                      .\8WTIS. TacsAw    78711

                          December   28, 1972


Honorable Sam L. Gayle, Jr.          Opinion No.   M-1287
County Attorney
Jackson County                       Re:   Requirements for the
P. 0. Box 88                               issuance of a marriage
Edna, Texas 77957                          license and the status
                                           of marriage by proxy
Dear Mr. Gayle:                            in Texas.


             Your request for an opinion asks the following
questions:

          "1. Can the County Clerk issue a
     marriage license if the male applicant
     satisfies the blood test and identity
     requirements, or does Section 1.02(l) of
     the Family Code require a personal ap-
     pearance before the County Clerk?

          ”2 . Does Texas allow a marriage by
     proxy which other jurisdictions allow?"

          Your relation of -facts shows that the female is     a
resident of Jackson County, Texas, and that the male is a      former
resident of Jackson County now stationed in Viet Nam, and      that
the two would like to obtain a marriage license and marry      by
proxy.

          Our answer to your first question is that under certain
conditions the personal appearance of an applicant before the
county clerk may be waived, and our answer to your second question
is "yes-.

          Section 1.01 of the Texas Family Code provides that
those who desire to enter into a ceremonial marriage shall obtain
a marriage license. Section 1.02 provides for the application of
marriage license and states that the applicants shall appear to-
gether or separately before the county clerk. Section 1.05 pro-
vides:

           "Any information pertaining      to an appli-
      cant, other than the applicant's      name, may

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Bon. Sam L. Gayle, Jr., page 2    (M-1287)



     be omitted from the application, and any
     formality required by Subchapters A, B, and
     D of this chapter may be waived on the county
     judge's written order, issued for good cause
     shown, and submitted to the county clerk at
     the time the application is made."

          The provisions concerning application for a marriage
license and the issuance of such license by the county clerk
are provided for in Subchapter A of the Texas Family Code.
Therefore the requirement that the applicants each appear in
person may be waived pursuant to the provisions of Section 1.05.

          In answer to your first question, if the county judge's
written order is obtained pursuant to the provisions of Section
1.05, the county clerk may issue the marriage license without
the applicants applying for the marriage license appearing be-
fore the county clerk.

          In arriving at the answer to your second question we
consider first the landmark case of Grigsby v. Reib, 153 S.W.
1124 (Tex.Sup. 1913), wherein the court stated:
          II
           . . . Every marriage must be by contract,
     express or implied; that is, the relation of
     husband and wife must be assumed, as such, by
     mutual consent. The contract between parties
     to be husband and wife is a civil contract;
     that is, it is not a church ordinance or rite."

           Thus in Texas a marriage is a civil contract and no
marriage can be binding which does not rest upon the consent
of the parties. See also Attorney General's Opinion O-7529
 (1946), and authorities cited therein.

          in Attorney General's Opinion O-7529 (1946) it was
pointed out that the Legislature may prescribe the procedure
and form essential to constitute marriage.  The Texas Family
Code recognizes both ceremonial marriage (Sec. 1.81-1.85) and
marriage without formalities (Sec. 1.91-1.92). With regard to
ceremonial marriage, Section 1.82 provides:

          "On receiving possession of the unex-
     pired marriage license, any authorized person
     may conduct the marriage ceremony."

 This section requires that a ceremonial marriage performed

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Hon. Sam L. Gayle, Jr., page 3    (M-1287)



pursuant to the Texas Family Code must be performed by a person
authorized under the provisions of Section 1.83, that such au-
thorized person receive possession of an unexpired marriage
license and that he conduct the marriage ceremony within this
State, Sec. 1.84.

           The presence of the parties to the marriage is not
specifically required by this Code. No procedure is prescribed
for the marriage ceremony itself.

          Our opinion is the Texas Family Code leaves to the
discretion of the participants the determination of all other
procedures and the formalities, if any, regarding the marriage
ceremony.  We find no requirement whatever that each person to
whom the marriage license has been issued be present at the
marriage ceremony.

          The clearly expressed intent of the Legislature as
expressed in the Code relating to the validity of marriage is
stated in its following provisions:

           "Chapter 2. Validity of Marriage Subchapter
     A. General Provisions 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 the marriage re-
     lationship.   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 invalidity 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 express-
      ly made voidable by this chapter and is annulled
      as provided by this chapter . . . ."

           No provision in the Code relative to either void
 marriages (Ch. 2, Subchapter B, Sec. 2.21-2.24) or voidable
 marriages (Ch. 2, Subchapter C, Sec. 2.41-2.47) is an impediment
 to a marriage by proxy. In this context see State v. Anderson,
 396 P.2d 558 (Ore.Sup. 1964); 170 A.L.R. 947-949, and 52 Am.Jur.2d
 873-4, Marriage, Sec. 13.


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Hon. Sam L. Gayle, Jr., page 4     (M-1287)



           Proxy marriage was recognized by the common-law of
England, 55 C.J.S., Marriage, p. 819. The common-law of England
has been adopted in Texas, Article 1, Revised Statutes. Cere-
monial proxy marriage is recognized in our sister states that
have adopted the common-law, 55 C.J.S., I&., p. 862 n. 20 (see
also, Supp. 1972). Proxy marriage is not the subject of statute
in Texas and therefore we conclude that proxy marriage was and is
a valid part of our common law. A ceremonial proxy marriage is
a ceremonial marriage and the statutes relating to ceremonial
marriages are applicable. We therefore conclude that a proxy
marriage may be performed in Texas where the other requirements
set forth for a marriage are met. We follow the example of
other jurisdictions which have held that where the statutes
are silent as to marriage by proxy, such a marriage will be valid
if the statutorv reauirements for a ceremonial marriaae are met.
See State v. Anderson, supra; Barrons v. United State;, 191
F.2d 92 (9th Cir. 1951); and In re Valente's Will, 188 N.Y.S.2d
 732 (Surrogate's Ct. 19591.

           In view of the foregoing it is our opinion that in the
event a person authorized under the provisions of Section 1.83
of the Texas  Family Code determines that the persons to whom a
marriage license has been issued intend to be married, such au-
thorized person on receiving possession of an unexpired marriage
license and an authorized proxy, may perform a proxy marriage.

                         SUMMARY

          The requirement of persons applying for
     a marriage license appearing together or
     separately before the county clerk may be
     waived pursuant to the provisions of Section
     1.05 of the Texas Family Code. Where a
     marriage license is issued, a ceremonial
     marriage may be performed by proxy.

                                          Very/pruly   yours,




 Prepared by John Reeves and Tom Pollan
 Assistant Attorneys General



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Hon. Sam L. Gayle, Jr., page 5        (M-1287)



APPROVED:
OPINION COMMITTEE

W. E. Allen, Chairman
Harriet Burke
Austin Bray
Fisher Tyler
James Hackney

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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