                                            GREG
                                                  0
                                 ATTORNEY GENERAL OF TEXAS
                                                        ABBOTT



                                                  April 28, 2014



The Honorable Luis V. Saenz                             Opinion No. GA-1053
Cameron County District Attorney
Cameron County Courthouse                               Re: Whether subsection 2.204(c) of the
964 East Harrison Street                                Family Code authorizes a justice of the peace
Brownsville, Texas 78520                                to grant a waiver of the 72-hour waiting
                                                        period after the issuance of a marriage
                                                        license (RQ-1160-GA)

Dear Mr. Saenz:

        When a marriage license is issued in Texas, subsection 2.204(a) of the Family Code imposes a
72-hour waiting period before a marriage ceremony may take place, with certain exceptions. See
TEX. FAM. CODE ANN. § 2.204(a), (b) (West Supp. 2013). An applicant may, however, request "a
written waiver permitting the marriage ceremony to take place during the 72-hour period immediately
following the issuance of the marriage license" from a list of judges set forth in subsection 2.204(c).
Id § 2.204( c). You ask "whether a justice of the peace is authorized to grant 72-hour waivers" under
subsection 2.204(c) and, if so, you have related questions concerning fees for the issuance of
waivers.'

        The waiver provision, located in Title 1 of the Family Code, states that "[a]n applicant may
request ajudge of a court withjurisdiction in family law cases, ajustice ofthe supreme court, ajudge
of the court of criminal appeals, a county judge, or a judge of a court of appeals for a written waiver"
of the 72-hour waiting period. TEX. FAM. CODE ANN.§ 2.204(c) (West Supp. 2013). In your view,
"on the face [of] the statute it appears that a justice of the peace has no authority to sign or grant a
waiver of the 72-hour period" because the list in subsection 2.204(c) does not refer expressly to a
justice of the peace. Request Letter at 2. The statute does, however, grant waiver authority to "a
judge of a court with jurisdiction in family law cases." TEX. FAM. CODE ANN.§ 2.204(c) (West Supp.



           1
           Letter from Honorable Luis V. Saenz, Cameron Cnty. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at
l   (Oct. 23, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Luis V. Saenz - Page 2                   (GA-1053)



20 13). To determine whether a justice of the peace is a judge of "a court with jurisdiction in family
law cases," we examine the jurisdiction of a justice court.

         A justice court has original jurisdiction of (1) certain civil matters where the amount in
controversy is not more than $1 0,000; (2) cases of forcible entry and detainer; (3) certain foreclosures
of mortgages and enforcement of liens on personal property; and (4) cases involving photographic
traffic enforcement systems outside a city's territorial limits. See TEX. Gov'T CoDE ANN.§ 27.031(a)
(West Supp. 2013). In addition, a justice court has "jurisdiction and powers provided by the
constitution and other law."2 /d. One such area in which a justice court may be given jurisdiction
involves truancy cases. See TEX. FAM. CODE ANN.§ 54.02l(a) (West Supp. 2013).

         As background, the court with "primary responsibility for cases involving family law matters"
is a family district court. 3 TEX. Gov'T CODE ANN.§ 24.601(b) (West 2004). "These matters include:
(1) adoptions; (2) birth records; (3) divorce and marriage annulment; (4) child welfare, custody,
support and reciprocal support, dependency, neglect, and delinquency; (5) parent and child; and (6)
husband and wife." /d. § 24.601(b)(1)-(6). In the case of delinquent conduct or conduct indicating a
need for supervision of a child, Title 3 of the Family Code grants exclusive original jurisdiction to
juvenile courts4 in the county. TEX. FAM. CODE ANN. § 51.04(a) (West Supp. 2013). Where the
conduct indicating a need for supervision is the alleged failure to attend school, a juvenile court may
choose to waive its exclusive original jurisdiction and transfer the child, among other places, to a
justice court. /d. § 54.021(a). This waiver of exclusive jurisdiction may be for an individual case or
for all truancy cases as a class. Such a waiver authorizes the justice court to "exercise jurisdiction
over" the child if certain conditions are met. Id. § 54.021(a)-(b).

       A justice court gains jurisdiction over Title 3 truancy cases, however, only when a juvenile
court waives its exclusive original jurisdiction over such matters. Id. § 54.021(a). A justice court
does not exercise this jurisdiction independently. Further, although the Legislature does not define
the phrase "court with jurisdiction in family law cases" in the Family Code, references in other

         2
           A justice of the peace may conduct a marriage ceremony. TEX. FAM. CODE ANN. § 2.202(a)(4) (West Supp.
20 13). A justice court, however, expressly "does not have jurisdiction of ... a suit for divorce." TEX. Gov'T CODE ANN.
§ 27.03l(b)(2) (West Supp. 2013). In addition, not all judges authorized to conduct marriage ceremonies are authorized
to grant waivers of the 72-hour waiting period. Compare TEX. FAM. CODE ANN. § 2.202(a)(4)--{5) (West Supp. 2013)
(listing eighteen categories of judges authorized to conduct a marriage ceremony), with id. § 2.204(c) (specifying only
five categories of judges authorized to grant waivers of the 72-hour waiting period).

         3
           The designation of a family district court as having primary responsibility for family law matters "does not limit
the jurisdiction of other district courts nor relieve them of responsibility for handling cases involving family law matters."
TEX. GOV'T CODE ANN.§ 24.60l(c) (West 2004).

         4
          See TEX. FAM. CODE ANN. § 51.04(b) (West Supp. 2013) (providing that in each county, "one or more district,
criminal district, domestic relations, juvenile, or county courts or county courts at law" shall be designated as the juvenile
court).
The Honorable Luis V. Saenz - Page 3        (GA-1053)



statutes that set forth the jurisdiction of various courts strongly suggest that the phrase does not
include courts with only Title 3 jurisdiction in truancy cases. See, e.g. TEX. Gov'T CODE ANN.
 § 24.601(b) (West 2004) (defining "family law matters" for purposes of family district court
jurisdiction to include child delinquency but not conduct indicating a need for supervision of a child,
such as truancy); id. § 25.0002(2) (West Supp. 2013) (defining "family law cases and proceedings"
for purposes of statutory county court jurisdiction to exclude cases and proceedings under Title 3 of
the Family Code); Robertson v. Odom, 296 S.W.3d 151, 157 (Tex. App.-Houston [14th Dist.] 2009,
no pet.) (holding that in construing an undefined word or phrase, a court "may consider the meaning
assigned to the term elsewhere in the act or in another act of similar nature" and give the same
meaning as in the similar statute "unless something indicates that a different meaning was intended").
Accordingly, a court would likely conclude that a justice of the peace is not a "judge of a court with
jurisdiction in family law cases" for purposes of subsection 2.204(c) of the Family Code and thus
may not grant a waiver of the 72-hour waiting period after the issuance of a marriage license.

       Because your remaining questions concerning related fees are expressly premised on an
affirmative answer to your first question, we do not address them.
The Honorable Luis V. Saenz - Page 4        (GA-1053)



                                        SUMMARY

                       A court would likely conclude that a justice of the peace is not a
              'judge of a court with jurisdiction in family law cases" for purposes of
              subsection 2.204(c) of the Family Code and thus may not grant a
              waiver of the 72-hour waiting period after the issuance of a marriage
              license.

                                             Very truly yours,




                                             Attorney General ofTexas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee
