Honorable John Wlntera, Commissioner 

State Department of Public Welfare 

John H; Reagan State Office Building 

Austin, Texas 

Opinion No. C-151 

Re: The application and effect of Section 6of 

H.B. 403, ~58th Leglalature, as regards the 

granting of a license 

to a married woman to 

operate a child care 

Dear Mr. Winters: facility. 

You have requested our opinion concerning the ap-~ 

plicatlon and effect of Section 6 of H.B. 403, 58th Legislature, which amends Article 4626, Revised Civil Statutes, 

asp regards the granting of a license to operate a child care 

facility to a married woman. You specifically ask: 

(1) In vlew‘of H.B. 403, whether the 

Department may require as a prerequisite 

to the granting of a license to operate a 

child care facility the joinder of the 

husband when the applicant is a married 

woman? 

(2) In answer to question (l), would 

it make any difference whether the property 

used for such child care facility was community property, ~separate property of the 

wife, or rental property? 

(3) If you hold that the joinder of 

the huaband IS not required except where 

the business Is on community property, does 

the Department have the responsibility to 

ascertain if the allegation of where the 

facility Is located Is in fact true? 

(4) If legal action is taken against 

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Hon. John Winters, page 2 (C-153 

the applicant subsequent to the granti,ng 

of the license to enjoin her from operating such facility, is it necessary to make 

the husband a party to this litigation? 

Section 6 of House Bill 403 provides as follows: 

"Sec. 6. Article' 4626, Revised Civil 

Statutes of Texas, 1925, as amended by Section 2 of Chapter,499, Acts of the~Forty2 

fifth Legislature, Regular Session, 1937, 

is hereby amended so as to read as follows: 

"A married woman shall have the same 

powers and capacity as if she were a feme 

sole, in her own name, to contract and be 

contracted with, sue and be sued, and all. 

her separate property, her personal earnings and the revenues from her separate 

estate which is not exempt from execution 

under the laws of Texas shall thereafter 

be subject to her debts and be liable therefor, and her contracts and obligations shall 

be binding on her." 

A comparison of this statute with the previous amended one reveals that a married woman now has the same powers 

and capacities which previously required an order of a proper 

Court removing her disabilities of coverture and declaring 

her a feme sole for mercantile and trading purposes. In effect, a married woman can conduct her separate business without the necessity of the permission of her husband to do so. 

It is also observed in House Bill 403, Section 5, that 

unless a married woman's contract Is for necessities, any 

judgment may be levied only upon the wife's separate property, 

upon revenues from her separate property or upon her personal 

earnings. Further, Section 3 of House Bill 403 amends Artlcle 4621 of the Revised Civil Statutes to provide that the 

community property of the husband and wife, other than the exceptions previously noted in Section 5, shall not be liable 

for the debts or damages resulting from contracts of the wife 

except where the contract was for necessaries or where the 

husband joined in the execution of the contract. 

The plain meaning of these recent amendments Indicates 

that the husband's joinder where the wife seeks to enter into 

a separate business, can no longer be required. To hold to 

the contrary would circumvent the plain intent of the Leglsture as regards the capacity of married women to conduct their 

-732- 
Hon. John Winters, page 3 (C-151) 

separate businesses. Therefore, where the applicant Is ~a 

married woman; the Department cannot require the joinder of 

the husband as a prerequisite to the granting of a license. 

As regards your second question, it Is concluded that 

where the child care facility Is operated on either separate 

or rental property the joinder of the husband cannot be required. However, a more difficult problem is involved where 

community property Is used because of the fact that the husband has the right of control and the management of the community property during the marriage , with exceptions not here 

relevant. Article 4619, Vernon's Civil Statutes. This 

right of the husband has been characterized as follows: The 

husband is by law the manager of the,communlty estate, and 

a trust relationship exists between the husband and wife. 

Brownson v. New, 259 S.W.2d 277, 281 (Tex.Civ.App. 1953, 

error dism.). Therefore, there is a question as to whether 

the wife could use community property to operate a separate 

business without the acquiescence of the husband, This Is 

particularly true in view of the Department's prior experience that unless harmony between'the husband and wife exists, 

the successful management of a child care facility is not 

likely. 

We conclude that it would be proper for the Department 

to require the husband's approval and permission for the wife 

to use the community property, but not to the extent that he 

would be required to join with the wife in the business venture and consequently be liable for the debts arising therefrom. The husband may be~required to state that, as manager 

of the community property, he has no objection to the use of 

such property by the wife for the operation of her separate 

business. Of course the husband may disclaim any liability 

for the wife's debts incurred therein. 

~A8 regards your third question, the Department, of 

course, can always verify the allegations contained in an application to operate a child care facility. The determination of whether to ascertain the allegations in the application is within the discretion of the Department. 

In answer to question No. 4, it necessarily follows 

from the answers previously given that It is neither necessary nor proper to join the husband in any subsequent legal 

action taken against the wife because statutes clearly give 

a married woman the right to enter into her separate busi~- 

ness and exclude the husband from any liability therefor, 

with exceptions not here relevant. This result would re- 

.main the same even though the business were being conducted 

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Hon. John Winters, page 4 (C-,151): ,. ,,,, 

on the community property because the Department cannot require the joinder of the husband in the sense necessary to 

make him also liable for the wife's debts. 

In reaching these results, we are mindful of the contrast created between the new enactment and those statutes 

which it amends, and we have attempted to give full force and 

effect to the clear intent of the Legislature that a married 

woman can now conduct a b~usiness separate and apart from her 

husband, and that the liability for any debts thus created 

falls on the wife's separate property,upon the revenues from 

her separate property or upon her personal earnings. The community property of the husband and wife, other than the revenues from her separate property or her personal earnings, is 

not liable for her debts, and likewise the separate property of 

the husband is not liable for such debts. 

SUMMARY 

PP:ms 

The joinder of the husband of a married 

woman cannot be required as a prerequisite to 

the granting of a license to operate a child 

care facility. However, the approval and permission of the husband for the wife's use of 

community property fur the purpose of operating her separate business can be ascertained. 

This approval should not be construed as a 

legal joinder of the husband which would render him liable for the debts of the wife in 

the conduct of her separate business, and any 

subsequent legal action taken relative to the 

license of the married woman need not include 

the joinder of the husband. The determination 

of facts alleged within such an application is 

within the discretion of the Department. 

Yours very truly, 

WAGGONER CARR 

lyE* 

Assistant 

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Hon. John Winters, page 5 (C-151) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Paul Robertson 

Gordon Appleman 

Malcolm Quick 

Edward Moffett 

APPROVED FOR THE ATTORNEY GENERAL 

By: Stanton Stone