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 

4S24 Alberta Ave.. Suite 160 

El Paso, TX. 799052793 

915/533-3484 

- 

,er s Texas, 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 

Ronorable Mike Drlsmll 

Harris County Attonwy 

1001 Preston. Suite 634 

Rouston, Texas 77002 

Opinion No. JM-359 

Re: Whether a county clerk may 

issue a marriage license without 

parental consent if either applicant is under 18 years of age and 

has previously been married 

Dear Mr. Driscoll: 

You ask the fo:L!bwing question regarding marriage licenses: 

Way the county clerk issue a marriage license 

without Fsrental consent, or a court order, if 

either app:licant is under age eighteen, has been 

married, curd is no longer married? 

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!rk shall not Issue a marriage license if 

either apl)llicant is under 18 years of age. 

Family Code 01.51. :By its terms section 1.51 is an absolute prohibltlon against issuance of a marriage license to someone under 18 who 

has not obtained e:Lther parental consent or a court order. But the 

Family Code also contains the following provision: 

An Equal OpportunilYl 

Alflrmatlve Actlon Employer 

Except ,a6 expressly provided by statute or by 

the const:ltutlon, every person who has been 

married il? accordance with the law of this state, 

regardlesli of 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 someone who "has 

been married," thr: emancipating effect of marriage survives the 

marriage. The quesl:Lon. then, is whether section 4.03 exempts someone 

p. 1639 
Honorable Mike Driscoll - Page 2 (m-359) 

who has been married from the ,age requirement of section 1.51. In our 

opinion it does not. 

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 requlremtats as a condition to performing legally 

significant actions." 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 

essentially the same as the language of section 4.03: 

Except for rglecific constitutional and 

statutory age requirements. a minor whose disabilities are removzd for general purposes has the 

power and capacit:r of ai adult; including the 

capacity to contract. (Emphasis added). 

Family Code 531. The predecessor to section 31.07 made emancipated 

minors "for all legal purposes, 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 

requirements applied to emancipated minors and married 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.'I section 4.03 does not change the effect of 

section 1.51. 

A 1981 attorney genera!.'s opinion provides further support for 

our conclusion. Attorney Ger.eral Opinion IN-354 (1981). The question 

in that opinion was whether 8. married person under the age of 18 could 

receive benefits that were "Feyable until the child reaches eighteen." 

The opinion considered whether that language should be read to mean 

that benefits were payable to "minors." If that were the correct 

reading of the statute, bene:Eits would fiat be payable to a married 

person under 18 because a mal,ried person Is not a minor, regardless of 

age. Probate Code 13(t) (exm::Ludes persons who have been married from 

the definition of minor); se's also Plttman V. Time Securities, 301 

S.W.2d 521 (Tex. Civ. APP. --San Antonio 1957, no writ) (holding that 

the section 3(t) definition of "minor" is not restricted to the 

Probate Code). Without evc:n mentioning section 1.51. this office 

rejected that reading of t'le statute and determined that the age 

requirement in the statute &ould be taken literally. In other words, 

even though 18 is now the ege of majority In Texas, a statute that 

p. 1640 
Aonorsble Mike Driscoll - Palle 3 (M-359) 

distinguishes between person!, under 18 and persons 18 and older is not 

to be reed as a distinctiaa between minors and persons who have 

reached the age of majority. 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 

considerations behind section 4.03. 

The premise underlying the common law of infancy and various 

minimum age requirements is c:hat children lack the requisite faculties 

to participate in certain acltivities and 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 Infancy rntd 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 

Relations of Infants, Sll. 2, 21 (1888). 

A valid marriage by ir.fants at 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 

statutes did 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 cumbersome phrase "a person 

under 18." 

2. The Burr court poiut,ed out that its decision did 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 

infllncy was 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. 

p. 1641 
Honorable Mike Driscoll - Page 4 (JM-359) 

Id. at 376. Coneequently. th#e court held that, except~'to the extent 

that statutes provided specific exceptions to a married infant's 

Incapacity to contract, a ma:nried Infant remained incompetent to make 

binding contracts. 

; 

! 

Although Burr describt,s a married infant's indompetence to 

contract as a"privilege" ,:o disavow contracts, Burri at 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 governed by the 

real circumstances of the infant, and not by what 

his situation may cppear to be. An Infant when at 

home under the care of his father, and supported 

by him. cannot be rls.de liable for necessaries. If 

he could be made liable, the father would‘ be 

deprived of the right of exercising his discretion 

as to the manner and degree of his support. 

Id. 158 at 100-101. Thus, a married infant living apart from his 

parents would be able to make some binding contracts. But anyone who 

contracted with an infant was bound to "inquire and ascertain the real 

circumstances of the infant" and to determine whether 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:o enter into such contracts of little 

practical value. 

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 for marriage :Le now also 18, considerably older 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,y do 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 

(provides for parental conscit to marriage 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 

coavnon lew rule regarding contracts for necessaries relieved that 

p. 1642 
gouorable Mike Driecoll - Page 5. (A-359 ) 

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 capacity to contract. Family Code 14.03. I 

Although section 4.03 :ls a significant revision of the common 

i 

law, it is not a rejection of the cosxnon law rule that marriage does 4 

not end infancy for all purpc,ses. Under section 4.03 married children i 

are still subject to constitutional and statutory provisions that set : 

specific age requirements. 

The limited emancipation provided for in section 4.03 is an 

attempt to make the best of t,ituations that depart from the ideal. As 

we said before, because commxi law incapacity was intended to benefit 

children, it makes sense to end the incapacity when it is more of a 

burden than a benefit to a chid. 

apply to other minimum age 

voting age and the minimum f 

That reasoning does not necessarily 

:equirements. For example, the minimum 

Ige for 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 

determination of the minimum voting age or the minimum age for holding 

certain positions. 

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 13 an early marriage is often forthcoming 

despite an applicant's immatuity rather than because of it. \ 

Thus, in general, the j, istlficatlon for removing the contractual 

incapacity and some other d i :sabilities of minority does not justify 

removing the minimum age foci consent to marriage. We can, nonetheless, imagine circumstances .n which the second marriage of e child 

would be desirable. The 1s A must sssums that in such circumstances 

parents and judges will exercise their authority to consent to 

marriage with the interests of the child in mind. 

~ 

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. Texas law soa 1 the age of consent to marriage at 18. 

Family Code 11.51. Therefor& clerks may not issue a marriage license 

to any person under 18. whe lher 

! 

or not that person has been married 

before, unless the person seering the license has parental consent or 

the consent of a judge. Fam:ql.y Code IP1.52, 1.53. 

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

SUMMARY 

Clerks may not ::ssue a marriage license to any 

person under 18, whether or not that person has 

been married before.. unless the person seeking the 

Heease has parental consent or the consent of a 

judge. Family Code! 111.52. 1.53. 

Very truly your J c-% h 

.lxn MATTOX 

Attorney General of Texas 

TOMGRRRN 

First Assistant Attorney Gencwel 

DAVID P.. RICRARDS 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney Gaineral 

RICK GILPIN 

Chairman, Oplnioa Comittee 

Prepared by Sarah Woelk 

Assistant Attorney General 

APPROVED: 

OPINION COnMITTEE 

Rick Gilpin. Chairman 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

p. 1644