82R2836 EES-D

By: Howard of Fort Bend H.B. No. 898

A BILL TO BE ENTITLED

AN ACT

relating to certain requirements relating to the issuance of a marriage license or the recording of a declaration of informal marriage and to the maintenance of marriage and divorce indexes by the bureau of vital statistics.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Effective January 1, 2013, Subchapter A, Chapter 2, Family Code, is amended by adding Section 2.0075 to read as follows:

Sec. 2.0075. STATE INDEX VERIFICATION REQUIRED. (a) The county clerk shall verify, using the state index maintained by the bureau of vital statistics under Section 194.003, Health and Safety Code, that neither applicant is listed on the index as being presently married.

(b) An applicant may provide to the clerk a copy of a decree of divorce or annulment or a copy of the death certificate of the person to whom the applicant was formerly married as proof that a marriage of the applicant that is listed on the index has been dissolved.

SECTION 2. Effective January 1, 2013, Section 2.009, Family Code, is amended by amending Subsections (a) and (b) and adding Subsection (e) to read as follows:

(a) Except as provided by Subsections (b), [and] (d), and (e), the county clerk may not issue a license if either applicant:

(1) fails to provide the information required by this subchapter;

(2) fails to submit proof of age and identity;

(3) is under 16 years of age and has not been granted a court order as provided by Section 2.103;

(4) is 16 years of age or older but under 18 years of age and has not presented at least one of the following:

(A) parental consent as provided by Section 2.102;

(B) documents establishing that a prior marriage of the applicant has been dissolved; or

(C) a court order as provided by Section 2.103;

(5) checks "false" in response to a statement in the application, except as provided by Subsection (b) or (d), or fails to make a required declaration in an affidavit required of an absent applicant; [or]

(6) indicates that the applicant has been divorced within the last 30 days, unless:

(A) the applicants were divorced from each other; or

(B) the prohibition against remarriage is waived as provided by Section 6.802; or

(7) is listed on the state index under Section 194.003, Health and Safety Code, as being presently married to a person other than the other applicant and has not provided to the clerk under Section 2.0075(b) proof that the marriage of the applicant has been dissolved.

(b) If an applicant is listed on the state index under Section 194.003, Health and Safety Code, as being presently married to the other applicant or an applicant checks "false" in response to the statement "I am not presently married and the other applicant is not presently married," the county clerk shall inquire as to whether the applicant is presently married to the other applicant. If the applicant states that the applicant is currently married to the other applicant, the county clerk shall record that statement on the license before the administration of the oath. The county clerk may not refuse to issue a license on the ground that the applicants are already married to each other.

(e) The county clerk may not refuse to issue a license on the ground that an applicant is listed on the state index under Section 194.003, Health and Safety Code, as being presently married to a person other than the other applicant if the applicant provides to the clerk an affidavit of the applicant declaring that the applicant's name is listed on the index in error or declaring that the applicant has good reason for failing to provide to the clerk proof under Section 2.0075(b) that the marriage of the applicant has been dissolved. The clerk shall submit to the bureau of vital statistics of the Department of State Health Services a copy of an affidavit provided to the clerk under this subsection.

SECTION 3. Effective January 1, 2013, Subchapter E, Chapter 2, Family Code, is amended by adding Section 2.4035 to read as follows:

Sec. 2.4035. STATE INDEX VERIFICATION REQUIRED. (a) The county clerk shall verify, using the state index maintained by the bureau of vital statistics under Section 194.003, Health and Safety Code, that neither party to the declaration of informal marriage is listed on the index as being presently married.

(b) A party may provide to the clerk a copy of a decree of divorce or annulment or a copy of a death certificate of the person to whom the applicant was formerly married as proof that a marriage of the party that is listed on the index has been dissolved.

SECTION 4. Effective January 1, 2013, Section 2.404, Family Code, is amended by amending Subsection (b) and adding Subsection (f) to read as follows:

(b) Except as provided by Subsection (f), the [The] county clerk may not certify the declaration or issue or record the certificate of informal marriage or declaration if:

(1) either party fails to supply any information or provide any document required by this subchapter;

(2) either party is under 18 years of age; [or]

(3) either party checks "false" in response to the statement of relationship to the other party; or

(4) either party is listed on the state index as being presently married to a person other than the other party and has not provided to the clerk under Section 2.4035(b) proof that the marriage of the party has been dissolved.

(f) The county clerk may not refuse to record a declaration or a certificate of informal marriage on the ground that a party is listed on the state index under Section 194.003, Health and Safety Code, as being presently married to a person other than the other party if the party provides to the clerk an affidavit of the party declaring that the party's name is listed on the index in error or declaring that the party has good reason for failing to provide to the clerk proof under Section 2.4035(b) that the marriage of the party has been dissolved. The clerk shall submit to the bureau of vital statistics of the Department of State Health Services a copy of an affidavit provided to the clerk under this subsection.

SECTION 5. Section 194.003, Health and Safety Code, is amended by adding Subsections (c), (d), and (e) to read as follows:

(c) The bureau of vital statistics shall make available on its Internet website the indexes required by this section. To the extent practicable using the fees imposed by Sections 118.018(c) and 118.019(b), Local Government Code, the bureau shall enhance the search capabilities of its database of information regarding marriages, divorces, or annulments of marriages and ensure that the indexes required by this section are up-to-date, accurate, and easily accessible to interested members of the public. The index must include a notation next to each marriage license application or declaration of informal marriage for which an affidavit was submitted under Section 2.009(e) or 2.404(f), Family Code, as applicable.

(d) The executive commissioner of the Health and Human Services Commission shall adopt rules for the administration of this section, including rules to require that:

(1) the index provide county clerks with online access seven days a week to any identifying information necessary for a county clerk to verify that an applicant for a marriage license is a person listed on the index;

(2) any confidential identifying information maintained on the index for use by a county clerk under Subdivision (1) be secure and inaccessible to members of the public; and

(3) a county clerk of a county that lacks online access to the index receive the assistance required for the clerk to satisfy in a timely manner any duty relating to accessing the information on the index that is imposed on the clerk by other law.

(e) The executive commissioner of the Health and Human Services Commission by rule shall establish the amount of the fee to be imposed on each marriage license applicant under Section 118.018(c), Local Government Code, and on the parties to a declaration of an informal marriage under Section 118.019(b), Local Government Code. The amount of the fee may not exceed the lesser of $5 or the amount the executive commissioner determines necessary for updating, developing, and maintaining the state index of marriage license applications and declarations of informal marriage and the state index of reports of divorces or annulments of marriage under this section. The executive commissioner shall provide notice to the Office of Court Administration of the Texas Judicial System regarding the amount of a fee established or modified under this subsection. On receipt of that notification, the Office of Court Administration of the Texas Judicial System shall notify each county clerk in this state regarding the amount of a fee to be charged under Sections 118.018(c) and 118.019(b), Local Government Code.

SECTION 6. Section 118.018, Local Government Code, is amended by adding Subsection (c) to read as follows:

(c) In addition to other fees collected under this section, a county clerk shall collect from a marriage license applicant a fee in the amount established by the executive commissioner of the Health and Human Services Commission by rule under Section 194.003, Health and Safety Code, for the purpose of updating, developing, and maintaining the state index of marriage license applications and declarations of informal marriage and the state index of reports of divorces or annulments of marriage under that section. A fee collected under this subsection shall be sent to the bureau of vital statistics of the Department of State Health Services for deposit to the credit of the vital statistics fund to be used for the purpose of updating, developing, and maintaining the state index described by this subsection.

SECTION 7. Section 118.019, Local Government Code, is amended to read as follows:

Sec. 118.019. DECLARATION OF INFORMAL MARRIAGE. (a) The fee for "Declaration of Informal Marriage" under Section 118.011 is for all services rendered in connection with the execution of a declaration of informal marriage under Section 2.404 [1.92], Family Code. The fee shall be collected at the time the service is rendered.

(b) In addition to the fee described by Subsection (a), a county clerk shall collect from the parties to a declaration of informal marriage a fee in the amount established by the executive commissioner of the Health and Human Services Commission by rule under Section 194.003, Health and Safety Code, for the purpose of updating, developing, and maintaining the state index of marriage license applications and declarations of informal marriage and the state index of reports of divorces or annulments of marriage under that section. A fee collected under this subsection shall be sent to the bureau of vital statistics of the Department of State Health Services for deposit to the credit of the vital statistics fund to be used for the purpose of updating, developing, and maintaining the state index described by this subsection.

SECTION 8. Section 118.022, Local Government Code, is amended by adding Subsection (d) to read as follows:

(d) Subsection (a) does not apply to a fee imposed under Section 118.018(c) or 118.019(b).

SECTION 9. Sections 2.009(a) and (b) and 2.404(b), Family Code, as amended by this Act, apply only to an application for a marriage license filed, or a declaration of an informal marriage executed, as applicable, on or after January 1, 2013. An application filed or declaration executed before that date is governed by the law in effect on the date the application was filed or the declaration was executed, and the former law is continued in effect for that purpose.

SECTION 10. The executive commissioner of the Health and Human Services Commission shall:

(1) adopt rules for the administration of Section 194.003, Health and Safety Code, as amended by this Act, not later than June 1, 2012; and

(2) ensure that the enhancements to the state index required by this Act are completed and available for access by county clerks not later than January 1, 2013.

SECTION 11. The changes in law made by this Act to Sections 118.018, 118.019, and 118.022, Local Government Code, apply only to a fee imposed for a marriage license application filed, or a declaration of an informal marriage executed, as applicable, on or after the effective date of this Act. A fee imposed for an application filed or declaration executed before the effective date of this Act is governed by the law in effect on the date the application was filed or the declaration was executed, and the former law is continued in effect for that purpose.

SECTION 12. Except as otherwise provided by this Act, this Act takes effect September 1, 2011.