Untitled Texas Attorney General Opinion ( 1979 )

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The Attorney General of Texas
December 21, 1979
MARK WHITE
Attorney General
Honoreble Henry Wade Opinion No. NW-113
Dallas District Attorney
6th Floor, Records Building Re: Division of responsibilities
Dallas, Texas 75202 between city and county health
officers, and related matters
Dear Mr. Wade:
You ask if Dallas County and the county health officer have any
responsibility for the provision of health services and facilities within
incorporated areas of the county, particularly with respect to the report and
treatment of tuberculosis and venereal disease.
The contrd of Infectious and conta@ous diseases, such as tuberculosis
and venereal disease, is a topic about which the legislature has been
specific. See V.T.C.S. arts 4445, 4477-U. To combat such maladies, it has
given extraordinary power to various officials. It is expressly within the
power of a county commissioners court, for example, to direct that the
county health officer declare and maintain a quarantine, to establish,
maintain and supply camps or hospitals for those infected, and to asmme the
costs V.T.CS. art 4460; see Attorney General Opinion G-4960 (1942).
Article 4460 further provides:-
. . . Chartered cities and towns are embraced within
the purview of this article, and the mere fact of
incorporation does not exclude them from the
protection against epidemic diseases given the
commissioners court to other parts of their
respective counties. The medical officers of
chartered cities and towns may perform the duties
granted or commanded in their several charters, but
must be amenable and obedient to rules prescribed by
the [Texas] State Board of Health. This article,
however, must not be construed as prohibiting any
incorporated town or city from declaring, maintaining
and paying for local quarantine.
Cf. V.T.C.S. arts 4450 (local quarantine disputes); 4451 (local authorities
suborbnate); 4459 (local quarantine). Protection against epidemic diseases,
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Honorable Henry Wade - Page Two (MW-113)
such as tuberculosis and venereal disease, is a service the county government is required
by state law to furnish county residents within - as well as without - incorporated
cities. -See Attorney General Opinion M-683 0970).
In our opinion the establishment and maintenance of places to quarantine land treat
tuberculosis and venereal disease patients within the county is primarily a county
responsibility, whether or not those infected are originally discovered within an
incorporated area. V.T.C.S. art 2351, S 7. There is ample authority, however, for
incornorated cities to exoend fun& for such oumoses. and to comerate with the countv in
such-matters V.T.C.S. ‘arts 1015, 4436a-1, -4434, 4459, 44774 S 5(c); City of DalIa; v.
u 107 S.W.2d 872 (Tex. 1937).
Texas statutes provide for both a city health officer and a county health officer,
each of whom is chaged with reportb to state authorities the presence of all contagious,
infectious and dawerous epidemic diseases “within his jurisdiction.” V.T.C.S. arts. 4423,
4425, 4427,443O. The city health officer is also required by article 4430 to aid and assist
state health officials in matters of quarantine, vital and mortuary statistics, inspection,
disease prevention and suppression, and sanitation “within his jurisdiction”; the county
health officer is required by article 4427 to do the same ragarcIng such matters “within
his county.”
Appointment of health officers for both cities and counties is mandatory, and the
failure to appoint them does not relieve local governments of responsibility or expense for
protection of the public health. See King County v. Mitchell, 71 S.W. 610 (Tex. Civ. App,
1903, no writ); Attorney GeneralTpfnion G-816 (1934). If the offices become vacant and
are not filled promptly by the appropriate local body, the Texas Board of Health is
empowered to appoint a county or city health officer. V.T.C.S. art 4426. See also
V.T.C.S. art. 4455. The state board may also take steps to remove a local health=
or forfeit his salary. V.T.CS. arts. 4428, 4429, 4431, 4432. See also V.T.C.S. arts 4419,
44%
In White v. City of San Antonio, 60 S.W. 426 (Tex. 1901), the Supreme Court noted
that statutes then in force made all county and municipal quarantine actions subject to
such rules and regulations as the governor or state health offiier might prescribe, and that
local health officers were bound to obey them. The court said:
These provisions make the health officers of a city officers of the
state, and show that in our state their functions are governmental,
and are conferred in the interest of the public at Large.
Id. at 427. Current statutes are of the same tenor. See V.T.C.S. arts 4419, 4427, 4428,
n30, 4431, 4451; City of Dallas v. Smith, e -
We think the statutes found in chapters l, 2, and 4B of Title 71, V.T.C.S., regarding
public health, taken together and read in pari materia, show that when city and county
health officers are discharging local duties independently laid upon them by the local
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Honorable Henry Wade - Page Three (NW-113)
governments which appointed them, the jurisdiction of the city officer ordnarily includes
only the incorporated area of the city, and the jurisdiction of the county officer ordinarily
includes only unincorporated areas of the county. But see V.T.C.S. arts 1072, 4460. Cf.
V.T.C.S. arts. 4435 (unincorporated towns); 4436 (incorporated cities, towns and villagex
When, however, they are engaged in the performance of duties devolving upon them ‘as
officers of the state subject to the supervision and control of the Texas Board of Health,
the “jurisdiction” of each as to reports, et cetera, is a matter for determination by the
Texas Board of Health within legislative guidelines. V.T.C.S. art 4450.
Although there is broad language in Ex parte Ernest, 136 S.W.2d 595 (Tex. Crim.
1940), to the effect that our statutes should not be construed to give a city or county
health officer jurisdiction over another city or county, the court was discussing out-of-
county duties assigned a city health officer by the city’s governing body. It was not
discussing the jurisdictional division between a county health officer and the health
officers of cities within the county. Nor was the court addressing the discharge of duties
as officers of the state under state contrd. The distinction is skrnificant Citv and
county health officers are not purely local officers, even though thYey are appointkd by
local bodies. White v. City of San Antodo, su a; see also Ci ty of Dallas v. Smith, supra.
-Cf. Attorney General Opinion G-816 (1939) (diet
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SUMMARY
Counties, not cities, are primarily responsible for the establishment
and maintenance of places to quarantine and treat tuberculosis and
venereal disease. The jurisdictions of city and county health
officers are ordnarily limited to municipal boundaries on the one
hand and unincorporated areas on the other, but when they are
acting as officers of the state, the Texas Board of Health has
power to determine their respective jurisdictions.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
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Honorable Henry Wade - Pege Four (NW-113)
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Swan Garrison
Rick Gilpin
Bruce Youngblood
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