Honorable John Wlntera, Commissioner

State Department of PublicWelfare John H; Reagan State OfficeBuilding Austin, Texas Opinion No. C-151
Re: The applicationand effect of Section 6of H.B. 403, ~58thLeglalature,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, aspregards the granting of a license to operatea child care facility to a married woman. You specificallyask:

(1) In vlew‘of H.B. 403, whether the Departmentmay 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 itmake any differencewhether the property used for such child care facilitywas community property,~separateproperty of the wife, or rental property? (3) If you hold that the joinder of the huaband IS not required exceptwhere the business Is on communityproperty,does the Departmenthave the responsibilityto 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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the applicant subsequentto 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 amendedby Section 2 of Chapter,499,Acts of the~Forty2 fifth Legislature,Regular Session, 1937, is hereby amended so as to read as follows:
"Amarried woman shallhave the same powers and capacity as if shewere a feme sole, in her own name, to contract and be contractedwith, sue and be sued,and all. her separateproperty,her personal earnings and the revenues fromher separate estatewhich 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 comparisonof this statutewith the previous amended one reveals that a married woman now has the samepowers and capacitieswhich previously required an order of a proper Court removingher disabilities of covertureand declaring her a feme sole for mercantile and tradingpurposes. In effect, a married woman can conducther separatebusinesswithout 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 judgmentmay be levied only upon the wife's separateproperty, upon revenues from her separateproperty or upon her personal earnings. Further, Section 3 of House Bill 403 amends Artlcle 4621 of the Revised Civil Statutes to provide that the communityproperty of the husband and wife, other than the exceptionspreviouslynoted in Section 5, shall not be liable for the debts or damages resulting from contracts of the wife exceptwhere the contractwas for necessaries or where the husband joined in the execution of the contract.

The plainmeaning of these recent amendments Indicates that the husband's joinderwhere the wife seeks to enter into a separatebusiness, can no longerbe required. To hold to the contrarywould circumventthe plain intent of the Leglsture as regards the capacity ofmarried women to conduct their
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separatebusinesses. 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 rentalproperty the joinder of the husband cannotbe required. However, a more difficultproblem is involvedwhere communityproperty Is used because of the fact that the husband has the right of controland themanagement of the community property during themarriage,with exceptionsnot here relevant. Article 4619, Vernon's Civil Statutes. This right of the husband has been characterizedas follows: The husband is by law the manager of the,communltyestate, and a trust relationship existsbetween 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 communityproperty to operate a separate business without the acquiescence of the husband, This Is particularly true in view of the Department'sprior experience that unless harmony between'thehusband and wife exists, the successfulmanagement 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 communityproperty,but not to the extent that he would be required to joinwith the wife in the business venture and consequentlybe liable for the debts arising therefrom. The husbandmay be~required to state that, as manager of the communityproperty,he has no objection to the use of suchpropertyby the wife for the operation of her separate business. Of course the husbandmay disclaim any liability for the wife's debts incurred therein.
~A8regards 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 questionNo. 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 separatebusi~- ness and exclude the husband from any liability therefor, with exceptionsnot here relevant. This result would re- .mainthe same even though the businesswere being conducted
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on the communitypropertybecause 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 createdbetween the new enactmentand 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~usinessseparateand apart from her husband, and that the liabilityfor any debts thus created falls on the wife's separateproperty,uponthe revenues from her separateproperty or upon her personal earnings. The community property of the husband and wife, other than the revenues from her separateproperty or her personal earnings, is not liable for her debts, and likewise the separateproperty of the husband is not liable for suchdebts.
SUMMARY

PP:ms The joinder of the husband of a married

woman cannotbe 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 communityproperty fur the purpose of operating her separatebusiness can be ascertained. This approval shouldnot 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 separatebusiness, and any subsequent legal action taken relative to the license of themarried woman need not include the joinder of the husband. The determination of facts allegedwithin such an application is within the discretion of the Department.
Yours very truly,
WAGGONER CARR lyE*

Assistant

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APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman Paul Robertson Gordon Appleman Malcolm Quick Edward Moffett
APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone