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 issue a 

marriage license to 

persons presently 

legally married to each 

other, and related 

Dear Mr. Resweber: question. 

Your recent letter requesting the opinion of this 

office concerning the referenced matter states, in part, as 

follows: 

"The following are 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 second marriage license to persons who 

are presently legally married 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 license under such circumstances without requiring that the respective applicants provide medical certificates?" 

The Chief Deputy County Clerk of Harris County has 

further advised us of the fact situation upon which your request 

is based. He stated that your request does not pertain to a 

situation wherein a marriage license was lost, mutilated or 

destroyed, as was the case in Attorney General's Opinion No. 

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Hon. Joe Resweber, page 2 (M-717) 

C-407 (1965). Rather, the request for our opinion was 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 (evinced by the filing of a declaration of informal marriage filed pursuant to Section 1.92 of the 

Texas Family Code) sought the issuance of a marriage license 

so that they could be 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 cormnon law marriage 

between them by virtue of the holding of Attorney General's 

Opinion No. 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 (OR AFFIRM) THAT THE INFORMATION I HAVE GIVEN IN THIS APPLICATION IS CORRECT, 

THAT I AM NOT PRESENTLY MARRIED, AND THAT I AM NOT 

RELATED TO THE OTHER APPLICANT WiTHIN TEE DEGREES 

PROHIBITED BY LAW." (Emphasis added.) 

Section 2.22 of the Code provides, in part, that: 

"A marriage is void if either party was previously married and the prior marriage is not dissolved." 

Section 1.07(b) of the Code provides: 

"The county clerk shall not issue a license to 

the applicants if he icncws any facts which 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 formalitv required bv Subchapters A, B, and D of this chapter may be waived on 

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Hon. Joe Resweber. page 3 (M-717) 

the countv iudqe's written order, issued for good 

cause shown, pnd submitted to the countv clerk 

at the time the application is made." (Emphasis added,) 

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 presently married", 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 other may, by securing such waiver, 

be issued a marriage license. This opinion is given subject 

to the proviso that marriage license applicants who allege a 

common law union between them, cannot, even with the judge's 

waiver as set forth above, be granted a marriage license unless 

the requirements of age and/or parental consent provided by 

Section 1.52 of the Code are met. 

In answer to your first question, therefore, we are of 

the opinion that a county clerk may not issue a 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, in part, as follows: 

"Persons applying for a marriage license shall: 

(2) submit for each applicant: 

. . . . . 

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Hon. Joe Resweber, page 4 (M-717) 

. 

(B) a medical examination certificate or 

an exemption order as prescribed by Subchapter B of this chapter: 

(C) if applicable, the county judge's order 

prescribed by Section 1.05 of this code ...II 

Section 1.21 of the Code provides that: 

"Except as provided by Section 1.22 of this 

code, the county clerk shall not issue a marriage 

license unless each applicant submits at the time 

of the application a medical examination certificate 

as prescribed by this code." 

Section 1.22 of the Code states that: 

"On the joint application of both applicants 

for a marriage license, the judge of any county 

or district court of the county in which the license 

is to be issued may issue a written order exempting 

the applicants from the medical examination requirements of this chapter if he is satisfied by proof that 

sufficient grounds exist for the exemption and that the 

exemption will not adversely affect the public health 

and welfare. The hearing on the application shall be 

private, and all records relating to the application 

shall be held in absolute confidence and shall not 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 clerk does not 

have authority to issue a marriage license to persons entitled 

to same by virtue of our answer to your first question, without 

requiring that the parties provide medical certificates, unless 

the parties have obtained one of the exemptions from presenting 

such certificate pursuant to Subsections (B) or (C) of Section 

1.02(2), supra, or Sections 1.22 and 1.05, supra. 

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Hon. Joe Resweber, page 5 (M-717) 

SUMMARY 

(1) A county clerk does not have the authority 

to issue a marriage license to persons who are 

presently legallv married to each other unless (a) 

such persons meet 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 presently married" 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 

one by virtue of the exceptions set forth in paragraph (1) of this Summary unless such persons either 

(a! present the medical 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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Hon. Joe Resweber, page 6 

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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