OFFIce OF THE ATTORNEV GENEML SThTE OF TEX.u
JOHN CORNYN
December 16, 1999
The Honorable Susan D. Reed Opinion No. JC-0156
Bexar County Criminal District Attorney
300 Dolorosa, Fifth Floor Re: Whether a county clerk must accept for filing a
San Antonio, Texas 78205-3030 “declaration ofdomestic partnership” (RQ-0084-JC)
Dear Ms. Reed:
You have asked this office whether the County Clerk of Bexar County, Texas is required to
accept for tiling a document styled a “declaration of domestic partnership,” in which two unmarried
persons who reside together declare under oath “that the two individuals share in each other’s lives
in a committed relationship and that they agree to be jointly responsible for each other’s financial
responsibilities.” Letter from Honorable Susan D. Reed, Criminal District Attorney, Bexar County,
to Honorable John Comyn, Attorney General, at 1 (July 9,1999) [hereinafter “Request Letter”]. We
conclude that such a document, like the purported judgments of the “common law courts” of the
“Republic ofTexas” that this office dealt with in Attorney General Opinion DM-389 (1996) and the
various unusual instruments we considered in Letter Opinion 98-016, is a stranger to the laws of
Texas. Accordingly, section 192.001 of the Local Government Code does not require the County
Clerk of Bexar County to record this document.
Section 192.001 of the Local Government Code provides that the county clerk “shall record
each deed, mortgage, or other instrument that is required or permitted by law to be recorded.” TEX.
Lot. GOV'T CODE ANN. 5 192.001 (Vernon 1999). In recent years, this office has considered the
applicability of this statute to a variety of what may be termed “home-made” documents by which
citizens have attempted to alter or abolish their legal and political relations with the State of Texas
and the United States, or to impose purported legal obligations upon third parties. Thus, in Attorney
General Opinion DM-389 we advised that county clerks were not required to file purported
judgments of “common law courts” organized by persons who alleged themselves to be the
Republic of Texas, which courts we described as “bodies which have no legal existence except in
the minds of the partisans of this movement.” Tex. Att’y Gen. Gp. No. DM-389 (1996) at 2. Noting
the language of section 192.001 cited above, the opinion rules, “An instrument originating from a
‘common law’ court is not one ‘that is required or permitted by law to be recorded.“’ Id.
Similarly, in Letter Opinion 98-016, we applied the same reasoning to a number of other
unusual documents, some of which were and some of which were not in affidavit form,
including inter da: “Refusal to Pay Property Taxes. . Affidavit Revoking Signature. Affidavit
of Refusal to Accept Post . Surrender of Social Security Card Declaration of Person Being
The Honorable Susan D. Reed - Page 2 (X-0156)
a Sovereign [and] Notice of Asseveration . .” Tex. Att’y Gen. LO-98-016, at 1-2. Relying
upon City of Abilene v. Fvur, 143 S.W.2d 654 (Tex. Civ. App.-Eastland 1940, no writ), Letter
Opinion 98-016 held that “the clerk may file and record a document only if authorized, required, or
permitted to do so by a statute.” Tex. Att’y Gen. LO-98-016, at 3.
In our view, the teaching of Attorney General Opinion DM-389 and Letter Opinion 98-016
is clear. Instruments by which individuals, without legal warrant, seek to alter their political or
juridical relations with others, or to impose legal burdens upon third parties, are not, in the words
of section 192.001, such as are “required or permitted by law to be recorded,” and consequently the
clerk has no duty to record them.
The affidavits at issue here appear designed to create or proclaim a legal relation akin to
marriage. Noteworthy in this regard is the agreement “to be jointly responsible for each other’s
financial responsibilities.” Request Letter, supra, at 1. This is essentially the same commitment as
the mutual duty of spousal support mandated by section 2.501 of the Family Code. Such affidavits
do not, however, create a marital relation under Texas law.
Texas recognizes two forms of marriage, ceremonial and informal. See TEX. FAM. CODE
ANN. ch. 2 (Vernon 1998). Ceremonial marriages require amarriage license. Id. 5 2.001. Informal
marriages may be proved either by a declaration registered with the county clerk, id. $5 2.401, ,402,
,404, or by evidence that “the man and woman agreed to be married and after the agreement they
lived together in this state as husband and wife and there represented to others that they were
married.” Id. 5 2.401(a)(2) (emphasis added).
Generally, such affidavits as these are apparently made in an attempt to secure some legal
recognition for unions ofpersons of the same sex. See Mary Flood, Unmarried Couples Await State
Ruling, WALL ST. J., Aug. 18,1999, at Tl. However, the laws ofTexas do not recognize marriages
between persons of the same sex, whether ceremonial or informal. &&I’Ex. FAM. CODE ANN.
$5 2.001(b) (Vernon 1998) (marriage licensemaynotbe issued for same-sexmarriage); 2.401(a)(2)
(informal marriage requires agreement of “man and woman”); Murphy Y. State, 653 S.W.2d 567,
569 (Tex. App.-San Antonio 1983, writ ref d); accord Tex. Att’y Gen. Op. Nos. M-1277 (1972);
M-1216 (1972). Neither the county clerk, by registration of such instruments as those in question
here, nor private persons by the creation of them, may alter the laws of Texas.
Because such an affidavit as you describe is not, therefore, one “required or permitted by law
to be recorded,” TEX. Lot. GOV’T CODE ANN. 5 192.001 (Vernon 1999), the County Clerk of Bexar
County is not required to accept it for recording.
The Honorable Susan D. Reed - Page 3 (JC-0156)
SUMMARY
“Declarations of domestic partnership” are not “documents
required or permitted by law to be recorded.” TEX.Lot.GOV'TCODE
ANN. 5 192.001 (Vernon 1999). Accordingly, county clerks are not
required to accept them for recording.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee