March 30, 1970
Honorable Joe Resweber OpiniOn NO.M-604
County Attorney
Harrlk County Courthouse Re:.,Whether Section 1.05 of,the
Houston, Texas 77002 Texas Family Code eqpowers
a county judge to waive those
.p'ortlons
o$ the Code requiring
mtirriage.liceMe applicants tie
fur.nls~.'lnfor~tloncondernlng
prior divorces, and related
question.
Dear Mr. Resweber:
Your recent letter requesting the opinion of this office
concerning the referenced matter states, in part, as follows:
"Please render your opinion on the
following questions:
1. Does Section 1.05 of the Femily
Code empower the county'judge to waive
thos'e,portlonsof subchapter A of chagtsr,
one, of 'the Code which w'ould require then
marriage llc~nse~app.licantsto furnish
@ifo?matlon ta,,thecounty clerk concernilng
any prior divorces aridthe..datesthereof?
2.
When it has been revealed to:the
countyclerk that one of t,he marriage li-
cense applicant~atibsbeen divorced from
a third paity durlnglthe six-honth period
precdding the date of the application, does
Section 1.05 of the Family Code empower the
county judge t,owiilvethe requisites of
Section 1.07(c) ‘whichwou,ld requlre.the
applicants to show the county clerk that the
proposed marriage within the six-month pdrlod
is permitted under Sedtlon 3.66 of the Code?"
-2878-
Honorable Joe Resweber, page 2 (M-604)
Section 1.05 of Chapter 1 of the Code provides as follows:
"Any.Information pertaining to an a.ppll-
cant (for a marriage license), other 'than the
applicant's name, may be omitted from the ape-'
>ication, and any'formality
chapters A, B, and D of thl ,':g;v
waived on the county judge's'wrltten or er,
Issued for good caus'eshown,,a'ndsubmitted
to,the county clerk at the time the appll-
cation Is made." (Emphasis added.)
Section 1.02 of Subchapter A of Chapter 1 of the Code pro-
vides, In part, as follows:
"Persons applying for a marriage license
shall:
"(2) submit for each applicant:
11
....
"(Cl If aoolicable. theicounty judge's
order p&crib&I by Section 1.05 of this
code...
“(3) provide the information for which spaces
are provided In the application for a marriage
license, o.o"
Section 1.03(b)(4) of.Subchapter A of Chapter 1 of the Code
provides that:
"The(marrlage license) application form
shall contain ....spaces for Indicating whether
the applicant has been divorced during the alx-
month period preceding the date of the appll-
cation...."
Section 1.07(c) of Subchapter A of Chapter 1 of the Code pro-
vides as follows:
-2879-
.
Honorable Joe Resweber, page 3 (~-604)
"If It is revealed that either appli-
cant (For a marriage license) has been di-
vorced during the six-month period,,pre-
ceding the date'of the application, the
county c,lerkshall not issue the llcxe
unless it Is shown that the subsequent
marriage within the six-month period is
permitted under Section 5.bb of this code."
(Emphasis added.) .
Section 3.66 of the Code states that:
"Neither party to a divorce may marry
a third party for a period of six months
iUimedi8tely 'followingthe date the divorce
Is decreed, but the parties divorced may
marry each other at any time. The court
granting the divorce.,for good cause shown,
yy divorce or thereafter
prohibition of this section as to
either or both parties." (Emphasis added,)
Section 1.05 speaks of "an Information" and "an
in terms of the requirements + or a marriage license+$a~o;~l;~y"
waived by the-county judge. This language would certainly en-
compass the Information as to a prior divorce required to be
furnished In Section 1.03(b)(4), supra.
.Tt is our opinion that Section 1.05 empowers the county judge
to waive the requirements of Section 1.03(b)(4), provided the
county judge's written order to that effect Is submitted at ;the
time the applicants apply for a marriage license, ,in accordance
with Section 1.02(2)(C), supra.
We are further of the opinion that the requirements of Sec-
tion 1.07(c), supra, are neither "information" nor the "formality"
that may be waived by a county judge pursuant to Section 1.05.
Rather, we view Section 1.07(c) as a-provision of,substantlve law.
To allow a county judge to waive the requirementb of that Secti.on
would result in en'accretlonto the Section whereby Its plain pro-
visions could be circumvented.
Therefore, If the county judge's waiver of the requirements
-2880-
-
Honorable Joe Resweber, page 4 (m-604)
of Section 1.03(b)(4) Is submitted at the time the application is
made for a marriage license, the Information concerning prior dl-
voroe need not be a part of the application. However, even though
such waiver of the county judge Is timely presented,,the clerk is
prohibited from Issuing. the llcense‘if It has been 'revealed" to
him or if he knows (Art. l.O7(b))thet either of the parties has
been divorced within the past six months and he can only Issue the
license if the waiver of the district court, as provided for in
Section 3.66, is procured and presented to the clerk. Art. 1.07(b)
and (c)'
,'
Therefore, the County Judge may not waive the six-month welting
f;rt;i,,asrequired by Section 3.66, and our answer to question No. 2
.'
Accordingly, your first question is answered In tha affirmative
and your second question Is answered In the negative.
SUMMARY
(1) Section 1.05 of the Texas Family Code
empowers a county judge, for good,cause shown,
to waive those portions of the Code requiring
marriage license applicants to furnish infor-'
mation concerning prior divorces. Thls,walver
must be submitted at the 'timethe application
for marriage license Is made.
(2) Section 1.05 of the Code does not
empower a county judge to waive the require-
ments of Section 1.07(c) of the Code, once
lnforlnetlonconcerning a prior divorce has
been revealed to the County Clerk, or is
known to him.
y General of Texas
Prepared by Austin C. Bray, Jr,
Assistant Attorney General ,
-2881-
Honorable Joe Resweber, page 5 (M-604)
APPROVED:
OPINION COMMITTEE
Kern& Taylor, Chairman
W. E. Allen, Acting Co-Chairmen
John Reeves
John Banks
William Craig
2. T. Fortescue
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRm WALKER
Executive ASSi8t8nt
NOU WHITE
First Assistant
-2882-