Hon. GeorgeW. Cox,M-D. OpinionNo. V-1290 State Health Officer ' Department of Realth Austin, Texas Re: Fee for. recording vital statistics in citieswhich by ordinancerequire recordationwith a city registrar. . DearsDr. Cox:

Your request following question: for an opinionpresents the

"Under the provisions ofRule 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 ofbirth, death, and stillbirth occurring in a citynot required by Rule 55a to file copies of such records in the office of the county clerk?"

Rule 36a ofArticle 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.purposesof thisAct the State,shallbe divided into prima;;cegistration districts as fol.lows: justice of the peace precinct and each incorporated town of two thousand, five hundred (2,503)or more populatlon, eccording to the last United States CenSUS) shall constitute a primary registration district,provided the State Board of Health may combine two (2) or more registration districts, or may divide a into two Primary registration district

2) ormore parts, sodas to facilitate registration,and in the justice of the peace precinct, the justice of the peace shal.l. be local registrar, and in cities of two thousand, five hundred (2,500) or more, according to the last IJnlted States Census, theHon. 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, fivehundred (2,- 500 T ormore population to securea completerecord of each birth, death, and stillbirth that occurswithin their respective jurisdictions."

Rule 53a ofArticle 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 certificateproperly and completely made out and registered with him, and correctlyrecorded and promptly returned by him to the State Bureau ofVital Statistics, as required by thisAct, unless such local registrar shallbe acting as registrar in an incorporated citywhere the compensation of the reg- ~;f.~,is otherwise fixed by city or-

. "The State Registrar shall annually certify to the county commissionerscourt
or county auditor, as the casemay be, the number of birth, death and stillbirth certificates filed by each local registrar at the rate fixed herein, and provided that the State Ragistrar may render such statements monthly or quarterly, at the discretion of the State Board of Health, andthe commissioners court or county auditor,
as the casemay be, shall audit such staEement and the county treasurer shall p **Y** such fees as sre approved by the cozssioners court or the county auditor, at the time such statement is issued.

"And provided further, that the justice of the peace, city clerk cr secre- -,

--.Hon. GeorgeW. Cox, M.D., page 3 (V-1290)

tary, and the appointed local registrar shall submit to the commissionerscourt
or county auditor, as the casemay 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 signatureand shall be deposited in the county clerk's office, provided. however. that this provision shall not apply to citieshaving an ordinance requiring that true and accurate copies of each birth, death, and stillbirth certificatebe permanently filed in the office of the city registrar. The county clerk shall be paid for indexing and preserving such records, such compensationas may be apl reed upon by the commissioners' court." Emphasis added throughout)

The change effected in Rule 36a by House Bill 243 was that thewords "andhave same recorded in the County Clerk's office in their respective cities on or before the tenth of the following month" were deleted. As +oRule 53a, the following words were added by the snwndment: provided,how- ,," ever, that this provlsic. shall not apply to cities having an ordinancerequiring that true and correct copies of each birth, death and stillbirth certifi- ~catebe permanentl.y filed in the office of the city registrar.

Prior to this amendment, it was well settled that the countypaid the fifty-cent fee to city clerks or registrars unless the cityprovided special recompense for this added duty. Taylor v. Hodges, I.43 Tex. 441, 186 S.W. 2d c=b+L945) ; Attlg Gen. Ops. o-2308 (1940),O-3874 (1941),and O4583 (1942).

Rule 53a, as amended,has two principal provisions; The first provision sets the recording fee and provides the methodftr payment, and the second provision requires the certificates to be deposited with the county clerk and provides themethod for paying him.

The proviso in question, "

. . .provided, however, that this provision shall not apply~tocities having an ordinancerequiring that true and accurateHon. GeorgeW. Cox,M.D., page 4 (V-1290)

copies of each birth, death, and stillbirth certificate be permanently filed in the office of the city registrar.

. . .", is in themiddle of the paragraph~~dealing exclusivelywith the latterrequirement. "Therefore,*this is singular.and in the i orovlsion*, since it t&daleof the naraaraoh deali@ with themethod and' place of filing records can onlybe construedas applying to themanner and place of registration,and not to the fee
ormanner of its payment,which Is a prior provision. In Stevens v. Haile, 162 S.W. 1025, 1028 ~(Tex. Civ. ADD. 19141. the word "this'was defined

, "a demonstrativeadjective %th particularitya person o$ used to point out thing present in place or thought. The thingpresent in thought is themanner and place of registration.

,Thatthe Legislature intended to repeal only the duplicaterecordingprovisionby theprovision in quesbion is also evidencedby the capiion, the only,'pertinent party being as follows, repealingprovisions.requiringduplicate rec&ing of'births,deaths,~ and stillbirthsat the local level L

. ." This is a narrow and restrictive title, and if the body of the act were construed 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,;violatlon of Article III, Section 35; of the Texa&'Constltution 'andtherefore~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 theAct as an attempt' to repea~lthe fee provisions,but merely a repeal of the duplicaterecording provision.

SUMMARY

A county is liable for the payment of the fifty cent fee for the registration of each certificateof 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 compensationhas been provided by city ordinance for the local registrarHon. 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, 143Tcx. 41, lt-%

s " . . - go 61 11

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APPROVED: Yours very truly,

J. C. Davis, Jr. PRICE DANIEL CountyAffairs Division Attorney General

Jesse P. Luton, Jr. ReviewingAssistant

Everett Hutchinson Executive Assistant

BW:t:awo BurnellWal.drep Assistant

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