Honorable Ralph Prince
Criminal District Attorney
Box 2403
Longview, Texas
                                Opinion No. Ww-773
                                Rc:   Questions concerning
                                      House,&11 48, Acts
                                      56th Legislature,   Se-
                                      cond Called Session,
                                      relating  to issuance
                                      of marriage licenses
Dear Mr. Prince:                      by the County Clerk.
          You have requested an opinion concerning
House Bill 48, Acts 56th Legislature,~,.Second Call-
ed Session, 1959, Chapter 20, Page X13, on the
following  three questions which we quote from
your request:
                  "Question 1: Must the doctor's
         certificate     and written parental con-
         sent provided for in,Sec.     (a) be &&
         nowled ed or should it be sworn to as
         F5Tzmhzvit?
                "Question 2: Must the clerk re-
         tain all original      marriage licenses
         returned to him, only those issued
         on doctor's   certificate     and written
         parental consent, or in g instance?




         years?   If,,not,   what requirements   may
         he waive?
Hon. Ralph Prince,       Page 2 (WW-773)


              The relevant   port:ons   of House Bill   No. 48 are
as follows:
                 “Section 1. Article  4605 of the
          Revised Civil Statutes of Texas, 1925,
          is amended to read as follows:
                   “‘Article     4605. Consent of parent
           or guardian and issuance of license.
                   ” I (a).    Any unmarried male of the
           age of twenty-one (21) years or upwards,
           or any unmarried female of the age of
           eighteen (18) years or upwards and not
           otherwise disqualified,          is capable of
           contracting      and consenting to marriage;
           but no female under the age of eighteen
           (18) years and no male under the age of
           twenty-one (21) years shall enter into
           the marriage relation,         nor shall any li-
           cense issue therefor,         except upon the
           consent and authori’ty expressly given
           by the parent or guardian of such’under-
           age applicant       in the presence of the author-
          ,ity issuing such license;           ‘provided fur-
           ther 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 reason of health or incapacity             to be
           present in person, 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 official            issuing
           the marriage      license,    together with the
           returned license.          Nothing herein shall be
           construed to effect         the issuance of a
           marriage license       in a seduction prosecu-
           tion.     If ‘a minor has neither parent or
           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 ana
           signed and acknowledged b,y such county judge.
Hon. Ralph Prince,     Page   3 (W’b773)



                   "l(b).     The county clerk,'upon       appli-
          cation 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 certi-
          fied copy of birth certificate,            or upon a
          current motor vehicle operator's,             chauffeur's,
          or commercial license or upon a current voter's
          registration       certificate,      or upon a current
          passport or visa or upon any other certifi-
          cate, license or document issued by or exist-
          ing pursuant to the laws of any nation or of
          any state or other governmental subdivision
          thereof,     when each sudh 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
          impediment to such marriage, and aft,er ap-
          plicatlon      for such marriage license has is-
          sued, shall issue the license a,uthorizing
          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 C'lerk's office          for a period of not
          less than three (3) days.

                 "l(c).   Provided however that the county
          judge in his discretion   may waive the re-
          quirements listed   in (a) and (b) above.'"
          With regard to your first    question,  it is our
opinion that, whatever might be said in favor of a re-
quirement that these documents be sworn to the re-
quirement of paragraph (a) of 'House Bill 46 is plainly
that the physician's     certificate  and parental consent
be,acknowledged   'before an officer'  authorized by law
to take acknowledgments",     rather than being sworn to.
        With regard    to your Question      2, it was held in
                                                                     ..




Hon. Ralph Prince,    page 4 (WW-773)


Attorney General’s Opinion No. WW-751 (1959) that
House Bill No. 4% does’ not direct the Clerk to retain
the returned marriage license   in any instance;    accord-
ingly, only your Question 1, just discussed,     and Ques-
tion 3 remain open fork determination  in the present
opinion.
           With regard to your Question 3, it is our
opinion that paragraph (c) of Section 1 of Hous,e Bill
48, in stating “provided however, that the county
 judge in his discretion       hay waive the requirements list-
ed in (a) and (b) above’“, is intended to vest in the
county judge authorit        to waive all requirements con-
tained in paragraphs “ia) and (b)of         Section 1. There
remains the question of which provisions           of paragraphs
 (a) and (b) constitute       “re uirements” within the con-
templation of paragraph (~7.          It is sufficient   to say,
however, without undertaking to en,umerate these pro-
visions individually,       that the effect    of paragraph (c)
is that all acts whi,ch by virtue of House Bill 48, Sec-
tion 1, are required to ,be performed by any person as
a condition, for the proper issuance of, a marriag~e license,
may be held by the county judge in his discretion            to be
unnecessary for such issuance.          Thus, for example, para-
graph (c) is applicable--though         not exclusively   so--
to the requirement contained in paragraph (b) that the
clerk shall not.issue       a license   to certain applicants
unless the application       shall hive been on file in the
count?? clerk’s  office,for      a period of not less than
three” days.

                        SUMMARY

          (1)   Paragraph (a) of Section 1
                of House Bill 48, Acts 56th
                Legislature,    Second Called
                Session,    1959. Chapter 20,
                Page 113, requires- th,at the
                physician’s    certificate  and
                written parental ‘consent
                provided for therein trust
                be acknowledged rather than
                being sworn to.

          (2)   Paragraph (c)   of Section 1
                of House Bill   4% vests in
Hon. Ralph Prince,   page 5 (w-773)


          the county judge authority  to
          waive all oequirements contain-
          ed in paragraphs (a) and (b) of
          Section 1 of House Bill 48.

                          Very truly   yours,
                          WILL WILSON
                          Attorney General 'of Texas




LH:ms
APPROVED:
OPINIONCOMMITTEE
W. V. Geppert, Chairman
Grundy Williams
John Reeves
C. Dean Davis
Bob Eric Shannon
REVIEWEDFOR THE ATTORNEY
                       GENERAL
BY: Leonard Passmore
