OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

11 

IIonorable ESIabat f%AhUt 

County Attorney 

Xl Pas0 county 

Al Paso, Texas 

Dear Str: opinion No. 0 44 351 : 

we are in NO61 ter seeking 

ion ot this 

the Qplndepa statsment or factsi, 

.whloh are taken 

r or not a tire, 

the United Staten, 

en, oen obtain 

on arises in two waya,. 

porohene and oparate suoki 

parate property and 8eoond6, 

hs may operate a buaines$ 

ned with oommunlty property.” 

seotion 5, of Article 667, V. A. P. C. oontatns 

the following qualftioatlane a6 a prerequisite to obtain 

any type OS lioense. 
Honorable Ernest QuIM, page 2 

*That he is (I law aaiding, tax-paying 

oiticen of this State, over twenty-one (21) 

peers of age; . . .* 

Section 43-b Of Ch. 325 Of ths 48th ~P@$BhitUrS, 

Hegular Qeamlon, p. 525 of V. T. 6. L. 3. ?S 1943, provides 

as r0iima: 

'When thq terms 'oitlzena of Texas’ and 

*oltfzena of thfs state' era used In this Aot, 

they shall mean not only oltlzenahip In Texsa, 

aa required by this trot, but shall also requlra oItizenahlp in the United States.* 

The first question that m must determine is the 

status 6s a woman oltleen of the United States who marries 

analien. 

Pkior tb Aot of Co~aa, Sarah 2, X907,,31, Stat., 

p. i228, 'Ch. 2534, the oases are not In aoeord as to the 

a%rtua Or e.woman who is e Oltiaen by reason of birth In 

the Unit@ States and who marries aa allen. A$ter the paaa- 

~ege end eftsotlre date df the 

Aeo ,Unit.ad 8tatea oitltenahlp. 

jot, the wlte or an alien loat i 

This statute w&s approvad by ; 

tha Supreme Court.or the United 8tatea In the oaae of MoIKen v. Ears, 239 U. 8. 299. 

. 

Under~tba Aot. of' Bsptembsr 22, 1922, 42 Stat., p. 

1022, Ch. i&l, Sea. 3,',end 8 U. 6. 'C. A., Sec. 9, wbloh provided thet,a woman who la a oltizen of the United States 

shall not oeeae to be a oltlaen of ,the United States by 

raeson or her aerrlege to an alien after the pe~aaage oi the 

hot, ualaaa she makes a torail renunsiatlon of her oltiaanahlp before a oourt of proper jurladiotitk There 1s also 

a proviso In thla Aot thht forfelts her oltireoehlp it her 

prrlege la to.aa alisn.~Inellglbls for oitlamahlp. This 

statute does not arreot the status or any auoh woman who 

merrled an.allen prior to September 22, 1922. 

*’ 

The Aot or Septsmber22, 1922, agore rarerred to, 

as emended by an AOt or Maroh 3, 1931, 46 Stat.,,pi 1511, 

Sea. 4, omitted the provld that ioifalta,tM eltlaanahi 

of eny womsn born in the United States nho atarries an al 9 en 

iaellglble r0r -0itlzenship. 

The Acts of Ssptamber 22, 1922, and Maroh 3, 1931, 

were again emended in October 1940, 8 U. 8. C. A., Title 8, 
- i 

Xonorable 1S;meat O~+lnn, page 3 

In 880s. 801, 802 an6 804, but ere eaaentlelly the am ea the 

Aot of Paroh 3, 1931, es to the atetus of~e woman born In the 

United Stetes an3 married to ao alien. 

The listing of the different acts of Congress reletlve to the oltlzenshlp of wonen born ln the United Statea 

and married'to aliens Is for the purpose of furnlahIng you 

w5t.h a yardstiok to deterd.ne whether or not some of the ?oany 

epplloenta ere citizens of the United States. 

It I8 our opinion that all women born in the Qiited 

States who merry aliens end uhose husbanda are ellglble 'fox 

oItIaenahIp In the United States have r6taimid their United 

States oltlzenahlp unless they have announced oontrary lntentlona to proper judlolal or edmlnIatrstIve ofrloera, with the 

exoeptloa of those whose marriage ooourred between Mar& 2, 

,1907 and September 22, 1922. 

Dt oourae, ~lt she ararrled aa alien lnellglble for 

Unlded States oltlaenahlp prior to the effeotlve date of the 

Aot of M&oh 3, 1931, abe rould lose her oltlaenahlp. 

It ahe is not kkitlaeri of tha United Statea ahe 

'k6uld not~.be .entltledtd.a permit, and both of your qu~atlona 

-ad be anawei+ed In the negative. 

Even though ahe might have lost cltlaenahlp under 

..one~of thd kboie aathoda, If she has been neturalleeb, she 

:li Lou a~ aitlzen. '. 

AktIole~~4619, of the Revised 01~11 Statutes, with 

cya+o’t to ooaununlty property;lna~fsr es pertinent, Is. ea 

~011olm; 

*All property eoqulred by either the huabend or wife dtirlng Illbrriege, exoept that whloh 

Is the aaparate property Of either, ah41 bs 

deswd. ootion propsrty or the husband end wife; 

end all the effeota whloh'the husband end wife 

possess +& the time the marrlsge may bc,dlssolved 

ahall be regarded as oommon etfeota br gelna, vnless the contrary be aatl~faototlly proved.. During oorerture the oomraon property of the husband 

,aa+d zlfe may be disposed of by the huayend only; 

. 
Honorable l&met Cuina,,pege 4 

In Opinion No. O-16/+0 we held that the i3oer3 ahould 

not day a pennit to retail wl~ae end beer merely beoause the 

applloent was the wife ot oae who was ineligible for su& a 

peroiit. In that opinion we aald: 

The sole q;lbStiOll propounded by you for 

our oonslasmtlon, as we understand It, 1s 

whether a married woman may be aenlea a permit to retail wine aad bser whh~1 her husband, 

who 1s dlsquallfled rrom recelvlng.euoh a permlt would benefit thereby, under the oommunlty 

property l.aw of thle State." 

T&t oplaloa, we think, 3s sound, and oontro1.a the 

&Mwers to your present inquiry. The prorlts or any mercentlls.buelnesa that imy be oarrled od by e mmrlea wonmn are 

perloroe of the Coastltutlon and statutes oommurzlty property 

belonging .epually to the hueband and wire. This 1s true, 

whether the oapltal lnreatment be the q6parate property or 

the die or the oommunlty of the marrlage.~ The right of .the 

husband to his lntereet In the profits or auoh venture bj 

the wire doea not mzwlt rmm any wement or underetaaulng 

between them, however; that right is in oowequenoe~ of,lew 

.. ,.,' .j +n~anLncident,~ butt 'fi;gal' : $.o,thr aarltel ration. It ls'not oonventlon- i 

ewenoe, and oannot be eiieoted by the preagreement of the parties. 

It does not folloff.frorn this, however, that the 

hcllbend'e legal rights In the earning6 of the .bualness oonier upon him aay interest whatsoever In the business itself', 

within the meaning of the Liquor Cont~rol Aot. It requires 

mmething lpore than mere oapltal ror one to engage In suoh 

bollnosa~ there mwt be the express perniaelon or the State 

through the statutory permlf. This 18 the very eeaeaae or 

the buslness,~ una the hueband--merely because he 1s the 

husbaad--does not have such interest in the buslntss as 

rcIuld reader his wife lnallglble to be a pemlttee under 

the etatutie., 

Moreover, 618 held in our Opinion No. O-1640, where 

a husband who by his own wrongful act, or othem$ae, la fob : 

bidden to claim a pecuniary rQ$it, which oralnarlly would be 

oommunlty property; the saae by operetlor& lea would beooms 

the separate property'of the wire. See, Xlokeraon Y. Nlokeraon, 
Hqnoreble Errnat Gulan, page 5 

65 Tax. 281; Dlokson v. Strloklend, 265 8. 19. 1012. 

It la true, of oourae, that the huabaad la the 

exerolae of his atatutorj right to oontrol the oomnunlty 

property may thwart the efrorts or th6 rife to uae suoh 

rubi in any meroantlle pursuit. But that is the measure 

ot his rl&t, slnoe ha does not have es matter or law any 

rigat or oontrol or management or the business es auoh. 

Whet the statute seeks to prevent is the OO~YMtlonal use of a permit by one for the benefit or anothar.. 

This la always a raot aituatlon, aependent upon the agrednbsnt or intentioaa of the partlta;and not upon tholr legal 

atetuaea as husband and wife, parent end ohlld, or the llka. 

Furthezamse, there la no rule of law forblddlng 

the huabacd to make d gift or his present lnteraet ln the 

oomunlty property or earnings, auah ha those 0f.e -roantile .buaIneaa, to his tire ror any &awful uae by her. 

Your queatloaa are thererore antswarad to the atteat that a wire la not iaellglble to hold a permit, 8~6~ 

thou&her husband. la lnsll(iible to hold one. HOi- troubles 

In auob a~<uatlon would be tlnanoial dirfiaultlea and not 

legal lnhlbltlona. 

Very truly yours, 

ATTORNEY QEEIERAL OF TBXAS 

APPROVED SEP 11, 19&3 

(a) Gerald C. Mann 

ATTORNEY GFNERAL OF TEXAS 

This opinion aonaiderad 

ana approved in 1ititeQ 

oonrecenoe.