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


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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


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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




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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




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