                                  The Attorney General of Texas

JIM MATTOX
                                                        October 18, 1985
Attorney General



Supreme court 6UlldtflQ          Ronorable Mike Drlsmll                     Opinion No. JM-359
P. 0. BOX 12548                  Harris     County Attonwy
AusIln. TX. ?5711- 2548          1001 Preston. Suite 634                    Re: Whether a county clerk may
51214752501                                       77002
                                 Rouston, Texas                             issue a marriage license without
Telex QlOiS74.1387
Telecopier  512I475.0286
                                                                            parental consent if either appli-
                                                                            cant is under 18 years of age and
                                                                            has previously been married
714 Jackson, Sulle 700
Dallas, TX. 75202-4508
                                 Dear Mr. Driscoll:
2141742-8944

                                          You ask the fo:L!bwing   question regarding marriage licenses:
4S24 Alberta   Ave.. Suite 160
El Paso, TX. 799052793                            Way the county clerk issue a marriage license
915/533-3484                                   without Fsrental consent, or a court order, if
-                                              either app:licantis under age eighteen, has been
,er s Texas, Suite 700                         married, curdis no longer married?
Houston. TX. 77W2-3111
713,2295SSS                           The following provtsion sets            out   the   age   requirement   for
                                 applicants for a msxiege license:
SW Broadway. Suite 312
Lubbock. TX. 79401.3479
                                                  Except with parental consent as prescribed by
SW7476239                                      Section l,Ii2of this code or with a court order as
                                               prescribed by Section 1.53 of this code, the
                                               county clt!rkshall not Issue a marriage license if
4309 N. Tenth. Suite B
                                               either apl)llicant
                                                                is under 18 years of age.
WAllen.  TX. 78501-1685
5126924547
                                 Family Code 01.51. :By its terms section 1.51 is an absolute prohibl-
                                 tlon against issuance of a marriage license to someone under 18 who
200 Maln Plaza. Suite 400        has not obtained e:Ltherparental consent or a court order. But the
San Antonio. TX. 782052797
                                 Family Code also contains the following provision:
512l2254191

                                                  Except ,a6 expressly provided by statute or by
An Equal OpportunilYl                          the const:ltutlon, every person who has been
Alflrmatlve Actlon Employer                    married il?accordance with the law of this state,
                                               regardlesliof age. has the power and capacity of
                                               an adult, including the capacity to contract.
                                               Wnphasis  added).

                                 Family Cod& 14.03. Because section 4.03 applies to someone who "has
                                 been married," thr: emancipating effect of marriage survives the
                                 marriage. The quesl:Lon.then, is whether section 4.03 exempts someone




                                                               p. 1639
Honorable Mike Driscoll - Page 2   (m-359)




who has been married from the ,agerequirement of section 1.51. In our
opinion it does not.

     Our conclusion Is based on the plain language of sections 1.51
and 4.03. Section 4.03 expressly does not affect constitutional and
statutory age requirements. This limitation on the emancipating
effect of section 4.03 "take[s] into account the many statutes that
impose specific age requlremtats as a condition to performing legally
significant actions." E. L. Z#mith,5 Texas Tech Law Rev. 489. 492-93
(1974). The quoted language is in reference to a statute that sets
out the capacity of a minor whose disabilities have been removed by
court order. Family Code 521.07. The language of section 31.07 Is
essentially the same as the language of section 4.03:

             Except   for   rglecific constitutional     and
          statutory age requirements. a minor whose dis-
          abilities are removzd for general purposes has the
          power and capacit:r of ai adult; including the
          capacity to contract. (Emphasis added).

Family Code 531. The predecessor to section 31.07 made emancipated
minors "for all legal purposes, of full age, except as to the right to
vote." Acts 1888, p. 61. A statute repealed in 1969 made married
women "of full age." V.T.C.5,. art. 4625 (repealed). Both statutes
gave rise to questions ,Aout        whether specific statutory age
requirements applied to emancipated minors and married women under the
age specified. See Attorney General Opinions O-2918 (1940); V-77
(1947); V-849 (194m, S-20 (1953). Sections 31.07 and 1.51 eliminated
the uncertainty that gave rise to those opinions. Thus, because
section 1.51 contains a specific age requirement and not a reference
to “min0r6” or "infants.'Isection 4.03 does not change the effect of
section 1.51.

     A 1981 attorney genera!.'s opinion provides further support for
our conclusion. Attorney Ger.eralOpinion IN-354 (1981). The question
in that opinion was whether 8.married person under the age of 18 could
receive benefits that were "Feyable until the child reaches eighteen."
The opinion considered whether that language should be read to mean
that benefits were payable to "minors." If that were the correct
reading of the statute, bene:Eits would fiat be payable to a married
person under 18 because a mal,riedperson Is not a minor, regardless of
age. Probate Code 13(t) (exm::Ludes persons who have been married from
the definition of minor); se's also Plttman V. Time Securities, 301
S.W.2d 521 (Tex. Civ. APP. --San Antonio 1957, no writ) (holding that
the section 3(t) definition of "minor" is not restricted to the
Probate Code). Without evc:n mentioning section 1.51. this office
rejected that reading of t'le statute and determined that the age
requirement in the statute &ould be taken literally. In other words,
even though 18 is now the ege of majority In Texas, a statute that




                              p. 1640
Aonorsble Mike Driscoll - Palle3   (M-359)




distinguishes between person!,under 18 and persons 18 and older is not
to be reed as a distinctiaa between minors and persons who have
reached the age of majority.        pi
                                    ,\:
     Although the language of sections 1.51 and 4.03 admits of no
other conclusion, a strlctjrtading $s somswhat dissatisfying because
of the irony that a child who hai acquired certain capacities by
getting msrried lacks the capacity to consent to a marriage.
Therefore, we think it is important to buttress our conclusion by
exsmlning the history of the law of infancy and the policy
considerations behind section 4.03.

     The premise underlying the common law of infancy and various
minimum age requirements is c:hatchildren lack the requisite faculties
to participate in certain acltivitiesand to make certain decisions.
See R.B. Tyler, Commentaries ‘on the Law of Infancy, Il. at 33 (1882).
The intended effect of such laws is~"to prevent, as far as possible,
the evils which would arise from the imbecility and inexperience to
which every man is subject on his entrance into the world." P.
Bingham. The Law of Infancy rntdCoverture. Il. at 1 (1849).

     At common law any persca~under the age of 21 was an infant and
was legally incompetent for various purposes. Probably ths most
significant disability of +nfancy, and certainly the most widely
discussed, was an infant's general incompetence to make binding
contracts. See Tyler, m,      chs. VII-VIII. Apparently the capacity
to consent tomarriage    was xhought to ripen much earlier than the
capacity to consent to other, contracts, however, because the minimum
age at which a male could gj.vebinding consent to a marriage was 14.
and the minimum age for females was 12. G. W. Field, The Legal
Relations of Infants, Sll. 2, 21 (1888).

     A valid marriage by ir.fants at common law did not operate to
relieve them of their disab:L:Llties.See Burr v. Wilson, 18 Tex. R.
368. 371-77 (1856). In Burr the courtheld that even though certain
statutes emancipated msrricd: Infant men’ for certain purposes, such
statutes did not extinguish the disabilities of infancy generally.



     1. In this opinion we ahall use the word "child" to refer to
someone under 18. We do ho in order to avoid terms with legal
meanings such as "minor" and to avoid the cumbersome phrase "a person
under 18."

     2. The Burr court poiut,edout that its decision did not apply to
married womsn%auae    married women were, by statute, "of full age."
Burr at 377. The release oE married women from the disabilities of
infllncy was an emancipation in legal theory only, however, because
marriage brought a woman into a state of coverture. which was a more
disabling state than infancy. Tyler, s,     05207, 208.


                              p. 1641
Honorable Mike Driscoll - Page 4   (JM-359)




Id. at 376. Coneequently. th#e court held that, except~'tothe extent
that statutes provided specific exceptions to a married infant's
Incapacity to contract, a ma:nriedInfant remained incompetent to make
                                                      ;
binding contracts.                                     !

     Although Burr describt,s a married infant's indompetence to
contract as a"privilege"    ,:o disavow contracts, Burri at 377. the
inability to contract would no doubt be an inconvenience to married
infants living apart from their parents. For that reason the common
law was not rigid in its trcetment of infants. It permitted infants
to make valid contracts for necessaries.         Tyler. 8upTa. (56.
Liability for necessaries:, however, depended on an Infant's
circumstencea:

            The question of necessaries is governed by the
         real circumstances of the infant, and not by what
         his situation may cppear to be. An Infant when at
         home under the care of his father, and supported
         by him. cannot be rls.de
                                liable for necessaries. If
         he could be made liable, the father would‘ be
         deprived of the right of exercising his discretion
         as to the manner and degree of his support.

Id. 158 at 100-101. Thus, a married infant living apart from his
parents would be able to make some binding contracts. But anyone who
contracted with an infant was bound to "inquire and ascertain the real
circumstances of the infant" and to determine whether the infant could
bi.nd~~
     himself in contract. 'Id. at 101. Thus, the uncertainty of
whether a contract was a c'zract for necessaries could make an
infant's legal competency l:o enter into such contracts of little
practical value.

     Under current Texas statutory law a person reaches his majority
at age 18. earlier than at common law. V.T.C.S. art. 5923(b). The
age of consent for marriage :Lenow also 18, considerably older than at
common law. The current law reflects a legislative' judgment that
persons under 18 do not have the wisdom necessary to make decisions
about marriage,. just as thf,y do not have the wisdom to enter into
other contracts. Nonetheless, the law permits exceptions to the rule
that persons under 18 should not marry.        See Family Code 51.52
(provides for parental conscit to marriage of underage applicant); id.
51.53 (provides for court order to authorize marriage of under=
applicant). These provisicns allow for the fact that particular
circumstances In favor of marriage sometimes offset a child's
ismmturity.

     As we noted earlier. the burdens of contractual incapacity
frequently outweigh the benefits for married children. Although the
coavnon lew rule regarding contracts  for necessaries relieved that




                             p. 1642
gouorable Mike Driecoll - Page 5.   (A-359 )




burden somewhat, section 4.C3 eliminates the uncertainty created by
that rule and gives a person who has been married the capacity of an
adult, including the capacity to contract. Family Code 14.03.            I
                                                                         i
     Although section 4.03 :ls a significant revision of the common
law, it is not a rejection of the cosxnonlaw rule that marriage does     4
not end infancy for all purpc,ses. Under section 4.03 married children   i
are still subject to constitutional and statutory provisions that set     :
specific age requirements.

     The limited emancipation provided for in section 4.03 is an
attempt to make the best of t,ituationsthat depart from the ideal. As
we said before, because commxi law incapacity was intended to benefit
children, it makes sense to end the incapacity when it is more of a
burden than a benefit to a chid.   That reasoning does not necessarily
apply to other minimum age :equirements. For example, the minimum
voting age and the minimum fIge for holding various public positions
protect the rest of us fromthe "imbecility" of youth. Because the
circumstances that lead pare ts or judges to authorize marriages are
not necessarily indicative f premature wisdom, the marriage of a
child does nothing to affe1t the considerations pertinent to the
determination of the minimum voting age or the minimum age for holding
certain positions.

     Similarly, the circums ,ances that lead parents or judges to
                            a necessarily indicate that an underage
authorize one marriage do no,:
applicant is better preparei.!for marriage than other members of his
age group. Indeed, consent 13an early marriage is often forthcoming
despite an applicant's immatuity
                            \     rather than because of it.

     Thus, in general, the j, istlficatlonfor removing the contractual
incapacity and some other d i:sabilitiesof minority does not justify
removing the minimum age foci consent to marriage. We can, nonethe-
less, imagine circumstances .n which the second marriage of e child
would be desirable. The 1s A must sssums that in such circumstances
parents and judges will exercise their authority to consent to
marriage with the interests of the child in mind.
                              ~
     At common law marriags did not rsmove the disabilities of
infancy, and Texas has not irejected this rule entirely. Although
under Texas law marriage r aoves some disabilities of infancy, it
expressly does not affect a(;: requirements fixed by the constitution
or by statute. Texas law soa 1 the age of consent to marriage at 18.
Family Code 11.51. Therefor& clerks may not issue a marriage license
to any person under 18. whe lher or not that person has been married
before, unless the person seering
                            !      the license has parental consent or
the consent of a judge. Fam:ql.y Code IP1.52, 1.53.




                             up. 1643
Ronorable Mike Driecoll - Pdge 6     ,(JM-359)




                               SUMMARY

              Clerks may not ::ssuea marriage license to any
           person under 18, whether or not that person has
           been married before..unless the person seeking the
           Heease has parental consent or the consent of a
           judge. Family Code!111.52. 1.53.




                                         J h
                                           Very truly your


                                                 c-%
                                           .lxn    MATTOX
                                           Attorney General of Texas

TOMGRRRN
First Assistant Attorney   Gencwel

DAVID P..RICRARDS
Executive Assistant Attorney   General

ROBERT GRAY
Special Assistant Attorney Gaineral

RICK GILPIN
Chairman, Oplnioa Comittee

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COnMITTEE

Rick Gilpin. Chairman
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk




                                 p. 1644
