July 31, 1957 

Honorable E. C. Grindstaff Opinion No . WW - gD 

District Attorney 

119th Judicial District Re: Effect of various provisions 

County Courthouse of Senate Bill 237, Acts 

San Angelo, Texas 55th Leg., 

P. 477 

1957, ch. 220, 

,,,Dear M. Grindstaff: 

You have submitted several questions in connection 

with the above-captioned matter which we will consider seriatim. 

Your first question is whether the County Clerk 

has discretion In fixing the amount of the fees he rebelves 

for official services or whether it would be necessary for 

the Commlssloner~s Court to authorize the Clerk to set the 

amount of fees. 

Senate Bill 237 amends Article 3930, Vernon's Civil 

Statutes, and provldes as follows: 

"Clerks of the County Court may 

receive not to exceed the following fees:. . .I' 

Prior to this smendment, Article 3930 provided as 

follows: 

"Clerks of the County Court shall 

receive the following fees:. . ." 

At first reading It might appear that the Leglslature was attempting to give the County Clerk discretion as to 

the amount of the fees up to a certain maximum limit. However, we have concluded that this Is not the proper interpretation to place on this portion of the statute, because such 

an interpretation would render the Act unconstitutional. 

Section 20 of Article V of the Texas Constitution 

reads, in part, as follows: 

“There shall be elected for each 

county, by the qualified voters, a 

County Clerk who shall hold his office 
70 

Honorable E. C. Grindstaff, page 2 @W-m) 

for four years, who shall be Clerk of 

the County and Commissioners' Courts 

and recorder of the countv. whose duties. 

perquisites and fees of o'lfice shall be 

rescribed by the Legislature. . .'I 

phasls supplied throughout.) 

Under this provision, it is clearly the duty of the 

Legislature to prescribe the fees; and this duty cannot be 

delegated by the Legislature to the Clerks. It Is obvious 

that there would be such delegation If it were left in the 

Clerk's discretion to determine an amount anywhere from zero 

to the maximum stated amount. 

tab1 

No rule of constitutional law is more firmly esished than that rule which declares where possible statutes 

will be construed consistently with the directives of the 

Constitution and that If one Interpretation would Invalidate 

an act or a part thereof and another would uphold it the 

latter interpretation will be made. 9 Tex. Jur. 484, 

Constitutional Law, Sec. 63. 

Numerous cases have held that the word "may" may 

be construed to be mandatory, 

"must" or "shall". 

that is, as the equivalent of 

when such construction is consistent with 

the evident purpose of the statute. 26~ Words and Phraees 

22;*Smlth v. Curtis, 223 S.W.2d 712, 714 (Tex.Clv.App. 

. t Is quite reasonable to assume that the Lenlslature-intended that the County Clerk must receive not-more 

than the stated amount. We do not think it was the Intent 

of the Legislature that the Clerk could in some instances 

receive no fee at all and in others varying fees ranging 

to the maximum stated fee. The caption of Senate Bill 237 

states: 

that 

This 

"An Act to amend Article 3930 of 

the Revised Civil Statutes of Texas, 

1925, . . rrelatlng to fees which the 

clerks of the County Courts shall 

receive for their services; . . ," 

Thus it is evident that the Legislature intended 

the County Clerks should receive fees for their services. 

Is inconsistent _. with construing the provision In question 

as reposing dlsCretlon In the Clerk as to whether he charge 

any fee at all. 

Likewise the emergency clause of Senate Bill 237 

provides, in part, as follows: 
Honorable E. C. Grindstaff, page 3 (WW-I) 

"The fact that the Officers' Salary 

Funds in most of the counties of Texas 

are inadequate and insufficient to take 

care of the expenses of the officers 

affected hereby, thereby placing an 

extra burden on the already overburdened 

general funds of such counties, creates 

an emergency. . ." 

If Officers' Salary Funds are already Inadequate, it 

.is evident that the Legislature intended to remedy this, sltuation, rather than permit a reduction,ln permissible fees. In 

this connection, we call your attention to the fact that In 

most instances the amount of each,fee has been increased by 

this latest legislative action. You are therefore advised 

that County Clerks have no discretion as to the amount of fees 

but must charge the amount stated in Senate Bill 237. 

With regard to the fee that can be charged for filing 

a notarial bond and qualifying a notary, you asked whe,ther 

when the oath Is administered by another official qualified to 

do so before the bond Is filed wlth,the',County clerk the fee' 

would be less than $2.00. ,You state that the 

for filing and approving a notary bond Is now ,$ 

resent charge 

1.60; One 

Dollar for the Commission (paid to Secretary,of,State), Fifty 

Cents for approving the bond and Ten Cents for filing. 

The bill contemplates that the County Clerk will 

perform all the, official dut$es.that are,,to;be pqrformedat 

the County Courthouse level In connection wlth~& application 

for a notary publlcts commission; for it hassetone maximum 

fee for "Approving and filing a notarialbond and qualifying 

notary public." The maximum fee which ~may be:charged by a 

County Clerk in connection with a notarypublic's commission 

Is $3.00; $1.00 for the commission (collected for the Secretary of State) and $2.00 for 'Approving a.nd,flling notarial 

bond and qualifying for a notary public." 

The next question is whether the tencents charge 

which the bill states shall be made for Indexing each,name 

on any instrument required or permitted to be filed, recorded 

or registered in the office of the County Clerk is intended 

to be an additional charge In excess of the recordingand 

filing fee. You are advised that this ,fee i's In addition to 

the other fees set for recording or filing. 

You then ask should two charges be made If the 

grantees In a deed were John Doe and wife, Mary Doe, and if 

it were indexed John Doe,et ux. The ten cent fee Is for 
Honorable E. C. Grindstaff, page 4 (WNZ) 

each name indexed. John Doe and wife, Mary Doe,should be 

indexed separately rather than as John Doe, et ux. 

Your final question is as to the proper fee to be 

charged for issuing and recording a marriage license. Senate 

Bill 237 lists this fee as $3.00. You state that ou now 

charge $2.50 - $2.00 for issuing or recording and f .50 for 

certification as required by Article 4612-a, V.C.S. You 

ask whether under the new fees which Increases the certiflcate fee to $1.00 your total fee would be $4.00. 

The fee for "Issulng and recording marriage license" 

is $2.00. The certificate required by Article 46044, V.C.S. 

(formerly Article 4612a), in connection with a premarital 

examination for syphilis, "shall be on a form prepared and 

provided by the State Board of Health." This is not a certlflcate certifying "to any fact or facts contained In the 

records of" the office of the County Clerk. No fee should 

be ,charged in connection with the furnishing of this certificate, for the County Clerk's records do not contain the lnformation needed In this certificate. For the fili 

T 

of the 

certificate the County Clerk may charge a fee of .25. The 

total maximum fee, then, which may be charged In connection 

with the issuance and recordatlon of a marriage llcyse and 

filing the above certificate is $3.25. 

SUMMARY 

County Clerks have no discretion as to 

the amount of fees to be charged for 

official services, but must charge the 

amounts stated In Senate Bill 237, Acts 

55th Leg., 1957, ch. 228, p. 477. The 

fee which must be charged by a County 

Clerk In connection with a notary public's 

commission is $3.00; $1.00 for the commission (collected for the Secretary of 

State) and $2.00 for approving and filing 

a notarial bond and qualifying a notary 

public. The name of each grantee in a 

deed should be Indexed separately and 

a ten cent fee is required for indexing 
Honorable E. C. Grindstaff, page 5 (WW&) 

each name. The total fee to be charged 

in connection with the issuance and recordation of a marriage license and 

filing certificate is $3.25. 

Yours very truly, 

WILL WItisON 

Attorney General 

MMP:gs 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler, Chairman 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: 

Geo. P. Blackburn