ustxtxb_obs_1959_11_27_50_00004-00000_000.pdf

Legal Status of Women in Texas \(Dallas District Judge Sarah T. Hughes has written this definitive discussion of the legal status of women in Texas for Observer DALLAS Texans like to brag and have reason to do so about ranches, cattle, oil, and many things, but not about the legal status of women. Of all the states in the union, Texas laws discriminate against women more’ than those of any other state. True, there has been considerable progress since the days of the early common law, when a woman by marriage lost title to her personal property and all control over her real property. In the words of Blackstone, “Husband and wife were one, and that one was the husband.” Women in Texas obtained the right to vote in party primaries in March, 1918, before the federal woman suffrage amendment became effective, and the same year Annie Webb Blanton was elected state superintendent of education. The right of women to hold office was firmly established by the Supreme Court in the case of Dickson vs. Strickland, 265 S.W. 1012, brought in 1924 to keep the name of Mrs. Miriam Ferguson from being placed on the general election ballot as a candidate for governor. It was there contended that Mrs. Ferguson was ineligible for two reasons: First, Texas had adopted the common law under which women were ineligible to hold office, and second, the Constitution used the words “he” and “his” in defining the governor’s qualifications. The Supreme Court held in respect to the first contention that the Constitution took precedence over the common law and Mrs. Ferguson came within none of the constitutional provisions stating who shall not hold the office of governor, and in respect to the second contention that the word “he” must include “she” unless a contrary intent appears, and the Texas Constitution showed no such intent. With regard to serving on juries,. it was the opinion of some that the amen d ment giving women the right to vote also gave them the right to serve on juries. Shortly a f t e r passage of the amendment, two women were placed on a grand jury in McLennan County, but on appeal the Court of Criminal Appeals, in the case of Harper vs. State, 234 SW 909, held that the amendment giving women the right to vote did not affect the provision of the Constitution that “grand and petit juries in district courts shall be composed of twelve men.” Later in a civil case, Glover vs. Cobb, women to serve on juries was again denied, the Court of Civil Appeals holding that since women were unheard of as jurors at the time the Constitution was written the word “men” in the Constitution was used in its sex sense and could not be construed to include women. At the same time that women were attempting through the courts to determine their eligibility, there was introduced in the legislature, session after session, a resolution to amend the Constitution to qualify them for service. Finally in 1949 the resolution was submitted by the legislature, but turned down by the people in a close vote. Support, however, for women on juries increased, and finally in 1953 the resolution was again submitted and adopted by the people. Property Disadvantages Despite the fact that women now share in the responsibilities of citizenship, that is, voting, holding office, and serving on juries, there has been little change in the property rights, or perhaps more accurately the lack, of property rights of married women. As long as women remain single, they have the same rights with reference to their property as men, but with marriage they are subjected to certain disabilities. Texas is the only state in the union which retains the separate acknowledgement of a married woman. The ‘statute requires that in taking a married woman’s acknowledgement the notary must first ‘have her husband leave the room, then must fully explain the instrument to her. She must acknowledge to the notary that the instrument is her act and deed, that she has willingly signed it, and does not wish to retract it. Such provisions are an insult to the intelligence of women and to the integrity of men. Moreover, if they are intended as a protection from an “unscrupulous” husband, the effect is doubtful, since, as soon as the wife leaves the protection of the notary, she returns home with her “unscrupulous” husband. Rather than a protection to the married woman, the requirements of the separate acknowledgement have opened the door to fraud upon innocent purchasers. The provisions of the statute must be strictly complied with, and years later a woman may recover her property, even though a fair price was paid for it, if she proves that any of the statutory requirements were omitted. According to the Supreme Court in the case of Vanderwolk vs. Matthaei, 167 SW 304, “the ‘separate acknowledgement statute has been productive of much more injustice and wrong than it has prevented.” Married Can’t Contract With respect to contracts, Texas and only one other state limit a married woman’s right to make a contract. Although a woman prior to marriage is capable of entering into a contract, after marriage a disability is placed upon her which prevents her from contracting. The only exceptions are with reference to her separate property and contracts for necessaries for herself and children. If she purchases material and hires laborers to make improvements on her separate property, such property is liable, but not the community property. A married woman is specifically prohibited from signing a note or ‘being surety on any bond or obligation of another without the. joinder of her husband. However, if she goes into business, she may, with the consent of and joined by her husband, apply to the district court for the removal of her disabilities of coverture. If she shows the court that it is to her advantage she may be declared a feme sole for mercantile purposes and may contract in her own name. Thereafter, her contracts will be binding. The requirement means simply that a married woman, before she can go into business with her own money and be liable on her contracts, must obtain her husband’s consent, file a petition in the district court, and show a district judge that it will be to her advantage. It is difficult to understand why marriage should make a woman incapable’ of entering into a contract and subject her to the expense of a lawsuit to obtain a right she previously had, or why she should have to go into her personal affairs with anyone, even a district judge, to secure that right. Moreover, even this opportunity to have her disabilities removed is denied if her husband refuses to join in the petition or his whereabouts are unknown, since his consent is required. Thus at a time when she may be most in need because of his abandonment there is no provision un Judge Sarah T. Hughes der the ,socalled “free-trader” law for her to be declared a feme sole for mercantile purposes. ‘Com m u nity’ Property It has been said that Texas community property laws are generous to married women in that a wife is entitled to one-half of all the community property. That is true, but it is something like having money in the bank without being able to take it out. Money becomes valuable only if it can be withdrawn and used. Thus it is with community property. Even though the wife owns onehalf, she has control of none of it except the -homestead, which can be disposed ‘of or encumbered only by the joint -signature of husband and wife. With regard to all other community property the husband has sole control. He may sell it, give it away, or spend it in riotous living. Under such circumstances the wife has little recourse. If the property has already been disposed of, to obtain relief she must show that the husband’s purpose in disposing of it was to defraud her. If the property is still in his hands, she may sue for divorce and ask for an injunction to restrain him. Unless she wishes to take this drastic remedy, there is nothing she can do. Fortunately for the wife the policy of title companies in usually requiring the signatures of both husband and wife to conveyances is betterprotection than the statutes provide. Community property consists of all propeyty acquired during marriage, except that received by gift, devise, or descent. In includes the earnings of the husband and wife and the income from the separate property of both. In the early days when most of the community property was derived from the husband’s earnings, the law giving the wife half of the community property seemed generous, but today with many wives working and owning considerable property in their own right, the income from which is community, there is nothing fair about giving the husband the right to control her earnings and the income from her separate property. While there is a statute providing that money in the bank is presumed to belong to the person in whose account it has been deposited, its purpose is to protect the bank, and if the husband notified the bank that money in his wife’s name was community property and he did not want her to use it, there would be little chance of the bank honoring her checks. If the husband abandons the wife she still has no control of the community property until his whereabouts have remained unknown to the wife for more than twelve months continuously. She then may file ad application in the district court and ask for authority to control, manage, and dispose of the community property. Unfortunately, if he is so inconsiderate as to let her know at the end of eleven months where he is, she must wait another twelve months. Even if her application is granted and she is authorized to manage the property, since this procedure does not deprive the husband of his right to dispose of the property, the wife may still find it difficult to exercise her right. A prospective purchaser, may hesitate to buy, since the husband also has the right to sell the same property. Her Own Property With regard to the separate property of the wife, \(that is, the property which she had before her marriage and that which she acquired after marriage by gift, gives her the sole management, control and disposition of it, with certain provisos. Before 1957, Article 4614, which defines the separate property of the wife, required the joinder of the husband for conveyance or encumbrance of real property or transfer of stocks and bonds. Without the right to convey or transfer the authority to otherwise manage has little meaning. Prior to 1957 Article 4617 provided the only method by which the wife could convey or transfer without her husband’s joinder. In case of insanity of the husband, his abandonment, or refusal to join, the wife is authorized to apply to the district court for permission to make such conveyance, encumbrance, or transfer without the joinder of the husband. In order to obtain such an order it is necessary for the wife to show that it would be to her best interest. Such action might well cause her embarrassment by requiring her to make her troubles a matter of public record, as well as being an unjustified expense and an unwarranted substitution of the judge’s opinion for hers, not required of a man or single woman. Even after the provisions of the law are met, the woman may then not be able to dispose of her property, because the prospective purchaser stands a chance of the husband contesting the sale because he did not join. In 1957 the -legislature amended the statute relating to the wife’s separate property. Strongly supported by the Texas Federation of Business and Professional Women’s Clubs and other women’s organizations, a bill removing all restrictions on the right of a married woman to manage her own property was introduced in the legislature. It passed the House of Representatives with only two negative votes, but in the Senate it was amended to provide that a wife may have the sole management, control, and disposition of her separate property and the right to contract, sue, and be sued in connection with such property without the joinder of her husband by filing in the county clerk’s office a duly acknowledged statement that she elects to have the sole management of her separate property. If no such instrument is filed she must be joined by her husband in any conveyance, encumbrance, or transfer. The effect of the amendment is in doubt. The form of the required statement is not set out nor does it provide that the husband’s signature, on the statement is not necessary. Some title companies are passing titles without the joinder of the husband if the wife has filed the statement in the county clerk’s office, provided for by the amendment. Others .require that the district court authorize conveyance by the wife alone. Since the “free-trader” statute is not mentioned, the right to contract and sue alone mentioned in the amendment will probably be interpreted not to include the removal of the wife’s disabilities for trading and mercantile purposes. There are as yet no court decisions interpreting the amendment, and until the statute is passed upon by the appellate courts, confusion as to its meaning will continue. Suits Over Property With regard to law suits involving community property, only the husband has the right to bring the action. The wife is not a proper party even in cases involving her earnings or damages for injuries to her. If the wife receives injuries in an automobile collision, resulting damages would be community property and only the husband has the right to sue. Since he alone has the right to manage community property, in case of recovery he can also invest or dissipate the proceeds without her consent. Fortunately in most instances there is no real problem. Husbands and wives generally get along, and a wife would be consulted with reference to any disposition of damages for injuries to her. Even though there is no statute giving the wife the right to sue alone unless the husband has abandoned her and his whereabouts are unknown for a year. when there is a lack of harmony there is also a practical solution. The wife can file suit for divorce and ask for a division of the community property, including the claim for damages ‘arising from injuries to her. Several years ago such a situation arose in the 14th District Court. The husband and wife were separated. She received serious injuries, and he immediately filed suit for recovery of damages, which he had a right to do. She filed suit for divorce, in which an injunction was issued restraining the husband from trying the damage suit until the divorce had been tried. The divorce case ‘resulted in a divorce for the wife and division of the claim for damages, which was the only community property, by awarding each party one half, but providing the husband pay the attorney’s fee out of his half and further providing that the remainder of his half be placed in the registry of the court for the support of their two children. The damage suit was later settled for $19,000 and the amount paid in accordance with the divorce decree. When separate property of the wife is involved, the husband has the right to sue alone or be joined by the wife. In case of the husband’s refusal to sue, the wife may apply to the district court to bring the suit alone. The amendment of 1957 also gives her this