Honorable J. R. Owen

CountyAttorney WilllamsonCounty Georgetown,Texas

Dear Sir: OF-TEXAS

November 27, 1959

OpinionNo. 

### WW-751

Re: Questions concerningHouse Bill 

### 48,Acts 

### 56thLegislature, Second Called Session,relating to certain conditions for the issuance of marriage licensesby the county clerk.

You have requested an opinion concerningHouse Bill 

### 48,Acts 

### 56thLegislature, Second Called Session, 1959, Chapter 20, Page 

### 113,on the following two questions: first, as to whether certainparts are in violation of Section 

### 35, Article III of the Constitution of Texas, and secondly,as to whether the provisions in paragraph (a) of House Bill 

### 48 that the returned marriage license shall be retained by the issuing clerk Is to be construed as mandatory on the clerk.

The relevant Constltutiona~lprovision Is as follows:

"Sec. 

### 35. No bill, (except. general appropriation bills, which may embrace the various subjectsand accounts, for and on account of which moneys are appropriated) shall contain
more than one subject,which shallbe expressed in Its title. Wit if any subject shallbe embraced in an act, which shallnot be expressed in the title, such act shallbe void only as to so much thereof, as shallnot be
so expressed."

The relevantportions of House Bill 

### 48 are as fol-, lows:

"AnAct relating to the requirement of consent of parent or guardian of certainparties before saidparties may marry or a marriage licensebe issued to them and relating further to the'issuance of marriage licensesby the county clerk after a prescribedperiod of three 

### (3)days from the date of the filing of the application; amending Article 

### 4605,Revised CivilHonorable J. R. Owen,page 2 (w-751)

Statutes of Texas, 1925;providing the county judge may waive certainrequirements;and declaringan emergency.

"Pe it,enactedby the Legislature of the State of Texas:
"Section1. Article 4605 of the Revised Civil Statutes of Texas, 1925, is amended to read as follows:

'IArticle 4605. Consent of parent or guardian and issuance of license.
"'(a). An twenty-one (21

7 unmarriedmale of the age of years or upwards, or any unmarried female of the age of eighteen (18) years or upwards and not otherwisedisqualified, is capable of contractingand consentingto marrlage;~ but no femaleunder the age of eighteen 18 years and no male under the age of twenty-one t 1 21 years shall enter Into the marriage relation,nor shall any license issue therefor, exceptupon the consent and authority expressly given by the parent or guardian of suchunderage applicant in the presence of the authority issuing such license;provided further that If the certificateof a duly licensedmedical doctor or osteopathacknowledgedbefore an officer authorizedby law to take acknowledgmentsand stating that suchparent or guardian Is unable by reason of health or Incapacityto be present in person, is presented to such licensingauthority, the licensemay issue on the written consent of suchparent or guardian,acknowledged In the same manner as the accompanyingmedical certificate. Any such certificateand writtenpermission shall be retainedby the officlal,issuingthe marriage license, togetherwith the returned license.

. . . "l(b). The county clerk,upon application In writing signedand sworn to inperson before him by both of the parties to be married setting forth theirplaces of residence and setting forth their full names and ages as the same appear upon a certlfled copy of birth certificate,or upon a current motor vehicle operator's, chauffeur's, or commercial license or upon a currentvoter's registration certificate,or upon a currentpassport or visa or upon any other certificate, license orHonorabj LeJ. R. Owen, 'Page3 (w-751)

ment by document issued by or existing pursuant to the

laws of any nation or of any state or other governmental subdivisionthereof, when each such document accepted as proof of identity and age is described with reasonableparticularity in the application shall also set forth that suchpersons 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 sufficiencyof such application and that there Is no legal impediment to such marriage, and after application for such marriage licensehas issued, shall issue the license authorizing such marriage;provided, however, that In the event the male party is under the age of twenty-one (21)years or the femaleparty is under the age of eighteen (18) years such application shallhave been on file in the County Clerk's office for a period of not less than three (3) days."'

Article 4605,Vernon's Civil Statutes,before amendHouse Bill 48, reads as follows:

"No clerk shall Issue a licensewithout the consent of the parent or guardian of the parties applying, if there be a guardian. Such consent may be given in person, or in writing signed and acknowledgedby saidparent or guardian before an officer authorized to take acknowledgments,unless the parties so applying are, in the case of the male twenty-oneyears of age and In the case of the female eighteenyears of age. If there be any doubt in the mind of the clerk, he shall not issue said license unless there shallbe presented to him a sworn certificate from the parent or guardian or some person other than the contractingparties that the contracting parties have attained the ages aforesaid. Nothing herein shallbe construed to affect the issuance of marriage license in seduction prosecution. If
a minor has neither parent nor guardian, then the clerk shallnot issue a licensewithout the consent of the county judge of the county of the residence of suchminor, such consent to be in writing and signed and acknowledgedby such county judge."Honorable J. R. Owen,page 4 (WW-751)

As to your first inquiry,we quote from your request as follows:

"Is that portion of H.B. 

### #48 which applies

to persons over 

### 18years of age, if female, and
over 

### 21years of age, if male, valid or is same Invalid as being contraryto the provisions of section 

### 35,Article 

### 3 of the Texas Constitution? If saidportion of H.B. 

### #48 Is invalid, is all of section (b) of H.B. 

### #48 invalid or are the provisions of section (b)of H.B. 

### #48 In so far
as applicable to male persons under the age of 21 years and femalepersons under the age of 

### 18years?"

The purpose of Section 

### 35,Article III of the Texas Constitution in requiring a caption expressing the subject of the bill Is to enable interestedpersons to be reasonably apprised of the contents of the bill upon a reading merely of the bill18 title. Schlichtingv. Texas State Hoard of Medical Examiners, Tex

. 310 S.W.2d 

### 557 (19%). This purpose may be accosished bycaption couched in broad and general terms so long as it remains reasonably informative of what follows in the body of the bill. tion District, 284 S.W.2d 

### 275 Atwood v. Willacy County Naviga- (Civ.A kerror), Where, as in the case of House Bill amendatory of a prior article, a: the bill in auestion is the captionwill be adequate though merely naming the prior article and stating that the article is amendedby the present bill, provided that the provisions of the amendatorybill are germane to the amended article. Schllchtingv. Texas State Board of Medical Examiners, supra. See Board of Water Engineersv. City of San Antonio, 

### 155Tex. 

### 111,283 S.W.2d'722 11955). If the caption of an amendatorybill contains, in addition, explicit reference to certainprovisions in the bill, then the caption is adequate as to those provisionswithout regard to the rule requiring that amendatoryprovisions be germane to the amended article. 

### (1958). Shannonv. Rogers, - Tex. -, 

### 314 S.W.2d 

### 810

The purpose of House Bill 

### 48 Is to establish certain conditions,among them the requirement of parental consent,which must be met to the satisfactionof the County Clerk before he is authorizedto issue a marriage license. Admittedly the requirement of parental consent, set forth in paragraph (a) of House Bill 

### 48,applies only to suchunderage visions of paragraph (b)of House Bill fi ersons,while the pro

### 8 (except for the provlso appended at the end of paragraph (b))apply without restrictionas to age. Theseprovisions of paragraph (b), except. .

Honorable J. R. Owen, page 5, 

### (W-751)

for the portions dealingwith ascertaining the absence of legal disqualificationof the parties or prohibition of the marriage, establisha procedure --namely, the presentation of documents establishingthe applicant's age and identity --by which the clerk is enabled to ascertainwhether the requirement of parental consent is applicable. A similarbut less detailed procedure directed toward the same end, likewise applicablewithout regard to age, is provided for by Article 

### 4605:

II

, . . If there be any doubt in the mind of the clerk,he shallnot Issue said licenseunless there shallbe presented to him a sworn certlffcate from the parent or guardian or some person other than the contractingparties that the contractingtarties have attained the ages aforesaid.

. . .
In light of the presence in the amended Article of this provision identical in purpose with, and similar in other respects to, the questionedprovisions of the amendatorybill, it is our opinion that the latterprovisions are germane to the amended article. Since, further the caption of House Bill 48 containsa reference to Article 

### 4605,the caption satisfies the requirement of Section 

### 35,Article III of the Constitution
as to these provisions of House Bill 48.

Of paragraph (b),this leavesunaccounted-for only the portion dealingwith ascertainment of absence of legal disqualificationor prohibition as a condition for issuance of a license,viz., "The county clerk

. . . shall also set forth that suchpersons to be married are not .dlsquallfiedor incapable of entering Into the marriage relation, nor of the relationship prohibited by law, and being satisfied

. . .that there is no legal impediment to such marriagz,

. . . shall issue the license authorizing suchmarriage;

. . . (No question has been raised
as to the constructionof the phrase "nor of the relationship prohibited by law", but although its meaning in this context is not clear, the subjectwith which this phrase is Intended to deal Is apparent.) The purpose and effect of Article 

### 4605before amendment, like that of House Bill 48, is to establish certain conditionswhich must be met and procedures which must be followed before the County Clerk is authorized to issue a marriage license. Accordingly, it is our opinion that the caption of House Bill 48 in mentioningArticle 

### 4605 is sufficient to give fair notice of provisions such as the one just mentioned, since this provision establishes a procedure which the Clerk must follow before Issuing a license and is therefore germane to the amended article, notwithstandingthat this particular procedure is not among thosewhich the amended article establishes. Schlichtingv. Texas State Board of Medical Examiners, supra.. . .

Honorable J. R. Owen, Page 6, (W+'-7'51)

As to that House Bill %our second inquiry,we are of the opinion

8, in stating "Any suchLf;hysician'g certificate and written permission shallbe retained by the official issuing the marriage license,together with the returned license" (emphasisadded), does not direct the Clerk to retain the returned marriane license,but merely evidences a presupposition by the Legisla&re that the Clerk has heretofore followed
a practice of retaining the license. In fact, the Clerk is and has heretoforebeen under a duty; imposedby Article 6596, Vernon's Civil Statutes,to return the licenseafter its recordation "to the party entitled thereto",which in the case of a marriage license is a party to the marriagewhich the license authorizes. Attorney General'sOpinion 0-4624 (1942). Article 6596 is as follows:

"Every such instrument shallbe considered
as recorded from the time it was deposited for record; and the clerk shall certifyunder his hand and seal of office to every such Instrument of writing so recorded, the hour, day, month and year when he recorded it, and the book and page or pages in which It is recorded; and when recorded deliver the same to the party entitled thereto."

Recordation of the marriage license is required by Article 4606, Vernon's Civil Statutes:

"The clerk shallrecord all licenses so .%asuedby him in a well bound book kept for that purpose. It shallbe the duty of the person solemnizingthe rites of matrimony to indorse the same on the licenseand return it to the county clerkwithin sixtydays after the celebration aforesaid such return shallbe recorded with the license."

There being no requirement in House Bill 48 that the Clerk retain the license, the question of whether such a requirement is permissive rather than mandatory does not arise.

1. Para aph (b) of House Bill 48, Acts of the r

5 th Legislature, Second Called Session, 1959, Chapter 20, page 113, is not Invalidunder the requirement of Section 35, Article III of the Constitution_ . . .

Honorable J. R. Owen, Page 

### 7 (W-751)

of Texas that the caption of a bill express the bill's subject.

2. House Bill 48 does not require that the County Clerk retain the returned marriage licenseafter its recordatlon by him.

Very truly yours,

LH:ms:zt WILL WILSON Attorney General of Texas

Assistant

APPROVED: OPINION COMMITTEE

John Reeves, Chairman

Paul Floyd J. C. Davis, Jr. Jot Hodges Fred Werkenthin

REVIEWEDFORTHE ATTORNEY GENERAL BY: Leonard Passmore