# The Attorney General of Texas

**JIM MATTOX**  **Attorney General**  October 18, 1985

Supreme court 6UlldtflQ P. 0. BOX 12548 AusIln. TX. ?5711- 2548 51214752501 Telex QlOiS74.1387 Telecopier 512I475.0286

714 Jackson, Sulle 700 Dallas, TX. 75202-4508 2141742-8944

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- ,er sTexas, Suite 700 Houston. TX. 77W2-3111 713,2295SSS

SW Broadway. Suite 312 Lubbock. TX. 79401.3479 SW7476239

4309 N. Tenth. Suite B WAllen. TX. 78501-1685 5126924547

200 Maln Plaza. Suite 400 San Antonio. TX. 782052797 512l2254191 RonorableMike Drlsmll **Harris County**  **Attonwy** 1001Preston. Suite 634 Rouston, Texas 77002 OpinionNo. JM-359

Re: Whether a county clerkmay issue a marriage licensewithout parental consent if either applicant is under 18years of age and has previouslybeen married
Dear Mr. Driscoll:

You ask the fo:L!bwing question regardingmarriage licenses:

Way the county clerk issue a marriage license without Fsrental consent, or a court order, if either app:licantis under age eighteen, has been married, curdis no longermarried?
The following provtsion sets out the age requirement for applicants for a msxiege license:

Except with parental consent as prescribed by Section l,Ii2

of this code or with a court order as prescribed by Section 1.53 of this code, the county clt!rkshall **not** Issue a marriage license if either apl)llicant

isunder 18years of age. Family Code 01.51. **:By** its terms section 1.51 is an absoluteprohibltlon against issuance of a marriage license to someone under 18 who has not obtained e:Ltherparental consent or a court order. But the Family Code also contains the followingprovision:

An Equal OpportunilYl Alflrmatlve Actlon Employer Except ,a6expressly provided by statute or by the const:ltutlon, every person who has been married il?accordancewith the law of this state, regardlesliof age. has the power and capacity of an adult, including the capacity to contract. **Wnphasis** added). Family Cod& 14.03. Because section 4.03 applies to someonewho "has been married," thr: emancipating effect of marriage survives the marriage. The quesl:Lon. then, iswhether section 4.03 exempts someone

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who has beenmarried from the ,age requirementof section 1.51. In our opinion it doesnot.
Our conclusion Is based on the plain language of sections 1.51 and 4.03. Section 4.03 expressly does not affect constitutional and statutory age requirements. This limitation on the emancipating effect of section 4.03 "take[s] into account the many statutes that impose specific age requlremtatsas a condition to performing legally significantactions." E. L. Z#mith,5 Texas Tech Law Rev. 489. 492-93 (1974). The quoted language is in reference to a statute **that sets**  out the capacity of a minor whose disabilities have been removed by court order. Family Code 521.07. The language of section 31.07 Is essentiallythe same as the languageof section 4.03:

Except for rglecific constitutional and statutory **age** requirements. a minor whose disabilitiesare removzd for generalpurposeshas **the** power and capacit:rof ai adult; including the capacity to contract. (Emphasisadded). Family Code 531. The predecessor to section 31.07 made emancipated minors "for all legalpurposes, of full age, except as to the right to vote." Acts 1888, p. 61. A statute repealed in 1969 made married women "of full age." V.T.C.5,.art. 4625 (repealed). Both statutes gave rise to questions **,Aout** whether specific statutory age requirementsapplied to emancipatedminors andmarried women under **the** age specified. See Attorney General Opinions O-2918 (1940); V-77 (1947);V-849 (194m, S-20 (1953). **Sections** 31.07 and 1.51 eliminated the uncertainty that gave rise to those opinions. Thus, because section 1.51 contains a specific age requirement and not a reference to **“min0r6 ”**  or "infants.'Isection 4.03 does not change the effect of section 1.51.

A 1981 attorney genera!.'sopinion provides further support for our conclusion. Attorney Ger.eral Opinion IN-354 (1981). The question in that opinionwas whether 8. married personunder the age of 18 could receivebenefits thatwere "Feyableuntil the child reaches eighteen." The opinion consideredwhether that language should be read to mean that benefits were payable to "minors." If that were the correct reading of the statute, bene:Eitswould fiatbe payable to a married personunder 18because a mal,ried person Is not a minor, regardless of age. Probate Code 13(t) (exm::Ludes personswho have been married from the definition of minor); se'salso Plttman V. Time Securities, 301 S.W.2d 521 (Tex. Civ. APP. --San Antonio 1957,no writ) (holdingthat the section 3(t) definition of "minor" is not restricted to the Probate Code). Without evc:nmentioning section 1.51. this office rejected that reading of t'lestatute and determined that the age requirement in the statute &ould be taken literally. In otherwords, even though 18 is now the ege of majority In Texas, a statute that

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distinguishesbetween person!, under 18 andpersons 18 and older isnot to be reed as a distinctiaa between minors and persons who have reached the age ofmajority. 

### pi : ,\ Although the language of sections 1.51 and 4.03 admits of no other conclusion, a strlctjrtading $s somswhat dissatisfying because of the irony that a child who hai acquired certain capacities by getting msrried lacks the capacity **to** consent to a marriage. Therefore, we think it is important to buttress our conclusion by exsmlning the history of the law of infancy and the policy considerationsbehind section4.03.
The premise underlying the common law of infancy and various minimumage requirementsis c:hat children lack the requisite faculties to participate in certain acltivitiesand to make certain decisions. See R.B. Tyler, Commentaries **‘ on**  the Law of Infancy, Il. at 33 (1882). The intended effect of such laws is~"to prevent, as far as possible, the evils which would arise from the imbecility and inexperience to which every man is subject on his entrance into the world." P. Bingham.The Law of Infancyrntd Coverture. Il. at 1 (1849).
At common law any persca~under the age of 21 was an infant and was legally incompetent for various purposes. Probably ths most significant disability of +nfancy, and certainly the **most** widely discussed, was an infant's general incompetence to make binding contracts. See Tyler,m, chs. VII-VIII. Apparently the capacity to consent tomarriage was xhought to ripen much earlier **than** the capacity to consent to other,contracts, however, because the minimum age at **which** a male could gj.ve binding consent **to** a marriage was 14. and the minimum age for females was 12. G. W. Field, The Legal Relationsof Infants, Sll. 2, 21 (1888).

A valid marriage by ir.fantsat common law did not operate to relieve them of their disab:L:Llties.See Burr v. Wilson, 18 Tex. R. 368. 371-77 (1856). In Burr the courtheld that even though certain statutes emancipated msrricd:Infant **men ’**  for certain purposes, such statutesdid not extinguish the disabilities of infancy generally.

1. In this opinion we ahall use the word "child" to refer to someone under 18. We do ho in order to avoid terms with legal meanings such as "minor" and to avoid the cumbersomephrase "a person under 18."
2. The Burr courtpoiut,ed out that its decisiondid not apply to married womsn%auae married women were, by statute, "of full age." Burr at 377. The release oE married women from the disabilities of infllncywas an emancipation in legal theory only, however, because marriage brought a woman into a state of coverture.which was a more disabling state than infancy. Tyler, s, 05207, 208.

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Id. at 376. Coneequently. th#ecourt held that, except~'tothe extent that statutes provided specific exceptions to a married infant's Incapacityto contract,a ma:nriedInfant remained incompetentto make binding contracts. ;! Although Burr describt,sa married infant's indompetence to contract as a"privilege" ,:odisavow contracts, Burriat 377. the inability to **contract** would no doubt be an inconvenience to married infants living apart from their parents. For that reason the common law was not rigid in its trcetment of infants. It permitted infants to make valid contracts for necessaries. Tyler. 8upTa. (56. Liability for necessaries:, however, depended on an Infant's circumstencea:

The question of necessaries is governedby the real circumstancesof the infant, and not by what **his** situationmay cppear tobe. An Infantwhen at home under the care of his father, and supported If by him. cannotbe rls.de liable fornecessaries. he could be made liable, the father would‘be deprived of the right of exercisinghis discretion as to themanner and degree ofhis support.
Id. 158 at 100-101. Thus, a married infant living apart from his parentswould be able to make somebinding contracts. But anyonewho contractedwith an infantwas bound to "inquire and ascertain the real circumstancesof the infant"and to determinewhether the infant could bi.nd~~ himself in contract. 'Id.at 101. Thus, the uncertainty of whether a contract was a c'zract for necessaries could make an infant's legal competency l:oenter into such contracts of little practicalvalue.
Under current Texas statutory law a person reaches his majority at age 18. earlier than at common law. V.T.C.S. art. 5923(b). The age of consent formarriage :Le now also 18, considerablyolder than at common law. The current law reflects a legislative'judgment that persons under 18 do not have the wisdom necessary to make decisions about marriage,.just as thf,ydo not have the wisdom to enter into other contracts. Nonetheless, the law permits exceptions to the rule that persons under 18 should not marry. See Family Code 51.52 (providesforparental conscit tomarriage of underage applicant); id. 51.53 (provides for court order to authorize marriage of under= applicant). These provisicns allow for **the** fact that particular circumstances In favor of marriage sometimes offset a child's ismmturity.

As we noted earlier. the burdens of contractual incapacity frequently outweigh the benefits for married children. Although the coavnonlew rule regarding **contracts** for necessaries relieved that

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burden somewhat, section 4.C3 eliminates the uncertainty created by that rule and gives a person who has been married the capacity of an adult, including **the** capacityto contract. Family Code 14.03. I Although section 4.03 :lsa significant revision of the common i law, **it** is not a rejection of the cosxnonlaw rule that marriage does 4 not end infancy for allpurpc,ses.Under section 4.03married children i are still subject to constitutionaland statutoryprovisions that set : specificage requirements.
The limited emancipation provided for in section 4.03 is an attempt tomake thebest of t,ituations that depart from the ideal. As we saidbefore, because commxi law incapacitywas intended to benefit children, it makes sense to end the incapacitywhen it is more of a burden than a benefit to a chid. apply to other minimum age voting age and the minimum f That reasoningdoes not necessarily :equirements. For example, the minimum Igefor holding various public positions protect the rest of us fromthe "imbecility" of youth. circumstances that lead pare ts or judges to authorize marriages are not necessarily indicative 1 Because the
f premature wisdom, the marriage of a child does nothing to affe t the considerations pertinent to the determinationof theminimumvoting age or theminimum age forholding certainpositions. Similarly, the circums ,ances a **that** lead parents or judges to authorize one marriage do no,:necessarily indicate that an underage applicant is better preparei.! for marriage than other members of his age group. Indeed, consent 13an earlymarriage is often forthcoming despitean applicant'simmatuity rather thanbecause of it. \ Thus, **in** general, the j,istlficatlon for removing the contractual i incapacity and some other d :sabilitiesof minority does not justify removing the minimum age fociconsent to marriage. We can, nonetheless, imagine circumstances **.n** which the second marriage of e child would be desirable. The 1sAmust sssums that in such circumstances parents and judges will exercise their authority to consent to marriagewith the **interests** of the child inmind.

~ At common law marriags did not rsmove the disabilities of infancy, and Texas has not i rejected this rule entirely. Although under Texas law marriage r aoves some disabilities of infancy, it expressly does not affect a(;:requirements fixed by the constitution or by statute. 1

Texas law soa the age of consent to marriage at 18. Family Code 11.51. Therefor& clerksmay not issue a marriage license to any person under 18. **whe** lher ! or not that person has been married before, unless theperson seering the licensehas parental consentor the consent of a judge. **Fam:ql.y**Code IP1.52, 1.53.

up. 1643Ronorable **Mike** Driecoll - Pdge 6 ,(JM-359)

SUMMARY
Clerksmay not ::ssue a **marriage** license to any person under 18, whether or not that person has beenmarriedbefore.. unless theperson seeking the Heease has parental consent or the consent of a judge. Family Code!111.52. 1.53.

Very trulyyour 

# J h

c-% .lxn MATTOX Attorney General of Texas
**TOMGRRRN** FirstAssistant**Attorney** Gencwel

DAVID P..

RICRARDS ExecutiveAssistant **Attorney** General
ROBERT GRAY SpecialAssistantAttorneyGaineral
RICK GILPIN Chairman,Oplnioa **Comittee** Preparedby SarahWoelk Assistant **Attorney** General
APPROVED: OPINION COnMITTEE
**Rick** Gilpin. Chairman Susan Garrison Tony Guillory Jim Moellinger JenniferRiggs Nancy Sutton SarahWoelk

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