November 3,1970

Hon. Joe Resweber County Attorney Harris County Courthouse Houston, Texas 71002 **Opinion No.**  **M-717** Re: Authority of a county clerk to issuea marriage license to persons presently legallymarried to each other, and related Dear Mr. Resweber: question.

Your recent letterrequesting the opinion of this office concerning the referencedmatter states, in part, as follows: "The followingare questions which have been posed by Mr. R. E. Turrentine, Jr., County Clerk for Harris County, relating to his duties under the Texas Family Code: "1. Does the County Clerk have authority to issue a secondmarriage license to personswho are presently legallymarried to each other?

“2. If the answer to question number one (1) be in the affirmative,does the County Clerk have authority to issue the licenseunder such circumstances without requiring that the respective applicants providemedical certificates?" The ChiefDeputy County Clerk of Harris County **has** further advised us of the fact situation upon which your request isbased. He stated that your request does not pertain to a situationwherein **a marriage**  licensewas lost,mutilated or destroyed, as was the case inAttorney General's Opinion No.

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C-407 (1965). Rather, the request for our opinionwas occasioned by two fact situations: in the first, a married couple had been issued a marriage license,had been married in a civil ceremony, and thereafter desired a license to be issued so they could be married in a religious ceremony: in the second, the husband and wife of a common law union (evincedby the filing of a declaration of informalmarriage filed pursuant to Section 1.92 of the Texas Family Code) sought the issuance of a marriage license so that they couldbe married ceremonially. The common law couple, though under the age limits for a marriage license set by Section 1.52 of the Code, asserted a valid cormnonlawmarriage between themby virtue of the holding ofAttorney General's OpinionNo. M-502 (1969).

Section 1.03(b)(5) of the Code provides that applicants for a marriage license shall execute an application form containing the following oath:

"I SOLRMRLY SWEAR (ORAFFIRM) THAT THE INFORMATION I HAVE GIVEN IN THISAPPLICATION IS CORRECT, THAT I AM NOT PRESENTLY MARRIED, AND THAT I AM NOT RELATED TO THE OTHER APPLICANT WiTHIN TEE DEGREES PROHIBITED BY LAW." (Emphasisadded.) Section 2.22 of the Code provides, in part, that: "Amarriage isvoid if either partywas previously married and the priormarriage is not dissolved." Section 1.07(b) of the Code provides: "The county clerk shall not issuea license to the applicants ifhe icncwsany factswhich would make the marriage void or voidable under this code." However, Section 1.05 of the Code provides as follows: "Anyinformation pertaininq to an applicant, other than the applicant's name,may be omitted from the application, and any formalitvrequiredbv SubchaptersA, B, and D of this chaptermay be waived on

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the countv iudqe'swritten order, issued for good cause shown, pnd submitted to the countv clerk at the time the application ismade." (Emphasisadded,) We believe that Sections **2.22,** 1.03(b)(S), 1.07(b), supra, are not applicable to persons presently and validlv married to each other. This is in keeping with the Code Construction Act, Article 5429b-2, Section 3.03,Vernon's Civil Statutes. We are further of the opinion that the portion of the oath contained in Section 1.03(b)(5), supra, reading "that I am not presentlymarried", does not apply to persons presently validly married to each other and **this** may be waived by the county judge pursuant to Section 1.05, supra, and that persons currently married to **each** othermay, by securing suchwaiver, be issued a marriage license. This opinion is given subject to the proviso that marriage license applicantswho allege a common law union between them, cannot, even with the judge's waiver as set forth above,be granted a marriage licenseunless the requirements of age and/or parental consent providedby Section 1.52 of the Code are met.

In answer to your first question, therefore, we are of the opinion that a county clerkmay not issuea marriage license to persons presently married to each other,unless (a)a waiver from the county judge pursuant to Section 1.05, supra, waiving the recitation by the parties of that portion of the oath required by Section 1.03(b)(5),wherein they state they are not presently married, is obtained,and (b)both of the parties fulfill the age and/or parental consent requirements of Section **1.52.** With reference to your second question,we note that Section 1.02(2) of the Code provides, inpart, as follows:

"Persons applying for a marriage license shall: (2) submit for each applicant:

. . . . .

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(B)a medical examination certificateor an exemption order as prescribedby SubchapterB of this chapter: (C) ifapplicable, the county judge'sorder prescribedby Section 1.05 of this code ...II Section 1.21 of the Code provides that: "Exceptas provided by Section 1.22 of this code, the county clerk **shall** not issuea marriage licenseunless each applicant submits at the **time** of the applicationa medical examination certificate as prescribedby this code." Section 1.22 of the Code states that: "On the joint application ofboth applicants for a **marriage** license, the judge of any county or district court of the county inwhich the license is to be issuedmay issue a written order exempting the applicants from themedical examinationrequirements of this chapter ifhe is satisfiedby proof that sufficientgrounds exist for the exemptionand that **the** exemptionwill not adversely affect the publichealth and welfare. The hearing on the applicationshallbe private, and all records relating to the application shallbe held in absolute confidenceand shallnot be opened to public inspection."
In view of the foregoing, and in answer to your second question,we are of the opinion that a county clerkdoes not have authority to issue a marriage license to personsentitled to sameby virtue of our answer to your first question,without requiring that the parties provide medical certificates,unless the partieshave obtained one of the exemptions from presenting such certificatepursuant to Subsections (B) or (C)of Section 1.02(2), supra, or Sections 1.22 and 1.05, supra.

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SUMMARY (1)A county clerk does not have the authority to issue a marriage license to persons who are presently legallvmarried to each other unless (a) such personsmeet the age and/or parental consent requirements of Section 1.52 of the Texas Family Code, and (b)a waiver of that portion of the oath required by Section 1.03(b)(5)of the Code reading "that I am not presentlymarried" is obtained from the county judge pursuant to Section 1.05 of the Code. (2)A county clerk does not **have** authority to issue a marriage license to persons entitled to oneby virtue of the exceptions set forth in paragraph (1) of this Summary unless **such** persons either (a!present themedical certificate required by Section 1.02(2)(B)of the Code, or (b) obtain an exemption from presenting such certificate pursuant to Subsections (B) or (C) of Section 1.02(2), 1.05, or Section 1.22 of the Code.

neral of Texas Prepared by Austin C. Bray, Jr. Assistant Attorney General

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APPROVED: OPINION CCMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Melvin COrley James Quick John Reese Fisher Tyler MFADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant NOLA WHITE First Assistant (M-717)

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