Untitled Texas Attorney General Opinion ( 1977 )


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    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,"
    p. 4413
    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
    p. 4414
    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'
    p. 4415
    Honorable Joe Resweber      - Page 4    (H-1078)
    APPROVED:
    DAVID   MAKENDALL,   First assistant
    C. ROBERT HEATH, Chairman
    Opinion Committee
    jst
    P. 4416
    

Document Info

Docket Number: H-1078

Judges: John Hill

Filed Date: 7/2/1977

Precedential Status: Precedential

Modified Date: 2/18/2017