                        OF-TEXAS



                        November 27, 1959

Honorable J. R. Owen               Opinion No. WW-751
County Attorney
Willlamson County                  Re:   Questions concerning House
Georgetown, Texas                        Bill 48, Acts 56th Legis-
                                         lature, Second Called Ses-
                                         sion, relating to certain
                                         conditions for the issuance
                                         of marriage licenses by the
Dear Sir:                                county clerk.
            You have requested an opinion concerning House Bill
48, Acts 56th Legislature, Second Called Session, 1959, Chapter
20, Page 113, on the following two questions: first, as to
whether certain parts are in violation of Section 35, Article
III of the Constitution of Texas, and secondly, as to whether
the provisions in paragraph (a) of House Bill 48 that the re-
turned marriage license shall be retained by the issuing clerk
Is to be construed as mandatory on the clerk.
            The relevant Constltutiona~l provision Is as follows:
                "Sec. 35. No bill, (except.general appro-
            priation bills, which may embrace the various
            subjects and accounts, for and on account of
            which moneys are appropriated) shall contain
            more than one subject, which shall be express-
            ed in Its title. Wit if any subject shall be
            embraced in an act, which shall not be ex-
            pressed in the title, such act shall be void
            only as to so much thereof, as shall not be
            so expressed."
            The relevant portions of House Bill 48 are as fol-,
lows:
                "An Act relating to the requirement of con-
            sent of parent or guardian of certain parties
            before said parties may marry or a marriage
            license be issued to them and relating further
            to the'issuance of marriage licenses by the
            county clerk after a prescribed period of three
            (3) days from the date of the filing of the ap-
            plication; amending Article 4605, Revised Civil
Honorable J. R. Owen, page 2   (w-751)


          Statutes of Texas, 1925; providing the county
          judge may waive certain requirements; and de-
          claring an emergency.
         "Pe it,enacted by the Legislature of the State
         of Texas:
             "Section 1. Article 4605 of the Revised
         Civil Statutes of Texas, 1925, is amended to
         read as follows:
              'I Article 4605.  Consent of parent or
          guardian and issuance of license.
             "'(a). An unmarried male of the age of
         twenty-one (217 years or upwards, or any un-
         married female of the age of eighteen (18) years
         or upwards and not otherwise disqualified, is
         capable of contracting and consenting to marrlage;~
         but no female under the age of eighteen 18 years
         and no male under the age of twenty-one t21 1 years
         shall enter Into the marriage relation, nor shall
         any license issue therefor, except upon the consent
         and authority expressly given by the parent or guard-
         ian of such underage applicant in the presence of
         the authority issuing such license; provided further
         that If the certificate of a duly licensed medical
         doctor or osteopath acknowledged before an officer
         authorized by law to take acknowledgments and stat-
         ing that such parent or guardian Is unable by rea-
         son of health or Incapacity to be present in per-
         son, is presented to such licensing authority,
         the license may issue on the written consent of
         such parent or guardian, acknowledged In the same
         manner as the accompanying medical certificate.
         Any such certificate and written permission shall
         be retained by the officlal,issuing the marriage
         license, together with the returned license. . . .
              "l(b). The county clerk, upon application In
          writing signed and sworn to in person before him
          by both of the parties to be married setting forth
          their places of residence and setting forth their
          full names and ages as the same appear upon a certl-
          fled copy of birth certificate, or upon a current
          motor vehicle operator's, chauffeur's, or commer-
          cial license or upon a current voter's registra-
          tion certificate, or upon a current passport or
          visa or upon any other certificate, license or
HonorabjLe J. R. Owen, 'Page 3   (w-751)


          document issued by or existing pursuant to the
          laws of any nation or of any state or other govern-
          mental subdivision thereof, when each such document
          accepted as proof of identity and age is described
          with reasonable particularity in the application
          shall also set forth that such persons to be
          married are not disqualified or incapable of
          entering into the marriage relation, nor of
          the relationship prohibited by law, and being
          satisfied of the truth and sufficiency of such
          application and that there Is no legal impedi-
          ment to such marriage, and after application for
          such marriage license has issued, shall issue
          the license authorizing such marriage; provided,
          however, that In the event the male party is
          under the age of twenty-one (21) years or the
          female party is under the age of eighteen (18)
          years such application shall have been on file
          in the County Clerk's office for a period of
          not less than three (3) days."'
          Article 4605, Vernon's Civil Statutes, before amend-
ment by House Bill 48, reads as follows:
              "No clerk shall Issue a license without the
          consent of the parent or guardian of the parties
          applying, if there be a guardian. Such consent
          may be given in person, or in writing signed and
          acknowledged by said parent or guardian before an
          officer authorized to take acknowledgments, unless
          the parties so applying are, in the case of the male
          twenty-one years of age and In the case of the female
          eighteen years of age. If there be any doubt in the
          mind of the clerk, he shall not issue said license
          unless there shall be presented to him a sworn cer-
          tificate from the parent or guardian or some person
          other than the contracting parties that the contract-
          ing parties have attained the ages aforesaid. Noth-
          ing herein shall be construed to affect the issuance
          of marriage license in seduction prosecution. If
          a minor has neither parent nor guardian, then the
          clerk shall not issue a license without the consent
          of the county judge of the county of the residence
          of such minor, such consent to be in writing and
          signed and acknowledged by such county judge."
Honorable J. R. Owen, page 4   (WW-751)


          As to your first inquiry, we quote from your request
as follows:
              "Is that portion of H.B. #48 which applies
          to persons over 18 years of age, if female, and
          over 21 years of age, if male, valid or is same
          Invalid as being contrary to the provisions of
          section 35, Article 3 of the Texas Constitution?
          If said portion of H.B. #48 Is invalid, is all
          of section (b) of H.B. #48 invalid or are the
          provisions of section (b) of H.B. #48 In so far
          as applicable to male persons under the age of
          21 years and female persons under the age of
          18 years?"
          The purpose of Section 35, Article III of the Texas
Constitution in requiring a caption expressing the subject of
the bill Is to enable interested persons to be reasonably ap-
prised of the contents of the bill upon a reading merely of the
bill18 title. Schlichting v. Texas State Hoard of Medical
Examiners,     Tex .       310 S.W.2d 557 (19%).   This purpose
may be accosished    bycaption    couched in broad and general
terms so long as it remains reasonably informative of what fol-
lows in the body of the bill. Atwood v. Willacy County Naviga-
tion District, 284 S.W.2d 275 (Civ.A
                                kerror),
Where, as in the case of House Bill a: the bill in auestion is
amendatory of a prior article, the caption will be adequate though
merely naming the prior article and stating that the article is
amended by the present bill, provided that the provisions of the
amendatory bill are germane to the amended article. Schllchting v.
Texas State Board of Medical Examiners, supra. See Board of Water
Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d '722
11955). If the caption of an amendatory bill contains, in addi-
tion, explicit reference to certain provisions in the bill, then
the caption is adequate as to those provisions without regard to
the rule requiring that amendatory provisions be germane to the
amended article. Shannon v. Rogers, - Tex. -, 314 S.W.2d 810
(1958).
          The purpose of House Bill 48 Is to establish certain
conditions, among them the requirement of parental consent, which
must be met to the satisfaction of the County Clerk before he is
authorized to issue a marriage license. Admittedly the require-
ment of parental consent, set forth in paragraph (a) of House
Bill 48, applies only to such underage ersons, while the pro-
                                        8 (except for the pro-
visions of paragraph (b) of House Bill fi
vlso appended at the end of paragraph (b)) apply without re-
striction as to age. These provisions of paragraph (b), except
.   .




        Honorable J. R. Owen, page 5, (W-751)


        for the portions dealing with ascertaining the absence of legal
        disqualification of the parties or prohibition of the marriage,
        establish a procedure -- namely, the presentation of documents
        establishing the applicant's age and identity -- by which the
        clerk is enabled to ascertain whether the requirement of parent-
        al consent is applicable. A similar but less detailed procedure
        directed toward the same end, likewise applicable without re-
        gard to age, is provided for by Article 4605:
                      II
                       , . . If there be any doubt in the mind of
                  the clerk, he shall not Issue said license un-
                  less there shall be presented to him a sworn
                  certlffcate from the parent or guardian or some
                  person other than the contracting parties that
                  the contracting tarties have attained the ages
                  aforesaid. . . .
              In light of the presence in the amended Article of
    this provision identical in purpose with, and similar in other
    respects to, the questioned provisions of the amendatory bill,
    it is our opinion that the latter provisions are germane to the
    amended article. Since, further the caption of House Bill 48
    contains a reference to Article 4605, the caption satisfies
    the requirement of Section 35, Article III of the Constitution
    as to these provisions of House Bill 48.
              Of paragraph (b), this leaves unaccounted-for only
    the portion dealing with ascertainment of absence of legal dis-
    qualification or prohibition as a condition for issuance of a
    license, viz., "The county clerk . . . shall also set forth
    that such persons to be married are not .dlsquallfiedor incapable
    of entering Into the marriage relation, nor of the relationship
    prohibited by law, and being satisfied . . . that there is no
    legal impediment to such marriagz, . . . shall issue the license
    authorizing such marriage; . . .   (No question has been raised
    as to the construction of the phrase "nor of the relationship
    prohibited by law", but although its meaning in this context is
    not clear, the subject with which this phrase is Intended to
    deal Is apparent.) The purpose and effect of Article 4605 be-
    fore amendment, like that of House Bill 48, is to establish
    certain conditions which must be met and procedures which must
    be followed before the County Clerk is authorized to issue a
    marriage license. Accordingly, it is our opinion that the cap-
    tion of House Bill 48 in mentioning Article 4605 is sufficient
    to give fair notice of provisions such as the one just mention-
    ed, since this provision establishes a procedure which the Clerk
    must follow before Issuing a license and is therefore germane to
    the amended article, notwithstanding that this particular pro-
    cedure is not among those which the amended article establishes.
    Schlichting v. Texas State Board of Medical Examiners, supra.
.   .   .




            Honorable J. R. Owen, Page 6, (W+'-7'51)


                      As to our second inquiry, we are of the opinion
            that House Bill %8, in stating "Any such Lf;hysician'g certi-
            ficate and written permission shall be retained by the offi-
            cial issuing the marriage license, together with the returned
            license" (emphasis added), does not direct the Clerk to retain
            the returned marriane license, but merely evidences a presupposi-
            tion by the Legisla&re that the Clerk has heretofore followed
            a practice of retaining the license. In fact, the Clerk is and
            has heretofore been under a duty; imposed by Article 6596,
            Vernon's Civil Statutes, to return the license after its recorda-
            tion "to the party entitled thereto", which in the case of a
            marriage license is a party to the marriage which the license
            authorizes. Attorney General's Opinion 0-4624 (1942). Article
            6596 is as follows:
                         "Every such instrument shall be considered
                     as recorded from the time it was deposited for
                     record; and the clerk shall certify under his
                     hand and seal of office to every such Instrument
                     of writing so recorded, the hour, day, month and
                     year when he recorded it, and the book and page
                     or pages in which It is recorded; and when re-
                     corded deliver the same to the party entitled
                     thereto."
            Recordation of the marriage license is required by Article 4606,
            Vernon's Civil Statutes:
                         "The clerk shall record all licenses so .%a-
                     sued by him in a well bound book kept for that
                     purpose. It shall be the duty of the person
                     solemnizing the rites of matrimony to indorse
                     the same on the license and return it to the
                     county clerk within sixty days after the cele-
                     bration aforesaid such return shall be recorded
                     with the license."
                      There being no requirement in House Bill 48 that the
            Clerk retain the license, the question of whether such a re-
            quirement is permissive rather than mandatory does not arise.



                      1. Para aph (b) of House Bill 48, Acts
                      of the 5rth Legislature, Second Called
                      Session, 1959, Chapter 20, page 113, is
                      not Invalid under the requirement of Sec-
                      tion 35, Article III of the Constitution
_ . .    .




    Honorable J. R. Owen, Page 7       (W-751)


                   of Texas that the caption of a bill ex-
                   press the bill's subject.
                   2. House Bill 48 does not require that
                   the County Clerk retain the returned
                   marriage license after its recordatlon by
                   him.
                                         Very truly yours,
                                         WILL WILSON
                                         Attorney General of Texas



        LH:ms:zt                            Assistant


        APPROVED:
        OPINION COMMITTEE
        John Reeves, Chairman
        Paul Floyd
        J. C. Davis, Jr.
        Jot Hodges
        Fred Werkenthin
        REVIEWEDFORTHE  ATTORNEY GENERAL
        BY: Leonard Passmore
