Can a retired federal judge officiate a wedding in Texas?

Plain-English summary

A county district attorney asked the Attorney General a narrow question: may a retired federal judge conduct a marriage ceremony in Texas? The answer turned entirely on how to read a single list in the Family Code.

Section 2.202(a)(4) names the judges who may perform marriages. The list runs through Texas state courts (the supreme court, court of criminal appeals, courts of appeals, district, county, and probate courts, county courts at law, courts of domestic relations, juvenile courts), then includes a "retired justice or judge of those courts," then a justice of the peace and "retired justice of the peace," then a municipal court judge, and finally a "judge or magistrate of a federal court of this state." A separate subsection, 2.202(b), defines who counts as a "retired judge," but that definition does not by itself grant any authority to officiate.

The opinion focused on the phrase "retired justice or judge of those courts." Under the ordinary rules of grammar and the rule that words are read in context, that phrase reaches back only to the courts listed before it, which are the Texas state courts. The reference to a "judge or magistrate of a federal court" comes after the retired-judge phrase, so the retired-judge language does not pull in federal judges. The opinion concluded that the term "retired justice or judge of those courts" does not describe a retired federal judge, and so section 2.202(a)(4) does not authorize a retired federal judge to conduct a marriage ceremony in Texas. (The opinion noted the requestor asked only about a retired federal judge, not about a federal judge who might separately qualify as a retired justice of the peace.)

The opinion added one practical footnote. Even when a person who lacks authority performs a ceremony, the resulting marriage might still be valid if, among other things, the officiant had a reasonable appearance of authority and a party participated in the ceremony in good faith.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered the question directly: a retired federal judge is not among the officiants section 2.202(a)(4) authorizes to perform Texas marriages.

Retired federal judges (as the opinion described it): The opinion read the statute's "retired justice or judge of those courts" language as limited to the Texas state courts listed ahead of it, so it did not extend authority to a retired federal judge.

Couples and others relying on a ceremony (as the opinion described it): The opinion observed that a marriage performed by an officiant who lacked authority might still be valid under the Family Code if the officiant had a reasonable appearance of authority and a party participated in good faith.

Common questions

Can a retired federal judge perform a wedding in Texas?
No, according to the opinion. Section 2.202(a)(4) of the Family Code does not authorize a retired federal judge to conduct a marriage ceremony in Texas.

Why are some retired judges allowed but not retired federal judges?
The opinion explained that the phrase "retired justice or judge of those courts" refers only to the Texas state courts listed before it. The list mentions a federal "judge or magistrate" separately and after that phrase, so the retired-judge language does not reach federal judges.

What happens if a retired federal judge performs the ceremony anyway?
The opinion noted in a footnote that even if the officiant lacked authority, the marriage might still be valid if, among other things, the officiant had a reasonable appearance of authority and a party participated in good faith.

Background and statutory framework

Section 2.202(a)(4) of the Family Code lists the judges and justices authorized to conduct marriage ceremonies, including a "retired justice or judge of those courts" and, separately, a "judge or magistrate of a federal court of this state." Tex. Fam. Code Ann. § 2.202(a)(4)-(b) (West Supp. 2011). Subsection (b) defines "retired judge" for the section but does not itself authorize anyone to officiate.

The opinion construed the statute under the plain-meaning approach, citing State v. Gonzalez, and applied the rule that "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage," Tex. Gov't Code Ann. § 311.011(a) (West 2005). On the validity of a ceremony performed without authority, it pointed to Tex. Fam. Code Ann. § 2.302(1)-(2) (West 2006).

Citations

Cases:

• State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)

Statutes:

• Tex. Fam. Code Ann. § 2.202(a)(4)-(b) (West Supp. 2011)
• Tex. Fam. Code Ann. § 2.202(a)(4) (West Supp. 2011)
• Tex. Gov't Code Ann. § 311.011(a) (West 2005)
• Tex. Fam. Code Ann. § 2.302(1)-(2) (West 2006)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0948
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0948.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 4, 2012

The Honorable Jerry D. Rochelle Opinion No. GA-0948
Bowie County Criminal District Attorney
601 Main Street Re: Whether a retired federal judge may conduct a
Texarkana, Texas 75504 marriage ceremony in Texas (RQ-1035-GA)

Dear Mr. Rochelle:

You ask whether a retired federal judge may conduct a marriage ceremony in Texas.[1] Section 2.202 of the Texas Family Code lists the judges who may conduct marriage ceremonies:

(a)(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, judge of a municipal court, or judge or magistrate of a federal court of this state.

(b) For the purposes of this section, a retired judge or justice is a former judge or justice who is vested in the Judicial Retirement System of Texas Plan One or the Judicial Retirement System of Texas Plan Two or who has an aggregate of at least 12 years of service as judge or justice of any type listed in Subsection (a)(4).

TEX. FAM. CODE ANN. § 2.202(a)(4)-(b) (West Supp. 2011) (notation "(a)" added). See also State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (explaining that Texas courts construe statutes by looking to the plain meaning of statutory words). Section 2.202(b) defines the term "retired judge." Id. § 2.202(b). Section 2.202(b) does not authorize a retired judge to conduct a marriage ceremony, but section 2.202(a)(4) authorizes two groups of retired judges to do so: those that the term "retired justice or judge of those courts" describes; and a "retired justice of the peace." Id. § 2.202(a)(4)-(b). You ask about a retired federal judge. Request Letter at 1. You do not ask about a federal judge who might also be "a retired justice of the peace." Id. See also TEX. FAM. CODE ANN. § 2.202(a)(4) (authorizing "a retired justice of the peace" to perform a marriage ceremony). Therefore, we will discuss whether the term "retired justice or judge of those courts" describes a retired federal judge.

The term "retired justice or judge of those courts" describes only the courts listed before it in section 2.202(a)(4). See TEX. GOV'T CODE ANN. § 311.011(a) (West 2005) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."). A "judge or magistrate of a federal court" is listed after the term "retired justice or judge of those courts." TEX. FAM. CODE ANN. § 2.202(a)(4) (West Supp. 2011). Therefore, the term "retired justice or judge of those courts" does not describe a retired federal judge. Accordingly, section 2.202(a)(4) does not authorize a retired federal judge to conduct a marriage ceremony in Texas.[2]

SUMMARY

Section 2.202(a)(4) of the Family Code does not authorize a retired federal judge to conduct a marriage ceremony in Texas.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Jerry D. Rochelle, Bowie Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (Dec. 28, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Nevertheless, even if a retired judge who conducts a marriage ceremony lacks authority to do so, the subsequent marriage might still be valid if, among other things, the judge had a reasonable appearance of authority and a party participated in the ceremony in good faith. TEX. FAM. CODE ANN. § 2.302(1)-(2) (West 2006).