JUDGE COMPENSATED FOR
PERFORMING A MARRIAGE CEREMONY
OpinionNo. 236 (1998)
QUESTION NO. 1: May a judge receive a fee for performing a marriage ceremony during regular office hours?
QUESTION NO. 2: May a judge charge for weddings, after hours, away from the courthouse?
ANSWER TO BOTH QUESTIONS:
Yes, within reason. Canon 4D(1) states, in part:
A judge shall refrain from financial and business dealings that
... exploit his or her judicial position.
This provision ensures that a judge does not take advantage of his or her judicial office with regard to financial issues.
The Committee considered whether a judge may charge a fee for performing a wedding in Judicial Ethics Op. No. 72. In that opinion, the Committee decided that charging a fee for a wedding would exploit the judge's judicial position in contravention of Canon 5(l) (later renumbered as Canon 4D(l), with no change in language).
Giving further consideration to the issue, the Committee now withdraws that part of Op. 72 concerning fees. Relevant to our decision is DM-397, issued May 31, 1996. Although the Attorney General's opinion interpreted the law, and although finding conduct legal does not necessarily mean that conduct is also ethical, several holdings in the opinion inform our decision on the ethics questions presently raised.
In DM-397, the Attorney General considered whether a judge could perform marriages, at the office or elsewhere, and whether the judge could charge and keep any fees assessed for this service. Initially, the Family Code authorizes certain state judges to perform marriage ceremonies, thereby denominating performance of a wedding ceremony as a proper judicial function. Next, acceptance of a fee for performing this discretionary judicial function is proper under Section 154.005 of the Local Government Code and JM-22. Last, a fee paid to a judge fro performing an official function does not fall within the definition of "honorarium" Thus, a judge authorized to perform a marriage ceremony may collect and retain a fee for performing a marriage ceremony.
With regard touse of the judges office or court personnel, the Attorney General noted that marriage performance is an officially sanctioned judicial function. As such, weddings may be performed at the judges office during business hours, and clerks may assist. A Judge must take care, however, that use of public resources be reasonable in relation to the function being carried out: each judge has many mandatory duties to perform in addition to the discretionary authority to conduct marriages.
We find this logic persuasive with regard to Canon 4D(l)'s admonishment that judges not exploit their judicial positions. As long as the fees are reasonable and conducting ceremonies during business hours does not unreasonably interfere with required judicial duties, then no ethics violation arises. Judges should not, however, take advantage of their official position to conduct such services, or such activity will constitute exploitation of judicial position and a violation of Canon 4 D(l).