HEA~~RNEY GENERAL 

OFTEXAS 

Honorable R. H. Dally 

County Attorney 

HutchInson County 

Borger, Texas 

Dear Sir: Opinion No. 0-2308 

Re: Llabllity of Hutchlnson County for 

fees to a city clerk acting as registrar of vital statistics under 

Article 4477, Rules 34a through 

55a, Vernon's Annotated Civil Statutes, the Vital Statlstlcs Law of 

Texas. 

We are in receipt of your request for an opinion on the 

following question: 

"Would a City Clerk, who also serves as registrar of vital statistics in an incorporated 

city having a population of more than 2500, which 

does not have an ordinance providing a salary or 

fee for his duties as registrar but whose salary 

is flxed In the minutes by the City Commissioners, 

without reference to his duties or obligations to 

register births and deaths, be entltled to receive 

from the County the regular fees as provided by 

law under rule 33a, Article 4477 of the 1925 Revised Civil Statutes." 

Article 4477, Rules 34a through yja, Vernon's Annotated 

Civil Statutes, and Article 781a, Penal Code, constitute the 

Vital Statistics Law of this State. 

Rule 34a provides: 

"That the State Department of Health shall 

have charge of the reglstratlon of births and 

deaths; shall prepare the necessary instructions, 

forms and blanks for obtafning and preserving 

such records and shall procure the faithful registration of the same in each primary registration district as constituted in Section 3 of 

this Act (rule 36a), and in the central bureau 

of vital statistics at the capitol of the State. 
Honorable R. H. Dally, page 2 0 -2308 

The said department shall be charged with the 

uniform and thorough enforcement of the law 

throughout the state, and shall from time to 

time recommend any additional legislation that 

may be necessary for this purpose." 

Rule 86a reads as follows: 

"For the purposes of this Act (Rules 34a55a; P.C,, Art. 78la) the State shall be divided 

into Primary Registration Districts as follows: 

"Each Justice of the Peace Precinct and each 

incorporated town of 2,500 or more populatlon, 

according to the United States Census, shall constitute a Primary Registration District, provided 

the State Board of Health may combine two or more 

Registration Districts, or may divide a Primary 

Registration District into two or more parts, so 

as to facilitate reglstratlon, and In cities of 

2,500 or more, according to the last United States 

Census Report, where births and deaths are registered in accordance with a City Ordinance not 

in confll.ct with this Act, the City Clerk 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 Justfce of the Peace 

Precinct, and the City Clerk or City Secretary 

in the city of 2,500 or= more population, to secure a complete record of each birth and death 

that occurs within their respective 

and Is required by this Act (Rules 

'urisdictions, 

3 i a-55a; P.C. 

art, 78la)." (Underscoring ours) 

Rule 53a deals with the fees for local registrars. It 

states: 

"That each Local Registrar shall be paid 

the sum of Fifty cents for each birth and death 

certificate properly and completely made out 

and registered with him, and correctly recorded 

and promptly returned by him to the State Bureau 

of Vital Statistics, as required by this Act 

(Rules 34a-55a; P,C!. art, 781a) unless such Local 

Registrar shall be actfnn as Renistrar of Births 

and Deaths in an Fncorporated city where the compensation of the Registrar is otherwise flxed by 

City Ordinance. 
Honorable K. H. Dally, page 3 O-2308 

"The State Registrar shall annually certify to theme County Commissioners Court or County 

Audltor, as the case may be, the number of birth 

and death certificates filed by each Local Registrar at the rates fixed herein, and provided 

that the State Registrar may render such statements monthly or quarterly, at the discretion of 

the State Board of Health; and the Commissioners 

Court or County Audltor, as the case may be, 

shall audit such statement and the County Treasurer shall pay such fees as are approved bg the 

Commissioners Court or the County Auditor, at 

the time such statement is issued. 

"And provided further, that the Local Registrar shall submit to the Commissioners Court or 

the County Auditor, as the case may be, a true 

and accurate copy of each birth and each death 

certificate filed with him, and such copies shall 

be deposited in the County Clerk's Office, and 

the County Clerk shall be paid for indexingand 

preserving such records, such compensation as may 

be decided upon by the Commissioners Court." 

(Underscoring ours) 

In order to answer your question, it Is necessary that 

we construe the above quoted provisions of Article 4477, Vernon s Annotated Civil Statutes. 

the aim and object of construction is 

to as&aln and enforce the legislative intent, 

and not to defeat, nullifyor thwart It." 30 Tex. 

our. 167. 

A city clerk in a city of 2,500 people or more' "shall 

be the Local Registrar of Births and Deaths". Rule 36a, supra. 

In the facts submitted the city clerk serving as Registrar of Vital Statistics receives a fixed salary. This salary 

is presumably compensation for the performance of duties and 

obligations of the office of city clerk. The minutes of the 

City Commissioners relating to the salary of the city clerk 

contain no mention of compensation in the form of salary or 

fees to him for the performance of the duties and obligations 

of a registrar of vital statistics. 

Therefore, the city clerk Is not within the exception to 

the law that each local registrar shall receive fifty cents for 

each birth and death registration. 
Honorable R. H. Dally, page 4 o-2308 

The exceptTon reads: 

"Unless such Local Registrar shall be acting 

as Registrar of Births and Deaths in an incorporated city where the compensation of the Registrar is otherwise fixed by City Ordinance." 

Rule 53a. 

The city clerk in the situation under consideration is 

a local registrar. His compensation as registrar is not "otherwise fixed' by city ordinance within the meaning of the statute 

since it is determined without reference to his duties or obligatlons to register births and deaths. If it was fixed with 

reference to said duties and obligations, then it would bring 

the city clerk wlthln the exception of Rule 53a. We think the 

reference should be specific since the dutles and obligations 

of a city clerk are separate and distinct ordinarily from those 

of a local registrar, although not necessarily incompatible and 

conflicting. Furthermore, the statute is explicit on the point 

that each local registrar shall be paid the sum of fifty cents 

for each birth and death certificate properly and completely 

made out and registered with him, and correctly recorded and 

promptly returned by him to the State Bureau of Vital Statlstlcs, 

unless he comes within the exception contained in Rule 53a. 

It appears to have been the Intention of the Legislature 

that the local registrar receive specific compensation for the 

performance of his Vital Statistics duties whether he be justice 

of the peace or a city clerk. In the case of the city clerk, 

the Legislature provided tbtt In incorporated cities containing 

a population of over 2,500 inhabitants, according to the last 

United States Census Report, the city might give him such compensation as a registrar. Otherwlse, the city clerk was to 

receive the statutory fifty cent fee from the county. Consldering the languare, subject matter, and the obvious legislative 

lntent, this is a fair and reasonable construction. 

It is our opinion that a city clerk also serving as 

registrar of vital statistics in an incorporated city having a 

population of more then 2,500 inhabitants, which does not have 

an ordinance providing a salary or fees for his duties as registrar, but whose salary is fixed in the minutes of~the City 

Commission without reference to his duties or obligations to 

register births and deaths, is entitled to receive from the 

county the regular fee as provided by law under Rule 53a, Article 

4477, Vernon's Annotated Clvll Statutes, if said city clerk is 

serving as registrar of vital statistics performs all the duties 

and requirements imposed upon a local registrar by Article 4477, 

Rule 34a through 55a, Vernon's Annotated Civil Statutes. 
- - 

Honorable X. H. Dally, page 5 0-2308 

Under Rule 53a, supra, it is provided "that each local 

registrar shall be paid the sum of fifty cent for each birth 

and death certificate properly and completely made out and 

registered with him, and correctly recorded and properly returned by him to the State Bureau of Vital Statistics." It 

Is also provided further in paragraph 3 of Rule 53a, supra, 

"that the local registrar shall submit to the CornmIssioners' 

Court or the County Auditor, as the case may be, a true and 

accurate copy of each birth and each death certificate filed 

with him, and such copies shall be deposited in the County 

Clerk's office * * * *." 

Under the facts stated in your inquiry the city clerk 

has not complied with paragraph 3 of Rule 53a, supra, and, 

therefore, the city clerk would not be entitled to receive compensation from the county for performing the duties of a local 

registrar. 

Statutes prescribing fees for public officers are 

strictly construed; hence, a right to fees may not rest in 

lmplicatlon. Where this right is left to construction, the 

language of the law must be construed in favor of the government. Where a statute is capable of two constructions, one 

of which would give an officer compensation for his services 

in addition to his salary, and the other not, the latter construction, should be adopted. McCalla vs.'City of Rockdale, 

246 S.W. 65~4; Eastland County vs. Hazel, 388 SOW. 518; Madden 

VS. Hardy, 50 S.W, 926; Tex. Jurisprudence, Vol. 34, page 508. 

In view of the foregoing authorltles and the facts 

stated in your inquiry you are respectfully advised that it Is 

our opinion that the city clerk would not be entitled to compensation from the county for performing the duties of a local 

registrar in that he has not complied with Rule 53a, supra. 

However, as above stated where the city clerk in serving as 

Registrar of Vital Statistics performs all the duties andrequirements imposed upon a local registrar by Article 4477, Rule 

34a through 55a, Vernon's Annotated Civil Statutes, he would 

be entitled to receive the fees as herein above stated. 

Trusting that the foregoing fully answers your inquiry, 

we are 
- - 

Honorable K. H. Dally, page 6 O-2308 

Yours very truly 

ATTORNFX GENERAL OF TEXAS 

By s/Ardell WLlliSms 

Araell~~'Williams 

Asshtant 

AW:EP:wc 

APPROVED JUN 15. 1940 

s/Gerald C. Ma% 

ATTORNEY GENERAL OF, TEXAS 

APPROVED OPINION COMMITTEE BY s/BWB CHAIRMAN