The Attorney General of Texas 

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 

El Paso, 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 j eda 

Chairman 

Committee on Judicial Affairs 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-22 

ue: Whether a judge of a court 

of record receiving a full-time 

salary can receive a fee for 

performing a marriage during 

working hours in a publicly 

owned building 

Dear Representative Tejeda: 

You ask the following question: 

Can an elected or appointed judge in a court of 

record, receiving a full time salary, receive both 

a state salary and a fee or donation for 

performing a marriageceremony during the hours of 

8 a.m. to 5 p.m. in a publicly owned or supported 

building? 

Judges of courts of record are among those 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, 192 S.W.2d 559 (Tex. 19461, the supreme 

court declared: 

The general 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 no obligation 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 a marriage 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., and has 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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p. 98 
Honorable Frank Tejeda - Page 2 (JM-22) 

not so constrained. The compensation attaching to a public office is 

incident to the title to the office and not to the performance of any 

particular duties. Uhr v. Brown, 191 S.W. 379, 383 (Tex. Civ. App. - 

San Antonio 1916, no writ); Presidio County v. Walker, 69 S.W. 97. 99 

(Tex. Civ. App. 1902, writ ref’d). Of course, a judge may be 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 a public officer, is not required to observe an 8 

to 5 work day. it follows that he is entitled to receive his salary 

even if he performs marriage ceremonies between the hours of 8 a.m. 

and 5 p.m., and collects a fee therefor. 

You also ask: 

Can a state employee receive two state checks 

from two different sources for duties performed 

during the same working hours? 

Can a state employee receive a state check and 

an income from private sources for duties 

performed during the same working hours? 

A public 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 may be incompatible, or may create a 

conflict of interest, but incompatibility is ordinarily a fact 

question. Of course, a state employee may be terminated for neglect 

of duty. You have not presented to us any particular 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 same hours. 

SUMMARY 

A judge 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 

TOM GREEN 

First Assistant Attorney General 

p. 99 
Honorable Frank Tejeda - Page 3 (JM-22) 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Hoellinger 

Nancy Sutton 

p. 100