                            QBfficeof tfp 2Wmwp @enera
                                    &ate of llGexae
DAN MORALES
 ATlonNEr
       GENERAL                             May 31.1996

     The Honorable Steve Holzheeuser               OpinionNo. DM-397
     chair
     BnergyResourcescommittee                      Re: Whether a judge may receive a fee for
     Texas House of Rep-                           pufohg       a marriage ceremony during
     P.O. Box 2910                                 regular office hours and use public resources
     Austin, Texas 78768-2910                      in petforming the ceremony (RQ-8 18)

     Dear Representative Holzheauser:

             You ask whether a judge may perform marriage ceremonies during regular 05w
     hours, using public resources that include public property and public employees, and
     keeping the .fee he or she charges for personal use. We will Srst consider whether judges
     may keep the fees they charge for performing marriage ceremonies, and then consider the
     use of public resources.

            The following persons are authorized to conduct marriage ceremonies:
                   justices of the supreme court, judges of the wutt of wiminal
               appeals, justices of the courts of appeals, judges of the district,
               county, and probate courts, judges of the county wutts at law,
               courts of domestic relations and juvenile courts, retired justices and
               judges of such wurts, justices of the peace, retired justices of the
               peace, and judges and magistrates of the federal courts of this state.
     Fam. Code 5 1.83(a)(4).

             We find no statute establishing a fee for a marriage ceremony performed by a
     judge. Public officers are not entitled to receive extra compensation for performing their
     official duties prescribed by law. but this general principle does not prohibit them from
     charging for services that they are. under no legal obligation to perform. Moore v.
     Sheppard, 192 S.W.2d 559 (Tex. 1946). In Moore v. Skppard, the Texas Supreme
     Court addressed the disposition of fees received by clerks of the wurts of civil appeals for
     furnishing uncertified copies of opinions of the courts, where no statute made it the clerks
     duty to provide uncertified copies. or fored fees for providing these copies, and concluded
     that the clerks were not required to pay the fees to the state. Id. at 562. Attorney General
     Opinion JM-22 relied on the.rule stated in Moore to conclude that a judge of a court of
     record could charge a fee for conducting a marriage ceremony. The opinion stated as
     follows:
                   Judges of courts of record are among those persons authorized
               to conduct marriage ceremonies by article 1.83 ofthe Family Code.
The Honorable Steve Hobzheauser - Page 2          (Dg-397)




           A judge is not, however, rquired to exercise that authority, so long
           as a retkal to matry particular persons is not based upon
           wnstitutionally prohibited grounds.
Attorney Gewral Opinion IM-22 (1983) at 1. Thus, “a judge of a wurt of record is
empowacd to charge a fee for conducting a marriage ceremony.” Id. We 6nd no statute
establishingthe amount of a fee to be charged for conducting a marriage ceremony.t Nor
do we find any provision for the disposition of such fees, except for section 154.005 of the
Local Government Code, which addresses the disposition of fees for marriages performed
by justices of the peace and wunty judges. This provision states as follows:
                (a) A justice of the peace may receive, in addition to a salary, ali
           fees, wmmissions, or payments for performing marriage ceremonies,
           for acting as registrar for the Bureau of Vital Statistics, and for
           acting as ex officio notary public.
             (b) A county judge may receive, in addition to a salary, all fm
           wmmissions, or payments for performing marriage ceremonies.
Local Gov’t Code 0 154.005; see Act of April 11, 1957,SSth Leg., RS., jr. 110, Q 10,
1957 Tex. Gen. Laws 231,232; Act ofMay 30, 1951,52d Leg., R.S.. ch. 503, 8 2. 1951
Tex. Gut. Laws 1487, 1487 (predecessor provisions to Local Government Code
5 154.005). Without express authority to retain fees received for perfotming marriage
ceremonies, a justice of the peace and a county judge would be rewired by law to pay the
fees into the wunty treasury. See Local Gov’t Code 5s 113.021,154.003. The existence
of this express provision does not mean that other judges may not retain these fees.
Pursuant to Moore, and Attorney General Opinion JM-22, the state judges enumerated in
section 1.83 of the Family Code may retain the fees they charge for performing
marriages.’

      It has been suggested that a fee received by a judge for petforming a marriage is an
“honorarium” within the following prohibition found in section 36.07(a) of the Penal
Code:
                [A] public servant commits an offense if the public servant
           solicits, accepts, or agrees to accept an honorarium in consideration
           for services that the public servant would not have been requested to
           provide but for the public servant’s official position or duties.

       ‘We&I not aljdEssqoesllonsaboutthe legislaIoie’auIhoriIy
                                                          s        IOpmvidcby slatntcfor ulc
mKquuaad dicporitionof fees lo be chargedbyjudicial0ff1cer5
                                                          who conductmarriages.see Moorev.
shepprd, 192 S.W.2dat 561 (discussinglegislaturc’authority
                                                 r        to cnacl generalIegislalionPrcJcnbing
&q of -     &ks 10 finnI& unofficialcopies of courtopinionsand fting amountlo k charged
IhCEfLW).

       ‘We  Q not &rcss the authority
                                    of “judgesandmagiSIraIcs
                                                          of thefederalCOUNof this CtaCe”
                                                                                       to
rrrainfos chargedforconductingmarriagearcmonia.


                                              p. 2179
The Honorable Steve Holzheauser - Page 3             (DM-397)




Since there is no legislative definition of “honorarium” in section 36.07(a) of the Penal
Code, we will wnstrue it according to the rules stated in the Code Construction Act,
chapter 3 11 of the Government Code.) Section 3 11.Ol1 states as follows:
              (a) Words and phrases shall be read in context and wnstrued
          according to the rules of grammar and wmmon usage.
                (b) Words and phrases that have acquired a technical or
           particular meaning, whether by legislative definition or otherwise,
           shall be wnstrued accordingly.

        In construing a statute. we may also consider “the object sought to be obtained,
the legislative history, and common law or former statutory provisions, including laws on
the same or similar subjects.” Gov’t Code 0 311.023. Section 36.07 of the Penal Code
was adopted by Senate Bill 1 of the Seventy-second Legislature, a comprehensive ethics
reform bii that also repealed portions of Penal Code section 36.10, which had addressed
the receipt of honorariums by public servants. See Act of May 27, 1991, 72d Leg., RS.,
ch. 304. 04.03, 1991 Tex. Gen. Laws 1290, 1321-U. To determine the meaning of
“honorarium” in Penal Code section 36.07, we will consider the wnstruction of
“hononuium” in the former version of Penal Code section 36.10 and the legislative history
of the “honorarium”provision in Senate Big 1.

        Section 36.10 of the Penal Code sets out exceptions to the prohiiitions in section
36.08 wnceming gifts to a public servant perfotming regulatory fimctions and in 36.09
against offering a giA to a public setvsnt who is prohibited by law from awepting it. From
1975 until it was amended by Senate Bill 1, section 36.10 included an exception for “an
honorarium in consideration for legitimate services rendered above and beyond 05&l
duties and responsibilities.” Act of June 2. 1975. 64th Leg., RS., ch. 342, 5 11, 1975
Tex. Gen. Laws 912.916; see Attorney General Opiion MW-90 (1981) at 2 (considering
whether public official may receive honorarium for deliveringspeech).

        A few months before the legislature adopted the 1975 provision excepting an
honorarium, this office wnsidered whether an “honorarium” paid to a legislator for
participating in a program of an organization would be a gift prohibited by section 36.08
of the Penal Code. Relying on dictionaries,the opinion defined “honomrium”as follows:



        %‘heTexasEthicscomminion,authorized      by section571.091of lhe clovmmacodclogivo
wriaenopinionsonc~~36oftbc~Cobc.amongothadahleqbarirsuedarmmkrdclhiss
advimy opinionsinterpreting   section36.07(s)as applicablelo paymentsin considaationfor a apccch
thatthepublicservantwasrequested   to givebecauseof his offkialpositionor duties.See EthicsAdvisory
OpinionNos. 192 (1994). 150(1993).97 (1992).19 (1992).17 (1992). TheEthicsCommission       has also
statedthatsection36.07appliesto compensation  receivedby a legislatorforteachinga1a slatecollegeor
university,if the legislatorwouldnot haveken askedto teachbutfor his positionas a uale legislator.
EthicsAdvisoryOpinionNo. 148(1993).


                                               p. 2180
The Honorable Steve Holzheauser - Page 4         (DM-397)




               An honorarium. . . is sometimes defined as a payment or
          reward, usually in recognition of services on which custom or
          propriety forbids any t&d business price to be set. It may be a thee
          gift or gratuitous payment, as distinguished 6om hire or
          compensation for service. The term also has been defined to include
          a fee for professional services. Thus, the word is wmmonly used to
          embrace both the wncept of gifi and of compensation.
Attorney General OpinionH-551 (1975) at 4 (citations omitted).

        This definition of “honorarium”does not describe a fee paid a public officer for
paforming an official service. A fee of 05ce is not “a free gift or gratuitous payment,”
nor is it “a fee for professional services.” See Gov’t Code 0 2254.003(b) (professional
fees paid by governmental entity to provider of professional services under wntract). We
have no basis for wncluding that “custom or propriety” forbids setting a fixed fee for
worming a civil marriage. In addition, the former version of section 36.10 included an
exception for “a fee prescribed by law to be received by a public servant or any other
benefit to which the public setvant is lawtkhy entitled.” Act of May 24, 1973, 63d Leg.,
RS.. ch. 399.8 1. 1973 Tex. Gen. Laws 883,946.’ In former Penal Code section 36.10,
“an honorarium” was thus something d&rent from a “fee prescribed by law. . . or any
other benefit to which the public servant is lawtklly entitled.”

       The ethics law that was revised by Senate Bii 1 already dealt with honorariums to
some extent. As introduced, Senate Bill 1 pmhibiied a member of the legislature or a
statewide officeholder from receiving any honorarium during the period from the 30th day
before the convening of a legislative session through the final adjournment. S.B. 1, 72d
Leg., RS., 5 3.03 (1991) (as introduced) (bill 5e, Legislative Reference Library). It also
provided that legislators and statewide officeholderscould not receive a single honorarium
over $500, could not receive more than one honorarium from the same person in a
calendar year, or more than one honorarium for the same event or occasion. Id. An
“honorarium”received by a legislator could not have included a fee for performing official
services, because legislators were, and are, compensated on a salary basis. See Tex.
Const. art. III, 5 24(a). Statewide officeholders are also compensated on a salary basis,
see Gov’t Code 8 659.011, and do not receive fees, except of course for judges who
receive fees for performing marriages and who also are “statewide officeholders.” See
Elec. Code 5 1.005(19) (defining “Statewide office” as office of the federal or state
govemment that is voted on statewide).

        Although the honorarium provision was revised during the legislative process to
prohiiit all public servants from accepting honorariums, House Comm. on State Affairs,
Bib Analysis, C.S.S.B. 1, 72d Leg. (1991), there is no indication that the meaning of

       +ms c.xcc@ion  is newfoundat section36.10(a)(l)oft& FWUICode. Thep-t don also
excepts“any0th~ bcnctlt. . . forwhich[thepublicservant]gives lcgilimatcamsideration
                                                                                  in a capacity
oUurthanas a publicservant.”


                                            p. 2181
The Honorable Steve Holzheauser - Page 5         (DM-397)




Uhonorarium”was broadened to include a fbe received by an officer for performing
statutorily authorized services. As enacted by Senate Bill 1. section 36.07 of the Penal
Code provides as follows:
               (a) A public servant wmmits an offense if the public servant
          solicits, accepts, or agrees to accept an honorarium in consideration
          for services that the public servant would not have been requested to
          provide but for the public servant’s o5cial position or duties.
              (b) This section does not prohibit a public servant from
          accepting transportation and lodging expenses permitted under
          Section 305.025(b)(2), Government Codqs in wnnection with a
          conference or similar event or from accepting meals in wnnection
          with such an event.
Act of May 27, 1991. 72d Leg.. RS., ch. 304, 94.03. 1991 Tex. Gen. Laws 1290,
132122 (italics removed) (footnote added). Transportation Andylodging expenses that
Senate Bill 1 permitted under section 305.025 of the Government Code w&ted of
          necessary expenditures for transportation and lodging provided in
          connection with a wnfbrence or similar event in which the member
          renders services. such as addressing an audience or engaging in a
          seminar, to the extent that those services are more than merely
          pufun~0J.Y.
Id. 4 2.14(a), 1991 Tex. Gen. Laws 1290, 1312, wnended by Act ofMay 26, 1995,74th
Leg., R.S., ch. 996, 5 4, 1995 Tex. Gen. Laws 4999,X01. Thus, addressing an audience
or engaging in a seminar exemplified“services that the public servant would not have been
requested to provide but for the public servant’s officialposition or duties.”

         The phrase “setvices that the public servant would not have been requested to
provide but for the public servant’s official position or duties”is certainly broad enough to
include official services performed under authority of law, but in the vast majority of
cases, fees received by public officers are set by law and allocated in accordance with law.
It is diicult to see why section 36.07 of the Penal Code would need to reach such fees.
Furthermore, the use of the term “honorarium”to describe payment for these services
wnvinces us that section 36.07 does not reach official setvices. By the time Senate Bill I
was introduced, this office had given the term “honorarium”a defmition that did not apply
to fees received by public offks for performing oflicial services. The legislative history
of Senate BiU I indicates that the legislature, in prohibiting public servants fiam receiving
honorariums, did not have in mind fees received by public officers for performing official


       ‘A 1993 amcadmcntto acction36.07(b)offhc Pcnsl Codedclctcd“pm&cd underSahn
            GovcmmentCoat,”and insertad“in whichthe publicservantreadersservices,suchas
305.025(%)(Z).
addressingan audima or engagingin a 3ClUiW,lOthCCXlC~thatlllOSCSClViCCS~lllO~thanliUltl~
pcrhnaoty.” Actof May29,1993,73dLeg.,RS., ch.900,g 1.01,1993Tex.Gcn.Laws3589.3664.



                                            p. 2182
The Honorable Steve Hotztmauser - Page 6         (“n-,Y,,




services. We conclude that a fee received by a judge for performing a marriage is not an
“honorarium”within section 36.07 of the Penal Code.

        We turn to your question. You are wncemed about the authority of judges to
perform marriage ceremonies during regular office hours using public resources, including
public property and public employees, keeping the fee they charge for their persona) use.
You speci&aUy ask whether “an elected official or employee of the State, County, or
Municipal Government [may] use for private profit or benefit to himself, any property,
supplies, equipment, or other thing of value belonging to the State, County, or
Municipality?’

         You ask a general question, and our answer must necessarily be general. We
believe your question raises article III, sections 51 and 52 of the Texas Constitution,
which prohibit the allocation of public 5nds and other public resources to private
purposes. See Stafe v. City of Austin, 33 1 S.W.Zd 737 (Tex. 1960). These wnstitutional
provisions do not deny the legislature the use of state 8mds to cany out state purposes.
SIore v. Ci@ of DaIlar, 319 S.W.2d 767 (Tex. CN. App.-Austin 1958), @d sub nom.
Store v. Civ of Austin, 331 S.W.Zd 737 (Tex. 1960). The legislature has determined that
there is a state purpose in authorizing and documenting the marriage relationship, as
shown by the statutes it has enacted to carry out that purpose. See Fam. Code ch. 1,
sub&s. A (application to county clerk for marriage license), D (ceremony and return of
license to county clerk), ch. 2 (validity of marriage); Health & Safety Code 8 194.001
(filing of copy of completed marriage license application with Board of Health). The
legislature has also adopted statutes concerning the various rights, duties, and liabilities
that result from the status of marriage. Fam. Code chs. 4 (rights, duties, powers, and
liabilitiesof spouses), 5 (marital property).

        In conducting a marriage ceremony, a judge acts in the name, and under the
authority of, the state of Texas, and not in a private capacity. See Attorney General
Opinion JM-I (1983) at 1. Fees received for conducting a marriage ceremony constitute
the judge’s compensation for carrying out an official timction, not for engaging in a
private business. The judge may, consistently with article III, sections 51 and 52, perform
marriages during normal business hours and receive fets for that purpose. See Attorney
General Opinion TM-22 (1983) at 2 (concluding that judge of court. of record who
received state salary could receive fees for performing marriage ceremonies in public
building between eight a.m. and five p.m.). Any use of public resources, including the
judge’s and employees’time, must be reasonable in relation to the official 5nction that is
being carried out. For example, section 1.84 of the Family Code requires the person who
conducts the ceremony to sign and return the license to the county clerk who issued it.
Presumably, the judge could sign it and direct M employee to mail it to the county clerk.
Finally, we note that judges have many mandatory duties in addition to the discretionary
authority to marry people, and that they must faith5lly execute the duties of office, in
wmphance with their oaths of office. See id. (judge may be removed for neglect of duty).



                                            p.   2183
Th+Honorable Steve Holzheauser - Page 7 W-397)




                                 SUMMARY

               In performing a marriage ceremony as authorized by section
          1.83 of the Family Code, a judge is carrying out M 05cial diction.
          The judge may perform marriages during the hours of eight a.m. to
          five p.m.. as well as at other times, and keep the fees charged for
          doing so. Such fees are not “honorarium[s]”within the prohibition
          found in section 36.07(a) of the Penal Code. Any allocation of
          public resources, including the judge’s and employee’s time, to the
          conduct of marriages must be reasonable in relation to the 05cial
          fiction that is being carried out.




                                                    DAN .MORALES
                                                    Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




                                          p. 2183
