# 0

ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Luis V. Saenz Cameron County District Attorney Cameron County Courthouse 964 East Harrison Street Brownsville, Texas 78520

Dear Mr. Saenz: April 28, 2014
OpinionNo. GA-1053 Re: Whether subsection 2.204(c) of the Family Code authorizes ajustice ofthe peace to grant a waiver of the 72-hour waiting period after the issuance of a marriage license (RQ-1160-GA)

When a marriage license is issued in Texas, subsection 2.204(a) ofthe Family Code imposes a 72-hour waiting period before a marriage ceremony may take place, with certain exceptions. 

### See TEX. FAM. CODE ANN. § 2.204(a), (b) (West Supp. 2013). An applicant may, however, request "a written waiverpermitting the marriage ceremony to take place during the 72-hourperiod immediately following the issuance ofthe marriage license" from a list ofjudges set forth in subsection 2.204(c). Id § 2.204(c). You ask "whether ajustice ofthe peace is authorized to grant 72-hour waivers" under subsection 2.204(c) and, if so, you have related questions concerning fees for the issuance of waivers.' The waiver provision, located in Title 1 ofthe Family Code, states that "[a]n applicant may request ajudgeofa court withjurisdiction in family law cases, ajustice ofthe supreme court, ajudge ofthe court ofcriminal appeals, a countyjudge, or ajudge ofa court ofappeals for a written waiver" ofthe 72-hour waiting period. TEX. FAM. CODE ANN.§ 2.204(c) (West Supp. 2013). In your view, "on the face [of] the statute it appears that ajustice ofthe peace has no authority to sign or grant a waiver ofthe 72-hour period" because the list in subsection 2.204(c) does not refer expressly to a justice ofthe peace. Request Letter at 2. The statute does, however, grant waiver authority to "a judge ofa court withjurisdictionin family law cases." TEX. FAM. CODE ANN.§ 2.204(c) (West Supp.

1Letter from Honorable Luis V. Saenz, Cameron Cnty. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at l (Oct. 23, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").

### The Honorable Luis V. Saenz

- Page 2 (GA-1053)

2013). To determine whether ajustice ofthe peace is ajudge of"a court withjurisdiction in family law cases," we examine thejurisdictionofajustice court. A justice court has original jurisdiction of (1) certain civil matters where the amount in controversy is not more than $10,000; (2) cases offorcible entry and detainer; (3) certain foreclosures ofmortgages and enforcement of liens on personal property; and (4) cases involving photographic traffic enforcement systems outside a city'sterritorial limits. See 

### TEX. Gov'TCoDE ANN.§ 27.031(a) (West Supp. 2013). In addition, a justice court has "jurisdiction and powers provided by the constitution and other law."2 /d. 

### One such area in which ajustice court may be givenjurisdiction involves truancy cases. See 

### TEX. FAM. CODEANN.§ 54.02l(a) (West Supp. 2013). As background, the court with "primaryresponsibility for cases involving family law matters" is a family district court. 3 

### TEX. Gov'TCODE ANN.§ 24.601(b) (West 2004). "These matters include: (1) 

### adoptions; (2) birth records; (3) divorce and marriage annulment; (4) child welfare, custody, support and reciprocal support, dependency, neglect, and delinquency; (5) parent and child; and (6) husband and wife." /d. 

### § 24.601(b)(1)-(6). In the case ofdelinquent conduct or conduct indicating a need for supervision ofa child, Title 3 ofthe Family Code grants exclusive original jurisdiction to juvenile courts4 

### in the county. TEX. FAM. CODE ANN. § 51.04(a) (West Supp. 2013). Where the conduct indicating a need for supervision is the alleged failure to attend school, ajuvenile court may choose to waive its exclusive original jurisdiction and transfer the child, among other places, to a justice court. /d. 

### § 54.021(a). This waiver ofexclusivejurisdiction may be for an individual case or for all truancy cases as a class. Such a waiver authorizes the justice court to "exercisejurisdiction over" the child ifcertain conditions are met. Id. 

### § 54.021(a)-(b). Ajustice court gains jurisdiction over Title 3 truancy cases, however, only when ajuvenile court waives its exclusive original jurisdiction over such matters. Id. 

### § 54.021(a). Ajustice court does not exercise thisjurisdiction independently. Further, although the Legislature does not define the phrase "court with jurisdiction in family law cases" in the Family Code, references in other

2A justice ofthe peace may conduct a marriage ceremony. TEX. FAM. CODE ANN. § 2.202(a)(4) (West Supp. 2013). Ajustice court, however, expressly "does not havejurisdiction of
... a suit for divorce." TEX. Gov'TCODE ANN. § 27
.03l(b)(2) (West Supp. 2013). In addition, not alljudges authorized to conduct marriage ceremonies are authorized to grant waivers ofthe 72-hour waiting period. Compare TEX. FAM. CODE ANN. § 2.202(a)(4)--{5) (West Supp. 2013) (listing eighteen categories ofjudges authorized to conduct a marriage ceremony), with id. § 2.204(c) (specifying only five categories of judges authorized to grant waivers ofthe 72-hourwaitingperiod).
3The designation ofa family district court as havingprimary responsibility for family law matters "does not limit thejurisdiction ofother district courts nor relieve themofresponsibility for handling cases involving family law matters." TEX. GOV'T CODE ANN.§ 24.60l(c) (West2004).
4 See TEX. FAM. CODE ANN. § 51.04(b) (West Supp. 2013) (providing that in each county, "one or more district, criminal district, domestic relations,juvenile, or county courts or county courts at law" shall be designated as thejuvenile court)
.The Honorable Luis V. Saenz

- Page 3 (GA-1053)

statutes that set forth the jurisdiction of various courts strongly suggest that the phrase does not include courts with only Title 3 jurisdiction in truancy cases. See, e.g. TEX. Gov'T CODE ANN. § 24.601(b) (West 2004) (defining "family law matters" for purposes of family district court jurisdictionto include child delinquency but not conduct indicating a need for supervision ofa child, such as truancy); id. § 25.0002(2) (West Supp. 2013) (defining "family law cases and proceedings" for purposes ofstatutory county courtjurisdiction to exclude cases and proceedings under Title 3 of the Family Code); Robertson v. Odom, 296 S.W.3d 151, 157 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (holding that in construing an undefined word orphrase, a court "may consider the meaning assigned to the term elsewhere in the act or in another act of similar nature" and give the same meaning as in the similar statute "unless something indicates that a different meaning was intended"). Accordingly, a court would likely conclude that ajustice ofthe peace is not a "judge ofa court with jurisdiction in family law cases" for purposes of subsection 2.204(c) ofthe Family Code and thus may not grant a waiver ofthe 72-hour waiting period after the issuance ofamarriage license. Because your remaining questions concerning related fees are expressly premised on an affirmative answer to yourfirst question, we do not address them.The Honorable Luis V. Saenz

- Page 4 (GA-1053)



### SUMMARY A court would likely conclude that ajustice ofthe peace is not a 'judge ofa court withjurisdiction in family law cases" for purposes of subsection 2.204(c) of the Family Code and thus may not grant a waiver ofthe 72-hour waiting period after the issuance ofa marriage license.

DANIEL T. HODGE FirstAssistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee Becky P. Casares Very truly yours,

Attorney General ofTexas

Assistant Attorney General, Opinion Committee