App. -- Austin 1947, writ ref'd n.r.e.); Presley
v. Wilson, supra. In Pintor v. Martinez the court noted that
at common law an illegitimate child might acquire a surname in




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Honorable Joe Resweber     - Page 3      (H-1078)




baptism, and that a decree changing the child's name from her
mother's surname to the baptism name might not have amounted to a
change of name. Since no statute, regulation, or case requires
an illegitimate child to be given its mother's surname, the hos-
pital district may enter on the birth certificate a surname for
the child that is different from the mother's surnamed

     Finally, you ask whether a hospital district has the autho-
rity to change the names on a birth certificate.  Nothing in the
statute prohibits the alteration of information recorded on the
birth certificate prior to its "acceptance for registration by
the local registrar."  After such time,

          no record of any birth . . . shall be
          altered or changed.

Rule 51a. Ifs the record is incomplete or in error at the time
it is accepted for registration, the statute provides for the
filing of an "amending certificate," which shall "be attached
                                                          See
to and become a 'part of the legal record of such birth." -
Attorney General Opinion O-4854 (1942).

                         SUMMARY

          A hospital district should not record
          any information about legitimacy status
          on a birth certificate.  A hospital dis-
          trict may not record a surname for an
          illegitimate child that is the same
          surname as his father where that will tend
          to identify the father. Otherwise, the
          district may enter on the birth certificate
          a surname for the child that is different
          from the mother's surname. A hospital
          district may alter information on a birth
          certificate prior to its acceptance for
          registration by the local registrar, but
          not thereafter.




                               CLk
                                "~ ery truly yours,

                                     ,LU
                                 'JOHN   L. HILL
                                   Attorney General of Texas
                          J'




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Honorable Joe Resweber      - Page 4    (H-1078)



APPROVED:




DAVID   MAKENDALL,   First assistant




C. ROBERT HEATH, Chairman
Opinion Committee

jst




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