                           Office of the Slttornep @eneral
                                        Wate     of IICexa$
DAN MORALES
 ATTORNEY
       GENERAL                           December 29,199s

     David R. Smith, M.D.                           Opinion No. DM-371
     Commissioner
     Texas Department of Health                     Re: Whether Attorney General Opinion
     llOOWest49thStreet                             DM-283 (1994) correctly determined that a
     Austin, Texas 787567111                        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 one-
dollar 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”synonymouslywith %illhirth,” that is, “[dRatb prior to
tbc cotnploteexpolsionor exuactionfrom its motherof a pmdactof wnception.” 25 T.A.C. 0 181.1.

        iThc dcpmtmwt &fines -vital swistios* as *[t]he mgisttatio4 pmpalation, nanscliiption.
a4lcctio4 compilation, and prcscrvation 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.Thejustice 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


        3Youstatethat, in f&t, only 134 of 688 local &strars arecountyckks who bavc rceckd local
registrarduties eitherby transferfrom thejustice of the peace or by wnaolidationin the countyof coon&
and monicipalmaintenanceofvital records.

         ‘Seedon 192.001 of the Heal* and Sfely Code mandatesthe registrationof 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 motheror the
wnerormanagaoftbepremisea wbemtbebirtboccaramostreporttbebinbmthe1ocalreg&mr. Id.
8 192.003(b). The pason in charge of intermentor in charge of removinga body from a registmtioa
dlmict for disposition mast file tbe deatb or fetal death certifxate with the local registrarof 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 uponthe
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) at8. 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

(footnoteamtinued)



         ?%ction 191.0045(a)(3)of the Healthand safay Code qxdcally authorizesthe bureauofvital
atatiaUato charge a f& for filing a recordunder 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 arguedin yourbrief that‘[We BoardofHealth alone is authokd
to prsribe a schedule of fees for vital statistics,”citing section 191.0045(a)(3)and @) to suppottyout
claim. We resd section 191.0045 only to authorize the bureau of vital statistics to charge fee6 fat
providingsetvicq we do not readthe sectionto precludeany otherentity(in&ding the Icgidatum)from
impsing a fee upon the service-sthe bureauof vital statisticsperforms.


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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 wuntymay, but
need not, decide to require the collection of the security fee. Thus, somecounty 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 one-
           dollar 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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