THEATKTORNEY GENERAL
OF TEXAS
HonbPabl& W. A; Davis, State Registrar
Texas State Bb&d of Health
Austin 2, Texas
.
Dear Sir: Opinion No. 0-6751"'
Re: Questions relative to operatloti
under provisions of House Bill
No. $15, enacted bg the 49th"
Legislature as an amendmeht to
subdivision 25 of Rule 47a of
Article 4477, V.A.C.S.
We are in receipt of your recent request for an
oplnlofi of' this d,epartment on the above subject. Your ques-
tions are as follows:
"(1) Does this act (House Bill No. 415) apply
to the County Clerk? If not, is the County CleFk
authorized by law to issue such copies without a
court order?
"(2) Should the request for such a copy be
submitted as a formal petitIon to the court? If
so, what fees should be collected in connection
wlth~ the consideration of the petition and the
issuance of the order?
“(3) May such a request be considered and order
issued by a court not In sesslon?
"(4) Does the term Ia court of competent jur-
isdiction' Include the District Court?
“(5) Does 'a court of competent jurisdiction1
have authority to issue an order applying to a
certificate from a county other than that in which
the court is located?
“(6) May an llleg~timate person, his guardian,
or his legal representative secure such a copy with-
out a court order?
his ~,7~al~y any other person than an Illegitimatti,
, or legal representative secure such a
copy?
Honorable W.A. Davis - page 2 o-6751
"(8) What procedure must the mother of an illegl-
timate adopt in order to secure a copy of her child’s
birth certificate?”
The pertinent part ‘of the statute involved, before
Its recent amendment, appeared as follows:
Art. 4477, V.A.C.S.T.
“(25)ana provided that the name
--P.-fa her or any
of the * - Fnformatlon by whtch he might be
identified, shall not beg written into the birth or
death certificate of any illegitimate child, and
provided further, that any statem’ent the father bf
hn llltigitimate child wishes to make as to its parent-
age, -Y, when placed in the form of an Fifflaavit,
be attached to the original birth record. Neither
the State Registrar nor any local Registrar shall
issue a certified copy of any birth or death certi-
ficate wherein a child OP an adult is stated to be
Fllegitlmate, unless such certFfied copy is ordered
by a court of competent jurisalction.”
The 49th Legislature amended said subalvision (25) of
Rule 47a of Article 4477, V.A.C.S,T,, supra, by the enactment
of House Bill No. 415 (on page 618, 1945, Vernon’s Texas Ses-
sion Law ServLce) which became effective as a law June 18,
1945, the provisions‘of same being as follows:
“Chapter 354
“H.B. No. 415
“An act to amend Section 3 of Chapter 4, Acts of
the First Called Sessfon, Forty-first Legis-
lature, 1929, (suba,ivision 25 of Rule 47a’ of
Article 4477, Vernon’s Annotated Civil Statutes)
so as to give a Court of competent jurisdiction
and the county court in the county where the
birth or death occurred authority to order the
County Clerk and the State Registrar to issue
a certified copy of any birth or death certlfi-
cate wherein a child or adult is stated to be
illegitimate, and authorizing the County Clerk
to deliver, at the request of said illegitimate
person or of their guardian or legal representa-
tive, a certifi,ed copy of such certificate; and
declaring an emergency e
“BE IT ENACTm BY !tHE LEGISLATURE
OF THE STATE OF TXKAS“.
Honorable W. A. Davis, page 3 o-6751
('Section 1. That Section 3 of Chapter 4, Acts
of the First Called Session, Forty-first Legislature,
1929, (subalvi9lon 25 of Rule 47a of Article 4477,
Vernon's Annotated CiVll Statut'es) be and the same
is hereby amended so as to hereafter read as follows:
"SectIon 3. That Section 14 df Chapter 41
of the Acts of the Fortieth Legislature; passed at
its~'First Called Session, be, and the same is here-
by amended by Bdding'thereto SubdIvision 25, which
subdivision shall read as follows:
“I(25) And provided that the name of the father,
or"any information by which he might be laentlfied,
shall not be written into the birth OP death certi-
ficate of any illegitimate child; and. proviaed;~
further, that any statement thst the father of an
Lllegltimate child. wishes to make as to its parent-
age, may, when placed fn the form of an affidavit,
be attached to the original birth record. Neither
the State Registrar nor any local Registrar shall issue
a certified copy of any birth or death certificate,
wherein a child or an adult Is stated to be illegi-
tlmate, unless such certified copy Is ordered by
the County Court in the county In which said child
was born or died., or by a Court of competent juris-
diction, or by s&M lllegI.tlmate person or the guardian
or legal representative thereof.'
"Sec. 2. The fact that there is confusion as to
whether the County Court would have authority to
enter an order authorizing the County Clerk or State
Registrar to issue certified copies of birth or'aeath
certificates of illegltlmate persons, and the fact
that said Illegitimate person cannot get a certifi-
cate of its birth upon request, nor can a certificate
of death be obtained except upon order of the Court,
create an emergency and an imperative public necessity
that the Constitutional Rule requiring bills to be
read bn three several days in each House be suspended,
and. said Rule is hereby .suspendecI, and this Act shall
take effect from and after its passage, and it Is so
enacted."
For reasons hereinafter stated, the only effect of the
above amendment is to authorize the County Court in the county
in which the illegitimate child was born or died to order the
issuance'of certified copies of birth or death certificates
wherein a person is stated to be lllegltlmate, and to prohlblt
the issuance of same by the State Registrar without such order.
.
Honorable W. A. Davis, page 4 O-6751
Under the old law (subaivislon 25 of Rule 47a of Art. 4477)
wherein Mzthority to order the issuance of instruments of this
nature w&3 given only to a "court of competent jurisdlctibn",
this department held In Opinion No. O,-5103to the effect that
the district courts had such jurisdiction under and by vii+ue
of S@ction 8 of Art. 5 of the Constitution of Texas In that
the action involved was one for which jurisdiction is nbt
prbvlaed by law. Alsb, ln otir Opinion No. 5103-A it was held
that a County Court was"not a court of competent jurisaictlon
within the meaning of said statute. Now, since the enactment
of the above amendment the County Court ln'the county fn whlcb
the illegitimate 'person was born or died has exclusive orIgIna
jurltiaiction of'an action to procure the birth or death cer-
tificate of such illegitimate person and as jurlsd-ictron is
now'provided by law, the district court no longer is a "court
of competent jurisdiction" in respect to original jurisdlc-
tion. See Opinion No. O-6783, a copy of which has been fur-
nished you.
Sald House Bill No. 415, supra, is defective insofar
as same by Its title attempts to give the County Clerk author-
ity, under circumstances thereln set out, to issue such birth
or death certificates, for the reason that no mention Is mad@
ih the body of the bill of the County ClePk. However, the fact
that the title of said bill Is broader than the body does not
render the bill void as to the provislons contained therein
which were also contained In the title. See 39 Tex. Jur. 99.
But we deem it unnecessary that any such authority be given
the County Clerk to Issue certifies copies of any record con-
talned in his office as the County Clerk has had such author-
Fty since the creation of his office, given by general law.
We believe this view is amply sustained by our Opiniotis Nos.
o-1386 ana O-3775. The title of said House Bill 415 also
states among other things that such bill Is to give the' county
court authority to order the State Registrar ?.o issue a
certified copy of any birth or death certificate wherein a
child or adult is stated to be illegitimate", but does not
Include any authority for the State Registrar without acourt
order to issue such certified copies at the request of the
illegitimate person or his guardian or legal representative,
It follows then that the provision in the body of said Bill
purporting to give said State Registrar power to issue such
certified copies wlthout a court order at the request of the
illegitimate person or his guardian or legal representative
Is Invalid and of no force end effect, It also follows that
the provision in the body of such Bill purporting to give
"any local Registrar" such authority Is also Invalid as same
is not contained in the title of said Bill. 39 Tex. Jur.
100-101.
Honorable W. A. Davis - page 5 o-6751
Therefore, each of the following paragraphs answer the
correspondingly numbered questions submitted by you.
(1) Said House Bill No. 415 confers no power on
the County Clerk, neither does it restrict him in'any
way from issuing certified copies of records contained
in his office.
(2) The filing of a petition Is the general way
in which an action for judgment i.s commenced in the
County Court. See Tex. Jur. 684. We believe this
the proper method to pursue when seeking to obtain
said order. The same fees should be collected as pro-
vided by statute for other similar civil suits filed
in such court.
(3) It Is a general rule that, in the absence'of
some law permitting court action at another time'; all
judicial proceedings should be conducted during a
term while the court'is in session, There is no
law permitting this action to be held In vacation by
the County Court, 11 Tex. Jur. 800.
(4) No, this Is fully explained herelnbefore.
(5) Th ere is no court of competent jurisdiction
in these matters other than the county court of the
county In which the Illegitimate person in question
was born or died. Such county court may direct its
order to the county clerk of the county in which such
illegitimate person was born or died, or to the State
Registrar in Travis County, Texas,
(6) No, if It is assumed you mean securing a copy
of the birth or death certificate of an illegitimate
person from the State Registrar.
(7) Not without an order of the County Court of
the county in which the illegitimate person was born
or died.
n order to obtain such copy from the State
ReglL!iar' , she must obtain a court order as explained
in our answer to question No. 2 herein,
Of the opinions referred to herein, No. O-3775 was ad-
dressed to you; a copy of No, O-6783 has been sent you; and we
herewith enclose copies of Nos. O-1386, O-5103 and 0-5103-A.
Honorable W. A. Davis - page 6 o-6751
Yours very truly
ATTORNEYGENERAL
OF TIUCAS
BY
Robert~'L. Lattimore, Jr.,
Assistant
RLL:zd/jd/wc
Encl.
APPROVED NOV. 8, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
APPROVEDOpinion Committee by BWBChairman