Untitled Texas Attorney General Opinion ( 1957 )

July 31, 1957
Honorable E. C. Grindstaff Opinion No . WW-gD
District Attorney
119th Judicial District Re: Effect of various provisions
County Courthouse of Senate Bill 237, Acts
San Angelo, Texas 55th Leg., 1957, ch. 220,
P. 477
,,,Dear
Mr. Grindstaff:
You have submitted several questions in connection
with the above-captionedmatter which we will consider seriatim.
Your first question is whether the County Clerk
has discretion In fixing the amount of the fees he rebelves
for official services or whether it would be necessary for
the Commlssloner~sCourt to authorize the Clerk to set the
amount of fees.
Senate Bill 237 amends Article 3930, Vernon's Civil
Statutes, and provldes as follows:
"Clerks of 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 Leglsla-
ture was attempting to give the County Clerk discretion as to
the amount of the fees up to a certain maximum limit. How-
ever, we have concluded that this Is not the proper interpre-
tation to place on this portion of the statute, because such
an interpretationwould render the Act unconstitutional.
Section 20 of Article V of the Texas Constitution
reads, in part, as follows:
“There shall be elected for each
county, by the qualified voters, a
County Clerk who shall hold his office
70
Honorable E. 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.
perquisites and fees of o'lficeshall be
rescribed by 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
delegated by the Legislature to the Clerks. It Is obvious
that there would be such delegation If it were left in the
Clerk's discretion to determine an amount anywhere from zero
to the maximum stated amount.
No rule of constitutionallaw is more firmly es-
tab1ished than that rule which declares where possible statutes
will be construed consistentlywith the directives of the
Constitutionand that If one Interpretationwould Invalidate
an act or a part thereof and another would uphold it the
latter interpretationwill be made. 9 Tex. Jur. 484,
ConstitutionalLaw, Sec. 63.
Numerous cases have held that the word "may" may
be construed to be mandatory, that is, as the equivalentof
"must" or "shall". when such constructionis consistentwith
the evident purpose of the statute. 26~ Words and Phraees
22;*Smlth v. Curtis, 223 S.W.2d 712, 714 (Tex.Clv.App.
. t Is quite reasonable to assume that the Lenlsla-
ture-intendedthat the County Clerk must receive not-more
than the stated amount. We do not think it was the Intent
of the Legislature that 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:
"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
that the County Clerks should receive fees for their services.
This Is inconsistent
_. with construing the provision In question
as reposing dlsCretlon In the Clerk as to whether he charge
any fee at all.
Likewise the emergency clause of Senate Bill 237
provides, in part, as follows:
Honorable E. C. Grindstaff,page 3 (WW-I)
"The fact that the Officers' Salary
Funds in most of the counties of Texas
are inadequate and insufficientto take
care of the expenses of the officers
affected hereby, thereby placing an
extra burden on the already overburdened
general funds of such counties, creates
an emergency. . ."
If Officers' Salary Funds are already Inadequate, it
.is evident that the Legislature intended to remedy this, sltua-
tion, rather than permit a reduction,lnpermissiblefees. In
this connection,we call your attention to the fact that In
most instances the amount of each,fee has been increased by
this latest legislativeaction. You are therefore advised
that County Clerks have no discretion as 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 notarial bond and qualifying a notary, you asked whe,ther
when the oath Is administeredby another official qualified to
do so before the bond Is filed wlth,the',Countyclerk the fee'
would be less than $2.00. ,You state that the resent charge
for filing and approving a notary bond Is now ,$1.60; One
Dollar for the Commission (paid to Secretary,of,State),Fifty
Cents for approving the bond and Ten Cents for filing.
The bill contemplatesthat the County Clerk will
perform all the,official dut$es.thatare,,to;be pqrformedat
the County Courthouse level In connection wlth~& application
for a notary publlcts commission;for it hassetone maximum
fee for "Approvingand filing a notarialbond and qualifying
notary public." The maximum fee which ~maybe:charged by a
County Clerk in connectionwith a notarypublic's commission
Is $3.00; $1.00 for the commission (collectedfor the Secre-
tary of State) and $2.00 for 'Approvinga.nd,flling notarial
bond and qualifying for a notary public."
The next question is whether the tencents charge
which the bill states shall be made for Indexing each,name
on any instrument required or permitted to be filed, recorded
or registered in the office of the County Clerk is intended
to be an additional charge In excess of the recordingand
filing fee. You are advised that this ,fee i'sIn addition to
the other fees set for recording or filing.
You then ask should two charges be 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 for
Honorable E. C. Grindstaff,page 4 (WNZ)
each name indexed. John Doe and wife, Mary Doe,should be
indexed separately rather than as John Doe, et ux.
Your final question is as to the proper fee to be
charged for issuing and recording a marriage license. Senate
Bill 237 lists this fee as $3.00. You state that ou now
charge $2.50 - $2.00 for issuing or recording and f .50 for
certificationas required by Article 4612-a, V.C.S. You
ask whether under the new fees which Increases the certifl-
cate fee to $1.00 your total fee would be $4.00.
The fee for "Issulng and recordingmarriage license"
is $2.00. The certificaterequired by Article 46044, V.C.S.
(formerlyArticle 4612a), in connectionwith a premarital
examinationfor syphilis, "shall be on a form prepared and
provided by the State Board of Health." This is not a certl-
flcate certifying "to any fact or facts contained In the
records of" the office of the County Clerk. No fee should
be ,chargedin connectionwith the furnishing of this certifi-
cate, for the County Clerk's records do not contain the lnfor-
mation needed In this certificate. For the fili of the
certificatethe County Clerk may charge a fee ofT .25. The
total maximum fee, then, which may be charged In connection
with the issuance and recordatlonof a marriage llcyse and
filing the above certificate is $3.25.
SUMMARY
County Clerks have no discretion as 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 connectionwith a notary public's
commission is $3.00; $1.00 for the com-
mission (collectedfor the Secretary of
State) and $2.00 for approving and filing
a notarial bond and qualifying a notary
public. The name of each grantee in a
deed should be Indexed separatelyand
a ten cent fee is required for indexing
Honorable E. C. Grindstaff,page 5 (WW&)
each name. The total fee to be charged
in connectionwith the issuance and re-
cordation of a marriage license and
filing certificate is $3.25.
Yours very truly,
WILL WItisON
Attorney General
MMP:gs
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
REVIEWED FOR THE ATTORNEY GENERAL
BY:
Geo. P. Blackburn