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 Representative Holzheauser: 

Opinion No. DM-397 

Re: Whether a judge may receive a fee for 

pufohg a marriage ceremony during 

regular office hours and use public resources 

in petforming the ceremony (RQ-8 18) 

You ask whether a judge may perform marriage ceremonies during regular 05w 

hours, using public resources that include public property and public employees, and 

keeping the .fee he or she charges for personal use. We will Srst consider whether judges 

may keep the fees they charge for performing marriage ceremonies, and then consider the 

use of public resources. 

The following persons are authorized to 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 and juvenile 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 of this 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 compensation for 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 disposition of fees received by clerks of the wurts of civil appeals for 

furnishing uncertified copies of opinions of the courts, where no statute made it the clerks 

duty to provide uncertified copies. or fored fees for providing these copies, and concluded 

that the clerks were not required to pay the fees to the state. Id. at 562. Attorney General 

Opinion JM-22 relied on the.rule stated in Moore to conclude that a judge 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 ceremonies by article 1.83 ofthe Family Code. 
The Honorable Steve Hobzheauser - Page 2 (Dg-39 7 ) 

A judge is not, however, rquired to exercise that authority, so long 

as a retkal to matry particular persons is not based upon 

wnstitutionally prohibited grounds. 

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 

establishing the amount of a fee to be charged for conducting a marriage ceremony.t Nor 

do we find any provision for the disposition of such fees, except for section 154.005 of the 

Local Government Code, which addresses the disposition of fees for marriages performed 

by justices of the peace and wunty judges. This provision states as follows: 

(a) A justice of the peace may receive, in addition to a salary, ali 

fees, wmmissions, or payments for performing marriage ceremonies, 

for acting as registrar for the Bureau of Vital Statistics, and for 

acting as ex officio notary public. 

(b) A county judge may receive, in addition to a salary, all fm 

wmmissions, or payments for performing marriage ceremonies. 

Local Gov’t Code 0 154.005; see Act of April 11, 1957,SSth Leg., RS., jr. 110, Q 10, 

1957 Tex. 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, a justice of the peace and a county judge 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 Opinion JM-22, the state judges 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 received by a judge 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 services that the public servant would not have been requested to 

provide but for the public servant’s official position or duties. 

‘We &I not aljdEss qoesllons about the legislaIoie’auIhoriIy s IO pmvidc by slatntc for ulc 

mKquu aad dicporition of fees lo be charged by judicial 0ff1cer5 who conduct marriages. see Moore v. 

shepprd, 192 S.W.2d at 561 (discussing legislaturc’authority r to cnacl general Iegislalion PrcJcnbing 

&q of - &ks 10 finnI& unofficial copies of court opinions and fting amount lo k charged 

IhCEfLW). 

‘We Q not &rcss the authority of “judges and magiSIraIcs of the federal COUN of this CtaCe” to 

rrrain fos charged for conducting marriage arcmonia. 

p. 2179 
The 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 Government Code.) Section 3 11 .Ol 1 states as follows: 

(a) Words and phrases shall be read in context and wnstrued 

according to 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, 

shall be wnstrued accordingly. 

In construing a statute. we may also consider “the object sought to be obtained, 

the legislative history, and common law or former statutory provisions, including laws 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 honorariums by 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 legislative history 

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 giA to a public setvsnt who is prohibited by 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 General Opiion MW-90 (1981) at 2 (considering 

whether public official may receive honorarium for delivering speech). 

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 by section 571.091 of lhe clovmmacodclogivo 

wriaenopinionsonc~~36oftbc~Cobc.amongothadahleqbarirsuedarmmkrdclhiss 

advimy opinions interpreting section 36.07(s) as applicable lo payments in considaation for a apccch 

that the public servant was requested to give because of his offkial position or duties. See Ethics Advisory 

Opinion Nos. 192 (1994). 150 (1993). 97 (1992). 19 (1992). 17 (1992). The Ethics Commission has also 

stated that section 36.07 applies to compensation received by a legislator for teaching a1 a slate college or 

university, if the legislator would not have ken asked to teach but for his position as a uale legislator. 

Ethics Advisory Opinion No. 148 (1993). 

p. 2180 
The 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 business price to be set. It may be a thee 

gift or gratuitous payment, as distinguished 6om hire or 

compensation for service. The term also has been defined to include 

a fee for professional services. Thus, the word is wmmonly used to 

embrace both 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 governmental entity to provider of professional services under 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 benefit to which the public servant is lawtklly entitled.” 

The ethics law that was revised by Senate Bii 1 already dealt with honorariums to 

some extent. As introduced, Senate Bill 1 pmhibiied a member of the legislature or a 

statewide officeholder from receiving any honorarium during 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, Legislative Reference Library). It also 

provided that legislators and statewide officeholders could not receive a single honorarium 

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 included a fee for performing official 

services, because legislators were, and are, compensated on a salary basis. See Tex. 

Const. art. III, 5 24(a). Statewide officeholders are 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 at section 36.10(a)(l) oft& FWUI Code. The p-t don also 

excepts “any 0th~ bcnctlt . . . for which [the public servant] gives lcgilimatc amsideration in a capacity 

oUur than as a public servant.” 

p. 2181 
The 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 services that the public servant would not have been requested to 

provide but for the public servant’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 Government Code 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 seminar exemplified “services that the public servant would not have been 

requested to provide but for the public servant’s official position or duties.” 

The phrase “setvices that the public servant would not have been requested to 

provide but for the public servant’s official position 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 official setvices. By the time Senate Bill I 

was introduced, this office had given the term “honorarium” a defmition that did not apply 

to fees received by public offks for performing oflicial services. The legislative history 

of Senate BiU I indicates that the legislature, in prohibiting public servants fiam receiving 

honorariums, did not have in mind fees received by public officers for performing official 

‘A 1993 amcadmcnt to acction 36.07(b)offhc Pcnsl Code dclctcd “pm&cd under Sahn 

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

services. We conclude that a fee received by a judge 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 ceremonies during regular office hours using public resources, including 

public property and public employees, keeping the 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 of Austin, 33 1 S.W.Zd 737 (Tex. 1960). These wnstitutional 

provisions do not deny the legislature the 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 of Austin, 331 S.W.Zd 737 (Tex. 1960). The legislature has determined that 

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 concerning the various rights, duties, and liabilities 

that result from the status of marriage. Fam. Code chs. 4 (rights, duties, powers, and 

liabilities of spouses), 5 (marital property). 

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. The judge may, consistently with 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 public resources, including the 

judge’s and employees’ time, must be reasonable in relation to the official 5nction 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, the judge could sign it and direct M employee to 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. 2183 
Th+ Honorable Steve Holzheauser - Page 7 W-397) 

SUMMARY 

In performing a marriage ceremony as authorized by section 

1.83 of the Family Code, a judge is carrying out M 05cial diction. 

The judge 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, including the 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 

SARAH J. SHIRLEY 

Chair, Opiion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2183