Honorable A. C. Foster 

County Attorney 

Haskell-County 

Haskell, Texas 

Dear Sir: Opinion No. O-6754 

Re: County Clerk's lssulng marrfage 

licenses to members of armed 

forces without charging prescribed fee. 

We are in receipt of your letter of recent date requesting the opinion of this department on the above stated 

intitter. We are also in recei.pt of your excellent brief, which 

has been of material assFstance in our consideration of this 

matter. We quote from your letter as follows: 

"Is It legal for the County Clerk to remit 

fees due the clerk for issuing marriage licenses 

to members of the armed forces, or in other words 

may the clerk issue marriage 

charge to the members of the 

not account for such fees in 

report of fees of office?" 

The statutory provisions 

are: 

licenses free of 

armed forces, and 

the Clerk's annual 

pertinent to your Inquiry 

Article 1970, Vernon's Annotated Civil Statutes, 

which, in part, provides: 

"Clerks of the county court shall receive 

the following fees: 

. . . . 

Issuing and recording marriage license . . . . 1.00 

(I . . . . 

Article 3896, V. A. C. S., which provides: 

"Each district, county and precinct officer 
. . 

Hon. A. C. Foster, page 2 O-6754 

shall keep a correct statement of all fees earned 

by him and all sums coming into his hands as 

deposits for costs, together with all trust fund~s 

placed Inthe registry of the court, fees of office and commissions in a book or in books to be 

provided him for that purpose, Fn which the offlc'er, at the time when such deposits--are made or 

such fees and commissions are'earned and when any 

or all of sudh funds shall come intd~hls hands, shall 

enter the same; and Ft shall be the duty of the 

county auditor in counties having a county auditor 

to annually examine the books and accounts of such 

officers and to report his fIndIngs to the next 

succeeding grand jury or district court. In 

counties having no county auditor, it shall be the 

duty of the (35mmissioners1 Court to make the examTnatlon of said books and accounts or have the 

same made and to make report to the grand jury as 

hereinabove provided." 

Article 1897, V. A. C. S., which provides: 

"Each district, county and precinct officer 

at'the close of each fiscal year (December 3lstj 

shall make to then district court of the county ?.n 

which he' resfdes a sworn statement in triplicate 

(on formsdesigned and approved by the State 

AudLtor) a copy of which statement shall be forwarded'~to~the State. Auditor by the clerk of the 

d~%strFct court of said county within thirty (30). 

dags after the same has been filed in his office, 

and one copy to be ffled with the county auditor, 

lf any; otherwise said copy shall be filed with 

the Commissioners' Court. Said report shall show 

the amount of all fees, commissions and compensations whatever earned by said officer during the 

fiscal year; and secondly, shall show the amount 

of fees, commissions and compensations collected 

by him during the fiscal year; thlrdlg, said 

report shallcontaln an itemized statement of all 

fees, commlsslons and compensations earned during 

the fiscal year which were not collected, together 

with the name of the party owing said fees. commlsslons and compensations. Said report shall be 

filed not later than February 1st following the 

close of the fiscal year and for each day after said 

date that said report remains not filed, said offLc,ershall be liable to a penalty of Twenty-Five 

($25.00) Dollars, which may be recovered by the 

county in a suit brought for such purposes, and Tn 
Hon. A, C. Foster, page 3 o-6754 

addition said officer shall be subject to removal 

from offlce." 

Article 102, Vernon's Annotated Penal Code, which 

provides: 

"Any county officer or any district attorney to 

whom fees or costs are allowed by law who shall fail 

to charge up the fees or costs that may be due under 

existing laws, or who shall remit any fee that may be 

due under the laws, orwho shall fail to make the 

report required by law, OP who shall pay his deputy, 

clerk or assistant a less sum than specified in his 

sworn stat'ement, OP receive back as a rebate any part 

of the compensation allowed such aepu%y, clerk or 

assistant, shall be flned not less than twenty-five 

nor more than five hundred dollars. Rach act forbidden by this article is a separate offense," 

Also, we call your attention to the following language 

of Section 28, Article 1, Constitution of Texas: "No power 

of suspending laws shall be exercised except by the Legislature." 

Although the Legislature has power to suspend OP amend 

existing statutory law in order to meet changfng conditions, 

wee are unable to find any legislative enactment which exempts 

the members of the armed forces from the payment of the fee 

prescribed in Article 3930 fop issuing and recording marriage 

licenses, and we find no provision exempting the county clerks 

from those provisions requiring said officers to charge up 

the fee that may be due under the law for said service and 

forbids them to remit any fee that may be due for such service under the law, or which exempts said clerks from keeping 

the accounts and making the sworn statemen% required by Articles 3896 and 3897 (supra). In this connection see Russell 

v. Cordwent, 152 S, Wa 239). 

In view of the foregoing, it is the opinion of this 

department that the County Clerk of Haskell County is without 

power to waive or remit the prescribed fee for issufng and 

recording marrlage licenses for members of the armed forces. 

It is our further opinion that such fees should be accounted 

for and reported in conformity with the provisions of Articles 

3896 and 3897, and that failure to charge up such fees when 

due or the remission of same would be In violation of the 

provisions of Article 102 of the Penal Code, 

We trust that the foregoing satisfactorily answers 

you~ inquiry. 
Hon. A. C. Foster, page 4 O-6754 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

JAE:LJ:wc 

By s/J. A. Ellis 

J. A. Ellis 

Assistant 

APPROVED AUG 4, 1946 

s/Ocie Speer 

(Acting) ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman