Untitled Texas Attorney General Opinion ( 1951 )

Hon. George W. Cox, M-D. Opinion No. V-1290
State Health Officer '
Department of Realth Re: Fee for. recording
Austin, Texas vital statistics
in cities which by
ordinance require
. recordation with a
Dears Dr. Cox: city registrar.
Your request for an opinion presents the
following question:
"Under the provisions of Rule 53a,
Art.4477, R.C.S., as amended, is the
county liable for the payment of the 50
cent fee for the registration of each
certificate of birth, death, and still-
birth occurring in a city not required
by Rule 55a to file copies of such rec-
ords in the office of the county clerk?"
Rule 36a of Article 4477, V.C.S., as
amended by House Bill 243, Acts 52nd Deg., R.S.
1951, ch. 87, p. 145, is as follows:
"For the.purposes of this Act the
State,shall be divided into prima;;ceg-
istration districts as fol.lows:
justice of the peace precinct and each
incorporated town of two thousand, five
hundred (2,503) or more populatlon, ec-
cording to the last United States Cen-
SUS) shall constitute a primary regis-
tration district, provided the State
Board of Health may combine two (2) or
more registration districts, or may
divide a rimary registration district
into two P 2) or more parts, sodas to
facilitate registration, and in the
justice of the peace precinct, the jus-
tice of the peace shal.l.be local regis-
trar, and in cities of two thousand,
five hundred (2,500) or more, according
to the last IJnltedStates Census, the
Hon. George If.Cox, M.D., page 2 (V-1290)
city clerk or city secretary shall be
the local registrar of births and
deaths.
"It is hereby declared to be the
duty of the justice of the peace in
the justice of the peace precinct, and
the city clerk or city secretary in the
tit of two thousand, five hundred (2,-
500T or more population to secure a
complete record of each birth, death,
and stillbirth that occurs within their
respective jurisdictions."
Rule 53a of Article 4477, as amended by
House Bill 243, supra, provides:
"That each local registrar shall
be paid the sum of Fifty Cents (50$)
for each birth, death and stillbirth
certificate properly and completely
made out and registered with him, and
correctly recorded and promptly return-
ed by him to the State Bureau of Vital -,
Statistics, as required by this Act,
unless such local registrar shall be
acting as registrar in an incorporated
city where the compensation of the reg-
~;f.~,is otherwise fixed by city or-
.
"The State Registrar shall annually
certify to the county commissioners court
or county auditor, as the case may be, the
number of birth, death and stillbirth cer-
tificates filed by each local registrar at
the rate fixed herein, and provided that
the State Ragistrar may render such state-
ments monthly or quarterly, at the dis-
cretion of the State Board of Health, and-
the commissioners court or county auditor,
as the case may be, shall audit such staEe-
ment and the county treasurer shall p Y
such fees as sre approved by the cozs-
sioners court or the county auditor, at
the time such statement is issued.
"And provided further, that the jus-
tice of the peace, city clerk cr secre- --.
Hon. George W. Cox, M.D., page 3 (V-1290)
tary, and the appointed local registrar
shall submit to the commissioners court
or county auditor, as the case may be;
a true and accurate copy of each birth,
death, and stillbirth certificate filed
with him, and such copies shall bear his
file date and signature and shall be
deposited in the county clerk's office,
provided. however. that this provision
shall not apply to cities having an or-
dinance requiring that true and accur-
ate copies of each birth, death, and
stillbirth certificate be permanently
filed in the office of the city regis-
trar. The county clerk shall be paid
for indexing and preserving such rec-
ords, such compensation as may be a-
reed upon by the commissioners' court."
Emphasis added throughout)
pl
The change effected in Rule 36a by House
Bill 243 was that the words "and have same recorded
in the County Clerk's office in their respective
cities on or before the tenth of the following
month" were deleted. As +o Rule 53a, the following
words were added by the snwndment: provided, how- ,,"
ever, that this provlsic. shall not apply to cities
having an ordinance requiring that true and correct
copies of each birth, death and stillbirth certifi-
~cate be permanentl.yfiled in the office of the city
registrar.
Prior to this amendment, it was well set-
tled that the county paid the fifty-cent fee to
city clerks or registrars unless the city provided
special recompense for this added duty.
Taylor v. Hodges, I.43Tex. 441, 186 S.W. c=b+L945)
2d ;
Attlg Gen. Ops. o-2308 (1940), O-3874 (1941), and O-
4583 (1942).
Rule 53a, as amended, has two principal
provisions; The first provision sets the recording
fee and provides the methodftr payment, and the sec-
ond provision requires the certificates to be de-
posited with the county clerk and provides the method
for paying him.
The proviso in question, " . . . provided,
however, that this provision shall not apply ~to cities
having an ordinance requiring that true and accurate
Hon. George W. Cox, M.D., page 4 (V-1290)
copies of each birth, death, and stillbirth certi-
ficate be permanently filed in the office of the
city registrar. . . .", is in the middle of the
paragraph``dealingexclusively with the latter re-
quirement. "Therefore, *this orovlsion*, since it
is singular. and in the it&dale of the naraaraoh
deali@ with the method and'place of filing rec-
ords can only be construed as applying to the man-
ner and place of registration, and not to the fee
ormanner of its payment, which Is a prior provi-
sion. In Stevens v. Haile, 162 S.W. 1025, 1028
,
~(Tex.Civ. ADD. 19141. the word "this' was defined
"a demonstrative adjective used to point out
%th particularity a person o$ thing present in
place or thought. The thing present in thought
is the manner and place of registration.
,That the Legislature intended to repeal
only the duplicate recording provision by the pro-
vision in quesbion is also evidenced by the cap-
iion, the only,'pertinentpartybeing as follows,
repealing provisions.requiring duplicate
rec&ing of'births, deaths,~and stillbirths at the
local level L . ." This is a narrow and restric-
tive title, and if the body of the act were con-
strued as repealing the fee provisions for cities
with local registration ordinances, so much of the
body of the act ~a$ provides for the repeal of fees
would be Fn,;violatlonof Article III, Section 35;
of the Texa&'Constltution 'and therefore~invalid.
Arnold v. Leonard, 114 Tex. 535, 273 S.W.~i'gg(1925);
Gulf~Insurance Co. v. James, 143 Tex. 424, 185 S. W:
-p. . V-1253 (1951). However
we do not conitrue &eetody of the Act as an attempt'
to repea~lthe fee provisions, but merely a repeal of
the duplicate recording provision.
SUMMARY
A county is liable for the payment
of the fifty cent fee for the registra-
tion of each certificate of birth, death,
or stillbirth occurring in a city not
required to file copies of such records
in the office of the County Clerk, unless
specific compensation has been provided
by city ordinance for the local registrar
Hon. George W. Cox, M.D., page 5 (V-1290)
for rendering such services. Rules
%a and 53a, Article 4477, V.C.S.;
City of Taylor v. Hodges, 143 Tcx.
41, lt-%s ." . -
go 61 119%) -
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
County Affairs Division Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
Everett Hutchinson Burnell Wal.drep
Executive Assistant Assistant
BW:t:awo
,--