The Attorney General of Texas
March 29. 1983
JIM MATTOX
Attorney General
Bonorable Frank Te j eda Opinion No. JM-22
Supreme Court Building
P. 0. Box 12546
Chairman
Austin. TX. 76711. 2546 Committee on Judicial Affairs ue: Whether a judge of a court
5121475.2501 Texas House of Representatives of record receiving a full-time
Telex 9101074.1367 P. 0. Box 2910 salary can receive a fee for
Telecooier 5121475-0266 Austin, Texas 78769 performing a marriage during
working hours in a publicly
1607 Main St., Suite 1400 owned building
Dallas, TX. 75201.4709
2141742.0944 Dear Representative Tejeda:
4624 Alberta Ave.. Suite 160
You ask the following question:
El Paso, TX. 79905.2793
91515333404 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
.-LO Dallas Ave.. Suite 202
Houston. TX. 77002.6966
performing a marriageceremony during the hours of
7131650.0666 8 a.m. to 5 p.m. in a publicly owned or supported
building?
006 Broadway. Suite 312
Judges of courts of record are among those persons authorized to
Lubbock. TX. 79401-3479
conduct marriage ceremonies by article 1.83 of the Family Code. A
0061747-5238
judge is not, however, required to exercise that authority, so long as
a refusal to marry particular persons is not based upon
4309 N. Tenth. Suite B constitutionally prohibited grounds. Attorney General Opinion JM-1
McAllen. TX. 76501-1665 (1983). In Moore V. Sheppard, 192 S.W.2d 559 (Tex. 19461, the supreme
5121582-4547
court declared:
200 Main Plaza. Suite 400 The general principle prohibiting public officials
San Antonio. TX. 76205.2797 from charging fees for the performance of their
5121225-4191
official duties does not prohibit them from
charging for their services for acts which they
An Equal Opportunity/ are under no obligation under the law, to perform.
Affirmative Action Employer
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
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. Since a judge of a
court ofrecord, 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