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 pre-
                                     scribed fee.
        We are in receipt of your letter of recent date re-
questing the opinion of this department on the above stated
intitter.We are also in recei.ptof 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 licenses free of
    charge to the members of the armed forces, and
    not account for such fees in the Clerk's annual
    report of fees of office?"
               The statutory provisions pertinent to your Inquiry
are:
   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 of-
    fice and commissions in a book or in books to be
    provided him for that purpose, Fn which the of-
    flc'er,at the time when such deposits--aremade 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 (35mmissioners1Court to make the ex-
    amTnatlon 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 thendistrict 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 for-
    warded'~to~theState.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 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 compensa-
    tions 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. com-
    mlsslons 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 of-
    fLc,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 for-
    bidden 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 Legisla-
ture."
          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 ser-
vice under the law, or which exempts said clerks from keeping
the accounts   and making the sworn statemen%   required by Arti-
cles 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


                               By s/J. A. Ellis
                                    J. A. Ellis
                                      Assistant
JAE:LJ:wc

APPROVED AUG 4, 1946
s/Ocie Speer
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
