December 30. 1986

BonorableKentA. Caperton Chairman CriminalJusticeCommittee Texas State Senate P. 0. Box 12068 Austin;Texas 78711 . Dear SenatorCaperton: OpinionNo. JM-606 Re: Whether amarriage license may be issued at a place other than a county courthouse

As chairman of the Senate Criminal Justice Committee, you seek the legal opinion of this office regarding the issuance of marriage licenses under section 1.01 of the Texas Family Code. You indicate that several counties have "sub-courthouses"fromwhich they wish to issue marriage licenses. You ask whether existing law authorizes counties **to** issue marriage licenses from branch offices or auxiliary cdurthouses. Section 1.01of the Family Codeprovides, inpart, that [a] man and a woman desiring to enter into a ceremonial marriage shall obtain a marriage license from the county clerk of any county of this state. Because this section requires that a marriage license be obtained "from the county clerk," your question raises **two** related issues: whether a marriage licensemay be issuedby a deputy county clerk and whether a marriage license may be issued at a branch office or auxiliary courthouse. Article 1938,V.T.C.S.,provides:

The county clerkmay inwriting, appointone or more deputies under his hand and the seal of his court, which shall be recorded in the office of such clerk, and shall be deposited in the office of the district clerk. Deputies shall take the official oath and shall act in the name of their principal. and may do and perform all such official acts as may be lawfully done and performed by such clerk in **person.** When the clerk

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does not reside at the county seat,he shall have a deputy residing there. (Emphasisadded). The language of this section is clear. Additionally, in Mahon v. State, 79 S.W. 28, 30 (Tex. Grim. App. 1904). the Texas Court of Criminal Appeals indicated that a deputy county clerk has the same authority as the county clerk to issue a marriage license. Accordingly, the issuance of a marriage license at a branch office or au auxiliary courthouse is not preventedby the fact that themarriage licensemight be issuedby a deputy county clerk. As a general rule, county business is to be conducted in the county courthouseat the county seat. See V.T.C.S. arts. 1602, 1603, 1605;Hachar'v. County of Webb, 563 S.Wx 693 (Tex.Civ. App. - San Antonio 1978,writ ref'd n.r.e.1. The county seat is that community, town, or citywhere the seat of gave-nt is located andwhere county officers perform their functions. Knowles v. Scofield. 598 S.W.2d 854. 862 (Tex. Grim. App. 1980). Nevertheless, recognizing the special needs of more densely populated counties, the Texas Legislatureprovided several exceptions to thesegeneral rules. State statutes authorize the creation of branch offices for certain county officials outside of the county seat and **of** auxiliary courthouses both at the county seat and outside the county seat in countiesmeeting certain specific criteria. See, e.g..V.T.C.S. art. 1605a-5; art. 237Ob-1; art. 2370b-2; 237Ob-3. These statutes authorize county officers to maintain branch offices so long as the officer continues to maintain an office at the county seat. See art. 1605a-5, 04; art. 2370b-3. 51. Additionally, section 1 ofarticle 2370b-3 states that county officersmust keep original records of the office at the county seat. In summary. in counties in which branch offices and auxiliary courthouses are authorized, the county clerk or a duly authorizeddeputy county clerkmay issuemarriage licenses from thebranch office or auxiliarycourthouse. SUMMARY In counties in which branch offices for county officers are authorized by statute. the county clerk or a duly authorizeddeputy **county** clerkmay issuemarriage licenses from thebranch office.

MATTOX Attorney General of Texas

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JACKBIGHTOWER FirstAssistantAttorney General MARY KFLLER ExecutiveAssistantAttorneyGeneral RICK GILPIN Chairman.Opinion Committee Preparedby JenniferRiggs AssistantAttorneyGeneral

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