Case Information

*1 GENERAL Honorable Jbhn R. Shook

CrFtiinal District Attorney

Bexar County

San Antonio, Texas Attention: Hon. L-; J. Glttinger, FLrst Dear Sir:

Opinion No. O-4637 Re: Can a delayed certificate of bFrth be f ilea u&er~the provisions, 6f House Bill 614,~ Acts of~'the 46th Legislature as amended by House Bill 974, Acts of the-47th Legls- lature (codified as Rule 51a, Article 4477 V.C.S.) although the person whose birth is sought t6 be established is no longer living?

You have requested.the opinion of this department upon the above stated question, citing three specific cases illus- trating the desirability, and even the practical necessity, of filing a birth certificate as a means of establishing proof of the citizenship of a person who is now deceased.

The applicable provisions of House Bill 614, Act? of 46th Legislature, as amended by the 47th Legislature, of the follows: are as

"And provided further, that any citizen of the State of Texas wishing to file the record of any birth or death that occurred in Texas, not previously registered, may submit to the Probate Court in the County where such birth or death occurred, a record of such birth or death written on the adopted forms of birth ,and death certificates; and provided further that any citizen of the State of Texas wishing to file the record of any birth or death that occurred outside of the State of Texas, not previously registered, may submit to the Probate Court In the County where he resides a record of that birth Or death written on the adopted forms of birth and death certificates. The certificate shall be substantiated by the affidavit of the

.~ Honorable John R. Shook, Att'n: L. J. Glttinger, page 2 Q-4637

medical attendant present at the time of the birth, or~in case of death, the affidavit of the physician last in attendance upon the de- ceased, or the undertaker tiho buried the body.

Uhen the afflddvit~~of the medical attendant or undertaker cannot be secured,, the certifichte shall be supported by the affidavit of some per- son who was acquaintea,with the facts surround- ing the birth oti death, at the time the birth or death occurred, with a second affidavit of some person who is acquainted with the facts surrounding the birth or death, and who IS not related to the individual by bloodor marriage.

The Frobate Court shall require such other in-

formation or evidence as may be deemed necessary to edablish~the citizenship of the individual

filing the certificate, and the truthfulness of the statements made in that record. -The Clerk of the said Coilrt shall forward thB ct3rtlficate to the State Bureau of Vital Statistic5 wYth an order from the Court to the-State Registrar that the record be, or be not, accepted. The State Registrar is authorized to accept-the certificate when varified in the above manner, ana shall issue certified copies of such records as pro- vide& for in Sbction 21 of this~ Act. Such certi- fild copies'sh&ll be prima facie evidence In all Courts and places of the facts stated thereon.

The State Bureau of Vital Statistics shall fur- nish the forms upon which such records are filed, and no other form shall be use& for that purpose."

hit will be noted that this statute provides that delayed birth certificates may be filedby""any citizen of the State '~ of Texas", whether such birth occurred within the State of Texas or outside of the State of Texas. We agree with you in your opinion that this law contemplates that the birth certificate may be filed by someone other than the person whose birth is being recorded. Nor do we find any provision in this statute or in any other law which prohibits the filing of a birth cer- tificate evidencing the birth of a person who is deceased at the time the oertificate is filed. The statute conveys a right which is not limited to cases in which the person whose birth IS being recorded is living at the time of the filing of such record.

We are therefore of the opinion that a delayed certifi- cate of birth may be filed under the provisions of said Rouse Bill 614, as amended, although the person whose birth is sought to be established is no longer living.

Honorable John R. Shook, Att'n: L.J. Gittinger, page 3 O-4637

Yours very truly ATTORNEY GENERAL OF TEXAS By s/W. R. Allen W. R. Allen WRA:GO:wc

APPROVED JUN 12, 1942

s/Gerald C. Mann

ATTORNEY GENERAL OF TEXAS

Approved Opinion Committee By s/BWB Chairman