Honorable Ralph Prince

Criminal District Attorney Box 2403 Longview, Texas Opinion No. Ww-773
Rc: Questions concerning House,&11 48, Acts 56th Legislature, Second Called Session, relating to issuance of marriage licenses Dear Mr. Prince: by the County Clerk.

Youhave requested an opinion concerning HouseBill 48, Acts 56th Legislature,~,.Second Called Session, 1959, Chapter 20, PageX13, on the following three questions which wequote from your request: "Question 1: Mustthe doctor's

certificate andwritten parental consent provided for in,Sec. (a) be && nowled ed or F5Tzmhzvit? should it be sworn to as

"Question 2: Mustthe clerk retain all original marriage licenses returned to him, only those issued on doctor's certificate andwritten parental consent, or in g instance?

years? If,,not, what requirements may hewaive?Hon. Ralph Prince, Page 2 (WW-773)

Therelevant port:ons of HouseBill No. 48 are as follows:

“Section 1. Article 4605 of the

Revised Civil Statutes of Texas, 1925, is amendedto read as follows:

“‘Article 4605. Consent of parent or guardian and issuance of license. ”I(a). Anyunmarried male of the age of twenty-one (21) years or upwards, or anyunmarried female of the age of eighteen (18)years or upwards andnot otherwise disqualified, is capable of contracting and consenting to marriage; but no female under the age of eighteen (18)years andnomale under the age of twenty-one (21) years shall enter into the marriage relation, nor shall any license issue therefor, except uponthe consent andauthori’ty expressly given by the parent or guardian of such’underage applicant in the presence of the author- ,ity issuing such license; ‘provided further that if the certificate of a duly licensed medical doctor or osteopath, acknowledged before an officer authorized by law to take acknowledgments andstating that such parent or guardian is unable by reason of health or incapacity to be present in person, is presented to such licensing authority, the license mayissue on the written consent of such parent or guardian, acknowledged inthe samemanner as the accompanying medical certificate. Anysuch certificate andwritten permission shall be retained by the official issuing the marriage license, together with the returned license. Nothing herein shall be construed to effect the issuance of a marriage license in a seduction prosecution. If ‘a minor has neither parent or guardian, then the clerk shall not issue a license without the consent of the county judge,of the county of the residence of such minor, such consent to be in writing ana signed and acknowledged b,ysuch county judge.Hon. Ralph Prince, Page 3 (W ’b773)

"l(b). Thecounty clerk,'upon application in writing signed andsworn to in person before himby both of the parties to be married setting forth their places of residence and setting forth their full names and ages as the sameappear upona certified copy of birth certificate, or upona current motor vehicle operator's, chauffeur's, or commercial license or upona current voter's registration certificate, or upona current passport or visa or upon any other certificate, license or document issued by or existing pursuant to the laws of any nation or of any state or other governmental subdivision thereof, wheneach sudh document accepted as proof of identity and age is described with reasonable particularity in the application, shall also set forth that such persons 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 andsufficiency of such application and that there is no legal impediment to such marriage, andaft,er applicatlon for such marriage license has issued, shall issue the license a,uthorizing such marriage; provided however, that in the event the male party is under the age of twenty-one (21) years or the female party is under the age of eighteen (18)years such application shall have been on file in the County C'lerk's office for a period of not less than three (3)days. "l(c). Provided however that the county judge in his discretion maywaive the requirements listed in (a) and (b) above.'"
With regard to your first question, it is our opinion that, whatever might be said in favor of a requirement that these documents be sworn to the requirement of paragraph (a) of 'HouseBill 46 is plainly that the physician's certificate and parental consent be,acknowledged 'before an officer' authorized by law to take acknowledgments", rather than being sworn to.

With regard to your Question 2, it was held in..

Hon. Ralph Prince, page 4 (WW-773)

Attorney General’s Opinion No. WW-751(1959) that HouseBill No. 4%does’ not direct the Clerk to retain the returned marriage license in any instance; accordingly, only your Question 1, just discussed, andQuestion 3remain open forkdetermination in the present opinion.
With regard to your Question 3, it is our opinion that paragraph (c) of Section 1 of Hous,eBill 48, in stating “provided however, that the county judge in his discretion haywaive the requirements listed in (a) and (b) above’“
, is intended to vest in the county judge authorit to waive all requirements contained in paragraphs “i a) and (b)of Section 1. There remains the question of which provisions of paragraphs (a) and (b) constitute “re uirements” within the contemplation of paragraph (~7. It is sufficient to say, however, without undertaking to en,umeratethese provisions individually, that the effect of paragraph (c) is that all acts whi,chby virtue of HouseBill 48, Section 1, are required to,be performed by any person as a condition, for the proper issuance of, a marriag~elicense, maybe held by the county judge in his discretion to be unnecessary for such issuance. Thus, for example, paragraph (c) is applicable--though not exclusively so-- to the requirement contained in paragraph (b) that the clerk shall not.issue a license to certain applicants unless the application shall hive been on file in the count?? clerk’s office,for a period of not less than three” days.

(1)

(2) SUMMARY Paragraph (a) of Section 1 of HouseBill 48, Acts 56th Legislature, Second Called Session, 1959. Chapter 20, Page 113, requires- th,at the physician’s certificate and written parental ‘consent provided for therein trust be acknowledged rather than being sworn to. Paragraph (c) of Section 1 of HouseBill 4%vests inHon. Ralph Prince, page 5 (w-773)

the county judge authority to waive all oequirements contained in paragraphs (a) and (b) of Section 1of HouseBill 48.

Very truly yours, WILLWILSON Attorney General 'of Texas

LH:ms
APPROVED:
OPINIONCOMMITTEE W.V. Geppert, Chairman GrundyWilliams JohnReeves C. DeanDavis Bob Eric Shannon
REVIEWED

FORTHEATTORNEY

GENERAL BY: Leonard Passmore