                              AUW“IN.     TlEXAS   78711
CRAWFORD      0.   MAR-




           Honorable.James E. Barlow                  Opinion No, M-251
           Criminal,mistrial A,ttorney
           Bexar County Courthouse                    Re: ,Whethsr 8 Justice of the
           San Antonio, Texas 78204                        Peace, acting as local,
                                                           registrar, is authorized
                                                           to issue certified copies
                                                           of birth and death certifi-
                                                           cates, and related ques-
           Dear Mr. Barlow:                                tions.

                     You have requested an opinion of this office concerning
           the above captioned matter, posing principally the following two
           questions:

                     1. May a Justice of the Peace acting as local regis-
           trar issue certified copies of birth and death certificates?

                     2.  If the Justice of the Peace may do so, is the
           money received by him a fee of office to be paid into the county
           treasury, or is it a stipend that he may retain?

                      We are further advised by.your letter request of the
            following pertinent factual background:

                        "Justices of the Peace of Bexar County
                   acting as local registrars of vital statistics
                   under Rule 36a, Article 4477,~V.A.C.,,S.
                                                          have,
                   for some years east, been receiving fees or
                   stipends for issuing cer.tifiedcopies of birth
                   and death certificates.. These copies are on
                   standard, State~of Texas, Texas Department of
                   Health, Burea.uof Vital Statistics forms cer-
                   tified to aStrue and correct copies by the
                   registrar as official custodian before a Notary
                   Public. Retention of these fees by the justices
                   has been questioned . . .


                                         -1217-
                                                               .   *




Hon. James E. Barlow, page 2 (M-25l)



          I(
                    .   .   .




          "It has now some to our attention that
     other local registrars, as well as Justices
     of the Peace acting as local registrars, have
     been issuing certified copies of birth and
     -death certificates . . .this practicsis nok ‘~ ‘.
     restricted to Bexar County.. ~. .the oracticq
     is,'state-wide.:
          *. . .

           "There exists a Texas Vital Statistics
     Manual published by the Texas Department of
     Health, Bureau of Vital Statistics . . . .
     Local resistrars aooear to relv on this manual
      for their authoritv to issue certificates land
     upon the last sentence of the lead paragraph
      of Rule 47a, Article     4477 (which) might give
     an impression that the legislature       intended
      local registrars    to issue  certified copies
      of birth certificates in Article     4477.
     V.A.C.S." (Emphasis and parenthesis added).

            Rule 47a of Article 4477 is captioned, "Form and
contents of birth certificates of adoption, annulment and
revocation." In empowering the State Department of Health
to promulgate the forms, rules, and regulations covering
birth certificates, including the activities of the local
registrars,   the Legislature provided in the last sentence
of the lead paragraph of that rule the,following:

           The-state resistrar; countv clerk, or
               ,I


     local registrar shall not issue a certified
     copy disclosin~.illesitimacv or otherwise
     disclose illeqitimacy unless the issuance
     of.the certified COPY or ,thedisclosure
     is authorized by order of the county court
     of the countv in which the birth, death, or
     fetal death occurred."'



                                - 1218 -
Hon. James E. Barlow, page 3   (~-251)



If the Legislature had not intended local registrars to issue
any certified copies whatever, their inclusion in this
statutory prwision would have been unnecessary.

          The various provisions of this statute are expressly
stated to be "Subject to the regulations of the State Depart-
ment of Health..g’

          Rule.51a of Article 4477 captioned, ?Blanks and
registration forms: index of births and deaths; records;
transcripts: fees: delayed registrations; judicial procedure
to establish,facts of birth,' provides a substantially similar
pattern for the supervision and promulgation of rules and regula-
tions by the State Department of Health cwering that subject
matter.

           However, the statutes are silent in conferring any
express authority on local registrars to issue certified copies
of bir,th or death certificates. Yet, except in the case of
copies involving illegitimacy above noted, neither~do the
statutes contain any express nrohibitions~in appropriate
language which would have the effect of preventing local
registrars from issuing such certified copies, particularly
if authorized to do so by administrative rulings or authorisa-
tion by the State Department of Health. Had the Legislature
intended that such administrative agency be prohibited from
authorizing local registrars to issue such certified copies
of its own records, it could have easily done so with an ap-
propriate statutory directive, and no doubt would have done
so. Instead of so doing, it implied that local registrars
might issue certified copies of birth certificates, except
in the one instance where the same disclosed illegitimacy.

          In pursuance of its authority to prescribe rules and
regulations under the law, the Department of Health has attempted
to advise the public and the local registrars through the above
Manual, which you advise "contains a section devoted to Certifi-
cation of Vital Records (pp. T-l to T-9). It sets forth Rule
54a (Supra), Rule 5la and portions of Rule 47a (Supra) of Article
4477, V.A.C.S., as well as Article 1939a, V.A.C.S., which pro-
vides in pertinent part:


                         -1219-
Hon. James E. Barlow, page 4   W251)



          "'Article 1. Any person, his guardian
     or his.~
            dependents'or heirs at law who is el-
     igible to make a claim against the Government
    ,of the United States of America as a result of
     service,in -the Armed Forces.of the United States
     of Amsrica, or the. services auxiliary'thereto,
     including the Maritime Service and the Merchant
     Marine, shall upon the request therefor by, such
     person, his guardian, or his 'dependents,or heirs
     at law, be furnished without.cost a certified
     and authenticated copyor copies of any instru- :
     ment, public record or document necessary to
     prove or establish such claim, which is in the
     custody or on file in the.office .of County
     Clerks, District Clerks and other public
     officials of this State, by such officials.
     Provided, the issuance of such certified or
     authenticated copy or copies by such officials
     shall not be considered in determining the maxi-
     mum fse of such offices.'*

          You state that in the manual there are "cited
several old ,opinionsof the Attorney General's office, including
G-1386 dated November 7, 1939, which states that the County
Clerk has the authority under Article 3930, R.C.S. to issue
certified copies of Vital Statistics on file in his office
and citing Article 4477, V.A.C.S. . . .

          "The above section of the vital~statistics manual
on page T-8 under Administrative Directions contains , . .
affirmative direction . . . as to local registrars issuing
certified copies of birth and death certificates. It states:

          'A local registrar or county clerk is
     authorized to issue a~certification from any
     birth, death, or fetal death record in his
     office even though such record may not be
     registered in the State Bureau of Vital
     Statistics.'

           "Two paragraphs later is found the
      statement:

                        - 1220:
Hon. James E. Barlow, page 5 (M-351)



          'B.   Tvnes of Certifications.

         A complete certified   copy   a record
                                       of
     of birth,.death or fetal death should in-
     clude a complete copy of the original record,
     a complete copy of any amendment(s) thereto,
     and the certification of the .issuingofficial,.!

          "There is also .contained~
                                   in the manual a .samplecopy
of Application for Certified Copy of Birth Certificate with
instructions.to mail samcto the Bureau of Vital Statistics,
Texas-Department of Health, Austin, Texas, and finally commenc-
ing on page V-l are instructions on where to obtain birth cer-
tificates in all of the states. Under Texas the address is
the Bureau of Vital Statistics, State Department of Health,
Austin.,Texas, and indicates the State office has records since
1903.

          "On August 7, 1961, the State Registrar sent a notice
to all local registration officials announcing the passage and
effective date of Senate Bill 69, 57th Legislature and within
this notice stated:

          'This Bill increases the certified copy
     fee of this office from $1.00 to $1.50. It
     does not change the fee collected by the county
     clerks and local registrars for issuing a cer-
     tified copy.'"

           Under the existing statutes in 1942, and in the ab-'
sence of any departmental regulations, ruling or construction,
this office did render Opinion No. O-4370 (1942) to the effect
that such statutes as then worded failed to conferany express
authority upon Justices of the Peace, acting as Local Regis-
trars of vital statistics, to issue certified copies of birth
or death certificates filed in their offices. Regardless of
the merit of this opinion,~and without passing upon whether it
correctly applied the.law to the statutory situation then exist-
ing , it appears that the opinion was never.consistently or uni-
formly applied or followed by the department responsible for the
administration of the law. The construction of a statute by the
Attorney General is'entitled to little c&sider'ation, if any at
all, under such circumstances. Eddins-Walcher Butane Co. v.
                         -1221-
Hon. James E. Barlow, page 6 (M-251)



Calvert, 298 S.W.2d 93, 97 (Tex.Civ.App. 1957, no writ),

           On the 'other hand by 1960, the .prioradministrative
 practice under the statutes here.'involvedhad developed and
 the State Health Department did at that time issue its V4anualn
 of instructions~and disseminate on a state-wide basins its ad-
 ministrative construction and practice to the effect that local
 registrars could issue certified copies of birth and death cer-
'tificates. This 'is tantamount to a rullng.or authorization
 promulgated by the State Department of Healthy. The practice
 has apparently ever,since been consistently fbllowed'and relied
 upon by all concerned and 'after successive tegislatures"hav8
convened.
                        -,
           Apparently,'the Department of Health; Ln construing
 the genera1~civil statute, gave a liberal construction to its
 provisions to effectuate the legislative intent, 53 Tex.Jur.
 26 298, Statutes, Q 194. Under Rule 55a of Article 4477, the
 state.registrar was expressly granted "suoervisorv powers"
'over local registrars, who were also expressly charged with
 enforcement duties under the state registrar's "direction;"
 Furthermore, it was clear that the justice of the peace, acting
 as a local registrar, had been given the affirmative duty to
 record's complete and accurate copy of each birth and death
 certificate in a permanent book. Attorney General's Opinion
 No. O-3802 (1941). No doubt, as an incidental or collateral
 duty, the department interpreted the detail of issuance of
 certified copies by such public officer as serving to promote
'and benefiting the accomplishment of the principal purpose of
 the recording duty. There is,authority for the view that.
 incidental and implied powers may arise from a.statute which
 fails to limit the exercise of official duty: In 43 Am.Juris.
 69, Public Officers, B 250, it is stated:

           Vne prescription of official duties by
      statute . . .is not an exclusive test of au-
      thority, when neither express provision nor
      implication from the nature of the~office calls
      far it. The duties of a public office include
      all those which fairly lie withinits scope,
      those which are essential to the accomplishment
      of the main purposes for which the office was

                        -1222-
lion.James E. Barlm,   page 7 (M-251)



     created, and those which, although incidental
     and.collateral, are germane to or serve to
     promote or'benefit, the accomplishment of the
     principal purposes.w

         fin 1962;.the practice by a Justice of the Peace,
acting,as a local registrar;and issuing a certified   copy of
'a death.certificate, 'was judicially noted in mtronrr   v. Rm-
plovers Casualty CQmRsn&~3S7 6.99.26168, 170 (Tex.,Civ.App.
1962, no writ). The &ui%did      not hold such to be an illegal
act, but it did hold that the certified copy would not be ad-
missible in the trial asprima facie evidence, since the.pro-
vision for admission into evidence set.out.in Rule 54a ap-
plies only to.copies certified by the State Registrar of.
Vital.Statistics. However, we observe that there are numerous
 other purposes for which certified copies are sought besides
 that of serving as evidence in a court of law.

          In view of the statutory uncertainty and the con-
struction given the statutes by the department responsible for
the administration of the-law, and particularly its ruling
and instructions issued by it, which we are not prepared to
say are unreasonable or clearly wrong, it is our view that
the courts will ordinarily adopt and uphold such departmental
construction and ruling , .though the court might otherwise
have been inclined to place a different construction on the
act. 53 Tex.Jur.2d.259, Statutes, 8 177, and cited cases:
Humble Oil & Refinins Co..v. Calvert, 414 S.W.2d 172 (Tex.
Sup. 1967). In addition,~the Legislature is presumed to have
known of such construction and practice and acquiesced in it
by its failure to amend or change it. 53 Tex.Jur.2d 269,
Statutes, %180, and cited cases: Burrouqhs v. Lvles, 142 Tex.
704, 181 S.W.2d 570, 573 (19441, holding that a long-continued
administrative construction is entitled to great weight par-
ticularly when "the Legislature, which is presumed to have been
aware of the interpretation, made no changes in the language
that would indicate a contrary intent."

           The remaining question presented is whether the
 money received by a Justice of the Peace acting as a local
 registrar is a "fee of office" to be covered into the County
 Treasury or is a stipend the Justice.may retain? It is the
 opinion of this office that the money received under the
                        -1223-
Hon. James E. Barlow, page S (M-251)



circumstances must be regarded as a fee of office and ac-
countable as such. Since we have held that there is authbrlty
for the local registrar to issue certified copies,of,vital
statistics pursuant to the regulations and rulings oaf the
State Department of Health, then It would follow that by
making the certification in the .ecope of his duties the
registrar -has acted'officially and such fee of,office should
be paid into the County Weasury.    This office has so ruled
on substantially the same questions,in Attorney.General.:e
Opinions,C-3655 (1941) and O-419 (1939), to which your af-
tention.,iedirected. .'             3.

          We are aware of,the uncertainties faced by~all con-
cerned~in the interpretat,ionand administration df.the law
under.the statutes with'which we are concerned Andythe need
foramending such.statutee and making certain that which is
left to uncertainty and implication.~ If the result reached
in this opinion is not the legal result intended by the Legie-
lature,~such statutes can and will surely be amended accordingly
in the next session of the Legislature.

                     SUMMARY

          In view of the long departmental administra-
     tive ruling and practice under Article 4471,
     Vernon's Civil Statutes, Justices of the Peace
     acting as local registrars of births and deaths,
     may issue certified copies of ,birth and death
     certificates under the authority of the rules
     and,instructions of the State Registrar: land
     the money collected by them for such copies
     constitute fees of office which should be
     paid into'the County Treasury.




 Prepared by Philip G. Warner
 Assistant'Attorney General
                        -1224-
Hon. James E. Barlow, page g (M-251)



APPROVED,
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Robert Flowers
Houghton Brownlee
J. C. Davis
Roger Tyler

A. J. CARUBBI, JR.
Executive Assistant




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