Case Information
*1 The Attorney General of Texas October 18, 1985 JIM MATTOX
Attorney General Ronorable Mike Drlsmll Opinion No. JM-359
Supreme court 6UlldtflQ Harris County Attonwy P. 0. BOX 12548 AusIln. TX. ?5711- 2548 Re: Whether a county clerk may 1001 Preston. Suite 634 [51214752501] Telex QlOiS74.1387 Telecopier 512I475.0286 77002 Rouston, Texas issue a marriage license without consent parental 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 Way the county clerk issue a marriage license El Paso, TX. 799052793 915/533-3484 without Fsrental consent, or a court order, if either app:licant is under age eighteen, has been - married, curd is no longer married? ,er s Texas, Suite 700 Houston. TX. 77W2-3111 The following provtsion sets out the age requirement for 713,2295SSS applicants for a msxiege license: SW Broadway. Suite 312 Except with parental consent as prescribed by Lubbock. TX. 79401.3479 Section l,Ii2 of this code or with a court order as SW7476239 prescribed by Section 1.53 of this code, the
county clt!rk shall not Issue a marriage license if 4309 N. Tenth. Suite B WAllen. TX. 78501-1685 [5126924547] Family Code 01.51. its terms section 1.51 is an absolute prohibl- :By either apl)llicant is under 18 years of age.
tlon against issuance of a marriage license to someone under 18 who 200 Maln Plaza. Suite 400 has not obtained e:Lther parental 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 the const:ltutlon, every person who has been An Equal OpportunilYl married il? accordance with the law of this state, Alflrmatlve Actlon Employer
regardlesli of 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 *2 Honorable Mike Driscoll - Page 2 (m-359)
who has been married from the ,age requirement 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.'I section 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.eral Opinion 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,ried person 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 *3 Aonorsble Mike Driscoll - Palle 3 (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 pi reached the age of majority. : ,\
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:hat children lack the requisite faculties to participate in certain acltivities and 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 rntd Coverture. 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.ve binding 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,ed out 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.
Honorable Mike Driscoll - Page 4 (JM-359)
Id. at 376. Coneequently. th#e court held that, except~'to the extent that statutes provided specific exceptions to a married infant's Incapacity to contract, a ma:nried Infant 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 :Le now 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 *5 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 cosxnon law 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,ituations that 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 f Ige 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 affe t the considerations pertinent to the 1 determination of the minimum voting age or the minimum age for holding
certain positions.
Similarly, the circums ,ances that lead parents or judges to authorize one marriage do no,: necessarily indicate that an underage a
applicant is better preparei.! for marriage than other members of his age group. Indeed, consent 13 an early marriage is often forthcoming despite an applicant's immatuity rather than because of it. \
Thus, in general, the j, istlficatlon for removing the contractual incapacity and some other d :sabilities of minority does not justify i
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 i rejected 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 the age of consent to marriage at 18. 1 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 ::ssue a 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.
Very truly your J h
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