                                          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
