July 31, 1957

HonorableE. C. Grindstaff OpinionNo WW gD
. - District Attorney 119th JudicialDistrict Re: Effect of variousprovisions County Courthouse of Senate Bill 237, Acts San Angelo, Texas 55th Leg., P. 477 1957, ch. 220,

,,,Dear M. Grindstaff:
You have submittedseveral questions in connection with the above-captioned matter which we will consider seriatim.
Your first question is whether the County Clerk has discretionIn fixing the amount of the fees he rebelves for official servicesor 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:

"Clerksof 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 discretionas to the amount of the fees up to a certainmaximum 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 ArticleV of the Texas Constitution reads, in part, as follows:

“There shall be elected for each county,by the qualifiedvoters, a County Clerk who shall hold his office70

HonorableE. 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. perquisitesand fees of o'lfice shall be rescribedby the Legislature.

. .'I phasls supplied throughout.) Under this provision, it is clearly the duty of the Legislatureto prescribe the fees; and this duty cannot be delegatedby the Legislatureto the Clerks. It Is obvious that there would be such delegationIf it were left in the Clerk's discretionto determinean amount anywhere from zero to the maximum stated amount.

tab1 No rule of constitutional law is more firmly esished than that rule which declareswhere possible statutes will be construedconsistently with the directivesof the Constitutionand that If one Interpretation would Invalidate an act or a part thereof and anotherwould 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 equivalentof when such constructionis consistentwith the evidentpurpose of the statute. 26~ Words and Phraees 22;*Smlthv. Curtis, 223 S.W.2d 712, 714 (Tex.Clv.App.

. t Is quite reasonableto assume that the Lenlslature-intendedthat the County Clerk must receive not-more than the stated amount. We do not think it was the Intent of the Legislaturethat 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,

. . rrelatlngto fees which the clerks of the County Courts shall receive for their services;

. . ," Thus it is evident that the Legislatureintended the County Clerks should receive fees for their services. Is inconsistent

with construingthe provision In question
_. as reposing dlsCretlonIn the Clerk as to whether he charge any fee at all.

Likewise the emergencyclause of Senate Bill 237 provides, in part, as follows:HonorableE. C. Grindstaff,page 3 (WW-I)

"The fact that the Officers'Salary Funds in most of the counties of Texas are inadequateand insufficient to take care of the expenses of the officers affectedhereby, therebyplacing an extra burden on the already overburdened general funds of such counties,creates an emergency. . ." If Officers'Salary Funds are already Inadequate,it .isevident that the Legislature intended to remedy this, sltuation, rather than permit a reduction,ln permissiblefees. In this connection,

we call your attentionto the fact that In most instances the amount of each,feehas been increasedby this latest legislativeaction. You are thereforeadvised that County Clerks have no discretionas 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 notarialbond and qualifyinga 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 $2.00. ,Youstate that the for filing and approvinga notary bond Is now ,$ 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 contemplatesthat the County Clerk will perform all the,

official dut$es.thatare,,to;be pqrformedat the County Courthouselevel In connectionwlth~& application for a notary publlcts commission;for it hassetone maximum fee for "Approvingand filing a notarialbond and qualifying notary public." The maximum fee which ~may be:chargedby a County Clerk in connection with a notarypublic's commission Is $3.00; $1.00 for the commission (collectedfor the Secretary of State) and $2.00 for 'Approvinga.nd,flling notarial bond and qualifyingfor a notary public."

The next question is whether the tencents charge which the bill states shall be made for Indexing each,name on any instrumentrequired or permitted to be filed, recorded or registered in the office of the County Clerk is intended to be an additionalcharge In excess of the recordingand filing fee. You are advised that this ,feei's In addition to the other fees set for recordingor filing.

You then ask should two chargesbe 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 forHonorableE. C. Grindstaff, page 4 (WNZ)

each name indexed. John Doe and wife, Mary Doe,shouldbe indexed separatelyrather than as John Doe, et ux.

Your final question is as to the proper fee to be charged for issuing and recordinga marriage license. Senate Bill 237 lists this fee as $3.00. You state that ou now charge $2.50 - $2.00 for issuing or recordingand .50 for f certification

as requiredby Article 4612-a,V.C.S. You ask whether under the new fees which Increasesthe certiflcate fee to $1.00 your total fee would be $4.00.

The fee for "Issulngand recordingmarriage license" is $2.00. The certificaterequiredby Article 46044, V.C.S. (formerlyArticle 4612a), in connection with a premarital examinationfor syphilis, "shallbe 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 furnishingof this certificate, for the County Clerk's records do not contain the lnformation needed In this certificate. For the fili T of the certificatethe County Clerk may charge a fee of .25. The total maximum fee, then, which may be charged In connection with the issuanceand recordatlonof a marriage llcyse and filing the above certificateis $3.25.

SUMMARY County Clerks have no discretionas 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 commissionis $3.00; $1.00 for the commission (collectedfor the Secretaryof State) and $2.00 for approvingand filing a notarialbond and qualifyinga notary public. The name of each grantee in a deed should be Indexed separatelyand a ten cent fee is required for indexingHonorableE. C. Grindstaff, page 5 (WW&)

each name. The total fee to be charged in connection

with the issuanceand recordationof a marriage license and filing certificateis $3.25.
Yours very truly,
WILL WItisON AttorneyGeneral

MMP:gs APPROVED: OPINION COMMITTEE H. Grady Chandler,Chairman
REVIEWED FOR THE ATTORNEYGENERAL BY: Geo. P. Blackburn