                           November 3, 1970

Hon. Joe Resweber                    Opinion   No.   M-717
County Attorney
Harris County Courthouse             Re:   Authority of a county
Houston, Texas 71002                       clerk to issue a
                                           marriage license to
                                           persons presently
                                           legally married to each
                                           other, and related
Dear Mr. Resweber:                         question.

          Your recent letter requesting the opinion of this
office concerning the referenced matter states, in part, as
follows:

          "The following are questions which have been
     posed by Mr. R. E. Turrentine, Jr., County Clerk
     for Harris County, relating to his duties under
     the Texas Family Code:

          "1. Does the County Clerk have authority
     to issue a second marriage license to persons who
     are presently legally married to each other?

          “2.  If the answer to question number one (1)
     be in the affirmative, does the County Clerk have
     authority to issue the license under such circum-
     stances without requiring that the respective ap-
     plicants provide medical certificates?"

          The Chief Deputy County Clerk of Harris County has
further advised us of the fact situation upon which your request
is based. He stated that your request does not pertain to a
situation wherein a marriage license was lost, mutilated or
destroyed, as was the case in Attorney General's Opinion No.




                             -346%
Hon. Joe Resweber, page 2   (M-717)



C-407 (1965). Rather, the request for our opinion was occasioned
by two fact situations: in the first, a married couple had been
issued a marriage license, had been married in a civil ceremony,
and thereafter desired a license to be issued so they could be
married in a religious ceremony: in the second, the husband and
wife of a common law union (evinced by the filing of a declara-
tion of informal marriage filed pursuant to Section 1.92 of the
Texas Family Code) sought the issuance of a marriage license
so that they could be married ceremonially. The common law
couple, though under the age limits for a marriage license set
by Section 1.52 of the Code, asserted a valid cormnonlaw marriage
between them by virtue of the holding of Attorney General's
Opinion No. M-502 (1969).

          Section 1.03(b)(5) of the Code provides that applicants
for a marriage license shall execute an application form contain-
ing the following oath:

          "I SOLRMRLY SWEAR (OR AFFIRM) THAT THE INFOR-
     MATION 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 TEE DEGREES
     PROHIBITED BY LAW." (Emphasis added.)

          Section 2.22 of the Code provides, in part, that:

          "A marriage is void if either party was pre-
     viously married and the prior marriage is not dissolved."

          Section 1.07(b) of the Code provides:

          "The county clerk shall not issue a license to
     the applicants if he icncwsany facts which would
     make the marriage void or voidable under this code."

          However, Section 1.05 of the Code provides as follows:

          "Anyinformation pertaininq to an applicant,
     other than the applicant's name, may be omitted from
     the application, and any formalitv required bv Sub-
     chapters A, B, and D of this chapter may be waived on


                            -3470-
Hon. Joe Resweber. page 3             (M-717)




         the countv iudqe's written order, issued for good
         cause shown, pnd submitted to the countv clerk
         at the time the application is made." (Emphasis added,)

          We believe that Sections 2.22, 1.03(b)(S), 1.07(b),
supra, are not applicable to persons presently and validlv
married to each other. This is in keeping with the Code Con-
struction Act, Article 5429b-2, Section 3.03, Vernon's Civil
Statutes.

          We are further of the opinion that the portion of the
oath contained in Section 1.03(b)(5), supra, reading "that I am
not presently married", does not apply to persons presently
validly married to each other and this may be waived by the
county judge pursuant to Section 1.05, supra, and that persons
currently married to each other may, by securing such waiver,
be issued a marriage license. This opinion is given subject
to the proviso that marriage license applicants who allege a
common law union between them, cannot, even with the judge's
waiver as set forth above, be granted a marriage license unless
the requirements of age and/or parental consent provided by
Section 1.52 of the Code are met.

          In answer to your first question, therefore, we are of
the opinion that a county clerk may not issue a marriage license
to persons presently married to each other, unless (a) a waiver
from the county judge pursuant to Section 1.05, supra, waiving
the recitation by the parties of that portion of the oath re-
quired by Section 1.03(b)(5), wherein they state they are not
presently married, is obtained, and (b) both of the parties
fulfill the age and/or parental consent requirements of Section
 1.52.

           With reference to your second question, we note that
 Section 1.02(2) of the Code provides, in part, as follows:

               "Persons applying for a marriage license shall:

               (2) submit for each applicant:

               .   .   .   .   .




                                   -3471-
                                                       .




Hon. Joe Resweber, page 4            (M-717)



          (B) a medical examination certificate or
          an exemption order as prescribed by Sub-
          chapter B of this chapter:

          (C) if applicable, the county judge's order
          prescribed by Section 1.05 of this code ...II

          Section 1.21 of the Code provides that:

          "Except as provided by Section 1.22   of this
     code, the county clerk shall not issue a   marriage
     license unless each applicant submits at   the time
     of the application a medical examination   certificate
     as prescribed by this code."

          Section 1.22 of the Code states that:

          "On the joint application of both applicants
     for a marriage license, the judge of any county
     or district court of the county in which the license
     is to be issued may issue a written order exempting
     the applicants from the medical examination require-
     ments of this chapter if he is satisfied by proof that
     sufficient grounds exist for the exemption and that the
     exemption will not adversely affect the public health
     and welfare. The hearing on the application shall be
     private, and all records relating to the application
     shall be held in absolute confidence and shall not be
     opened to public inspection."

          In view of the foregoing, and in answer to your second
question, we are of the opinion that a county clerk does not
have authority to issue a marriage license to persons entitled
to same by virtue of our answer to your first question, without
requiring that the parties provide medical certificates, unless
the parties have obtained one of the exemptions from presenting
such certificate pursuant to Subsections (B) or (C) of Section
1.02(2), supra, or Sections 1.22 and 1.05, supra.




                            -3472-
Hon. Joe Resweber, page 5         (M-717)



                     SUMMARY

          (1) A county clerk does not have the authority
     to issue a marriage license to persons who are
     presently legallv married to each other unless (a)
     such persons meet the age and/or parental consent
     requirements of Section 1.52 of the Texas Family Code,
     and (b) a waiver of that portion of the oath required
     by Section 1.03(b)(5) of the Code reading "that I am
     not presently married" is obtained from the county
     judge pursuant to Section 1.05 of the Code.

          (2) A county clerk does not have authority to
     issue a marriage license to persons entitled to
     one by virtue of the exceptions set forth in para-
     graph (1) of this Summary unless such persons either
     (a! present the medical certificate required by
     Section 1.02(2)(B) of the Code, or (b) obtain an
     exemption from presenting such certificate pursuant
     to Subsections (B) or (C) of Section 1.02(2), 1.05,
     or Section 1.22 of the Code.




                                            neral of Texas

Prepared by Austin C. Bray, Jr.
Assistant Attorney General




                            -3473-
Hon. Joe Resweber, page 6      (M-717)



APPROVED:
OPINION CCMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Melvin COrley
James Quick
John Reese
Fisher Tyler

MFADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




                            -3474-
