-f&BE ATTORNEY GENERAL
OF TEXAS
Ar;STlh - 78711
CRAWFORD G MAR’IIS
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December 5, 1972
Honorable Jack Salyer Opinion No. M-1277
District Attorney
23rd Judicial District Re: Criminal violations and remedies
P. 0. Drawer 1666 involved concerning marriage
Bay City, Texas 77414 license issued to two males.
Dear Mr. Salyer:
You have requested an opinion on the following:
Query One: Is there a criminal violation for false awearing
where a man falsely states that he is a female on
an application for marriage license?
Query Two: Can two men in Texas acquire the status of marriage?
According to the facts given in your letter, two males, one of whom
was dressed as a female, appeared at the County Clerk’s office and made
application for a marriage license. The one posing as the female filled in
the portions of the license application provided for female applicants. Sub-
sequently the license was issued.
The Texas Family Code, (Acts 61st. Leg., R.S., 1970, Ch. 888,
p. 7), Title I. HUSBAND AND WIFE, Subtitle A, Sec. 1.03 entitled Applica-
tion Form provides:
(a) The county clerk shall furnish the application form as pre-
scribed by the Bureau of Vital Statistics of the State Department
of Health.
(b) The application form shall contain:
(1) a heading entitled ‘Application for marriage
license, County, Texas; ’
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Honorable Jack Salyer, Page 2 (M-1277)
(2) spaces for each applicant’s full name (including
the woman’s maiden surname), address, social se-
curity number, if any, date of birth, place of birth
(including city, county, and state), and race;
Section 1.03 (b) (2) calls for a woman’s maiden name to be set out in full.
Billie Ert is not a woman as called for by the statute, which incorporates
the common law, and as is designated on the form; therefore the informa-
tion given as to the woman’s maiden name on the application is false,
Section 1.03 (b) (5) of the Code calls for a printed oath on the form
reading :
“I solemnly swear (or affirm) that the information
I have given in this Application is correct, that I am not
presently married, and that I am not related to the other
applicant within the degrees prohibited by law. ”
The Texas Penal Code, Article 310 entitled “False Swearing” pro-
vides:
“If any person shall deliberately and willfully, under
oath or affirmation legally administered, make a false state-
ment by a voluntary declaration or affidavit, which is not re-
quested by law or made in the course of a judicial proceeding,
he is guilty of false swearing, and shall be punished by con-
finement in the penitentiary not less than two nor more than
five years. ”
In Steher v.. State, 4 S. W. 880 (Tex. Ct. of App. 1887), it was held
that the giving of a false affidavit to a county clerk in order to obtain a mar-
riage license was assignable and would support a prosecution for “false
swearing” under the Texas Statute defending that offense. See also Davidson
v. State, 3 S. W. 662 (Tex. Ct. of App. 1886). Furthermore, the giving of
false information on marriage license applications , which must be sworn in
accordance with V. A. T. S. , Family Code, Sections 1.02 and 1.03, has been
found to be a violation of the prohibition against false swearing in Article 310.
See, for example: Wilson v. State, 93 S. W. 547 (Tex. Crim. 1906), in which
a false age for the female was given; Adams v. State, 91 S. W. 225 (Tex. Crim.
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Honorable Jack %lyer, page 3 (M-1277)
1906). in which the false swearmg included the female’s age, the father’s
consent to the marriage, and the claim that there was no legal objection to
the marriage.
Although there is a criminal violation involved, that does not of it-
self provide the clerk with a remedy to cancel the license. Section 2.02 of
the Family Code, supra, entitled “Fraud. Mistake, or Illegality in Obtain-
ing License” provides:
“Except as otherwise provided by this chapter, the
validity of a marriage is not affected by any fraud, mistake,
or illegality that occurred in obtaining the marriage license. ‘I
The clerk is provided a remedy at law, however, which turns upon
the question of whether the parties involved have acquired the status of a
marriage. Attorney General’s Opinion No. M-1216, dated September 17,
1972, states that a marriage license may not be issued to two persons of the
same sex. We noted therein the case of Baker v. Nelson, 191 N. W. 2d 185
(Minn. Sup. 1971), presently in the United States Supreme Court, which so held.
That opinion coupled with a study of the authorities makes any attempted mar-
riage between persons of the same sex an impossibility. The following study
of the authorities will put the exact problem clearly in focus.
Since the Family Code does not deal with the exact problem at hand,
it is necessary to look to the Code Construction Act, Article 5429 b-2, Sub-
chapter C, Sec. 3. 03, Vernon’s Civil Statutes (60th Leg:, 1967) for guidance
in construing the various provisions of the Code.
“Sec. 3. 03. In construing a statute, whether or
not the statute is considered ambiguous on its face, a court
may consider among other matters the
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history ;
(4) common law or former statutory provisions including
laws upon the same or similar subjects;
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Honorable Jack Salyer, page 4 (M-1277)
(5) consequences of a particular construction;
(6) administrative construction of the statute; and,
(7) title, preamble, and emergency provision. ”
In accordance with the Code Construction Act, supra, we must look
to the common law for guidance as well as rulings of Texas Courts on former
statutory provisions dealing with the same or similar subjects.
Marriage has been defined in Texas as the voluntary union for life
of one man and one woman as husband and wife, to the exclusion of all others,
for the discharge, to each other and to the community, of the duties legally
incumbent on those whose association is founded on the distinction of sex, 38
Tex. Jur.2d pp. 28, Sec. 1; McCracker v. Taylor, 146 S.W. 693 (Tex. Civ.
App. 1912); Simpson v. Simpson, 380 S. W. 2d 855 (Tex. Civ. App. 1964,
error ref. n. r. e. ).
Texas Courts have also held that marriage is not a contract but a
status created by mutual consent by one man and one woman. Grigsby v. Reib,
105 Tex. 597, 153 S. W. 1124 (1913). Since marriage is not, in and of itself,
a contract, vesting rights in parties, but a status, it is subject to dissolution
civilly at the absolute will of the sovereign state. McGinly v. McGinly, 295
S. W. 2d 913 (Tex. Civ.App. 1956). The Texas Courts have held that since
the state controls what determines the marriage status, it may strip certain
classes of their contractual powers in regard to entering into the marriage
relationship. Gowin v. Gowin, 292 S. W. 211 (Tex. Civ.App. 1927). In Gowin,
supra, the court spoke to the issue immediately at hand in holding that among
those classes of people who, although possessing full contractual powers in
all other respects, may not enter into the status of marriage were ‘I a man and
a man, ‘I and “a woman and a woman. ‘I
Section 2. 01 of the Family Code, supra, reads as follows:
“Section 2.01. State Policy
In order to promote the public health and welfare
and to provide the necessary records, this code prescribes
detailed and specific rules to be followed in establishing
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Honorable Jack salyer, page 5 (M-1277)
the marriage relationship. However, .in order to provide
stability for those entering into the marriage relationship
in good faith and to provide legitimacy and security for the
children of the ‘relationship, it is the policy of this state
to preserve and uphold each marriage against claims of in-
validity unless strong reasons exist for holding it void or
voidable. Therefore, every marriage entered into in this
state is considered valid unless it is expressly made void
by this chapter or unless it is expressly made voidable by
this chapter and is annulled as provided by this chapter.
When two or more marriages of a person to different spouses
are alleged, the most recent marriage is presumed to be
valid as against each marriage that precedes it until one who
asserts the validity of a prior marriage proves its validity. ”
At first blush, it might appear that this statute upholds the validity
of a marriage by a man to another man in that it does not expressly forbid
same. Nevertheless, we must look behind the statute to the intent of the legis-
lature as is commanded by the Code Construction Act, oupra.
The legislature has permeated the Family Code, supra, with the terms
“husband, ” “wife, I’ and “marriage, ” and since the legislature must be pre-
sumed to know the definition and usage of these words, it is clear under both
statutory law in Texas and Texas common laws that only two persons of the
opposite sex may marry. Title 1 of the Family Code, supra, from which
this statute is taken is entitled “HUSBAND AND WIFE” and although Texas
Courts may not have directly spoken to the definition of husband and wife, other
courts have done so. InDarinv. Bars, 188 N.C. 200, 124 S.E. 556, 568 (1924),
the court said, “a husband is a man who has a wife, and a wife is a woman who
has a husband. ”
The various provisions of the Family Code, supra, indicate what the
intention of the legislature was in enacting the Family Code. Section 1.03 of
the Family Code, supra, which incorporates the common law, in prescribing
the contents of the application for license calls for the woman’s maiden surname
indicating that a woman is a necessary party to a marriage. Even Section 2. 01
of the Family Code, supra. in declaring the State Policy presupposes the exis-
tence of a marriage between a man and a woman in saying, “to provide stability
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Honorable Jack Salyer, page 6 (M-1277)
for those entering into the marriage relationship in good faith and to pro-
vide legitimacy and security for the children of the relationship, . . . ‘I
The use of the word children points to the legislative intent here involved.
It was the legislative intent to provide for a marriage between those whose
association is founded on the distinction of sex.
In Calvert v. British-American Oil Producing Company, 397 S. W. 2d
839, (Tex.Sup. 1965) at page 842, the Court said:
“Courts will not follow the letter of the statute
when it leads away from its true intent and purpose of the
legislature, and to conclusions inconsistent with the general
purpose of the act. ”
Following this law coupled with Texas Common Law, there can be but
one legal conclusion, persons of the same sex are not granted the status of
marriage in Texas.
The fundamental reliance by the legislature in the distinction of sex
inherent in a marriage relationship would place the attempted marriage of
two people of the same sex into a cat’egory of being absolutely null, having no
force or effect for any purpose, at any place or time, and whose invalidity may
be asserted by anyone, at any time, directly or collaterally. Simpson v. Neely,
221 S. W. 2d 303 (Tex. Civ. App. 1969. error ref. ). In short, it is impossible
for two men to acquire the status of a marriage in Texas.
SUMMARY ’
It is impossible for persons of the same sex to
acquire the status of a marriage in Texas. A charge of
false swearing may be prosecuted where a person swears
falsely that they are a certain sex when in fact they are
not.
ORD C. MARTIN
Atto ey General of Texas
d
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Honorable Jack”stiyer, page 7 (M-1277)
Prepared by Tazewell Speer
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. E. Allen, Chairman
Linda Neeley
Wardlow Lane
Harriet Burke
R. L. Lattimore
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
~First Assistant
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