Untitled Texas Attorney General Opinion ( 1963 )

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 ef-
fect of Section 6of
H.B. 403, ~58th Legla-
lature, 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 Legis-
lature, which amends Article 4626, Revised Civil Statutes,
aspregards 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 com-
munity 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
-731-
Hon. John Winters, page 2 (C-153
the applicant subsequent to the granti,ng
of the license to enjoin her from operat-
ing 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 Sec-
tion 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 earn-
ings 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 there-
for, and her contracts and obligations shall
be binding on her."
A comparison of this statute with the previous amend-
ed 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 ef-
fect, a married woman can conduct her separate business with-
out 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 Artl-
cle 4621 of the Revised Civil Statutes to provide that the
community property of the husband and wife, other than the ex-
ceptions 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 Legls-
ture 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 re-
quired. However, a more difficult problem is involved where
community property Is used because of the fact that the hus-
band has the right of control and the management of the com-
munity 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 experi-
ence 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 ven-
ture and consequently be liable for the debts arising there-
from. 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 ap-
plication to operate a child care facility. The determina-
tion of whether to ascertain the allegations in the applica-
tion 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 neces-
sary 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
-733-
Hon. John Winters, page 4 (C-,151): ,. ,,,,
on the community property because the Department cannot re-
quire 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 con-
trast 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~usinessseparate 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 com-
munity property of the husband and wife, other than the reve-
nues 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
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 per-
mission of the husband for the wife's use of
community property fur the purpose of operat-
ing her separate business can be ascertained.
This approval should not be construed as a
legal joinder of the husband which would ren-
der 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
PP:ms
-734-
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