Does a Texas county clerk have to record a domestic partnership declaration?

Plain-English summary

Bexar County Criminal District Attorney Susan D. Reed asked whether the county clerk had to accept for filing a document styled a "declaration of domestic partnership," in which two unmarried people living together swore that they shared each other's lives in a committed relationship and agreed to be jointly responsible for each other's financial responsibilities. The Attorney General concluded the clerk was not required to record it.

The recording duty comes from section 192.001 of the Local Government Code, which directs the county clerk to record "each deed, mortgage, or other instrument that is required or permitted by law to be recorded." The opinion placed the domestic-partnership declaration alongside other "home-made" documents the office had addressed before: the purported judgments of self-styled "common law courts" of the "Republic of Texas" in Opinion DM-389, and a list of unusual instruments in Letter Opinion 98-016. Citing City of Abilene v. Furr, those opinions had held that a clerk may file and record a document only when a statute authorizes, requires, or permits it, and that instruments by which individuals try, without legal warrant, to alter their legal relations or impose burdens on others are not "required or permitted by law to be recorded."

The opinion observed that the declaration appeared designed to create or proclaim something akin to marriage, pointing to the promise to be jointly responsible for each other's finances, which it compared to the mutual spousal-support duty in section 2.501 of the Family Code. But it explained that the affidavit did not create a marital relation under Texas law. Texas recognized two forms of marriage, ceremonial (requiring a license) and informal (provable by a registered declaration or by agreement, cohabitation, and holding out as married). The opinion stated that, at that time, Texas law did not recognize marriages between persons of the same sex, ceremonial or informal, citing the Family Code, Murphy v. State, and earlier opinions, and that neither a clerk by recording such instruments nor private persons by creating them could alter Texas law. Because the declaration was not an instrument "required or permitted by law to be recorded," the county clerk was not required to accept it.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The law on marriage has changed substantially since this opinion. In particular, the United States Supreme Court's 2015 decision in Obergefell v. Hodges recognized a constitutional right to same-sex marriage, which displaces the marriage-recognition statements in this 1999 opinion. This page describes only what the Attorney General concluded at the time about a county clerk's recording duty; it is historical context, not a statement of current Texas or federal marriage law.

Background and statutory framework

Section 192.001 of the Local Government Code defines the clerk's recording duty narrowly: the clerk records instruments "required or permitted by law to be recorded." The opinion read that limit against a line of prior office opinions about documents citizens create to alter their legal or political relations with the state or to bind third parties. Opinion DM-389 (1996) held clerks need not file the purported judgments of "common law courts" claiming to act for the Republic of Texas, calling those courts bodies with no legal existence except in their partisans' minds. Letter Opinion 98-016 applied the same reasoning to documents like a "Refusal to Pay Property Taxes," an "Affidavit Revoking Signature," and a "Declaration of Person Being a Sovereign," relying on City of Abilene v. Furr for the rule that a clerk may record a document only if a statute allows it.

On the marriage side, the opinion summarized the Family Code as it then stood. Chapter 2 recognized ceremonial marriage, which requires a license (section 2.001), and informal marriage, provable by a declaration registered with the county clerk (sections 2.401, .402, .404) or by an agreement to be married plus cohabitation and representing to others that the couple were married (section 2.401(a)(2)). The opinion stated that the Family Code provisions, together with Murphy v. State and Opinions M-1277 and M-1216 (both 1972), reflected that Texas did not then recognize same-sex marriage. It treated the financial-responsibility promise in the declaration as comparable to the spousal-support duty in section 2.501 but concluded the affidavit created no marriage.

Common questions

Does a Texas county clerk have to record a domestic partnership declaration?
Under this opinion, no. The Attorney General concluded the declaration was not an instrument "required or permitted by law to be recorded" under section 192.001 of the Local Government Code, so the clerk had no duty to accept it.

Why isn't such a document recordable?
The opinion explained that a clerk may record a document only when a statute requires or permits it. A privately created declaration that tries to establish legal obligations without statutory authority falls outside that duty.

Did the declaration create any kind of marriage?
No. The opinion concluded the affidavit did not create a marital relation under Texas law, which at the time recognized only ceremonial and informal marriage.

Is this opinion still a good guide to marriage rights?
No. The opinion's statements about marriage reflect Texas law in 1999. Marriage law has changed significantly since then, including the 2015 Obergefell decision recognizing a constitutional right to same-sex marriage, so treat this page as historical context only.

Citations

Statutory provisions: Tex. Loc. Gov't Code Ann. § 192.001 (Vernon 1999); Tex. Fam. Code Ann. ch. 2 (Vernon 1998), §§ 2.001, 2.001(b), 2.401, .402, .404, 2.401(a)(2), 2.501.

Cases: City of Abilene v. Furr, 143 S.W.2d 654 (Tex. Civ. App.-Eastland 1940, no writ); Murphy v. State, 653 S.W.2d 567 (Tex. App.-San Antonio 1983, writ ref'd).

Prior Attorney General opinions discussed: DM-389 (1996); LO-98-016; M-1277 (1972); M-1216 (1972).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0156
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0156.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL, STATE OF TEXAS

JOHN CORNYN

December 16, 1999

The Honorable Susan D. Reed
Bexar County Criminal District Attorney
300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

Opinion No. JC-0156

Re: Whether a county clerk must accept for filing a "declaration of domestic 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 filing 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 Cornyn, 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 of Texas" 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. LOC. GOV'T CODE ANN. § 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. Op. 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 alia: "Refusal to Pay Property Taxes . . . Affidavit Revoking Signature . . . Affidavit of Refusal to Accept Post . . . Surrender of Social Security Card . . . Declaration of Person Being a Sovereign . . . [and] Notice of Asseveration . . . ." Tex. Att'y Gen. LO-98-016, at 1-2. Relying upon City of Abilene v. Furr, 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 a marriage license. Id. § 2.001. Informal marriages may be proved either by a declaration registered with the county clerk, id. §§ 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. § 2.401(a)(2) (emphasis added).

Generally, such affidavits as these are apparently made in an attempt to secure some legal recognition for unions of persons of the same sex. See Mary Flood, Unmarried Couples Await State Ruling, WALL ST. J., Aug. 18, 1999, at T1. However, the laws of Texas do not recognize marriages between persons of the same sex, whether ceremonial or informal. See TEX. FAM. CODE ANN. §§ 2.001(b) (Vernon 1998) (marriage license may not be issued for same-sex marriage); 2.401(a)(2) (informal marriage requires agreement of "man and woman"); Murphy v. 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. LOC. GOV'T CODE ANN. § 192.001 (Vernon 1999), the County Clerk of Bexar County is not required to accept it for recording.

SUMMARY

"Declarations of domestic partnership" are not "documents required or permitted by law to be recorded." TEX. LOC. GOV'T CODE ANN. § 192.001 (Vernon 1999). Accordingly, county clerks are not required to accept them for recording.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee