TRE A-ITORNEY GENERAL
OFTEXAS
AUWKXN. TRNAXB 78711
February 4, 1977
The Honorable Joe Resweber Opinion No. H-939
Harris County Attorney
Harris County Courthouse Re: Issuance of marriage
Houston. Texas 17002 licenses to recently
divorced parties.
Dear Mr. Resweber:
You ask two questions about the authority of the county
clerk to issue a marriage license to a recently divorced
person. You describe a situation where the judge has
granted one marriage license applicant a divorce more than
thirty days prior to his application by announcing the
decision in open court and noting it on the docket sheet,
but has signed the divorce decree less than thirty days
previously. Neither party to a divorce may marry a third
party for thirty days following the date the divorce is
decreed, and the county clerk may not issue a marriage
license if either applicant indicates-that he or she has
been divorced within the last thirty days. Family Code 99
1.07(a) (7) and 3.66. you ask whether the thirty day period
begins with the judge's oral grant of the divorce, or with
his later signing of the judgment.
The court’s pronouncement of its decision of law is its
judgment, while entry of judgment is the ministerial act
which provides documentary evidence of that act. Coleman v.
a, 151 S.W. 1040 (Tex. 1912). Thus, a divorce is&ive
as soon as the judge announces his final decision to grant
it, even though the written judgment is not signed until
some days later. Dunn v. Dunn, 439 S.W.Zd 830 (Tcx. 1969);
, 4OmxdTbg (Tex. Crim. App. 1966).
The date of signing is deemed to be the date the
judgment is rendered for the purpose of determining the time
periods within which various steps toward an appeal must
be taken. ~T.R.C.P. 306a. However, this rule does not
determine what constitutes rendition of judgment for other
p. 3921
The Honorable Joe Resweber - page 2 (H-939)
Id. See Leatherwood v. Holland, 375 S.W.Zd 517
purposes. --
(Tex. Civ. APP. -- port Worth lVd4, writ ref'd n.r.e.1.
Therefore, we-believe that the thirty day waiting period
prescribed in sections 1.07(a)(7) and 3.66 of the Family
Code begins with the judge's announcement of his final
decision in court.
We note that the judge of a district or county court
has authority to set aside, modify, or amend his final
judgment for thirty days after rendition. T.R.C.P. 329b.
This thirty day period during which the court may change
its judgment begins with the signing of the judgment and
not the oral rendition. Ex parte Godeke, 355 S.W.Zd 701
(Tex. 1962); Rector v. Rector, 454 S.W.Zd 229 (Tex. Civ.
APP. -- Tyler- K 'm See T.R.C.P. 306a and 329b.
Therefore, an oral decree of divorce, valid thirtydays
after it is announced, may subsequently be set aside, a new
trial granted, and a written order embodying the later
decision entered. See Louwien v. Dowell, 534 S.W.Zd 421
(Tex. Civ. App. -- EXl~,Yio~. Cases may arise
in which parties marry in reliance on a divorce decree later
set aside by the court. ,The second marriage will be void
because one party was already married. Family Code 9 2.22.
See Miller v. Miller, 487 S.W.Zd 382 (Tex. Civ. App. --
Fort Worth n72, writ ref'd n.r.e.1. However, the Family
Code does not make the county clerk responsible for pre-
venting such occurrences. The applicant for a marriage
license must indicate his marital status, and he has better
access than the clerk to the information that his divorce
might be set aside on a motion for a new trial. Therefore,
the county clerk may issue a marriage license when one
applicant has been divorced by the judge's pronouncement
more than thirty days previously, even though the judge
signed the decree less than thirty days previously.
You also ask whether the county clerk may issue a
marriage license under the facts stated in your first question
where the two applicants were divorced by the decree and are
seeking to remarry. The thirty day waiting period of
section 3.66 does not extend to couples who have recently
been divorced from each other; in fact "the parties divorced
may marry each other at any time.“ (Rmphasis added).
However, in its 1975 amendment to the provision on issuance
of a marriage license, the Legislature has declared that
"[tlhe county clerk may not issue a license to the applicant9
if . . . either applicant indicates that he or she has been
p. 3928
The Honorable Joe Resweber page 3 (H-939)
divorced by a decree of a court of this state within the
last 30 days." Family Code S 1.07(a)(7).
The aim of statutory construction is to ascertain the
legislative intent. State v. Jackson, 376 S.W.Zd 341 (Tex.
1964). Section 3.66 expresses-tent that divorced
couples may remarry one another during the thirty days after
the divorce decree. Section 1.07(a) (7), which denies a
marriage license to applicants divorced within the last
thirty days, must be construed with reference to the system
of legislation of which it is part. Code Construction Act,
V.T.C.S. art. 5429b-2, 9 3.01(2) and (3). We believe that
the legislative intent expressed in section 3.66 will be
frustrated if a divorced couple may not obtain a license to
remarry within the thirty days after their divorce and must
instead attempt to establish an informal marriage under
sections 1.91 and 1.92 of the Family Code. We do not believe
that the Legislature, in enacting section 1.07(a)(7) intended
it to apply to applicants recently divorced from one another.
The provision refers to "either applicant," indicating that
the Legislature did not have in mind a case where the two
applicants are divorced from one another. We believe that
section 1.07(a) (7) was'enacted to change the law as interpreted
by Attorney General Opinion H-581 (19751, which found that
the county clerk had authority to issue licenses to applicants
divorced in the last thirty days. In H-581, we did not deal
with the divorced couple seeking to remarry, and we do not believe
that the legislation inspired by H-581,applies to that case.
The process of statutory construction may properly include
consideration of the conditions to be remedied. Code
Construction Act, V.T.C.S. art. 5429b-2, S 3.03(l). The
county clerk may issue a marriage license to applicants
divorced from one another within the last thirty days.
SUMMARY
The county clerk may issue a marriage
license where one applicant has been
divorced by oral pronouncement of the
court more than thirty days previously,
even though thirty days have not elapsed
since the signing of the judgment. The
P. 3929
I
The Honorable Joe Resweber - page 4 (H-939)
clerk may issue a marriage license to
applicants who have been divorced from
one another within the last thirty days.
Very truly yours,
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
p. 3930