Untitled Texas Attorney General Opinion ( 1974 )

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October 25. 1974
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The Honorable Carlos F. Truan Opinion No. H- 432
Chairman
Committee on Human ,Resources Re: Whether a woman is required
House of Representatives to assume her husband’s surname
Austin, Texas as her own.
Dear Mr. Truan:
You have asked us the following questions:
.- (1) Do the laws of Texas give a married woman the
right to determine for herself whether she shall use
her husband’s name or her maiden name on her driver’s
license or any other license, form, application, permit
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or personnel record issued or established by any agency
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or department of the State, or any political subdivision
thereof?
(2) Under Article 1, Section 3a, of the Texas Constitu-
tion may an agency or department of the State, or a
political subdivision thereof, require a married woman to
use her husband’s name on any license, form, permit
or personnel record if she has elected to retain her
maiden name at marriage?
(3) Under Article 1. Section 3a, may a private business,
bank, or financial institution require a married woman to
use her husband’s name if she determi.nes for herself that
she prefers to continue using her maiden name?
.
Your questions all raise the central issue of whether a woman has
the choice upon marriage to retain her name prior to marriage or whether
p. 1996
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The Honorable Carlos F. Truan page 2 (H-432)
she is compelled by law to assume her husband’s surname. Upon analysis
of the common law in Texas, statutes which have abrogated the common
law, and case authorities from other jurisdictions it is our opinion that a
woman does-have the choice upon marriage either to retain her name prior
to marriage or to assume her husband’s surname.
At common law, a person could change names by repute without
official approval ii the change was not done for fraudulent purposes and
the new name was used consistently. 21 Halsbury’s Laws of England at
350, 351 (1912 ed). cf. Earl Cowley v. Countess Cowley, A. C. 450 (1901).
The adoption of a spouse’s name at marriage is the most common example
of such a name change by repute. However, at common law the name
change at marriage occurred by repute and not as a consequence of the
marriage.
When a woman on her marriage assumes, as she
usually does in England, the surname of her husband
in substitution of her father’s name, it may be said
that she acquires a new name by repute. The change
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of name is in fact rather than in law a consequence of
the marriage. Having assumed her husband’s name
she retains it, notwithstanding the dissolution of the
marriage by decree, unless she chooses thereupon to
resume her maiden name. On her second marriage
there is nothing in point of law to prevent her from
retaining her first husband’s name. (21 Halsbury’s
Laws of England, supra.)
In R. v. Inhabitants of St. Faith’s, III Dow. and Ry. 348 (K.B.1823),
the King’s Bench considered the validity of a second marriage in which
the banns were posted in a widow’s maiden name. The argument was made
that her legal name was that of her first husband. However upon the death
of her first Insband, the widow had assumed her maiden name by repute.
The court held that the maiden name used in the banns was the widow’s
legal name and in their holding stated:
p. 199’7
The Honorable Carlos F. Truan page ~3 (H-432)
It has been asserted in the argument, that a married
woman cannot legally bear any other name than that
which she has acquired in wedlock: but the fact is not
so; a married woman may legally bear a different
name from her husband . . . . p. 346
By an Act of 1840, 2 Gammel’s Laws, p. 177; Art. 1, V. T. C.S.,
Texas adopted English common law except as to marital property rights
concepts retained from the civil law. Thus Texas recognized the right
to change names by repute, including the right to change names by repute
at mairiage. However, in 1856. the Legislature enacted Article 5928,
V. T. C. S., which provided:
Whoever desires to change either his Christian or
surname, or both, and to adopt another name instead,
shall file his application in the district court of the
county of his residence, setting forth the causes for
such desire. The judge of said court, if in his opinion
it is for the interest or benefit of the applicant to so
change his name shall decree that the adopted name of
the party shall be substituted for the orginal name.
4 Gammel’s Laws, p. 260 (1856).
Article 5928 was repealed in 1973 by the Texas Family Code $32.21
which states:
Any adult may petition the districtcourt in the
county of his residence for a change of name. The
petition must state the present name and address of
the petitioner, the requested name, and the reason
for which a change is desired.
This Section of the Family Code was intended as a recodification of Article
5928 without substantive change. Famii~y Law Section, State Bar of Texas,
Summary and Analysis of Texas Family Code, Title 2, p. 16 (1973). It is
thus necessary to examine what effect 5 32. 21 of the Family Code has on the
bre-existing common law right of a woman to change names at marriage by
repute.
p. 19’18
.
The Honorable Carlos F. Truan page 4 (H-432)
In interpreting the statute, we are guided by Article 10, $6,
V.T.C.S.. which states:
- In all interpretations, the court shall look diligently
for the intention of the Legislature, keeping in view
at all times the old law, the evil and the remedy.
We are also guided by the general rule of statutory construction that, ii
a statute deprives a person of a common law right, the statute will not be
extended beyond its plain meaning or applied to cases not clearly within
its purview. Satterfield v. Satterfield, 448 S.W.2d 456 (Tex. 1969); .
Cafeterias, Inc. v. System-Master, Inc., 490 S.W.2d 253 (Tex. Civ.
APP. 2 Austin 1973, no writ). It is our opinion that the widespread practice
. of changing names by repute at marriage was so entrenched in Texas by
1856. the date of the enactment of Article 5928 (later replaced by $32.21
of the Family Code), that the Legislature did not intend to require a woman
at marriage to change names by goin g through a court procedure or intend
that she lose her common law right to change names by repute at marriage.
See In re Evetts Appeal, 392 S.W.2d 781 (Tex. Civ. App., San Antonio 1965,
-- G.L r ei’ d) . Thus in our opinion, .under this statute a woman retained her
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common law right to choose at marriage either to keep her name prior
to marriage or to assume her husband’s surname.
We have not found a Texas case in which the court has squarely
. considered the question of whether a woman can elect upon marriage to
retain her name prior to marriage. The two Texas cases which have
been cited to support the proposition that a woman’s name is changed by
law,at marriage to that of her husband actually concerned the sufficiency
of notice by publication. The first, Freeman v. Hawkins, 14 S.W. 364
(Tex. 1890),held only that citation by publication was not sufficient when
a married woman who had adopted her husband’s surname was cited in her
birth name. The citation must be in her “real name, ” which after adopt-
ing her husband’s surname, is no longer her birth name. In accord,
Ruddph v. Hively, 188 S.W. 721 (Tex. Civ. App., Amarillo 1916, err.
ref’d). The opinion in Freeman states, in dicta, that “(o)n the marriage
of Mary C. Robinson the law conferred on her the surname of her husband. ”
14 S.W. at 365. However, the “law conferred on her the surname of her
p. 1999
The Honorable Carlos F. Truan page 5 (H-432)
husband” not because of statutory or court requirements, but because by
the facts of the case, she chose to assume her husband’s surname, and
the law recognizes such a voluntary change of name by repute at marriage.
The second case, Kidd v. Rasmus, 285 S.W.2d 415 (Tex. Civ. App.,
Galveston 1955, err. ref’
d). held that because of a peculiar fact situation,
the notice by publication was sufficient even though it cited in her birth
name a married woman who had assumed her husband’s surname. However,
the opinion also included dicta that a woman takes her husband’s surname at
marriage, and in so doing absolutely loses her birth name. As with Freeman,
taking the surname of her husband is descriptive of the majority custom, but
it is not mandated by statute or case decision in Texas and would not necessarily
preclude the woman’s electing to keep her name prior to marriage.
On the other hand, two Texas cases have been cited to support
the proposition that a woman’s name does not change by law at marriage
to that of her husband.
The Supreme Court of Texas, in Bell v. State, 25 Tex. 574 (1860)
held that it was reversible error for a trial court to decide as a matter of
law that a married woman’s name is that of her husband. In Rice v. State,
38 S.W. 801 (Tex. Crim. 1897), a rape indictment was found fatally defective
in that it failed to negate the fact that the prosecutrix was the wife of the
accused, even though the indictment showed that the prosecutrix and the
accused had different surnames. The court stated:
There is nothing in our statute requiring or compelling
the wife to take or assume the name of her husband.
While this is generally the case, yet the wife might
retain her own name. She might be married to the
defendant, and still be known by her maiden name, or
some other name than his. ‘It i.s said, the husband
being the head of a famil.y, the wife and children adopt
his fami.ly name, - by custom, the wi,fr is called by the
husband’s name: buL whether marriage shall work any
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change of name at all is, after all, a mere question of
c:hoi,ce. and either may take the other’s name, or they
may join their names together. ’ See 9 Am. & Eng.
Enc. Law. Lit. ‘Husband and Wi~fe, I p. 813; . . .
p. 2000
The Honorable Carlos F. Truan page 6 (H-432)
Thus, although most women have assumed their husbands’ surnames
upon marriage, and Texas cases have made reference to this practice, no
Texas court has decided as necessary to the disposition of a case that, as
a matter of law, a woman must adopt her husband’s surname upon marriage.
There are cases from other jurisdictions which support the view taken
here. In Stuart v. Board of Supervisors of Elections, 295 A.2d 223 (Md.1972),
the Maryland Court of Appeals (Maryland’s highest court) decided that a
married woman could vote in her birth given name which she had consistently
and non-fraudulently used because, in Maryland, a woman’s name is not, ipso !&to,
changed by the mere fact of marriage. Maryland courts had recognized
the common law right to change names by repute. In the absence of a
statute requiring a woman to adopt her husband’s surname, the Maryland
court held:
. . . (A) married woman’s surname does not become
that of her husband where, as here, she evidences a
clear intent to consistently and non-fraudulently use
her birth given name subsequent to her marriage.
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Thus.. . a married woman may choose to adopt the
-’ surname of her husband - this being the long standing
custom and tradition which has resulted in the vast
majority of married women adopting their hlsband’s
surnames as their own - the mere fact of the marriage
does not, as a matter of law, operate to establish the
custom and tradition of the majority as a rule of law
binding upon all. 295 A.2d at 227.
The Supreme Court of Connecticut recently decided that a married
woman may register to vote in her maiden name if she used it nonfraudulently
and in so doing does not infringe on rights of others. Custer v. Bonadies,
318 A.2d 639 (Conn. 1974). The court in Custer recognized that Connecticut
adopted the common law, including the right to change names by repute.
Connecticut has no statute requiring a woman to adopt her husband’s surname
at marriage, and the court could find no basis for a rule of law which would
require a woman to adopt her husband’s surname. See also Arkansas Attorney
General Opinion No. 74-75, April 19, 1974; CaBfornia Attorney General
Opinion, March 12, 1974; Illinois Attorney General Opinion, February 13, 1974;
p. 2001
The Honorable Carlos F. :Truan page 7 (H-432)
Pennsylvania Attorney General Opinion, August 20, 1973; Vermont
Attorney Gamral Opinion No. 179, February 4. 1974; Virginia Attorney
General Opinion, June 6. 1973.~
It is our conclusion, in view of the foregoing authorities, that at
common law a woman had the right at marriage to change her name by
repute. Section 32.21 of the Texas Family Code did not abrogate that
right. Thus, at marriage, a woman may choose to retain her name
prior to marriage or to assume her husband’s surname, as long as she
,, uses the name she chooses consistently and nonfraudulently.
Therefore, to your first question we answer, that in our opinion
the laws of Texas give a married woman the right to use her name prior
to marriage or her husband’s surname, whichever of those names she
chose at her last marriage. and uses consistentlv and non-fraudulently,
for the purposes described in your question.
Your second question concerns an application of Article 1, $3a
of the Texas Constitution, the Texas Equal Rights Amendment, which
states, “Equality under the law shall not be denied or abridged because
:. of sex : . . . I’ The legislative intent of the Texas Equal Rights Amend-
--ment was to provide equality between the sexes. In the absence of any
compelling state interest, the state must treat men and women equally.
See Attorney General LetterAdvisory No. 3 (1973). See generally,
The Equal Rights Amendment: a Constitutional Basis for Equal Rights
for Women, 80 YALE L. J. 871 (1971). Thus, in our opinion in the
absence of any compelling state interest, if the state, or any agency,
department or political subdivision thereof, required a woman to use a
name on any license, form, permit or personnel record which was not
the name she was currently using under the guidelines we have set out
above, and did not require a man to use a name he was not currently
using, such action by the state would be in violation of Article 1, 5 3a of
the Texas Constitution.
As to your third question, the Texas Equal Rights Amendment pro-
vides only that equality under the law shall not be denied or abridged because
of s’ex. Private businesses, banks or financial institutions do not fall within
p. 2002
I
The Honorable Carlos F. Truan page 8 (H-432) I
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the ambit of the Texas Equal Rights Amendment unless there is a showing
that there is sufficient state action involved in their businesses. Your
question does not provide us with the specific facts necessary to make
that determination. We express no opinion as to whether under other
laws, a pri.vate business, bank or financial institution may require a
married woman to use a name other than the one she is currently legally
using.
SUMMARY
A woman upon marriage has the choice either
to retain her name prior to marriage or to assume
her husband’s surname.
Very truly yours,
c/ Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
.
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