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