Can a Texas county issue marriage licenses from a branch office or sub-courthouse instead of the main county courthouse?

Texas AG Opinion JM-606: Marriage License Location

Plain-English summary

The chairman of the Senate Criminal Justice Committee asked whether a county can issue marriage licenses from a "sub-courthouse" or branch office rather than the main courthouse at the county seat. Section 1.01 of the Texas Family Code says a couple must obtain a license "from the county clerk of any county of this state," and the question was whether that phrase locks licensing to the county seat.

JM-606 said no, it does not, in counties where branch offices are authorized. The opinion made two points. First, a deputy county clerk has the same authority as the clerk to issue a marriage license, so licensing does not require the clerk personally. Second, although the general rule is that county business is done at the county courthouse at the county seat, the Legislature created exceptions letting more densely populated counties set up branch offices and auxiliary courthouses. In a county that qualifies for those exceptions, the county clerk or a duly authorized deputy may issue marriage licenses from the branch office or auxiliary courthouse. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0606.pdf

Currency note

This opinion was issued in 1986 and construes section 1.01 of the Family Code and older civil-statute provisions on county offices, which have since been amended and recodified into the Local Government Code. Treat this page as historical context, not current legal advice, and verify current law before relying on any rule mentioned here.

Common questions

Can a deputy county clerk issue a marriage license?

Yes. The opinion relied on Mahon v. State, in which the Texas Court of Criminal Appeals "indicated that a deputy county clerk has the same authority as the county clerk to issue a marriage license." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0606.pdf

Does a license have to be issued at the county seat?

Not in counties with authorized branch offices. The general rule is that county business is conducted at the county courthouse at the county seat, but the opinion noted the Legislature "provided several exceptions to these general rules" for certain counties, allowing branch offices and auxiliary courthouses. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0606.pdf

What is the catch for the county office?

The office still has to keep its base at the county seat. The opinion pointed out that the branch-office statutes let an officer maintain a branch "so long as the officer continues to maintain an office at the county seat" and keep original records there. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0606.pdf

Background and statutory framework

Section 1.01 of the Family Code required a couple seeking a ceremonial marriage to obtain a license "from the county clerk of any county of this state." Because that phrasing names the clerk, the opinion addressed two sub-questions: whether a deputy could issue the license, and whether it could be issued away from the county seat.

On the first, article 1938, V.T.C.S., let the county clerk appoint deputies who "may do and perform all such official acts as may be lawfully done and performed by such clerk in person," and Mahon v. State confirmed a deputy may issue a marriage license. On the second, the opinion acknowledged the default rule that county business happens at the county seat (citing Hachar v. County of Webb and Knowles v. Scofield) but pointed to statutes such as articles 1605a-5 and 2370b-1 through 2370b-3, which authorize branch offices and auxiliary courthouses for qualifying counties, provided the officer keeps an office and original records at the county seat. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0606.pdf

Citations and references

Statutes:

• Family Code section 1.01 (marriage license)
• Article 1938, V.T.C.S. (deputy county clerks)
• Articles 1602, 1603, 1605, 1605a-5, and 2370b-1 through 2370b-3, V.T.C.S. (county offices and branch offices)

Cases (as cited in the opinion):

• Mahon v. State, 79 S.W. 28, 30 (Tex. Crim. App. 1904)
• Knowles v. Scofield, 598 S.W.2d 854, 862 (Tex. Crim. App. 1980)
• Hachar v. County of Webb, 563 S.W.2d 693 (Tex. Civ. App. - San Antonio 1978, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0606
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0606.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

December 30, 1986

Honorable Kent A. Caperton
Chairman
Criminal Justice Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-606

Re: Whether a marriage license may be issued at a place other than a county courthouse

Dear Senator Caperton:

As chairman of the Senate Criminal Justice Committee, you seek the legal opinion of this office regarding the issuance of marriage licenses under section 1.01 of the Texas Family Code. You indicate that several counties have "sub-courthouses" from which they wish to issue marriage licenses. You ask whether existing law authorizes counties to issue marriage licenses from branch offices or auxiliary courthouses.

Section 1.01 of the Family Code provides, in part, that

[a] man and a woman desiring to enter into a ceremonial marriage shall obtain a marriage license from the county clerk of any county of this state.

Because this section requires that a marriage license be obtained "from the county clerk," your question raises two related issues: whether a marriage license may be issued by a deputy county clerk and whether a marriage license may be issued at a branch office or auxiliary courthouse.

Article 1938, V.T.C.S., provides:

The county clerk may in writing, appoint one or more deputies under his hand and the seal of his court, which shall be recorded in the office of such clerk, and shall be deposited in the office of the district clerk. Deputies shall take the official oath and shall act in the name of their principal, and may do and perform all such official acts as may be lawfully done and performed by such clerk in person. When the clerk does not reside at the county seat, he shall have a deputy residing there. (Emphasis added).

The language of this section is clear. Additionally, in Mahon v. State, 79 S.W. 28, 30 (Tex. Crim. App. 1904), the Texas Court of Criminal Appeals indicated that a deputy county clerk has the same authority as the county clerk to issue a marriage license. Accordingly, the issuance of a marriage license at a branch office or an auxiliary courthouse is not prevented by the fact that the marriage license might be issued by a deputy county clerk.

As a general rule, county business is to be conducted in the county courthouse at the county seat. See V.T.C.S. arts. 1602, 1603, 1605; Hachar v. County of Webb, 563 S.W.2d 693 (Tex. Civ. App. - San Antonio 1978, writ ref'd n.r.e.). The county seat is that community, town, or city where the seat of government is located and where county officers perform their functions. Knowles v. Scofield, 598 S.W.2d 854, 862 (Tex. Crim. App. 1980). Nevertheless, recognizing the special needs of more densely populated counties, the Texas Legislature provided several exceptions to these general rules.

State statutes authorize the creation of branch offices for certain county officials outside of the county seat and of auxiliary courthouses both at the county seat and outside the county seat in counties meeting certain specific criteria. See, e.g., V.T.C.S. art. 1605a-5; art. 2370b-1; art. 2370b-2; 2370b-3. These statutes authorize county officers to maintain branch offices so long as the officer continues to maintain an office at the county seat. See art. 1605a-5, section 4; art. 2370b-3, section 1. Additionally, section 1 of article 2370b-3 states that county officers must keep original records of the office at the county seat. In summary, in counties in which branch offices and auxiliary courthouses are authorized, the county clerk or a duly authorized deputy county clerk may issue marriage licenses from the branch office or auxiliary courthouse.

SUMMARY

In counties in which branch offices for county officers are authorized by statute, the county clerk or a duly authorized deputy county clerk may issue marriage licenses from the branch office.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General