DAN MORALES 

ATTORNEY GENERAL 

Office of the Slttornep @eneral 

Wate of IICexa$ 

David R. Smith, M.D. 

Commissioner 

Texas Department of Health 

llOOWest49thStreet 

Austin, Texas 787567111 

December 29,199s 

Opinion No. DM-371 

Re: Whether Attorney General Opinion 

DM-283 (1994) correctly determined that a 

county clerk may collect a security fee, as 

authorized by section 291.008 of the Local 

Ckmmmeat Code, at the time of fding a 

bii death, or fetal death record and 

related questions (RQ-738) 

Dear Dr. smith: 

Qn behalf of the Texas Department of Health (the “department”), you have 

requested that we reconsider Attorney General Opinion DM-283 (1994) insofar as it 

concludes that a county clerk may collect a security fee at the time of thing a birth, death, 

or fetal death record. Section 291.008 of the Local Government Code, which authorizes 

counties to collect a fee to fmance the purchase of security services in a facility housing a 

district or county court, see Code Crim. Proc. art. 102.018, provides in pertinent part as 

follows: 

(a) The commissioners court may set a fee not to exceed S5 to 

be collected at the time of filing in each civil case filed in a county 

court,countycourtatlaw,ordistriU~~.... 

. . 

(c) The clerks of the respective courts shall collect the costs 

established by Subsectionn (a) . . 

(d) If a wmmissioners court sets a security fee under 

Subsection (a). . , the wunty and district clerks shah wllect a fee 

of $1 for tiling any document not subject to the security fee. . . The 

county or district clerk, as appropriate, shall wllect this fee. 

Attorney General Opinion DM-283 wnsiders, among other things, the proper 

interpretation of the phrase “any document” in section 291.008(d) of the Local 

Government Code. In an effort to ascertain the meaning the legislature intended to attach 

to the phrase, we briefly summarized the legislative history of section 291.008, which the 

legislature enacted in 1993, see Act of May 22, 1993, 73d Leg., P.S.. ch. 818. 5 2, 1993 

Tex. Sess. Law Serv. 3261,3262. Attorney General Qpiion DM-283 (1994) at 3-5. 
David R. Smith, M.D. 1 ‘Page 2 (DM-371) 

As introduced, neither Senate BiU 243 nor its companion bill in the house, House 

Bill 882, proposed to exact a security fee on any documents except those to initiate a civil 

case fled in a county or district court, unless the lawsuit was for delinquent taxes. Id. at 

4. The bills “did not propose to collect a $1 fee ‘for filing any document not subject to the 

security fee.“’ Id. (quoting Local Gov’t Code $291.008(d)). The opinion quotes a rather 

wlor8d exchange that occurred on the floor of the senate during the second reading of 

Senate Bii 243, in which Senator Harris discussed the unthimess of exempting from the 

fee marriage certificates, among other types of documents filed with the county clerk but 

which the bii as introduced exempted from the fee. Id. at 4-5 (quoting Debate on S.B. 

243 on the Floor of the Senate, 73d Leg. 2 (Mar. 17, 1993) (statement of Senator Harris) 

(tmnscript available from Senate Staff Services)). In response, Senator Sibley opined that 

anyone who uses the courthouse should be subject to the security fees. Id. at 5 (quoting 

Debate on S.B. 243 on the Floor of the Senate, 73d Leg. 2 (Mar. 17, 1993) (statement of 

Senator Sibley) (transcript available from Senate Staff Services)). 

As Attorney General Opinion DM-283 notes, however, balanced against the belief 

that the costs of courthouse security systems should be spread to everyone who uses the 

wurthouse was a desire to limit court costs on civil cases. Id. To balance these two 

interests, Senator Leedom, during the third reading of Senate Bill 243 on the floor of the 

senate, introduced a floor substitute that added, among other provisions, a one-dollar fee 

on %U those that wme in the wurthouse [to] file papers.” Id. (citing Debate on S.B. 243 

on the Floor of the Senate, 73d Leg. 1 (Apr. 15, 1993) (statement of Senator Leedom) 

(tmnscript available from Senate StatTServices)). 

In light of the legislative history of Senate Bill 243, we concluded that, pursuant to 

section 291.008(d) of the Local Government Code, “[a]U documents that are not Sled in 

wmmction with an existing civil case are subject to the one dollar security fee (unless 

another statute specifically exempts a particular document from a fee such as a security 

fee).” Id. at 8. Accordingly, we stated that a county or district clerk must charge the onedollar security fee on documents such as leases, wills, marriage licenses, and deeds. Id. at 

8-9. We guther determined that birth and death certificates are subject to the security fee 

because no statute specifically exempts them from a fee such as the security fee. Id. at 9. 

In a brief your office filed in support of your request for reconsideration of 

Attorney General Opinion DM-283, your office asked that we look guther at title 3 of the 

Health and Safety Code, which provides for the collection of vital statistics records: biih, 

death, and fetal death’ records, marriage and divorce records.2 Chapter 191 of the Health 

and Safety Code provides for the administration of vital statistics records. Chapters 192 

Vbe dqmmeat ddinca “fatal death” synonymously with %illhirth,” that is, “[dRatb prior to 

tbc cotnplote expolsion or exuaction from its mother of a pmdact of wnception.” 25 T.A.C. 0 181.1. 

iThc dcpmtmwt &fines -vital swistios* as *[t]he mgisttatio4 pmpalation, nanscliiption. 

a4lcctio4 compilation, and prcscrva tion of data pxtaining to births, adoptions, legitimations, dcaIhs, 

feal&atbs,maritalsmto.s,anddstaincidontalthomto.” Id. 

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David R. Smith, M.D. - ‘Page 3 (DM-371) 

through 194 pertain to birth, death, and marriage and divorce records, respectively. 

Chapter 195, the final chapter in title 3, provides for the enforcement of vital statistics 

reporting. 

Section 191.002 requires the department to administer the registration of vital 

statistics and, to that end, mandates that the department, among other things, “establish a 

bureau of vital statistics with suitable offices that are properly equipped for the 

preservation of its of?icial records” and “establish a statewide system of vital statistics.” 

The Texas Board of Health is obligated to, among other things, adopt necessary rules for 

the collection ofvital statistics. Health & Sathty Code 3 191.003(a)(l). 

Subchapter B of chapter 191 divides the state into registration districts for the 

purposes of registering records of births, deaths, and fetal deaths. Id, 4 191.021(a). The 

boundaries of the registration districts are wterminous with each justice of the peace 

precinct and each municipality with a population of more than 2,499. Id. The justice of 

the peace is the local registrar of births and deaths in a justice of the peace precinct, id. 

4 191.022(a). However, if a justice of the peace and the county clerk agree in writing, and 

the commissioners court ratifies the agreement, the justice of the peace may transfer the 

duty of registering births and deaths to the county clerk. Id. In such an event, it appears 

that the county clerk becomes the local registrar of births and deaths. 

Additionally, in a municipality with a population over 2,499, the municipal clerk or 

secretary is the local registrar of births and deaths. Id. $191.022(b). However, such a 

municipality may transfer its duties relating to the maintenance of birth and death records 

to the county in which the municipality is located if the transfer complies with section 

191.023 of the Health and Safety Code. Id. 5 191.023(a). Section 191.023(c) suggests 

that the county has some discretion in determining which official will assume the 

transferred duties, so long as the designated official attests in writing that he or she has 

suflicient resources and fhmnces to assume those duties. Thus, a county may select the 

clerk of its wunty court, in which case the clerk apparently would become the local 

registrar of births and deaths for the municipality.3 

The local registrar must secure a complete record of each bii death, and fetal 

death that occurs in the local registrar’s jurisdiction4 and has certain specified duties with 

3You state that, in f&t, only 134 of 688 local &strars are county ckks who bavc rceckd local 

registrar duties either by transfer from the justice of the peace or by wnaolidation in the county of coon& 

and monicipal maintenance ofvital records. 

‘Seedon 192.001 of the Heal* and Sfely Code mandates the registration of the bblb of each 

cbildborninthestate. Tlrephysicianormidwitcinanendanccatabirthisnquiredmfilctbcbinb 

artificatcwiththelocalrrgistraroftherrginrationdistriainwhichthcbirthoccurs. HeaIUtdsafe~ 

Code 8 192.003(s). If no physician or midwife atimdcd the birth, tbe child’s father or mother or the 

wnerormanagaoftbepremisea wbemtbebirtboccaramostreporttbebinbmthe1ocalreg&mr. Id. 

8 192.003(b). The pason in charge of interment or in charge of removing a body from a registmtioa 

dlmict for disposition mast file tbe deatb or fetal death certifxate with the local registrar of the 

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David R Smith, M.D. 1 ‘Page 4 (DM-371) 

regard to registering, reviewing, and reporting such records. Id. 3s 191.026 - ,027, 

.029 - ,030. Among the local registrar’s duties is the duty to, on a monthly basis, file with 

the commissioners court or county auditor a copy of each birth, death, and fetal death 

certificate that has been filed with the local registrar during the preceding month; the 

county wmmissioners court or county auditor is, in turn, to “deposit” the copies in the 

county clerk’s office. Id. 5 191.030(a), (c). A local registrar that fails, neglects, or 

refuses to perform a duty under title 3 commits a class C misdemeanor. Id. 

5 195.004(c) - (d). 

You state that the duties of a local registrar are separate and apart from the duties 

of a wunty clerk. We agree. CJ Attorney General Opinion O-2308 (1940) at 4 (stating 

that duties and obligations of city clerk ordinarily are separate and distinct from those of 

local registrar, although not necessarily incompatible). Accordingly, when a wunty clerk, 

through transfer from a justice of the peace or by consolidation with a municipality, takes 

on the additional duties of the local registrar, we believe that the wunty clerk performs 

those duties as local registrar, not as county clerk. 

Section 291.008(d) authorizes only wunty and district clerks to collect the 

security fee. Local registrars are not authorized to collect a security fee. We conclude 

that the statute requiring or authorizing a county clerk to wllect a security fee upon the 

Sling of certain documents does not apply to documents tiled with the county clerk in his 

or her capacity as local registrar. We modify our conclusion in Attorney General Opinion 

DM-283 that section 291.008(d) of the Local Government Code “applies to all documents 

fUed pursuant to all firing statutes, except statutes” that expressly prohibit the charging of 

such a fee. Attorney General Opinion DM-283 (1994) at 8. We here conclude instead 

that the county clerk may wllect the one-dollar security fee pursuant to section 

291.008(d) of the Local Govermnent Code on all documents filed with the county clerk as 

county clerk, unless a specific statute prohibits the imposition of such a fee. Thus, a 

document filed with the county clerk as local registrar, that is, a birth, death, or fetal death 

record, is not subject to the one-dollar security fee section 291.008(d) authorizes5 

In addition, we note that the state registrar of vital statistics must “prepare and 

issue detailed instructions necessary for the uniform observance of this title and the 

(footnote amtinued) 

?%ction 191.0045(a)(3) of the Health and safay Code qxdcally authorizes the bureau ofvital 

atatiaUa to charge a f& for filing a record under title 3. See o/so id. g 191.0045(b). Any fees that the 

bunau~vitalsta~~mllectsarrtobedcpositcdintothNItcaeasurytotbc~torthevitalstatistia 

timi Id. 8 191.005(a), (c). You have argued in your brief that ‘[We Board ofHealth alone is authokd 

to prsribe a schedule of fees for vital statistics,” citing section 191.0045(a)(3) and @) to suppott yout 

claim. We resd section 191.0045 only to authorize the bureau of vital statistics to charge fee6 fat 

providing setvicq we do not read the section to preclude any other entity (in&ding the Icgidatum) from 

impsing a fee upon the service-s the bureau of vital statistics performs. 

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David R Smith, M.D. ; ‘Page 5 ‘SM-371) 

maintenance of a perfect system of registration.” Health & Safety Code $191.004(b); see 

also id. § 191.004(a) (providing that director of bureau of vital statistics also serves as 

state registrar). Allowing a county clerk serving as a local registrar to collect a security 

fee upon the filing of birth, death, and fetal death records will result in nonuniform 

observance of title 3 in that some local registrars will collect the security fee, while others 

will not. Fist, under section 291.008 of the Local Government Code, a wunty may, but 

need not, decide to require the collection of the security fee. Thus, some county clerks 

collect the security fee, while others do not. Second, section 291.008 of the Local 

Government Code authorizes county clerks to wllect the security fee, but the section does 

not apply to justices of the peace or municipal clerks. 

You also ask whether a county clerk may collect a fee for records management and 

preservation on the filing of birth, death, and fetal death records. Section 118.01 l(b)(2) 

of the Local Government Code authorizes a county clerk to set and collect “from any 

person” a records management and preservation fee of no more than five dollars. The 

records management and preservation fee, which is to be paid at the time documents are 

tiled, is used to subsidize specific records preservation and automation projects. We 

believe, wnsistent with our conclusion here, section 118.011(b)(2) applies only to 

documents Sled with the county clerk in his or her capacity as county clerk; it does not 

apply to birth, death, and fetal death records filed witb the wunty clerk in his or her 

capacity as local registrar. 

To the extent that Attorney General Opinion DM-283 is inwnsistent with this 

opinion, it is modified. 

SUMMARY 

A statute requiring or authorizing a county clerk to collect a 

particular fee upon the f&g of certain documents does not apply to 

birth, death, and fetal death records filed with the wunty clerk in his 

or her capacity as local registrar, Acwrdingly, a county clerk may 

collect the one-dollar security fee that section 291.008(d) of the 

Local Government Code authorizes only on documents tiled with the 

county clerk as county clerk, unless a specific statute prohibits the 

imposition of such a fee. The county clerk may not collect the onedollar security fee on birth, death, or fetal death records filed with the 

county clerk in his or her capacity as local registrar. 

Likewise, a county clerk may collect the records management 

and preservation fee section 118.01 l(b)(2) of the Local Government 

Code authorizes only on documents filed with the county clerk in his 

or her capacity as county clerk, the county clerk may not collect the 

records management and preservation fee on birth, death, and fetal 

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David R. Smith, M.D. 1 .Page 6 (DM-371) 

death records filed with the county clerk in his or her capacity as 

local registrar. To the extent that Attorney General Opinion 

DM-283 (1994) is inconsistent with this opinion, it is modified. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opiion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General 

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