DAN MORALES

ATlonNEr GENERAL 

## QBffice

of tfp 2Wmwp @enera &ate of llGexae May 31.1996
The Honorable Steve Holzheeuser chair BnergyResourcescommittee Texas House of RepP.O. Box 2910 Austin, Texas 78768-2910
Dear RepresentativeHolzheauser: OpinionNo. DM-397
Re: Whether ajudge may receive a fee for pufohg a marriage ceremony during regular officehours and use public resources in petformingthe ceremony (RQ-8 18)

You ask whether ajudge may perform marriage ceremonies during regular 05w hours, using public resources that include public property and public employees, and keeping the .feehe or she charges for personal use. We will Srst consider whetherjudges may keep the fees they charge for performingmarriage ceremonies, and then consider the
use of publicresources.
The followingpersons are authorizedto conduct marriage ceremonies: justices of the supreme court, judges of the wutt of wiminal appeals, justices of the courts of appeals, judges of the district, county, and probate courts, judges of the county wutts at law, courts of domestic relations andjuvenile courts, retired justices and judges of such wurts, justices of the peace, retired justices of the peace, and

judges and magistrates of the federal courts ofthis state. Fam. Code 5 1.83(a)(4).
We find no statute establishing a fee for a marriage ceremony performed by a judge. Public officers are not entitled to receive extra compensationfor performing their official duties prescribed by law. but this general principle does not prohibit them from charging for services that they are. under no legal obligation to perform. Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946). In Moore v. Skppard, the Texas Supreme Court addressed the dispositionof fees receivedby clerks of the wurts of civil appeals for furnishinguncertified copies of opinionsofthe courts, where no statute made it the clerks duty to provide uncertified copies. or foredfees for providingthese copies, and concluded that the clerks were not requiredto pay the fees to the state. Id. at 562. Attorney General Opinion JM-22 relied on the.rule stated in Moore to conclude that ajudge of a court of record could charge a fee for conducting a marriage ceremony. The opinion stated as follows: Judges of courts of record are among those persons authorized

to conduct marriage ceremoniesby article 1.83 ofthe Family Code.The Honorable Steve Hobzheauser- Page 2 (Dg-39 7)

Ajudge is not, however, rquired to exercise that authority, so long
as a retkal to matry particular persons is not based upon wnstitutionally prohibitedgrounds. Attorney Gewral Opinion IM-22 (1983) at 1. Thus, “a judge of a wurt of record is empowacd to charge a fee for conducting a marriage ceremony.” Id. We 6nd no statute establishingthe amount of a fee to be charged for conducting a marriage ceremony.t Nor do we find any provision for the dispositionof such fees, except for section 154.005of the Local Government Code, which addresses the dispositionof fees for marriages performed byjustices of the peace and wunty judges. This provision states as follows:

(a) Ajustice of the peace may receive, in additionto a salary, ali fees, wmmissions, or payments for performingmarriage ceremonies, for acting as registrar for the Bureau of Vital Statistics, and for acting as ex officionotary public. (b) A countyjudge may receive, in addition to a salary, all fm wmmissions, or payments for performingmarriage ceremonies. Local Gov’ t Code 0 154.005;see Act of April 11, 1957,SSth Leg., RS., jr. 110, Q 10, 1957Tex. Gen. Laws 231,232; Act ofMay 30, 1951,52d Leg., R.S.. ch. 503, 8 2. 1951 Tex. Gut. Laws 1487, 1487 (predecessor provisions to Local Government Code 5 154.005). Without express authority to retain fees received for perfotming marriage ceremonies, ajustice of the peace and a countyjudge would be rewired by law to pay the fees into the wunty treasury. See Local Gov’ t Code 5s 113.021,154.003. The existence of this express provision does not mean that other judges may not retain these fees. Pursuant to Moore, and Attorney General OpinionJM-22, the statejudges enumerated in section 1.83 of the Family Code may retain the fees they charge for performing marriages. ’
It has been suggested that a fee receivedby ajudge for petforming a marriage is an

“honorarium” within the following prohibition found in section 36.07(a) of the Penal Code: [A] public servant commits an offense if the public servant

solicits, accepts, or agrees to accept an honorarium in consideration for servicesthat the public servant would not have been requested to provide but for the public servant’ sofficialposition or duties.

‘We&I not aljdEssqoesllons about the legislaIoie’ s

auIhoriIy IO pmvidc by slatntc

for ulc mKquu aaddicporition

of feeslo be charged

by judicial 0ff1cer5 whoconduct

marriages.

see Moore

v. shepprd, 192S.W.2d

at 561 (discussing

legislaturc’r

authority to cnaclgeneral

Iegislalion

PrcJcnbing &q of - &ks 10 finnI&unofficial copiesof court

opinions and fting amount

lo k charged IhCEfLW).

‘We Q not&rcss theauthority of“judges and magiSIraIcs

ofthefederal

COUN ofthisCtaCe”

to rrrain fos charged

forconducting

marriage arcmonia.

p. 2179The Honorable Steve Holzheauser - Page 3 (DM-397)

Since there is no legislative definition of “honorarium” in section 36.07(a) of the Penal Code, we will wnstrue it according to the rules stated in the Code Construction Act, chapter 3 11 of the GovernmentCode.) Section 3 11 .Ol1 states as follows: (a) Words and phrases shall be read in context and wnstrued accordingto the rules of grammar and wmmon usage. (b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shallbe wnstrued accordingly.
In construing a statute. we may also consider “the object sought to be obtained, the legislativehistory, and common law or former statutory provisions, includinglaws on the same or similar subjects.” Gov’ t Code 0 311.023. Section 36.07 of the Penal Code
was adopted by Senate Bill 1 of the Seventy-second Legislature, a comprehensive ethics reform bii that also repealed portions of Penal Code section 36.10, which had addressed the receipt of honorariumsby public servants. See Act of May 27, 1991, 72d Leg., RS., ch. 304. 04.03, 1991 Tex. Gen. Laws 1290, 1321-U. To determine the meaning of

“honorarium” in Penal Code section 36.07, we will consider the wnstruction of

“hononuium” in the former version of Penal Code section 36.10 and the legislativehistory of the “honorarium”provision in Senate Big 1.
Section 36.10 of the Penal Code sets out exceptions to the prohiiitions in section 36.08 wnceming gifts to a public servant perfotming regulatory fimctions and in 36.09 against offering a giAto a public setvsnt who is prohibitedby law from awepting it. From 1975 until it was amended by Senate Bill 1, section 36.10 included an exception for “an honorarium in consideration for legitimate services rendered above and beyond 05&l duties and responsibilities.” Act of June 2. 1975. 64th Leg., RS., ch. 342, 5 11, 1975 Tex. Gen. Laws 912.916; see Attorney GeneralOpiion MW-90 (1981) at 2 (considering whether public officialmay receive honorariumfor deliveringspeech).
A few months before the legislature adopted the 1975 provision excepting an honorarium, this office wnsidered whether an “honorarium” paid to a legislator for participating in a program of an organization would be a gift prohibited by section 36.08 of the Penal Code. Relying on dictionaries,the opinion defined“honomrium”as follows:

% ‘he Texas Ethics comminion,

authorized

bysection 571.091 of lhe clovmmacodclogivo wriaenopinionsonc~~36oftbc~Cobc.amongothadahleqbarirsuedarmmkrdclhiss advimy opinions

interpreting

section 36.07(s)as applicable

lo payments

in considaation

fora apccch that thepublic servant wasrequested

to give because ofhisoffkial

position orduties.SeeEthics

Advisory Opinion Nos. 192(1994).150(1993). 97 (1992).19(1992).17(1992). TheEthics Commission

hasalso stated that section 36.07applies

tocompensation

received bya legislator

forteaching

a1 a slate college or university,

if the legislator

would not have ken asked

to teach butforhis position

as a uale legislator. Ethics Advisory Opinion No. 148(1993).

p. 2180The Honorable Steve Holzheauser - Page 4 (DM-397)

An honorarium.

. . is sometimes defined as a payment or reward, usually in recognition of services on which custom or propriety forbids any t&d businessprice to be set. It may be a thee gift or gratuitous payment, as distinguished 6om hire or compensationfor service. The term also has been definedto include
a fee for professional services. Thus, the word is wmmonly used to embraceboth the wncept of gifi and of compensation. Attorney General Opinion H-551 (1975) at 4 (citations omitted).
This definition of “honorarium” does not describe a fee paid a public officer for paforming an official service. A fee of 05ce is not “a free gift or gratuitous payment,”
nor is it “a fee for professional services.” See Gov’ t Code 0 2254.003(b) (professional fees paid by governmentalentity to provider of professional servicesunder wntract). We have no basis for wncluding that “custom or propriety” forbids setting a fixed fee for worming a civil marriage. In addition, the former version of section 36.10 included an exception for “a fee prescribed by law to be received by a public servant or any other benefit to which the public setvant is lawtkhy entitled.” Act of May 24, 1973, 63d Leg., RS.. ch. 399.8 1. 1973 Tex. Gen. Laws 883,946. ’ In former Penal Code section 36.10,

“an honorarium” was thus something d&rent from a “fee prescribed by law.

. . or any other benefitto whichthe public servant is lawtkllyentitled.”
The ethics law that was revised by Senate Bii 1 already dealt with honorariumsto some extent. As introduced, Senate Bill 1 pmhibiied a member of the legislature or a statewide officeholderfrom receiving any honorariumduring the period from the 30th day before the convening of a legislative session through the final adjournment. S.B. 1, 72d Leg., RS., 5 3.03 (1991) (as introduced) (bill 5e, LegislativeReferenceLibrary). It also provided that legislators and statewide officeholderscould not receive a singlehonorarium
over $500, could not receive more than one honorarium from the same person in a calendar year, or more than one honorarium for the same event or occasion. Id. An

“honorarium”received by a legislator could not have includeda fee for performingofficial services, because legislators were, and are, compensated on a salary basis. See Tex. Const. art. III, 5 24(a). Statewide officeholdersare also compensated on a salary basis,
see Gov’ t Code 8 659.011, and do not receive fees, except of course for judges who receive fees for performing marriages and who also are “statewide officeholders.” See Elec. Code 5 1.005(19) (defining “Statewide office” as office of the federal or state govemment that is voted on statewide). Although the honorarium provision was revised during the legislative process to prohiiit all public servants from accepting honorariums,House Comm. on State Affairs, Bib Analysis, C.S.S.B. 1, 72d Leg. (1991), there is no indication that the meaning of

+ms c.xcc@ion

is new found atsection 36.10(a)(l)

oft& FWUI

Code. Thep-t don also excepts “any 0th~ bcnctlt

. . . forwhich[the

public servant] giveslcgilimatc

amsideration

in a capacity oUur than asa public

servant.”

p. 2181The Honorable Steve Holzheauser - Page 5 (DM-397)

Uhonorarium”was broadened to include a fbe received by an officer for performing statutorily authorized services. As enacted by Senate Bill 1. section 36.07 of the Penal Code provides as follows:

(a) A public servant wmmits an offense if the public servant solicits, accepts, or agrees to accept an honorarium in consideration for servicesthat the public servant would not have been requested to provide but for the publicservant’ s o5cial position or duties. (b) This section does not prohibit a public servant from accepting transportation and lodging expenses permitted under Section 305.025(b)(2), Government Codqs in wnnection with a conference or similar event or from accepting meals in wnnection with such an event. Act of May 27, 1991. 72d Leg.. RS., ch. 304, 94.03. 1991 Tex. Gen. Laws 1290, 132122 (italics removed) (footnote added). Transportation Andy lodging expenses that Senate Bill 1 permitted under section 305.025 of the GovernmentCode w&ted of

necessary expenditures for transportation and lodging provided in connection with a wnfbrence or similar event in which the member renders services. such as addressing an audience or engaging in a seminar, to the extent that those services are more than merely pufun~0J.Y. Id. 4 2.14(a), 1991 Tex. Gen. Laws 1290, 1312,wnended by Act ofMay 26, 1995,74th Leg., R.S., ch. 996, 5 4, 1995 Tex. Gen. Laws 4999,X01. Thus, addressing an audience
or engaging in a seminarexemplified “servicesthat the public servant would not have been requested to provide but for the public servant’ s officialposition or duties.”
The phrase “setvices that the public servant would not have been requested to provide but for the public servant’ s officialposition or duties” is certainly broad enough to include official services performed under authority of law, but in the vast majority of cases, fees received by public officers are set by law and allocated in accordance with law. It is diicult to see why section 36.07 of the Penal Code would need to reach such fees. Furthermore, the use of the term “honorarium” to describe payment for these services wnvinces us that section 36.07 does not reach officialsetvices. By the time Senate Bill I was introduced, this office had given the term “honorarium”a defmitionthat did not apply to fees received by public offks for performing oflicial services. The legislativehistory of Senate BiU I indicatesthat the legislature,in prohibitingpublic servants fiam receiving honorariums, did not have in mind fees received by public officers for performing official

‘A 1993amcadmcnt

to acction 36.07(b)offhc Pcnsl Code dclctcd “pm&cd underSahn 305.025(%)(Z).

Govcmment

Coat,”and insertad

“in which the public servant readers services, such as addressing an audima or engaging

in a 3ClUiW,lOthCCXlC~thatlllOSCSClViCCS~lllO~thanliUltl~ pcrhnaoty.” Act

of May 29,1993,73d

Leg., RS.,ch.900,

g 1.01,1993

Tex. Gcn. Laws 3589.3664.

p. 2182The Honorable Steve Hotztmauser - Page 6 (“n-,Y,,

services. We concludethat a fee received by ajudge for performing a marriage is not an

“honorarium”within section 36.07 of the Penal Code.
We turn to your question. You are wncemed about the authority of judges to perform marriage ceremoniesduring regular office hours using publicresources, including public property and public employees,keepingthe fee they charge for their persona) use. You speci&aUy ask whether “an elected official or employee of the State, County, or Municipal Government [may] use for private profit or benefit to himself, any property, supplies, equipment, or other thing of value belonging to the State, County, or Municipality?’
You ask a general question, and our answer must necessarily be general. We believe your question raises article III, sections 51 and 52 of the Texas Constitution, which prohibit the allocation of public 5nds and other public resources to private purposes. See Stafe v. City ofAustin, 33 1 S.W.Zd737 (Tex. 1960). These wnstitutional provisions do not deny the legislaturethe use of state 8mds to cany out state purposes. SIore v. Ci@of DaIlar, 319 S.W.2d 767 (Tex. CN. App.-Austin 1958), @d sub nom. Store v. Civ ofAustin, 331 S.W.Zd737 (Tex. 1960). The legislaturehas determinedthat there is a state purpose in authorizing and documenting the marriage relationship, as shown by the statutes it has enacted to carry out that purpose. See Fam. Code ch. 1, sub&s. A (application to county clerk for marriage license), D (ceremony and return of license to county clerk), ch. 2 (validity of marriage); Health & Safety Code 8 194.001 (filing of copy of completed marriage license application with Board of Health). The legislature has also adopted statutes concerningthe various rights, duties, and liabilities that result from the status of marriage. Fam. Code chs. 4 (rights, duties, powers, and liabilitiesof spouses), 5 (maritalproperty).
In conducting a marriage ceremony, a judge acts in the name, and under the authority of, the state of Texas, and not in a private capacity. See Attorney General Opinion JM-I (1983) at 1. Fees received for conducting a marriage ceremony constitute the judge’ s compensation for carrying out an official timction, not for engaging in a private business. Thejudge may, consistentlywith article III, sections 51 and 52, perform marriages during normal business hours and receive fets for that purpose. See Attorney General Opinion TM-22 (1983) at 2 (concluding that judge of court. of record who received state salary could receive fees for performing marriage ceremonies in public building between eight a.m. and five p.m.). Any use of publicresources, including the judge’ s and employees’time, must be reasonablein relation to the official5nction that is being carried out. For example, section 1.84 of the Family Code requires the person who conducts the ceremony to sign and return the license to the county clerk who issued it. Presumably, thejudge could sign it and direct M employeeto mail it to the county clerk. Finally, we note that judges have many mandatory duties in addition to the discretionary authority to marry people, and that they must faith5lly execute the duties of office, in wmphance with their oaths of office. See id. (judge may be removed for neglect of duty).

p. 2183Th+Honorable Steve Holzheauser - Page 7 W-397)

SUMMARY
In performing a marriage ceremony as authorized by section 1.83 of the Family Code, ajudge is carrying out M 05cial diction. Thejudge may perform marriages during the hours of eight a.m. to five p.m.. as well as at other times, and keep the fees charged for doing so. Such fees are not “honorarium[s]”within the prohibition found in section 36.07(a) of the Penal Code. Any allocation of public resources, includingthe judge’ s and employee’ s time, to the conduct of marriages must be reasonable in relation to the 05cial fiction that is being carried out.

DAN .MORALES Attorney General of Texas
JORGE VEGA Fii Assistant Attorney General
SARAHJ. SHIRLEY Chair, Opiion Committee Prepared by SusanL. Garrison Assistant Attorney General

p. 2183