BILL ANALYSIS



H.B. 3196
By: Moreno
C.S.H.B. 3196
By: Solis
4-25-95
Committee Report (Substituted)


BACKGROUND

     Unlike Justices of the Peace, District and County Court at Law
Judges are not statutorily entitled to receive a fee for the
performance of a marriage ceremony.  Nevertheless, State District
and County Court at Law Judges throughout Texas have traditionally
performed marriages and accepted a marriage fee, generally not in
excess of $25.00.
     Judges became concerned with this issue when Section 36.07 of
the Texas Penal Code was enacted into law, which prohibits a public
servant from accepting honorariums in consideration for certain
services performed.  However, Sec. 1.83 of the Texas Family Code
specifically names a district judge as one of the many persons who
are authorized to conduct a marriage ceremony.  Initially, several
Judges sought to distinguish a fee from an honorarium, and thereby
continue the collection of marriage fees.  Other Judges have simply
informed a couple seeking to be married that they do not charge a
fee, but would accept any amount of gratuity which the couple
wished to give to the Judge who would be performing the marriage
ceremony.
     In the city of El Paso, the former District Attorney and the
former County Attorney both issued opinions upon request, which
allowed State District and County Court at Law Judges to charge and
accept a fee for the performance of the marriage ceremony.  The
current District Attorney has indicated he has serious reservations
about the practice.  In addition, the four newest members of the El
Paso judiciary who attended the most recent "Baby Judges School"
were informed by various instructors that the collection of a fee
for the performance of marriage ceremonies was strictly prohibited
by both the Code of Judicial Conduct and the Texas Penal Code.


PURPOSE

     The purpose of this legislation is to statutorily grant a
judge or justice who performs a marriage ceremony under Section
1.83, Family Code, the authority to charge and collect a fee for
that service.


RULEMAKING AUTHORITY

     It is the committee's opinion that this bill does not
expressly grant any additional rulemaking authority to a state
officer, department, agency or institution.


SECTION BY SECTION ANALYSIS

     SECTION 1 adds Section 21.003 to the Government Code to allow
judges and justices who perform marriage ceremonies under Section
1.83, Family Code, to charge and collect a fee for that service.

     SECTION 2 adds a new Subsection (d) to Tex. Penal Code § 36.07
to exempt said judges from penalties under 36.07, Penal Code.

     SECTION 3.  Effective date.

     SECTION 4.  Emergency clause.
  

COMPARISON OF ORIGINAL TO SUBSTITUTE

     Section 1 of the original allowed a judge or justice to charge
and collect a fee for performing a marriage ceremony.  Section 1 of
the substitute changed the language to allow a judge or justice to
receive a fee, commission or payment for performing a marriage
ceremony.
     Section 2 of the original provided an exception to Tex. Penal
Code § 36.07 by making it inapplicable to a judge or justice who
charged or collected a fee for performing a marriage ceremony. 
Section 2 of the substitute changes the language to make Sec. 36.07
inapplicable to a judge or justice who receives a fee, commission
or payment for performing a marriage ceremony.
     Sections 3 and 4 are the same in both originals.


SUMMARY OF COMMITTEE ACTION

     Pursuant to a public notice posted on April 20, 1995, the
Committee on Judicial Affairs met in a public hearing on April 25,
1995, to consider H.B. 3196.  The Chair laid out H.B. 3196 and
recognized the author, Rep. Moreno, to explain.  Rep. Solis offered
a complete committee substitute.  There being no objection, the
Chair laid out C.S.H.B. 3196 and recognized Rep. Moreno to explain. 
Philip Martinez, representing himself, testified for C.S.H.B. 3196. 
There being no other witnesses, the Chair moved adoption of the
substitute.  There being no objection, the substitute was adopted. 
Rep. Solis moved that H.B. 3196, as substituted, be reported
favorably back to the full House with the recommendation that it do
pass, be printed and sent to the Local & Consent Calendars
Committee.  The motion prevailed by the following record vote:  5
ayes, 0 nays, 0 PNV and 4 absent.