Untitled Texas Attorney General Opinion ( 1963 )

Hon. Henry Wade Opinion No. C- 97
District Attorney
Records Building Re: May a man marry the adopted
Dallas 2, Texas daughter of his father with-
out vlolatin the provisions
of Articles &96 and 497,
Dear Sir: Vernon's Penal Code?
You have requested an opinion of this office on the fol-
lowing question:
'May a man marry the adopted daughter of
his father?"
In your letter you note that ,Article 496, Vernon's Penal
Code, prohibits a man from marrying the, following persons:
11. . . his mother, his fa.ther's sister or
half-sister, his mother's sister or half-
sister, his daughter, daughter of his father,
mother, brother, or sister or his half-brother
or sister, daughter of his son or daughter,
his father's widow, his son's widow, his wife's
daughter, or daughter of his wife's son or
daughter."
You also point out that Article 497, Vernon's Penal
Code, prohibits a woman from marrying the following persons:
. . . her father, her father's brother, or
half-brother,, her mother's brother or half-
brother,,her own brother or half-brother, her
son, son'of her brother or sister or her half-
brother or half-sister, son of her son or
daughter, her mother's husband, her daughter's
husband, her husband's ,son, or son of her hus-
band's son or daughter."
From a reading of these statutes the question thus re-
solves itself, in the terms of the statutes, to whether the
man can marry the adopted daughter of his father (where the
said daughter does not otherwise fall within the class of
-479-
: .
Hon. Henry Wade, Page 2 (C-97 )
persons enumerated In Article 497 or 498) If she falls with-
in the definition of “the daughter of his father” or whether
the said adopted daughter can marry the man If he is, in the
terms of the statute, “her own brother”. However, under the
stated facts, to answer the first is to answer the second
because If the girl the man proposes to marry is not the dau-
ghter of his father, It necessarily follows that the man
could not be her brother.
Article 8 of Vernon’s Penal Code provides In part as
follows:
,I . . . all words used In this Code, except
where a word, term or phrase is specially de-
fined, are to be taken and construed In the
sense in which they are understood In common
language, taking into consideration the con-
text and subject matter relative to which they
are employed.”
The offense of incest was not a common law crime. Tuberville
v. State, 4 Tex. 128. Therefore, we must look to the words
of the statute “taken and construed in the sense in which they
are understood In common language, taking into consideration
the context and subject matter relative to which they are em-
ployed .” As there are no Texas cases In point, we are con-
strained to construe the $tatute and the meaning of the word
“daughter” as the Court of Ohio has construed it. In State
v. Youst, 74 Ohio App. 381, 59 N.E.2d 167, 168 (1943),the
court said:
I,
. . . Lynn Youst was not the daughter of
the accused as we understand that relation-
ship. She was an adopted daughter only; she
was not of the blood of Samuel Youst or of
his wife. None of their blood coursed through
the veins of the adopted daughter. The rela-
tionship was not actually one of father and
daughter, or mother and daughter, but that of
adopted daughter, and the fact that she was
an adopted daughter could not by the wildest
stretch of the Imagination constitute her
the natural daughter of the accused.
“In the case of People v. Kaiser, 119
Cal. 456, 51 P. 702, 703, the court said:
‘The word ‘daughter’ means . . . Ian lmmedi-
ate female descendant,’ and not an adopted
-480-
Hon. Henry Wade, Page 3 (C-:YT)
daughter, a step-daugher or a daughter-
in-law.'"
Accord State v. Lee, 196 Miss. 311, 17 So. 2d 277 (1944).
We are, therefore, of the opinion that a man who mar-
ries the adopted daughter of his father, if such adopted
daughter does not fall within any of the class of persons
mentioned in Articles 496 and 497 of Vernon's Penal Code,
does not violate the incest statutes of the State of Texas
and such marriage would be a valid marriage, provided all
the other prerequisites of a valid marriage were complied
with.
SUMMARY
A male citizen of the State of Texas may
marry the adopted daughter of his father wlth-
out violating the incest statutes of Texas,
Articles 495 to 498 inclusive, Vernon's Penal
Code, If the said adopted daughter does not
fall within any of the class of persons set
out in Articles 496 and 497, Vernon's Penal
Code, and provided all the other necessary
prerequisites of a valid marriage are complied
with.
Yours truly,
WAGGONER
CARR
IILL*m
.
Assistant Attorney General
NVS:nss
-481-
. .
Hon. Henry Wade, Page 4 (CT 97 )
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard Fender
Polk Shelton
Samuel Strong Pharr
Jack G. Norwood
APPROVEDFOR THE ATTORNEYGENERAL
BY: Stanton Stone
-4&z-