# TheAttorney GeneralofTexas

March 29. 1983 JIM MATTOX Attorney General

Supreme Court Building P.0. Box 12546 Austin. TX. 76711. 2546 5121475.2501 Telex 9101074.1367 Telecooier 5121475-0266

1607 Main St., Suite 1400 Dallas, TX. 75201.4709 2141742.0944

4624 Alberta Ave.. Suite 160 ElPaso, TX. 79905.2793 91515333404

.-LO Dallas Ave.. Suite 202 Houston. TX. 77002.6966 7131650.0666

006 Broadway. Suite 312 Lubbock. TX. 79401-3479 0061747-5238

4309 N.Tenth. Suite B McAllen. TX. 76501-1665 5121582-4547

200 Main Plaza. Suite 400 San Antonio. TX. 76205.2797 5121225-4191

An Equal Opportunity/ Affirmative Action Employer Bonorable Frank Te jeda Chairman Committee onJudicial Affairs Texas House of Representatives P. 0. Box2910 Austin, Texas 78769 Opinion No. JM-22

ue: Whether ajudge of acourt of record receiving afull-time salary can receive a fee for performing a marriage during working hours in a publicly ownedbuilding Dear Representative Tejeda: Youask the following question: Canan elected or appointed judge in a court of record, receiving afull time salary, receive both a state salary and a fee or donation for performing amarriageceremony during the hours of 8a.m. to 5p.m. in apublicly owned or supported building? Judges of courts of record are amongthose persons authorized to conduct marriage ceremonies by article 1.83 of the Family Code. A judge is not, however, required to exercise that authority, so long as a refusal to marry particular persons is not based upon constitutionally prohibited grounds. Attorney General Opinion JM-1 (1983). In Moore V. Sheppard, 192S.W.2d 559 (Tex. 19461, the supreme court declared:

Thegeneral principle prohibiting public officials from charging fees for the performance of their official duties does not prohibit them from charging for their services for acts which they are under noobligation under the law, to perform. Id.. at 560. See also, Attorney General Opinion MW-456(1982). Thus, a judge of a court of record is empowered to charge a fee for conducting amarriage ceremony. Your question apparently assumes that judges are required to observe certain working hours. Although the legislature has prescribed working hours for state employees, E article 5165a. V.T.C.S., andhas empowered certain commissioners courts to do so for county employees, see article 3912e-4a. V.T.C.S., public officers are -

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not so constrained. The compensation attaching to apublic office is incident to the title to the office andnot to the performance of any particular duties. Uhrv. Brown, 191 S.W. 379, 383 (Tex. Civ. App. - SanAntonio 1916, nowrit); Presidio County v. Walker, 69S.W. 97. 99 (Tex. Civ. App. 1902, writ ref ’d). Ofcourse, ajudge maybe removed from office, by impeachment, address, or otherwise, for neglect of duty. See articles 5961-5966, 5970, V.T.C.S. court ofrecord, Since a judge of a as apublic officer, is not required to observe an8 to 5work day. it follows that he is entitled to receive his salary even if he performs marriage ceremonies between the hours of 8a.m. and 5p.m., andcollects afee therefor. Youalso ask:

Cana state employee receive two state checks from two different sources for duties performed during the sameworking hours? Cana state employee receive astate check and an income from private sources for duties performed during the sameworking hours? Apublic employee is not prohibited per se from simultaneously holding two different state employments, or from simultaneously holding both state and private employments. Attorney General Opinion MW-415 (1981). Any two employments maybe incompatible, or may create a conflict of interest, but incompatibility is ordinarily a fact question. Of course, a state employee maybe terminated for neglect of duty. Youhave not presented to us anyparticular fact situation, therefore, we must answer that a state employee is not necessarily prohibited from receiving two checks, from whatever source, for work performed during the samehours. SUMMARY Ajudge of s court of record is not prohibited from receiving his salary by virtue of the fact that he performs marriage ceremonies between the hours of 8 a.m. and 5 p.m. and receives a fee
therefor* !!J=&

JIM MATTOX Attorney General of Texas TOMGREEN First Assistant Attorney General

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DAVIDR. RICHARDS Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General APPROVED: OPINIONCOMMITTEE Susan L. Garrison, Chairman Jon Bible Rick Gilpin JimHoellinger Nancy Sutton

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