                              -f&BE     ATTORNEY                          GENERAL
                                                 OF      TEXAS
                                          Ar;STlh        -               78711
CRAWFORD         G     MAR’IIS
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                                              December             5,   1972



           Honorable Jack Salyer                             Opinion No.         M-1277
           District Attorney
           23rd Judicial District                            Re:        Criminal violations and remedies
           P. 0. Drawer 1666                                            involved concerning marriage
           Bay City, Texas 77414                                        license issued to two males.

           Dear Mr.        Salyer:

                     You have requested       an opinion on the following:

                     Query       One:   Is there a criminal violation for false awearing
                                        where a man falsely states that he is a female on
                                        an application for marriage   license?

                     Query       Two:   Can two men in Texas                acquire   the status of marriage?

                    According  to the facts given in your letter, two males, one of whom
           was dressed as a female,     appeared at the County Clerk’s office and made
           application for a marriage    license.  The one posing as the female filled in
           the portions of the license application provided for female applicants.    Sub-
           sequently the license was issued.

                   The Texas Family Code, (Acts 61st. Leg.,                        R.S.,  1970, Ch. 888,
           p. 7), Title I. HUSBAND AND WIFE,    Subtitle A,                       Sec. 1.03 entitled Applica-
           tion Form provides:

                     (a) The county clerk shall furnish the application form as pre-
                     scribed by the Bureau of Vital Statistics of the State Department
                     of Health.

                     (b)    The application      form    shall contain:

                                 (1) a heading    entitled       ‘Application for marriage
                                 license,                        County, Texas; ’




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                  (2) spaces for each applicant’s   full name (including
                  the woman’s maiden surname),      address,   social se-
                  curity number,   if any, date of birth, place of birth
                  (including city, county, and state), and race;

Section 1.03    (b) (2) calls for a woman’s maiden name to be set out in full.
Billie Ert is    not a woman as called for by the statute, which incorporates
the common      law, and as is designated on the form; therefore the informa-
tion given as    to the woman’s maiden name on the application is false,

        Section   1.03   (b) (5) of the Code calls         for a printed      oath on the form
reading :

                  “I solemnly   swear (or affirm) that the information
         I have given in this   Application is correct,  that I am not
         presently married,     and that I am not related to the other
         applicant within the   degrees prohibited by law. ”

         The Texas    Penal   Code,       Article     310 entitled   “False    Swearing”   pro-
vides:

                 “If any person shall deliberately     and willfully, under
         oath or affirmation   legally administered,     make a false state-
         ment by a voluntary declaration      or affidavit, which is not re-
         quested by law or made in the course of a judicial proceeding,
         he is guilty of false swearing,    and shall be punished by con-
         finement in the penitentiary    not less than two nor more than
         five years. ”

         In Steher v.. State, 4 S. W. 880 (Tex. Ct. of App. 1887), it was held
that the giving of a false affidavit to a county clerk in order to obtain a mar-
riage license was assignable      and would support a prosecution    for “false
swearing” under the Texas Statute defending that offense.         See also Davidson
v. State, 3 S. W. 662 (Tex. Ct. of App. 1886).       Furthermore,    the giving of
false information on marriage      license applications , which must be sworn in
accordance    with V. A. T. S. , Family Code, Sections 1.02 and 1.03,      has been
found to be a violation of the prohibition against false swearing in Article       310.
See, for example:     Wilson v. State, 93 S. W. 547 (Tex. Crim.      1906), in which
a false age for the female was given; Adams v. State, 91 S. W. 225 (Tex. Crim.




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1906). in which the false       swearmg included the female’s  age, the father’s
consent to the marriage,        and the claim that there was no legal objection to
the marriage.

        Although there is a criminal violation involved,  that does not of it-
self provide the clerk with a remedy to cancel the license.     Section 2.02 of
the Family Code, supra, entitled “Fraud.     Mistake,  or Illegality in Obtain-
ing License”  provides:

                 “Except as otherwise provided by this chapter, the
        validity of a marriage   is not affected by any fraud, mistake,
        or illegality that occurred in obtaining the marriage   license.      ‘I

        The clerk is provided a remedy at law, however,       which turns upon
the question of whether the parties involved have acquired the status of a
marriage.     Attorney General’s     Opinion No. M-1216,  dated September   17,
1972, states that a marriage     license may not be issued to two persons of the
same sex.    We noted therein the case of Baker v. Nelson,     191 N. W. 2d 185
(Minn. Sup. 1971), presently    in the United States Supreme Court, which so held.
That opinion coupled with a study of the authorities makes any attempted mar-
riage between persons of the same sex an impossibility.       The following study
of the authorities  will put the exact problem clearly in focus.

         Since the Family Code does not deal with the exact problem at hand,
it is necessary   to look to the Code Construction    Act, Article   5429 b-2,  Sub-
chapter C, Sec. 3. 03, Vernon’s     Civil Statutes (60th Leg:,     1967) for guidance
in construing the various provisions     of the Code.

                “Sec. 3. 03.  In construing a statute, whether or
        not the statute is considered ambiguous on its face, a court
        may consider among other matters the

                (1)   object    sought to be attained;

                (2)   circumstances      under which     the statute was enacted;

                (3)   legislative   history   ;

                (4) common law or former    statutory provisions         including
                laws upon the same or similar subjects;



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                   (5)   consequences          of a particular     construction;

                   (6)   administrative         construction      of the statute;   and,

                   (7)   title,    preamble,      and emergency        provision.   ”

         In accordance  with the Code Construction Act, supra, we must look
to the common law for guidance as well as rulings of Texas Courts on former
statutory provisions   dealing with the same or similar subjects.

        Marriage   has been defined in Texas as the voluntary union for life
of one man and one woman as husband and wife, to the exclusion of all others,
for the discharge,    to each other and to the community,    of the duties legally
incumbent on those whose association      is founded on the distinction of sex, 38
Tex. Jur.2d pp. 28, Sec. 1; McCracker       v. Taylor,   146 S.W.   693 (Tex. Civ.
App. 1912); Simpson v. Simpson,       380 S. W. 2d 855 (Tex. Civ. App. 1964,
error ref. n. r. e. ).

         Texas Courts have also held that marriage           is not a contract but a
status created by mutual consent by one man and one woman.                  Grigsby v. Reib,
105 Tex. 597, 153 S. W. 1124 (1913).         Since marriage        is not, in and of itself,
a contract,   vesting rights in parties,    but a status,     it is subject to dissolution
civilly at the absolute will of the sovereign     state.    McGinly v. McGinly,        295
S. W. 2d 913 (Tex. Civ.App.    1956).     The Texas Courts have held that since
the state controls what determines       the marriage     status,     it may strip certain
classes   of their contractual powers in regard to entering into the marriage
relationship.     Gowin v. Gowin, 292 S. W. 211 (Tex. Civ.App.             1927).  In Gowin,
supra, the court spoke to the issue immediately          at hand in holding that among
those classes    of people who, although possessing        full contractual powers in
all other respects,    may not enter into the status of marriage           were ‘I a man and
a man, ‘I and “a woman            and a woman.      ‘I

        Section    2. 01 of the Family           Code,   supra,    reads   as follows:

        “Section     2.01.        State Policy

                In order to promote the public health and welfare
        and to provide the necessary   records,  this code prescribes
        detailed and specific rules to be followed in establishing




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        the marriage    relationship.    However, .in order to provide
        stability for those entering into the marriage        relationship
        in good faith and to provide legitimacy       and security for the
        children of the ‘relationship,    it is the policy of this state
        to preserve   and uphold each marriage        against claims of in-
        validity unless strong reasons exist for holding it void or
        voidable.    Therefore,    every marriage     entered into in this
        state is considered valid unless it is expressly        made void
        by this chapter or unless it is expressly        made voidable by
        this chapter and is annulled as provided by this chapter.
        When two or more marriages          of a person to different spouses
        are alleged,   the most recent marriage        is presumed to be
        valid as against each marriage        that precedes   it until one who
        asserts   the validity of a prior marriage      proves its validity. ”

        At first blush, it might appear that this statute upholds the validity
of a marriage   by a man to another man in that it does not expressly  forbid
same.   Nevertheless,   we must look behind the statute to the intent of the legis-
lature as is commanded by the Code Construction     Act, oupra.

         The legislature  has permeated the Family Code, supra, with the terms
“husband, ” “wife, I’ and “marriage,    ” and since the legislature    must be pre-
sumed to know the definition and usage of these words,        it is clear under both
statutory   law in Texas and Texas common laws that only two persons of the
opposite sex may marry.       Title 1 of the Family Code, supra, from which
this statute is taken is entitled “HUSBAND AND WIFE” and although Texas
Courts may not have directly spoken to the definition of husband and wife, other
courts have done so.     InDarinv.    Bars,   188 N.C.  200, 124 S.E.     556, 568 (1924),
the court said, “a husband is a man who has a wife, and a wife is a woman who
has a husband. ”

         The various provisions    of the Family Code, supra, indicate what the
intention of the legislature   was in enacting the Family Code.   Section 1.03 of
the Family Code, supra, which incorporates         the common law, in prescribing
the contents of the application for license calls for the woman’s maiden surname
indicating that a woman is a necessary      party to a marriage. Even Section 2. 01
of the Family Code, supra. in declaring the State Policy presupposes      the exis-
tence of a marriage     between a man and a woman in saying, “to provide stability




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Honorable   Jack Salyer,   page 6           (M-1277)




for those entering into the marriage      relationship in good faith and to pro-
vide legitimacy    and security for the children of the relationship,    . . . ‘I
The use of the word children points to the legislative      intent here involved.
It was the legislative   intent to provide for a marriage    between those whose
association   is founded on the distinction of sex.

          In Calvert v. British-American    Oil Producing    Company,    397 S. W. 2d
839,   (Tex.Sup.    1965) at page 842, the Court said:

                   “Courts will not follow the letter of the statute
         when it leads away from its true intent and purpose of the
         legislature,   and to conclusions  inconsistent  with the general
         purpose of the act. ”

        Following this law coupled with Texas Common Law, there can be but
one legal conclusion,  persons of the same sex are not granted the status of
marriage   in Texas.

        The fundamental reliance by the legislature    in the distinction of sex
inherent in a marriage  relationship   would place the attempted marriage     of
two people of the same sex into a cat’egory of being absolutely null, having no
force or effect for any purpose,   at any place or time, and whose invalidity may
be asserted by anyone, at any time, directly or collaterally.       Simpson v. Neely,
221 S. W. 2d 303 (Tex. Civ. App. 1969. error ref. ). In short, it is impossible
for two men to acquire the status of a marriage    in Texas.

                               SUMMARY                 ’

                 It is impossible    for persons of the same sex to
         acquire the status of a    marriage   in Texas.  A charge of
         false swearing may be      prosecuted   where a person swears
         falsely that they are a    certain sex when in fact they are
         not.




                                                  ORD C. MARTIN
                                         Atto    ey General of Texas

                                             d

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Prepared    by Tazewell Speer
Assistant   Attorney General

APPROVED:
OPINION COMMITTEE

W. E.   Allen,   Chairman

Linda Neeley
Wardlow Lane
Harriet Burke
R. L. Lattimore

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED    WALKER
Executive Assistant

NOLA WHITE
~First Assistant




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