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                                           October     25.    1974
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               The Honorable  Carlos F. Truan                        Opinion No.    H- 432
               Chairman
               Committee  on Human ,Resources                        Re: Whether a woman is required
               House of Representatives                              to assume her husband’s surname
               Austin, Texas                                         as her own.

               Dear Mr.   Truan:

                      You have asked   us the following       questions:

.-                                 (1) Do the laws of Texas give a married  woman the
                              right to determine   for herself whether she shall use
                              her husband’s    name or her maiden name on her driver’s
                              license or any other license,   form, application,    permit
 ..~ -.
                              or personnel  record issued or established     by any agency
          --
                              or department   of the State, or any political  subdivision
                              thereof?

                                   (2) Under Article    1, Section     3a,    of the Texas   Constitu-
                              tion may an agency or department      of the State, or a
                              political subdivision   thereof, require a married woman                 to
                              use her husband’s     name on any license,   form,  permit
                              or personnel   record if she has elected to retain her
                              maiden name at marriage?

                                  (3) Under Article  1. Section 3a, may a private business,
                              bank, or financial institution  require a married  woman to
                              use her husband’s   name if she determi.nes  for herself that
                              she prefers  to continue using her maiden name?
                .
                       Your questions all raise the central issue of whether a woman has
               the choice  upon marriage  to retain her name prior to marriage   or whether



                                                             p. 1996
 .      .                     i ‘-




        The Honorable      Carlos    F.   Truan   page   2    (H-432)




        she is compelled      by law to assume her husband’s   surname.           Upon analysis
        of the common      law in Texas,   statutes which have abrogated         the common
        law, and case authorities   from other jurisdictions            it is our opinion that a
        woman does-have    the choice upon marriage    either           to retain her name prior
        to marriage  or to assume her husband’s     surname.

                 At common law, a person could change names by repute without
        official approval ii the change was not done for fraudulent purposes and
        the new name was used consistently.      21 Halsbury’s   Laws of England at
        350, 351 (1912 ed). cf.  Earl Cowley v. Countess     Cowley, A. C. 450 (1901).
        The adoption of a spouse’s    name at marriage   is the most common example
        of such a name change by repute.     However,    at common law the name
        change at marriage    occurred  by repute and not as a consequence    of the
        marriage.

                           When a woman on her marriage        assumes, as she
                           usually does in England,    the surname of her husband
                           in substitution of her father’s  name, it may be said
                           that she acquires   a new name by repute.    The change
1’L..
                           of name is in fact rather than in law a consequence   of
                           the marriage.     Having assumed her husband’s   name
                           she retains it, notwithstanding   the dissolution  of the
                           marriage   by decree,   unless she chooses thereupon to
                           resume her maiden name.        On her second marriage
                           there is nothing in point of law to prevent her from
                           retaining her first husband’s   name.   (21 Halsbury’s
                           Laws of England,    supra.)

                In R. v. Inhabitants of St. Faith’s,  III Dow. and Ry. 348 (K.B.1823),
        the King’s Bench considered   the validity of a second marriage  in which
        the banns were posted in a widow’s maiden name.       The argument was made
        that her legal name was that of her first husband.    However upon the death
        of her first Insband, the widow had assumed her maiden name by repute.
        The court held that the maiden name used in the banns was the widow’s
        legal name and in their holding stated:




                                                   p. 199’7
The Honorable   Carlos   F.   Truan   page ~3 (H-432)




                It has been asserted in the argument, that a married
                woman cannot legally bear any other name than that
                which she has acquired in wedlock: but the fact is not
                so; a married  woman may legally bear a different
                name from her husband . . . . p. 346

         By an Act of 1840, 2 Gammel’s Laws, p. 177; Art. 1, V. T. C.S.,
Texas   adopted English common law except as to marital property rights
concepts   retained from the civil law.  Thus Texas recognized     the right
to change names by repute,    including the right to change names by repute
at mairiage.     However, in 1856. the Legislature   enacted Article  5928,
V. T. C. S., which provided:

                Whoever desires     to change either his Christian   or
                surname,    or both, and to adopt another name instead,
                shall file his application  in the district court of the
                county of his residence,    setting forth the causes for
                such desire.     The judge of said court, if in his opinion
                it is for the interest or benefit of the applicant to so
                change his name shall decree that the adopted name of
                the party shall be substituted for the orginal name.
                4 Gammel’s     Laws, p. 260 (1856).

Article 5928 was repealed     in 1973 by the Texas      Family   Code   $32.21
which states:

                     Any adult may petition the districtcourt in the
                county of his residence   for a change of name.   The
                petition must state the present name and address of
                the petitioner, the requested name,        and the reason
                for which a change is desired.

This Section of the Family Code was intended as a recodification       of Article
5928 without substantive    change.  Famii~y Law Section,   State Bar of Texas,
Summary and Analysis      of Texas Family Code,     Title 2, p. 16 (1973).   It is
thus necessary    to examine what effect 5 32. 21 of the Family  Code has on the
bre-existing   common law right of a woman to change names at marriage           by
repute.

                                         p.   19’18
    .




               The Honorable      Carlos   F.   Truan      page 4     (H-432)




                         In interpreting    the statute,   we are guided by Article       10,   $6,
               V.T.C.S..      which   states:

                             -   In all interpretations,  the court shall look diligently
                                 for the intention of the Legislature,   keeping in view
                                 at all times the old law, the evil and the remedy.

               We are also guided by the general rule of statutory construction               that, ii
               a statute deprives      a person of a common law right, the statute will not be
               extended beyond its plain meaning or applied to cases not clearly within
               its purview.      Satterfield   v. Satterfield,     448 S. W. 2d 456 (Tex. 1969);     .
                Cafeterias,    Inc. v. System-Master,          Inc.,   490 S. W. 2d 253 (Tex. Civ.
               APP. 2   Austin   1973,   no  writ).  It is our   opinion  that the widespread    practice
.              of changing names by repute at marriage               was so entrenched in Texas by
               1856. the date of the enactment of Article            5928 (later replaced by $32.21
                of the Family Code), that the Legislature            did not intend to require a woman
               at marriage      to change names by goin g through a court procedure            or intend
               that she lose her common law right to change names by repute at marriage.
               See In re Evetts Appeal,      392 S. W. 2d 781 (Tex. Civ. App.,   San Antonio 1965,
    --         G.L   r ei’ d) . Thus in our opinion, .under this statute a woman retained her
         -.
               common law right to choose at marriage         either to keep her name prior
               to marriage      or to assume her husband’s    surname.

                         We have not found a Texas case in which the court has squarely
              . considered    the question of whether a woman can elect upon marriage         to
                retain her name prior to marriage.          The two Texas cases which have
                been cited to support the proposition       that a woman’s name is changed by
                law,at marriage     to that of her husband actually concerned    the sufficiency
                of notice by publication.      The first,  Freeman   v. Hawkins,   14 S. W. 364
                 (Tex. 1890),held   only that citation by publication was not sufficient when
                a married    woman who had adopted her husband’s         surname was cited in her
                birth name.     The citation must be in her “real name, ” which after adopt-
                ing her husband’s     surname,    is no longer her birth name.    In accord,
               Ruddph v. Hively,   188 S. W. 721 (Tex. Civ. App.,               Amarillo   1916, err.
               ref’d).  The opinion in Freeman     states,  in dicta,           that “(o)n the marriage
               of Mary C. Robinson the law conferred       on her the           surname   of her husband.   ”
               14 S. W. at 365.   However,   the “law conferred     on          her the surname of her




                                                              p.    1999
The Honorable   Carlos   F.   Truan   page    5   (H-432)




husband” not because of statutory or court requirements,     but because by
the facts of the case,   she chose to assume her husband’s  surname,   and
the law recognizes    such a voluntary   change of name by repute at marriage.


        The second   case,   Kidd v. Rasmus,     285 S. W. 2d 415 (Tex. Civ. App.,
Galveston  1955, err.   ref’
                           d).  held  that because  of a peculiar fact situation,
the notice by publication   was sufficient  even though it cited in her birth
name a married woman who had assumed her husband’s              surname.   However,
the opinion also included dicta that a woman takes her husband’s    surname at
marriage,   and in so doing absolutely  loses her birth name.   As with Freeman,
taking the surname of her husband is descriptive    of the majority custom,  but
it is not mandated by statute or case decision in Texas and would not necessarily
preclude the woman’s    electing to keep her name prior to marriage.

        On the other hand, two Texas cases have been cited to support
the proposition  that a woman’s name does not change by law at marriage
to that of her husband.

        The Supreme Court of Texas,    in Bell v. State, 25 Tex. 574 (1860)
held that it was reversible error for a trial court to decide as a matter of
law that a married woman’s name is that of her husband.      In Rice v. State,
38 S. W. 801 (Tex. Crim.     1897), a rape indictment was found fatally defective
in that it failed to negate the fact that the prosecutrix was the wife of the
accused,    even though the indictment   showed that the prosecutrix and the
accused had different surnames.       The court stated:


                There is nothing in our statute requiring        or compelling
                the wife to take or assume the name of her husband.
                While this is generally    the case,   yet the wife might
                retain her own name.      She  might   be married    to the
                defendant,   and still be known by her maiden name, or
                some other name than his.       ‘It i.s said, the husband
                being the head of a famil.y, the wife and children adopt
                his fami.ly name,    - by custom,    the wi,fr is called by the
                husband’s   name: buL whether marriage        shall work any
 .
                change of name at all is, after all, a mere question of
                c:hoi,ce. and either may take the other’s      name, or they
                may join their names together. ’ See 9 Am. & Eng.
                Enc. Law. Lit. ‘Husband and Wi~fe, I p. 813; . . .



                                             p.   2000
     The Honorable    Carlos   F.   Truan   page 6    (H-432)




             Thus, although most women have assumed      their husbands’ surnames
     upon marriage,   and Texas cases have made reference      to this practice, no
     Texas court has decided as necessary  to the disposition    of a case that, as
     a matter of law, a woman must adopt her husband’s      surname upon marriage.

              There are cases from other jurisdictions      which support the view taken
     here.   In Stuart v. Board of Supervisors    of Elections,    295 A. 2d 223 (Md.1972),
     the Maryland    Court of Appeals (Maryland’s    highest court) decided that a
     married   woman could vote in her birth given name which she had consistently
     and non-fraudulently   used because,  in Maryland,     a woman’s    name is not, ipso !&to,
     changed by the mere fact of marriage.      Maryland     courts had recognized
     the common law right to change names by repute.          In the absence of a
     statute requiring a woman to adopt her husband’s       surname,    the Maryland
     court held:

                     . . . (A) married woman’s      surname does not become
                     that of her husband where,     as here,  she evidences a
                     clear intent to consistently   and non-fraudulently   use
                     her birth given name subsequent to her marriage.
          _.
                     Thus..     . a married woman may choose to adopt the
-’                   surname of her husband - this being the long standing
                     custom and tradition which has resulted in the vast
                     majority   of married women adopting their hlsband’s
                     surnames    as their own - the mere fact of the marriage
                     does not, as a matter of law, operate to establish the
                     custom and tradition of the majority     as a rule of law
                     binding upon all.    295 A. 2d at 227.

              The Supreme Court of Connecticut      recently decided that a married
     woman may register     to vote in her maiden name if she used it nonfraudulently
     and in so doing does not infringe on rights of others.       Custer v. Bonadies,
     318 A. 2d 639 (Conn. 1974).    The court in Custer     recognized   that Connecticut
     adopted the common law, including the right to change names by repute.
     Connecticut has no statute requiring a woman to adopt her husband’s          surname
     at marriage,   and the court could find no basis for a rule of law which would
     require a woman to adopt her husband’s      surname.     See also Arkansas    Attorney
     General Opinion No. 74-75,     April 19, 1974;    CaBfornia Attorney General
     Opinion,   March 12, 1974; Illinois Attorney General Opinion,      February    13, 1974;

                                               p.    2001
   The Honorable      Carlos   F. :Truan    page 7       (H-432)




  Pennsylvania  Attorney  General Opinion, August 20, 1973; Vermont
  Attorney  Gamral Opinion No. 179, February  4. 1974; Virginia Attorney
  General Opinion,   June 6. 1973.~

           It is our conclusion,  in view of the foregoing   authorities, that at
   common law a woman had the right at marriage         to change her name by
   repute.   Section 32.21 of the Texas Family Code did not abrogate that
   right.  Thus, at marriage,    a woman may choose to retain her name
   prior to marriage   or to assume her husband’s     surname,    as long as she
 ,, uses   the name   she chooses   consistently   and nonfraudulently.

           Therefore,   to your first question we answer,     that in our opinion
   the laws of Texas give a married      woman the right to use her name prior
   to marriage   or her husband’s    surname,  whichever   of those names she
   chose at her last marriage.    and uses consistentlv  and non-fraudulently,
   for the purposes   described  in your question.

            Your second question concerns        an application   of Article 1, $3a
    of the Texas Constitution,     the Texas Equal Rights Amendment,         which
    states,  “Equality   under the law shall not be denied or abridged because
:. of sex : . . . I’ The legislative     intent of the Texas Equal Rights Amend-
  --ment was to provide equality between the sexes.           In the absence of any
    compelling   state interest,   the state must treat men and women equally.
    See Attorney     General LetterAdvisory      No. 3 (1973). See generally,
    The Equal Rights Amendment:        a Constitutional   Basis for Equal Rights
    for Women,      80 YALE    L. J. 871 (1971).   Thus,   in our opinion in the
   absence of any compelling      state interest,   if the state, or any agency,
   department  or political    subdivision  thereof,    required a woman to use a
   name on any license,     form,   permit or personnel       record which was not
   the name she was currently       using under the guidelines      we have set out
   above,  and did not require a man to use a name he was not currently
   using, such action by the state would be in violation of Article        1, 5 3a of
   the Texas Constitution.

            As to your third question,  the Texas Equal Rights Amendment       pro-
   vides only that equality under the law shall not be denied or abridged because
   of s’ex.  Private businesses,   banks or financial institutions do not fall within



                                               p. 2002
                                                                                  I




The Honorable         Carlos   F.   Truan   page   8    (H-432)                       I

                                                                                      /


the ambit of the Texas Equal Rights Amendment           unless there is a showing
that there is sufficient   state action involved in their businesses.     Your
question does not provide us with the specific facts necessary        to make
that determination.      We express no opinion as to whether under other
laws, a pri.vate business,     bank or financial institution may require a
married   woman to use a name other than the one she is currently legally
using.

                                        SUMMARY

                          A woman upon marriage   has the choice either
                      to retain her name prior to marriage  or to assume
                      her husband’s  surname.

                                                         Very     truly yours,




                                                   c/    Attorney     General    of Texas




    DAVID     M.   KENDALL,     Chairman
    Opinion   Committee




.


                                               p. 2003
