                                    OFFICE ofthe ATTORNEY GENERAL
                                                       GREG         ABBOTT




                                                      February 19,2003



The Honorable Susan D. Reed                                          Opinion No. GA-0024
Bexar County Criminal District Attorney
Bexar County Justice Center                                          Re: Whether a county clerk may issue a marriage
300 Dolorosa, Fifth Floor                                            license to two absent applicants (RQ-0590-JC)
San Antonio, Texas 782053030

Dear Ms. Reed:

       You ask whether the county clerk of Bexar County may issue a marriage license to two
absent applicants.’ The clerk has received a request from an inmate of the Texas Department of
Criminal Justice Institutional Division. The inmate’s fiance is also incarcerated, and they desire to
be married.

         Section 2.002 of the Family Code states the procedures for applying for a marriage license
and provides that “[elxcept as provided by Section 2.006, each person applying for a license must
. . . appear before the county clerk.” See TEX.FAM.CODE ANN. 0 2.002 (Vernon 1998). Section
2.006 of the Family Code provides as follows:

                        (a) If an applicant is unable to appear personally before the
                county clerk to apply for a marriage license, any adult person or the
                other applicant may apply on behalf of the absent applicant.

                       (b) The person applying on behalf of an absent applicant shall
                provide to the clerk:

                               (1) the affidavit of the absent applicant as
                        provided by this subchapter;

                                (2) proof of the identity and age of the absent
                        applicant as provided by this subchapter;




       ‘See Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable John
Comyn, Texas Attorney General (Aug. 20,2002) (on file with Opinion Committee).




                              An Equal   Employment   Opportunity   Employer   Printed   on Recycled   Paper
The Honorable Susan D. Reed - Page 2             (GA-0024)



Id 0 2.006(a), (b)(1)-(2). Proof of identity and age “must be established by a certified copy of the
applicant’s birth certificate or by some certificate, license, or document issued by this state or another
state, the United States, or a foreign government.” Id. 0 2.005(b). An affidavit by an absent
applicant must include:

                        (1) the absent applicant’s full name, including the maiden
                surname of a female applicant, address, date of birth, place of birth,
                including city, county, and state, citizenship, and social security
                number, if any;

                       (2) a declaration that the absent applicant has not been
                divorced within the last 30 days;

                        (3) a declaration that the absent applicant is:

                                 (A) not presently married; or

                                (B) married to the other applicant and they
                        wish to marry again;

                       (4) a declaration that the other applicant is not related to the
                absent applicant [within a prohibited degree of relationship];



                        (5) a declaration that the absent applicant desires to marry and
                the name, age, and address of the person to whom the absent
                applicant desires to be married;

                        (6) the approximate date on which the marriage is to occur;

                        (7) the reason the absent applicant is unable to appear
                personally before the county clerk for the issuance of the license; and

                        (8) if the absent applicant will be unable to attend the
                ceremony, the appointment of any adult, other than the other
                applicant, to act as proxy for the purpose of participating in the
                ceremony.

Id. 5 2.007.

       You refer to section (C)(4) of the county clerk’s manual, which states that under “a proxy
marriage or absent applicant, one of the applicants must appear before the clerk. There cannot be
a proxy for both applicants of a marriage license.” OFFICE OFCOURTADMINISTRATION,        COIJNTY
The Honorable Susan D. Reed - Page 3           (GA-0024)



CLERKPROCEDUREMANUAL VIII-6 (1998). This instruction appears to be based upon the former
language of the statutes. Prior to recodification in 1997, the statutes addressing application for a
marriage license by an absent applicant differed considerably from their present version. Former
section 1.02 of the Family Code provided that “[elxcept as otherwise provided by Section 1.05 of
this code, persons applying for a license shall . . . appear together or separately before the county
clerk.” See Act of May 15,1987,7Oth Leg., R.S., ch. 195, $1,1987 Tex. Gen. Laws 1468. Former
section 1.05 provided as follows: “If only one of the applicants is able to appear personally before
the county clerk to apply for a marriage license, any adult person or the other applicant may apply
on behalf of the absent applicant.” See Act of May 28,1973,63d Leg., R.S., ch. 577,§ 4,1973 Tex.
Gen. Laws 1596,1598 (emphasis added).

        In the 1997 recodification of title 1 of the Family Code, however, the statutes addressing
application for a marriage license by an absent applicant were changed to their present version. See
Act of Apr. 3,1997,75th Leg., R.S., ch. 7,§ 1,1997 Tex. Gen. Laws 8,9-10 (codified at TEX.FAM.
CODE ANN. $5 2.002,2.006(a) (Vernon 1998)). Nothing in the legislative history of the 1997 bill
that recodified title 1 of the Family Code indicates why the language of these sections was changed.
S~~SENATECOMM.ONJ~SPRUDENCE,BILLANALYSIS,                  Tex.S.B.334,75thLeg.,R.S.(1997)(“bill
makes nonsubstantive changes and recodifies Title 1 of the Texas Family Code”).

         Zn Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999), the Texas Supreme
Court addressed an apparently inadvertent omission of significant language fi-om a nonsubstantive
codification of the Tax Code. It determined that the plain language of the codification must be
effectuated, despite the legislature’s stated intent that no substantive change in the law was intended
by the codification. See Fleming Foods, 6 S.W.3d at 286-87. See also TEX.GOV'TCODE ANN.
3 3 11.Ol 1 (Vernon 1998) (“Words and phrases shall be read in context and construed according to
the rules of grammar and common usage.“); RepublicBankDallas, N.A. v. Interkal, Inc., 691 S.W.2d
605,607-08 (Tex. 1985) (directing that statute be construed according to its plain language); Smith
v. Nelson, 53 S.W.3d 792,796 (Tex. App.-Austin 2001, pet. denied) (court must interpret legislative
intent as expressed in plain language of statute).

        Accordingly, the plain language of section 2.006 of the Family Code must be effectuated.
The plain language of section 2.006 allows two absent applicants to apply for a marriage license,
provided that they each have an adult person apply for the license on their behalf and that person
submits the affidavit required by section 2.007. See TEX.FAM.CODEANN. 0 2.006 (Vernon 1998).
Therefore, the county clerk of Bexar County may issue a marriage license to the two absent
applicants when each applicant follows the procedures set forth in sections 2.006 and 2.007 of the
Family Code.
The Honorable Susan D. Reed - Page 4            (GA-0024)




                                       SUMMARY

                       Based upon the plain language of section 2.006 of the Family
               Code, a county clerk may issue a marriage license to two absent
               applicants who are unable to appear personally before the clerk when
               each applicant follows the procedures set forth in sections 2.006 and
               2.007 of the Family Code. Under those procedures, an applicant for
               a marriage license is not required to apply in person for the license;
               “any adult person or the other applicant” may apply before the
               county clerk on behalf of the absent applicant. TEX.FAM. CODE ANN.
               $0 2.006,2.007 (Vernon 1998).

                                              Yours very truly,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
