Untitled Texas Attorney General Opinion ( 1951 )

NEY~ENERAL
TEXAS
Hon. F. L, Garrison
County Attorney
Ups~hur County Re: Recessitg for food
Gilmer, Texas handlers of a high
school band mothers *
club to possess health
Deap Mr* Gafilson: certificates.
Pour request for an opinion is in papt as fol-
lows:
“Some of the mothers of students in
the Gilmer High School Band have organized
what they call ‘Band Mother’s Club D This
club prepares cakes, pies, sandwiches, cof-
fee and various other foods, and sells them
at football games, basketball games and
othep school functions.
‘Doctor Daniels (the county health of-
ficer) tells me that fop a while, all per-
sons who handled the food secured health
certlf icates e However, they now Pefuse to
do so. I am of the opinion that Article
705~ of the Penal Code includes such an
organization. 0 B e
“I should appreciate a ruling from
you as to whether such an organization as
mentioned above should be made to comply
with the ppovislons of the quoted article,”
Article 705c, V.P.C., provides in part:
“Sec. 1. No person, firm, corpora-
tion, common carrier 0~” assocfation
atlug. mananinR, OP conducting any hoFFe
or any other public sleeping or eating
place, OF any place or vehicle where food
or drink OF containers therefor, of any
kind, Is manufactured, transferred, pre-
pared, stored, packed, served, sold OP
otherwise handled in this State, OP any
Ron. F. L. Garrison, page 2 (V-1174)
manufacturer OP vendor of candies OP manu-
factured sweets, shall work, employ, or
keep in their employ, In, on, or about any
said place OF vehicle, OP have delivered
any article therefrom, any person infected
with any transmissible condition of any in-
fectious or contagious disease, or work, or
employ any person to work in, on, OP about
any said place, or to deliver any article
therefrom, who, at the time of his or her
employment, failed to deliver to the em-
ployep or his agent, a certificate signed
by a legally licensed physician, Pesidlng
in the county where said person is to be
employed, or is employed, attesting the
fact that the bearer had been actually and
thoroughly examined by such physician wlth-
in a week prlo~ to the time of such employ-
ment, and that such examination disclosed
the fact that such person to be employed
was free from any transmissible condition
of any infectious or contagious disease;
OF fail to Institute and have made, at in-
tervals of time not exceeding six months,
actual and thorough examinations, essen-
tial to the findings of freedom from com-
municable and infectious diseases, of all
such employees, by a legally licensed phy-
sician residfng in the county where said
person Is employed, and secure in evidence
thereof a certificate signed by such phy-
sician stating that such examinations had
been made of such pepson, disclosing the
fact that he OF she was free fPom,any
transmissible condition of any communi-
cable and infectious diseases.
"See, 4. The failure of any person,
firm, corporation, common carrier or as-
sociation engaged In any of the businesses
described in this Act, to diEDlay at the
health OP registration certificate, as Fe-
qulred by this Act, for each person employed
in, on, OF about such place, shall be prima
facie evidence that the said person, firm,
corporation, common carrier or association,
Hon. F. L. Garrison, page 3 (V-1174)
in violation of requirements called for by
this Act, failed to require the exhibition
of the pre-employment health certificate,
of such person and failed to institute and
have made of such person, actual and thor-
ough examinations necessary to the findings
of freedom from communicable diseases at
Intervals of time not exceeding six months.”
(Emphasis added.)
The dominant purpose and Intent of the Legis-
lature in the enactment of Article 705~ was to prevent
persons affected by any infectious or contagious dis-
ease from handling OP coming in contact with food to the
detriment of public health, In order to accomplish that
highly desirable end, it was provided that no person who
was engaged in the operation of certain establishments
therein described should employ or keep in his employ
any person 0~ persons infected with, or affected by any
infectious or contagious disease. Blain v. Service Mut.
Ins. Co, of Texas, 159 S.W.2d 538 (Tex.Clv.App. 1 4
versed on other grounds, 140 Tex. 541, 168 S.W.2dg& Te1943).
In Servfce Mut. Ins. Co. V. Blain, 140 Tex. 541,
168 S.W.28 854, 857-858 (1943), the court said:
“The provision Is a vital papt of a stat-
ute enacted to safeguard the public health.
~The statutory requirement as applicable to
this case is not merely that a person who
works in and about the Dlace where food is
manufactured shall not, prior to or at the
time of his employment and while he is work-
ing under such employment, be free from in-
fectious or contagious disease; but the
requirement is that no person operating
such a place shall work, or employ any per-
son to work in OP about the place who ‘at
the time of his employment had not in his
possession a certificate’ procured as pro-
vided by the statute and attesting, among
other facts, that the required examination
by a physician (made within one week prior
to employment) discloses that the person
“to be employeds was free from any infec-
tious OF contagious disease *”
In Attorney General ls Opinion O-2429 (1941))
relating to Article 705c, V.P.C., a copy of which is en-
closed for your consideration, it IS said:
Hon. F. L. Garrison, page 4 (V-1174)
“We do not believe the statute suffd,-
ciently denounces the act or omlsslon of
the employer in failing to obtain a physi-
cal examination of his own person or In
failing to display his own health certlfi-
cate so as to create an offense as to him.
Nor do we believe, as we shall later point
out, that such was the intent of the Leg-
islature *
”. . .
*The intent of the Legislature Is of
paramount importance in construing a stat-
ute, and the conclusion reached in the pre-
ceding paragraph is strengthened by looking
to the emer ency clause of House Bill 142,
Acts 1939, $ 6th Legislature, Chi 8, p. 231.
This is an amendatory enactment, but each
act of the Legislature since 1921 dealing
with the same subject matter has had the
same or a similar emergency clause. See
Sec. 7, Acts 1921, 37 Ls ., Ch. 66, p.
134; Sec. 4, Acts 1937, &5th Leg. ch. 356,
Q7 0 This clause reads in part as fol-
“‘Sec. 2. Elaergency Clause. The fact
that many food and drink establishments and
factories are not required under the present
law to have their employees examined or se-
cure health certificates l l l . ’ (Underscor-
ing ours.)
*Thus is appears that the prilaary in-
tent of the legislature was to reach em-
loyees of food and drink establishments.
onsequently, it is the opinion of this de-
partment and you are respectfully advised
that Article 705c, Vernon’s Annotated Penal
Code, does not create an offense as to a
proprietor of a food and drink establishment
for the failure of such proprietor to have
an examination of his person made by a phy-
sician for the purpose of determining freedom
from infectious or communicable disease or
for failure to display his own health certlf-
lcate in his establishment .”
.
Hon. F. L. Garrison, page 5 (V-1174)
The Legislature could have made the statute
broad enough to cover band mothers’ clubs, which eel1
food and drinks at football gamee, church groups which
serve food to church suppers, and other cZv10 groups
which engage in such activities without employees or
established businesses. However, the Legislature did
not choose to make the law that broad and laalosive.
In our opinion, the statute refers only to established
businesses and employees engaged In such businesses.
It Is our opinion that Artlole 705c, V.P.C., does not
apply to the Band Mothers v Club of Gllmer High School
and that such mothers or others selling food and soft
drinks for them at football games are not required to
obtain health certlfipates under such act.
SUMMARY
Article 7050, V.P.C., requiring phy-
sical examination*. and health certificates
for employees of businesses manufacturing,
preparing, selling, or otherwise handling
food or drinka or containers therefor, does
not apply to a band mothers’ club of a high
school selling food and’ soft drinks at foot-
ball games.
APPROVED: Yours very tz?lly,
3. C. Davis, Jr. PRICE MXIEL
County Affairs Attorney General
Jesse P. Luton, Jr.
Revlewlng Assistant
Charles D. Mathews Burne.11 Waldrep
First Assistant Assistant
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