Can a justice of the peace waive the 72-hour waiting period for a Texas marriage license?

Plain-English summary

Cameron County District Attorney Luis Saenz asked the Attorney General a practical question about Texas marriage licenses. When a county clerk issues a marriage license, Family Code section 2.204 makes the couple wait 72 hours before they can hold the ceremony, unless an exception applies. The statute lets an applicant ask a judge for a written waiver of that wait, but it names only a short list of judges who can grant one: a judge of a court with jurisdiction in family law cases, a justice of the supreme court, a judge of the court of criminal appeals, a county judge, or a judge of a court of appeals. A justice of the peace is not on that list. The DA wanted to know whether a justice of the peace can grant the waiver anyway, and if so, asked some follow-up questions about fees.

The AG focused on the one phrase that might arguably cover a justice of the peace: "a judge of a court with jurisdiction in family law cases." To test that, the opinion looked at what a justice court actually has jurisdiction over. A justice court mostly handles small civil disputes (up to $10,000), eviction (forcible entry and detainer), certain personal-property lien matters, and some photographic traffic cases, plus whatever else the constitution and other laws assign it. One thing other law can assign it is truancy. But a justice court gets a truancy case only when a juvenile court, which has exclusive original jurisdiction over that kind of conduct, chooses to waive that jurisdiction and transfer the case down. The justice court never exercises that authority on its own.

That mattered to the answer. The Family Code does not define "court with jurisdiction in family law cases," so the AG looked at how related statutes use similar terms. Those statutes define "family law matters" and "family law cases and proceedings" in ways that leave out the Title 3 truancy cases a justice court can pick up. Reading the phrase the same way, the AG concluded a court would likely decide a justice of the peace is not a "judge of a court with jurisdiction in family law cases," and therefore may not grant a waiver of the 72-hour waiting period. The opinion also pointed out that being able to perform a wedding is not the same as being able to waive the wait: eighteen kinds of judges can conduct a marriage ceremony, but only five can grant the waiver. Because the DA's remaining questions about fees assumed the answer to the first question was yes, the AG did not address them.

Currency note

This opinion was issued in 2014. 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

District Attorney Saenz and Cameron County (as the opinion described it): The opinion answered that a court would likely conclude a justice of the peace is not authorized to grant a 72-hour waiver under section 2.204(c), and declined to reach the related fee questions because they were expressly premised on an affirmative answer to the first question.

Justices of the peace (as the opinion described it): The opinion described a justice of the peace as not among the five categories of judges section 2.204(c) authorizes to grant waivers, and as likely not a "judge of a court with jurisdiction in family law cases," because a justice court's only family-related role (truancy) arises solely when a juvenile court waives and transfers the case.

Couples seeking to marry (as the opinion described it): The opinion described the 72-hour waiting period after a marriage license is issued and the limited list of judges who may waive it. It noted that a justice of the peace, though able to conduct the ceremony, was likely not able to grant the waiver.

Common questions

How long do you have to wait to get married after getting a marriage license in Texas?
The AG noted that Family Code section 2.204 imposes a 72-hour waiting period after the license is issued before a marriage ceremony may take place, subject to certain exceptions.

Can a justice of the peace waive the 72-hour wait?
The AG concluded a court would likely say no. A justice of the peace is not on the statute's list, and the opinion concluded a JP is likely not a "judge of a court with jurisdiction in family law cases" either.

Which judges can grant the waiver?
Section 2.204(c) names five: a judge of a court with jurisdiction in family law cases, a justice of the supreme court, a judge of the court of criminal appeals, a county judge, or a judge of a court of appeals.

A justice of the peace can perform the wedding, so why not waive the wait?
The AG explained that the two powers are not the same. The opinion noted that eighteen categories of judges may conduct a marriage ceremony, but only five may grant the 72-hour waiver, and a justice court does not even have jurisdiction over a suit for divorce.

Doesn't a justice court hear some family-related (truancy) cases?
Yes, but only when a juvenile court waives its exclusive original jurisdiction and transfers the case. The AG explained that the justice court does not exercise that jurisdiction on its own, and that related statutes define "family law" matters and cases to exclude Title 3 truancy, so that limited role likely does not make a justice of the peace a "judge of a court with jurisdiction in family law cases."

Background and statutory framework

Family Code section 2.204(a) imposes a 72-hour waiting period after a marriage license is issued before a ceremony, subject to exceptions, and subsection (c) lets an applicant request a written waiver from a judge of a court with jurisdiction in family law cases, a justice of the supreme court, a judge of the court of criminal appeals, a county judge, or a judge of a court of appeals (Tex. Fam. Code Ann. § 2.204(a), (b), (c) (West Supp. 2013)). The only listed category that could arguably fit a justice of the peace is "a judge of a court with jurisdiction in family law cases," so the AG examined the jurisdiction of a justice court.

A justice court has original jurisdiction over certain civil matters up to $10,000, forcible entry and detainer, certain foreclosures and personal-property liens, and certain photographic traffic enforcement cases outside a city's limits, plus jurisdiction and powers provided by the constitution and other law (Tex. Gov't Code Ann. § 27.031(a) (West Supp. 2013)). One such area is truancy (Tex. Fam. Code Ann. § 54.021(a) (West Supp. 2013)). The court with primary responsibility for family law matters is a family district court, whose matters include adoptions, birth records, divorce and annulment, child welfare and custody, parent and child, and husband and wife (Tex. Gov't Code Ann. § 24.601(b), (c) (West 2004)). Title 3 of the Family Code grants juvenile courts exclusive original jurisdiction over delinquent conduct and conduct indicating a need for supervision, and only when a juvenile court waives that exclusive jurisdiction may a truancy case be transferred to a justice court (Tex. Fam. Code Ann. § 51.04(a), (b); § 54.021(a)-(b) (West Supp. 2013)).

Because the Legislature did not define "court with jurisdiction in family law cases," the AG looked to related statutes, which define "family law matters" and "family law cases and proceedings" in ways that exclude Title 3 truancy cases (Tex. Gov't Code Ann. § 24.601(b) (West 2004); § 25.0002(2) (West Supp. 2013)), applying the rule that an undefined term may be given the meaning assigned to it in a similar statute (Robertson v. Odom, 296 S.W.3d 151, 157 (Tex. App.-Houston [14th Dist.] 2009, no pet.)). The opinion also noted that a justice of the peace may conduct a marriage ceremony but a justice court lacks jurisdiction over a suit for divorce, and that the eighteen categories of judges who may conduct ceremonies are not all authorized to grant waivers (Tex. Fam. Code Ann. § 2.202(a)(4)-(5) (West Supp. 2013); Tex. Gov't Code Ann. § 27.031(b)(2) (West Supp. 2013)). On that basis the AG concluded a court would likely hold a justice of the peace may not grant a waiver of the 72-hour waiting period.

Citations

Statutory provisions:

• Tex. Fam. Code Ann. § 2.204(a), (b) (West Supp. 2013) (72-hour waiting period and exceptions)
• Tex. Fam. Code Ann. § 2.204(c) (West Supp. 2013) (five categories of judges who may grant a waiver)
• Tex. Fam. Code Ann. § 2.202(a)(4)-(5) (West Supp. 2013) (judges who may conduct a marriage ceremony)
• Tex. Fam. Code Ann. § 51.04(a), (b) (West Supp. 2013) (juvenile court exclusive original jurisdiction)
• Tex. Fam. Code Ann. § 54.021(a)-(b) (West Supp. 2013) (waiver and transfer of truancy cases to a justice court)
• Tex. Gov't Code Ann. § 27.031(a) (West Supp. 2013) (justice court jurisdiction)
• Tex. Gov't Code Ann. § 27.031(b)(2) (West Supp. 2013) (justice court lacks jurisdiction over a suit for divorce)
• Tex. Gov't Code Ann. § 24.601(b), (c) (West 2004) (family district court matters)
• Tex. Gov't Code Ann. § 25.0002(2) (West Supp. 2013) (statutory county court "family law cases and proceedings" excludes Title 3)

Cases:

• Robertson v. Odom, 296 S.W.3d 151, 157 (Tex. App.-Houston [14th Dist.] 2009, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1053
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1053.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

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.[1]

The waiver provision, located in Title 1 of the Family Code, states that "[a]n applicant may request a judge of a court with jurisdiction in family law cases, a justice of the supreme court, a judge 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. 2013). 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 $10,000; (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] Id. One such area in which a justice court may be given jurisdiction involves truancy cases. See TEX. FAM. CODE ANN. § 54.021(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." Id. § 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 courts[4] 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. Id. § 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 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.

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,

GREG ABBOTT
Attorney General of Texas

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

[1] Letter from Honorable Luis V. Saenz, Cameron Cnty. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Oct. 23, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] A justice of the peace may conduct a marriage ceremony. TEX. FAM. CODE ANN. § 2.202(a)(4) (West Supp. 2013). A justice court, however, expressly "does not have jurisdiction of ... a suit for divorce." TEX. GOV'T CODE ANN. § 27.031(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. § 24.601(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).