Untitled Texas Attorney General Opinion

OF-TEXAS
November 27, 1959
Honorable J. R. Owen Opinion No. WW-751
County Attorney
Willlamson County Re: Questions concerning House
Georgetown, Texas Bill 48, Acts 56th Legis-
lature, Second Called Ses-
sion, relating to certain
conditions for the issuance
of marriage licenses by the
Dear Sir: county clerk.
You have requested an opinion concerning House Bill
48, Acts 56th Legislature, Second Called Session, 1959, Chapter
20, Page 113, on the following two questions: first, as to
whether certain parts are in violation of Section 35, Article
III of the Constitution of Texas, and secondly, as to whether
the provisions in paragraph (a) of House Bill 48 that the re-
turned marriage license shall be retained by the issuing clerk
Is to be construed as mandatory on the clerk.
The relevant Constltutiona~l provision Is as follows:
"Sec. 35. No bill, (except.general appro-
priation bills, which may embrace the various
subjects and accounts, for and on account of
which moneys are appropriated) shall contain
more than one subject, which shall be express-
ed in Its title. Wit if any subject shall be
embraced in an act, which shall not be ex-
pressed in the title, such act shall be void
only as to so much thereof, as shall not be
so expressed."
The relevant portions of House Bill 48 are as fol-,
lows:
"An Act relating to the requirement of con-
sent of parent or guardian of certain parties
before said parties may marry or a marriage
license be issued to them and relating further
to the'issuance of marriage licenses by the
county clerk after a prescribed period of three
(3) days from the date of the filing of the ap-
plication; amending Article 4605, Revised Civil
Honorable J. R. Owen, page 2 (w-751)
Statutes of Texas, 1925; providing the county
judge may waive certain requirements; and de-
claring an emergency.
"Pe it,enacted by the Legislature of the State
of Texas:
"Section 1. Article 4605 of the Revised
Civil Statutes of Texas, 1925, is amended to
read as follows:
'I Article 4605. Consent of parent or
guardian and issuance of license.
"'(a). An unmarried male of the age of
twenty-one (217 years or upwards, or any un-
married female of the age of eighteen (18) years
or upwards and not otherwise disqualified, is
capable of contracting and consenting to marrlage;~
but no female under the age of eighteen 18 years
and no male under the age of twenty-one t21 1 years
shall enter Into the marriage relation, nor shall
any license issue therefor, except upon the consent
and authority expressly given by the parent or guard-
ian of such underage applicant in the presence of
the authority issuing such license; provided further
that If the certificate of a duly licensed medical
doctor or osteopath acknowledged before an officer
authorized by law to take acknowledgments and stat-
ing that such parent or guardian Is unable by rea-
son of health or Incapacity to be present in per-
son, is presented to such licensing authority,
the license may issue on the written consent of
such parent or guardian, acknowledged In the same
manner as the accompanying medical certificate.
Any such certificate and written permission shall
be retained by the officlal,issuing the marriage
license, together with the returned license. . . .
"l(b). The county clerk, upon application In
writing signed and sworn to in person before him
by both of the parties to be married setting forth
their places of residence and setting forth their
full names and ages as the same appear upon a certl-
fled copy of birth certificate, or upon a current
motor vehicle operator's, chauffeur's, or commer-
cial license or upon a current voter's registra-
tion certificate, or upon a current passport or
visa or upon any other certificate, license or
HonorabjLe J. R. Owen, 'Page 3 (w-751)
document issued by or existing pursuant to the
laws of any nation or of any state or other govern-
mental subdivision thereof, when each such document
accepted as proof of identity and age is described
with reasonable particularity in the application
shall also set forth that such persons to be
married are not disqualified or incapable of
entering into the marriage relation, nor of
the relationship prohibited by law, and being
satisfied of the truth and sufficiency of such
application and that there Is no legal impedi-
ment to such marriage, and after application for
such marriage license has issued, shall issue
the license authorizing such marriage; provided,
however, that In the event the male party is
under the age of twenty-one (21) years or the
female party is under the age of eighteen (18)
years such application shall have been on file
in the County Clerk's office for a period of
not less than three (3) days."'
Article 4605, Vernon's Civil Statutes, before amend-
ment by House Bill 48, reads as follows:
"No clerk shall Issue a license without the
consent of the parent or guardian of the parties
applying, if there be a guardian. Such consent
may be given in person, or in writing signed and
acknowledged by said parent or guardian before an
officer authorized to take acknowledgments, unless
the parties so applying are, in the case of the male
twenty-one years of age and In the case of the female
eighteen years of age. If there be any doubt in the
mind of the clerk, he shall not issue said license
unless there shall be presented to him a sworn cer-
tificate from the parent or guardian or some person
other than the contracting parties that the contract-
ing parties have attained the ages aforesaid. Noth-
ing herein shall be construed to affect the issuance
of marriage license in seduction prosecution. If
a minor has neither parent nor guardian, then the
clerk shall not issue a license without the consent
of the county judge of the county of the residence
of such minor, such consent to be in writing and
signed and acknowledged by such county judge."
Honorable J. R. Owen, page 4 (WW-751)
As to your first inquiry, we quote from your request
as follows:
"Is that portion of H.B. #48 which applies
to persons over 18 years of age, if female, and
over 21 years of age, if male, valid or is same
Invalid as being contrary to the provisions of
section 35, Article 3 of the Texas Constitution?
If said portion of H.B. #48 Is invalid, is all
of section (b) of H.B. #48 invalid or are the
provisions of section (b) of H.B. #48 In so far
as applicable to male persons under the age of
21 years and female persons under the age of
18 years?"
The purpose of Section 35, Article III of the Texas
Constitution in requiring a caption expressing the subject of
the bill Is to enable interested persons to be reasonably ap-
prised of the contents of the bill upon a reading merely of the
bill18 title. Schlichting v. Texas State Hoard of Medical
Examiners, Tex . 310 S.W.2d 557 (19%). This purpose
may be accosished bycaption couched in broad and general
terms so long as it remains reasonably informative of what fol-
lows in the body of the bill. Atwood v. Willacy County Naviga-
tion District, 284 S.W.2d 275 (Civ.A
kerror),
Where, as in the case of House Bill a: the bill in auestion is
amendatory of a prior article, the caption will be adequate though
merely naming the prior article and stating that the article is
amended by the present bill, provided that the provisions of the
amendatory bill are germane to the amended article. Schllchting v.
Texas State Board of Medical Examiners, supra. See Board of Water
Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d '722
11955). If the caption of an amendatory bill contains, in addi-
tion, explicit reference to certain provisions in the bill, then
the caption is adequate as to those provisions without regard to
the rule requiring that amendatory provisions be germane to the
amended article. Shannon v. Rogers, - Tex. -, 314 S.W.2d 810
(1958).
The purpose of House Bill 48 Is to establish certain
conditions, among them the requirement of parental consent, which
must be met to the satisfaction of the County Clerk before he is
authorized to issue a marriage license. Admittedly the require-
ment of parental consent, set forth in paragraph (a) of House
Bill 48, applies only to such underage ersons, while the pro-
8 (except for the pro-
visions of paragraph (b) of House Bill fi
vlso appended at the end of paragraph (b)) apply without re-
striction as to age. These provisions of paragraph (b), except
. .
Honorable J. R. Owen, page 5, (W-751)
for the portions dealing with ascertaining the absence of legal
disqualification of the parties or prohibition of the marriage,
establish a procedure -- namely, the presentation of documents
establishing the applicant's age and identity -- by which the
clerk is enabled to ascertain whether the requirement of parent-
al consent is applicable. A similar but less detailed procedure
directed toward the same end, likewise applicable without re-
gard to age, is provided for by Article 4605:
II
, . . If there be any doubt in the mind of
the clerk, he shall not Issue said license un-
less there shall be presented to him a sworn
certlffcate from the parent or guardian or some
person other than the contracting parties that
the contracting tarties have attained the ages
aforesaid. . . .
In light of the presence in the amended Article of
this provision identical in purpose with, and similar in other
respects to, the questioned provisions of the amendatory bill,
it is our opinion that the latter provisions are germane to the
amended article. Since, further the caption of House Bill 48
contains a reference to Article 4605, the caption satisfies
the requirement of Section 35, Article III of the Constitution
as to these provisions of House Bill 48.
Of paragraph (b), this leaves unaccounted-for only
the portion dealing with ascertainment of absence of legal dis-
qualification or prohibition as a condition for issuance of a
license, viz., "The county clerk . . . shall also set forth
that such persons to be married are not .dlsquallfiedor incapable
of entering Into the marriage relation, nor of the relationship
prohibited by law, and being satisfied . . . that there is no
legal impediment to such marriagz, . . . shall issue the license
authorizing such marriage; . . . (No question has been raised
as to the construction of the phrase "nor of the relationship
prohibited by law", but although its meaning in this context is
not clear, the subject with which this phrase is Intended to
deal Is apparent.) The purpose and effect of Article 4605 be-
fore amendment, like that of House Bill 48, is to establish
certain conditions which must be met and procedures which must
be followed before the County Clerk is authorized to issue a
marriage license. Accordingly, it is our opinion that the cap-
tion of House Bill 48 in mentioning Article 4605 is sufficient
to give fair notice of provisions such as the one just mention-
ed, since this provision establishes a procedure which the Clerk
must follow before Issuing a license and is therefore germane to
the amended article, notwithstanding that this particular pro-
cedure is not among those which the amended article establishes.
Schlichting v. Texas State Board of Medical Examiners, supra.
. . .
Honorable J. R. Owen, Page 6, (W+'-7'51)
As to our second inquiry, we are of the opinion
that House Bill %8, in stating "Any such Lf;hysician'g certi-
ficate and written permission shall be retained by the offi-
cial issuing the marriage license, together with the returned
license" (emphasis added), does not direct the Clerk to retain
the returned marriane license, but merely evidences a presupposi-
tion by the Legisla&re that the Clerk has heretofore followed
a practice of retaining the license. In fact, the Clerk is and
has heretofore been under a duty; imposed by Article 6596,
Vernon's Civil Statutes, to return the license after its recorda-
tion "to the party entitled thereto", which in the case of a
marriage license is a party to the marriage which the license
authorizes. Attorney General's Opinion 0-4624 (1942). Article
6596 is as follows:
"Every such instrument shall be considered
as recorded from the time it was deposited for
record; and the clerk shall certify under his
hand and seal of office to every such Instrument
of writing so recorded, the hour, day, month and
year when he recorded it, and the book and page
or pages in which It is recorded; and when re-
corded deliver the same to the party entitled
thereto."
Recordation of the marriage license is required by Article 4606,
Vernon's Civil Statutes:
"The clerk shall record all licenses so .%a-
sued by him in a well bound book kept for that
purpose. It shall be the duty of the person
solemnizing the rites of matrimony to indorse
the same on the license and return it to the
county clerk within sixty days after the cele-
bration aforesaid such return shall be recorded
with the license."
There being no requirement in House Bill 48 that the
Clerk retain the license, the question of whether such a re-
quirement is permissive rather than mandatory does not arise.
1. Para aph (b) of House Bill 48, Acts
of the 5rth Legislature, Second Called
Session, 1959, Chapter 20, page 113, is
not Invalid under the requirement of Sec-
tion 35, Article III of the Constitution
_ . . .
Honorable J. R. Owen, Page 7 (W-751)
of Texas that the caption of a bill ex-
press the bill's subject.
2. House Bill 48 does not require that
the County Clerk retain the returned
marriage license after its recordatlon by
him.
Very truly yours,
WILL WILSON
Attorney General of Texas
LH:ms:zt Assistant
APPROVED:
OPINION COMMITTEE
John Reeves, Chairman
Paul Floyd
J. C. Davis, Jr.
Jot Hodges
Fred Werkenthin
REVIEWEDFORTHE ATTORNEY GENERAL
BY: Leonard Passmore