No. DM-0384 (1996).

• Case Date: April 19, 1996
• Court: Texas

Texas Attorney General Opinions 1996. No. DM-0384 (1996). April 19, 1996Opinion No. DM-384Morales Opinion No. DM-384 Office of the Attorney General State of TexasThe Honorable John Vance Dallas County District Attorney 411 Elm Street Dallas, Texas 75202The Honorable Hardy L. Wilkerson Howard County Attorney P.O. Box 2096 Big Spring, Texas 79721SYLLABUS: 1996-0384Re: Whether sections 1.045 and 1.07(a)(1) of the Family Code, requiring an applicant for a marriage license to state under oath that he or she does not owe delinquent court-ordered child support, violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (RQ-862)Dear Mr. Vance and Mr. Wilkerson: You ask about the constitutionality of sections 1.045 and 1.07(a)(1) of the Family Code. These provisions require an applicant for a marriage license to submit a sworn statement that he or she does not owe delinquent court- ordered child support. Newly enacted section 1.045 provides as follows: (a) An applicant for a marriage license shall submit to the county clerk a statement witnessed by two credible persons and verified before a person authorized to take oaths stating that as of the date the application for a marriage license is filed the applicant does not owe delinquent court-ordered child support. (b) A child support payment is considered delinquent for purposes of Subsection (a) if the child support obligee under a child support order that applies to the applicant is entitled to seek enforcement of an arrearage under Subchapter B, Chapter 14. (c) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning, the person submits a false statement under this section. (d) An offense under this section is a state jail felony. Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 5.04, 1995 Tex. Sess. Law Serv. 3543, 3559. At the same time the legislature enacted the foregoing provision, it also amended section 1.07(a)(1) of the Family Code, which establishes the conditions under which a county clerk may issue a marriage license. Id. § 5.05. That section now provides that a county clerk may not issue a marriage license if either applicant fails to provide the information required by section 1.045. See Fam. Code § 1.07(a)(1). You express concern that the foregoing provisions violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, citing Zablocki v. Redhail, 434 U.S. 374 (1978). In that case, the United States Supreme Court considered the constitutionality of a Wisconsin statute that prohibited certain persons, namely every Wisconsin resident "having minor issue not in his custody and which he is under obligation to support by any court order or judgment," from obtaining a marriage license without a court order. Id. at 375 & n.1. The statute provided that a court order giving permission could be granted only if the marriage applicant submitted proof of compliance with the support obligation and demonstrated that the children covered by the order "[were] not then and [were] not likely thereafter to become public charges." Id. The opinion of the Court, after affirming that the right to marry is fundamental, id...