## TRE A-ITORNEY GENERAL OFTEXAS

AUWKXN. TRNAXB 78711

February 4, **1977**

The Honorable Joe Resweber Harris County Attorney Harris County Courthouse Houston. Texas **17002** Opinion No. H-939

**Re:** Issuance of marriage licenses to recently divorced parties.

Dear Mr. Resweber:

You ask two questions **about** the authority of the county clerk to issue a marriage license to a recently divorced person. You describe a situationwhere the judge has granted one marriage license applicant a divorce more than thirty days prior tohis application by announcing the decision in open court and noting it on the docket sheet, **but has**  signed the divorce decree less than thirty days previously. Neither party to a divorce **may marry**  **a** third party for thirty days following the date the divorce is decreed, and the county clerk may not issue a marriage license if either applicant indicates-that he or she has been divorcedwithin the last thirty days. 1.07(a)(7)and 3.66. Family Code 99 you ask whether the thirty day period begins with the judge'soral grant of the divorce, orwith his later signing of the judgment.

**The court** **’ s**  pronouncement of its decision of law is its judgment,while entry of judgmentis the ministerial act which provides documentary evidence of that act. Colemanv. a, 151 **S.W.** 1040 (Tex. 1912). Thus, a divorce is&ive as soon as the judge announces his final decision togrant it, even though thewritten judgment is not signed until some days later. **Dunn v.**  **Dunn, 439**  S.W.Zd 830 (Tcx.1969);

, 4OmxdTbg (Tex. **Crim.** App. 1966).
The date of signing is deemed to be the date the **judgment** is rendered for the purpose of determining the time periods within which various steps toward **an** appeal must **be** taken. ~T.R.C.P. 306a. However, this rule does not determine what constitutes rendition of judgment for other

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purposes. Id. See Leatherwoodv. Holland, 375 S.W.Zd 517

-- (Tex.Civ. APP. -- port Worth lVd4, writ ref'd **n.r.e.1.** Therefore,we-believe that the thirty day waiting period prescribed in **sections** 1.07(a)(7) and 3.66of the Family Code beginswith the judge's announcement of his final decision in court.

We note that the judgeof **a** district or county court has authority to set aside,modify, or amendhis final judgment for thirty days **after** rendition. T.R.C.P. 329b. This thirtyday period during which the **court may**  change its judgmentbegins with the signing of the judgmentand **not** the oral rendition. Ex parte Godeke, 355 S.W.Zd 701 (Tex.1962);Rector v. Rector, 454 S.W.Zd 229 (Tex.Civ. APP. -- Tyler- K 'm See T.R.C.P. 306aand 329b. Therefore, an oral decree of divorce, valid thirtydays after it is announced,may subsequently **be** set aside, a new trial granted, and a written order embodying the later decision entered. See Louwien v. Dowell, 534 S.W.Zd 421 (Tex.Civ. App. -- EXl~,Yio~. Cases **may** arise inwhich parties **marry** in reliance on a divorcedecree later set aside by the court. ,Thesecond marriagewill **be** void because one party was alreadymarried. Family Code 9 2.22. See Miller v. Miller, 487 S.W.Zd 382 (Tex.Civ. App. -- Fort Worth n72, writ ref'd n.r.e.1. However, the Family Code does notmake the county clerk responsible for preventing suchoccurrences. The applicant fora marriage license **must** indicate his marital **status,** and he has better access than the clerk to the information thathis divorce might **be** set aside on a motion for a new trial. Therefore, the county clerkmay issue a marriage licensewhen one applicant has been divorced **by the**  judge'spronouncement more than thirty days previously, even thoughthe judge signed **the** decree less than thirty days previously.

You also ask whether the county clerk **may** issue a marriage licenseunder the facts stated inyour first question where the two applicants were divorced by thedecree and are seeking to remarry. The thirty day waiting period of section 3.66does not extend to couples who have recently been divorced from each other; in fact "theparties divorced may marry each other at any time.“ (Rmphasisadded). However, in its 1975 amendment to the provisionon issuance of a marriage license, the Legislature has declared that "[tlhe county clerk may not issue a license to the applicant9 if

. . . either applicant indicates that he or she **has been** 

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divorced by a decree of a court of this statewithin the last 30days." FamilyCode S 1.07(a)(7).
The aim of statutoryconstruction is to ascertain the legislative intent. Statev. Jackson, 376S.W.Zd 341 (Tex. 1964). Section 3.66expresses-tent thatdivorced couples **may remarry**  **one another**  during the thirtydays after the divorcedecree. Section 1.07(a)(7),which denies a marriage license to applicants divorced within the last thirty days,must be construed with reference to **the system**  of legislationof which it is part. Code ConstructionAct, V.T.C.S. art. 5429b-2, 9 3.01(2) and (3). **We** believe that the legislative intentexpressed in section 3.66will be frustrated if a divorced couple **may** not obtain a license to remarry within the thirtydays after their divorce andmust instead attempt to establish an informalmarriage under sections 1.91 and 1.92of the Family Code. **We**do not believe that the Legislature, in enacting section 1.07(a)(7) intended it to apply to applicants recently divorced fromone another. The provision refers to "either applicant," indicatingthat the Legislature did not have inmind a casewhere the two applicants are divorced from one another. We believe that section 1.07(a)(7)was'enacted to change the law as interpreted by AttorneyGeneral Opinion H-581 (19751,which found that the county clerk had authority to issue licensesto applicants divorced in the last thirty days. In H-581,we did not deal with the divorced couple seeking to remarry,and we do not believe that the legislation inspired by H-581,applies to that case. The process of statutoryconstruction may properly include consideration of the conditions to be remedied. Code ConstructionAct, V.T.C.S. art. 5429b-2, S 3.03(l). The county clerkmay issueamarriage license to applicants divorced fromone anotherwithin the last thirtydays.
SUMMARY
The county clerkmay issue a marriage licensewhere one applicant has been divorced **by** oral pronouncement **of** the courtmore than thirty days previously, even though thirty days **have** not elapsed **since** the signing of the judgment. The

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The Honorable Joe Resweber - page 4 (H-939)

clerk may issue a marriage license to applicants who have been divorced **from** one another within the last thirty days.
**Very** truly **yours,**

APPROVED:

C. ROBERT HEATH, Chairman Opinion Committee

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