Honorable A. C. Foster

CountyAttorney Haskell-County Haskell, Texas
Dear Sir: OpinionNo. O-6754

Re: County Clerk's lssulngmarrfage licenses to members of armed forceswithout chargingprescribed 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.ptof your excellentbrief, which has been ofmaterial assFstance in our considerationof this matter. We quote from your letter as follows:

"Is It legal for the County Clerk to remit fees due the clerk for issuingmarriage licenses to members of the armed forces, or in otherwords may the clerk issuemarriage charge to the members of the not account for such fees in report of fees of office?"
The statutoryprovisions are: licenses free of armed forces, and the Clerk's annual

pertinent to your Inquiry

Article 1970,Vernon's Annotated Civil Statutes, which, inpart, provides:
"Clerks of the county court shall receive the following fees:

. . . . Issuing and recordingmarriage license

. . . . 1.00

(I

. . . . Article 3896,V. A. C. S.,which provides:
"Eachdistrict, 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, togetherwith all trust fund~s placed Inthe registry of the court, fees of office and commissions in a book or inbooks to be provided him for that purpose, Fnwhich the offlc'er,

at the timewhen suchdeposits--are made or such fees and commissionsare'earned and when any or all of sudh funds shall come intd~hlshands, 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 succeedinggrand 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 samemade and to make report to the grand juryas hereinaboveprovided." Article 1897,V. A. C. S., which provides:
"Eachdistrict, county and precinct officer at'the close of each fiscalyear (December 3lstj shallmake 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 ofwhich statement shallbe forwarded'~to~the

State. Auditor by the clerk of the d~%strFctcourt of said county within thirty (30). dags after the same has been filed in his office, and one copy to be ffledwith the county auditor, lf any; otherwise said copy shall be filed with the Commissioners'Court. Said report shall show the amount of all fees, commissionsand compensationswhatever earnedby said officerduring the fiscal year; and secondly, shall show the amount of fees, commissionsand compensations collected by him during the fiscal year; thlrdlg, said report shallcontalnan itemized statement of all fees, commlsslonsand compensations earnedduring the fiscalyearwhich were not collected, together with the name of the party owing said fees. commlsslons and compensations. Said report shallbe filed not later than February 1st following the close of the fiscal year and for eachday after said date that said report remains not filed, said offLc,ershallbe liable to a penalty of Twenty-Five ($25.00)Dollars, which may be recovered by the county in a suitbrought for such purposes, and TnHon. 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: "Anycounty officer or any district attorney to whom fees or costs are allowed by lawwho shall fail to charge up the fees or costs that may be due under existing laws, orwho shall remit any fee thatmay be due under the laws, orwho shall fail to make the report requiredby law, OP who shallpay his deputy, clerk or assistanta less sum than specified in his sworn stat'ement,

OP receive back as a rebate any part of the compensationallowed such aepu%y, clerk or assistant, shall be flned not less than twenty-five nor more than five hundreddollars. 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: "Nopower of suspending laws shallbe exercised except by the Legislature." Although the Legislature has power to suspend OP amend existing statutory law in order to meet changfng conditions, weeare unable to find any legislative enactmentwhich exempts themembers of the armed forces from the payment of the fee prescribed inArticle 3930 fop issuing and recordingmarriage licenses,and we find no provision exempting the county clerks from those provisionsrequiring said officers to chargeup the fee that may be due under the law for said serviceand 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 seeRussell v. Cordwent, 152 S, Wa 239).

In view of the foregoing, it is the opinion of this department that the County Clerk ofHaskell County iswithout power to waive or remit the prescribed fee for issufng and recordingmarrlage licenses formembers of the armed forces. It is our further opinion that such fees should be accounted for and reported in conformitywith the provisions of Articles 3896 and 3897, and that failure to chargeup such feeswhen due or the remission of samewould be In violation of the provisions ofArticle 102 of the Penal Code,

We trust that the foregoing satisfactorilyanswers 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

APPROVEDAUG 4, 1946 s/Ocie Speer (Acting)ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman