                           March 30,      1970

Honorable Joe Resweber          OpiniOn     NO.M-604
County Attorney
Harrlk County Courthouse        Re:.,Whether Section 1.05 of,the
Houston, Texas 77002                 Texas Family Code eqpowers
                                     a county judge to waive those
                                     .p'ortlons
                                              o$ the Code requiring
                                     mtirriage.liceMe applicants tie
                                     fur.nls~.'lnfor~tloncondernlng
                                     prior divorces, and related
                                     question.
Dear Mr. Resweber:
     Your recent letter requesting the opinion of this office
concerning the referenced matter states, in part, as follows:
               "Please render your opinion on the
          following questions:
              1. Does Section 1.05 of the Femily
         Code empower the county'judge to waive
         thos'e,portlonsof subchapter A of chagtsr,
         one, of 'the Code which w'ould require then
         marriage llc~nse~app.licantsto furnish
         @ifo?matlon ta,,thecounty clerk concernilng
         any prior divorces aridthe..datesthereof?
                   2.
                  When it has been revealed to:the
          countyclerk that one of t,he marriage li-
         cense applicant~atibsbeen divorced from
         a third paity durlnglthe six-honth period
         precdding the date of the application, does
         Section 1.05 of the Family Code empower the
         county judge t,owiilvethe requisites of
         Section 1.07(c) ‘whichwou,ld requlre.the
         applicants to show the county clerk that the
         proposed marriage within the six-month pdrlod
         is permitted under Sedtlon 3.66  of the Code?"




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Honorable Joe Resweber, page      2    (M-604)


     Section 1.05   of Chapter 1 of the Code provides as follows:
               "Any.Information pertaining to an a.ppll-
          cant (for a marriage license), other 'than the
          applicant's name, may be omitted from the ape-'
          >ication, and any'formality
          chapters A, B, and D of thl ,':g;v
          waived on the county judge's'wrltten or er,
          Issued for good caus'eshown,,a'ndsubmitted
          to,the county clerk at the time the appll-
          cation Is made." (Emphasis added.)
     Section 1.02 of Subchapter A of Chapter 1 of the Code pro-
vides, In part, as follows:
               "Persons applying for a marriage license
          shall:


                "(2) submit for each applicant:
                      11
                       ....
                     "(Cl If aoolicable. theicounty judge's
                order p&crib&I   by Section 1.05 of this
                code...
               “(3)  provide the information for which spaces
          are provided In the application for a marriage
          license, o.o"
     Section 1.03(b)(4) of.Subchapter A of Chapter 1 of the Code
provides that:
               "The(marrlage license) application form
          shall contain ....spaces for Indicating whether
          the applicant has been divorced during the alx-
          month period preceding the date of the appll-
          cation...."
     Section 1.07(c) of Subchapter A of Chapter 1 of the Code pro-
vides as follows:




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.




    Honorable Joe Resweber, page 3 (~-604)


                   "If It is revealed that either appli-
              cant (For a marriage license) has been di-
              vorced during the six-month period,,pre-
              ceding the date'of the application, the
              county c,lerkshall not issue the llcxe
              unless it Is shown that the subsequent
              marriage within the six-month period is
              permitted under Section 5.bb of this code."
              (Emphasis added.)                          .

         Section 3.66 of the Code states that:
                     "Neither party to a divorce may marry
              a third party for a period of six months
              iUimedi8tely   'followingthe date the divorce
              Is decreed, but the parties divorced may
              marry each other at any time. The court
              granting the divorce.,for good cause    shown,
              yy                        divorce or thereafter
                           prohibition of this section as to
              either or both parties." (Emphasis added,)
         Section 1.05 speaks of "an Information" and "an
    in terms of the requirements + or a marriage license+$a~o;~l;~y"
    waived by the-county judge. This language would certainly en-
    compass the Information as to a prior divorce required to be
    furnished In Section 1.03(b)(4), supra.
        .Tt is our opinion that Section 1.05 empowers the county judge
    to waive the requirements of Section 1.03(b)(4), provided the
    county judge's written order to that effect Is submitted at ;the
    time the applicants apply for a marriage license, ,in accordance
    with Section 1.02(2)(C), supra.
         We are further of the opinion that the requirements of Sec-
    tion 1.07(c), supra, are neither "information" nor the "formality"
    that may be waived by a county judge pursuant to Section 1.05.
    Rather, we view Section 1.07(c) as a-provision of,substantlve law.
    To allow a county judge to waive the requirementb of that Secti.on
    would result in en'accretlonto the Section whereby Its plain pro-
    visions could be circumvented.
         Therefore, If the county judge's waiver of the requirements




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-




    Honorable Joe Resweber, page 4 (m-604)


    of Section 1.03(b)(4) Is submitted at the time the application is
    made for a marriage license, the Information concerning prior dl-
    voroe need not be a part of the application. However, even though
    such waiver of the county judge Is timely presented,,the clerk is
    prohibited from Issuing. the llcense‘if It has been 'revealed" to
    him or if he knows (Art. l.O7(b))thet either of the parties has
    been divorced within the past six months and he can only Issue the
    license if the waiver of the district court,  as provided for in
    Section 3.66, is procured and presented to the clerk. Art. 1.07(b)
    and (c)'
                                                                       ,'
         Therefore, the County Judge may not waive the six-month welting
    f;rt;i,,asrequired by Section 3.66, and our answer to question No. 2
           .'
         Accordingly, your first question is answered In tha affirmative
    and your second question Is answered In the negative.
                            SUMMARY
                   (1) Section 1.05 of the Texas Family Code
              empowers a county judge, for good,cause shown,
              to waive those portions of the Code requiring
              marriage license applicants to furnish infor-'
              mation concerning prior divorces. Thls,walver
              must be submitted at the 'timethe application
              for marriage license Is made.
                   (2) Section 1.05 of the Code does not
              empower a county judge to waive the require-
              ments of Section 1.07(c) of the Code, once
              lnforlnetlonconcerning a prior divorce has
              been revealed to the County Clerk, or is
              known to him.




                                         y General of Texas
    Prepared by Austin C. Bray, Jr,
    Assistant Attorney General   ,




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Honorable Joe Resweber, page 5     (M-604)


APPROVED:
OPINION COMMITTEE
Kern& Taylor, Chairman
W. E. Allen, Acting Co-Chairmen
John Reeves
John Banks
William Craig
2. T. Fortescue

MEADE F. GRIFFIN
Staff Legal Assistant
ALFRm WALKER
Executive ASSi8t8nt
NOU WHITE
First Assistant




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