Honorable Ralph Prince
Criminal District Attorney
Box 2403
Longview, Texas
Opinion No. Ww-773
Rc: Questions concerning
House,&11 48, Acts
56th Legislature, Se-
cond Called Session,
relating to issuance
of marriage licenses
Dear Mr. Prince: by the County Clerk.
You have requested an opinion concerning
House Bill 48, Acts 56th Legislature,~,.Second Call-
ed Session, 1959, Chapter 20, Page X13, on the
following three questions which we quote from
your request:
"Question 1: Must the doctor's
certificate and written parental con-
sent provided for in,Sec. (a) be &&
nowled ed or should it be sworn to as
F5Tzmhzvit?
"Question 2: Must the clerk re-
tain all original marriage licenses
returned to him, only those issued
on doctor's certificate and written
parental consent, or in g instance?
years? If,,not, what requirements may
he waive?
Hon. Ralph Prince, Page 2 (WW-773)
The relevant port:ons of House Bill No. 48 are
as follows:
“Section 1. Article 4605 of the
Revised Civil Statutes of Texas, 1925,
is amended to read as follows:
“‘Article 4605. Consent of parent
or guardian and issuance of license.
” I (a). Any unmarried male of the
age of twenty-one (21) years or upwards,
or any unmarried female of the age of
eighteen (18) years or upwards and not
otherwise disqualified, is capable of
contracting and consenting to marriage;
but no female under the age of eighteen
(18) years and no male under the age of
twenty-one (21) years shall enter into
the marriage relation, nor shall any li-
cense issue therefor, except upon the
consent and authori’ty expressly given
by the parent or guardian of such’under-
age applicant in the presence of the author-
,ity issuing such license; ‘provided fur-
ther that if the certificate of a duly
licensed medical doctor or osteopath,
acknowledged before an officer authorized
by law to take acknowledgments and stat-
ing that such parent or guardian is unable
by reason of health or incapacity to be
present in person, is presented to such
licensing authority, the license may issue
on the written consent of such parent or
guardian, acknowledged in the same manner
as the accompanying medical certificate.
Any such certificate and written permission
shall be retained by the official issuing
the marriage license, together with the
returned license. Nothing herein shall be
construed to effect the issuance of a
marriage license in a seduction prosecu-
tion. If ‘a minor has neither parent or
guardian, then the clerk shall not issue
a license without the consent of the county
judge,of the county of the residence of such
minor, such consent to be in writing ana
signed and acknowledged b,y such county judge.
Hon. Ralph Prince, Page 3 (W’b773)
"l(b). The county clerk,'upon appli-
cation in writing signed and sworn to in
person before him by both of the parties to
be married setting forth their places of
residence and setting forth their full names
and ages as the same appear upon a certi-
fied copy of birth certificate, or upon a
current motor vehicle operator's, chauffeur's,
or commercial license or upon a current voter's
registration certificate, or upon a current
passport or visa or upon any other certifi-
cate, license or document issued by or exist-
ing pursuant to the laws of any nation or of
any state or other governmental subdivision
thereof, when each sudh document accepted as
proof of identity and age is described with
reasonable particularity in the application,
shall also set forth that such persons to be
married are not disqualified or incapable
of entering into the marriage relation, nor
of the relationship prohibited by law, and
being ,satisfied of the truth and sufficiency
of such application and that there is no legal
impediment to such marriage, and aft,er ap-
plicatlon for such marriage license has is-
sued, shall issue the license a,uthorizing
such marriage; provided however, that in
the event the male party is under the age
of twenty-one (21) years or the female party
is under the age of eighteen (18) years such
application shall have been on file in the
County C'lerk's office for a period of not
less than three (3) days.
"l(c). Provided however that the county
judge in his discretion may waive the re-
quirements listed in (a) and (b) above.'"
With regard to your first question, it is our
opinion that, whatever might be said in favor of a re-
quirement that these documents be sworn to the re-
quirement of paragraph (a) of 'House Bill 46 is plainly
that the physician's certificate and parental consent
be,acknowledged 'before an officer' authorized by law
to take acknowledgments", rather than being sworn to.
With regard to your Question 2, it was held in
..
Hon. Ralph Prince, page 4 (WW-773)
Attorney General’s Opinion No. WW-751 (1959) that
House Bill No. 4% does’ not direct the Clerk to retain
the returned marriage license in any instance; accord-
ingly, only your Question 1, just discussed, and Ques-
tion 3 remain open fork determination in the present
opinion.
With regard to your Question 3, it is our
opinion that paragraph (c) of Section 1 of Hous,e Bill
48, in stating “provided however, that the county
judge in his discretion hay waive the requirements list-
ed in (a) and (b) above’“, is intended to vest in the
county judge authorit to waive all requirements con-
tained in paragraphs “ia) and (b)of Section 1. There
remains the question of which provisions of paragraphs
(a) and (b) constitute “re uirements” within the con-
templation of paragraph (~7. It is sufficient to say,
however, without undertaking to en,umerate these pro-
visions individually, that the effect of paragraph (c)
is that all acts whi,ch by virtue of House Bill 48, Sec-
tion 1, are required to ,be performed by any person as
a condition, for the proper issuance of, a marriag~e license,
may be held by the county judge in his discretion to be
unnecessary for such issuance. Thus, for example, para-
graph (c) is applicable--though not exclusively so--
to the requirement contained in paragraph (b) that the
clerk shall not.issue a license to certain applicants
unless the application shall hive been on file in the
count?? clerk’s office,for a period of not less than
three” days.
SUMMARY
(1) Paragraph (a) of Section 1
of House Bill 48, Acts 56th
Legislature, Second Called
Session, 1959. Chapter 20,
Page 113, requires- th,at the
physician’s certificate and
written parental ‘consent
provided for therein trust
be acknowledged rather than
being sworn to.
(2) Paragraph (c) of Section 1
of House Bill 4% vests in
Hon. Ralph Prince, page 5 (w-773)
the county judge authority to
waive all oequirements contain-
ed in paragraphs (a) and (b) of
Section 1 of House Bill 48.
Very truly yours,
WILL WILSON
Attorney General 'of Texas
LH:ms
APPROVED:
OPINIONCOMMITTEE
W. V. Geppert, Chairman
Grundy Williams
John Reeves
C. Dean Davis
Bob Eric Shannon
REVIEWEDFOR THE ATTORNEY
GENERAL
BY: Leonard Passmore