Untitled Texas Attorney General Opinion ( 1947 )

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R-392
THE ATTORNEY GENERAL
QP TEXAS
AUSTIN z1.W~
PRICE DANIEL
ATTORNEYGENERAL
May 29, 1947
Honorable Geo. W. Cox, M.D. Opinion No. v-227
State Health Officer
Texas State Hoard of Health Re: Right of entry by State Health
Austfn, Texas Officer into Industrial estab-
lishments and meaning of Sec-
Dear Si.r: tion 19 of Article 4477-1,
V.C.S., in that regard.
Reference IS made to your letter of April 17, 1947, in
which you request an oplnlon of this office answerlng the follow-
ing%
"In Title 71, Article 4477-1, Section 19
(c), the Texas State Department of Health is
directed to make health and sanl'cargsurveys
and studies of industrial establishments. It
would be appreciated if you would render us an
oplnlon as to whether this assignment of work
includes the right of entry Into all Industrial
establishments in Texas. It would also be ap-
preciated if you would provlde us with a legal
deflnitlon of 'Industrial' as It Is used in
Section 19. We realize the;e is some present
confusion relative to the extension of coverage.
"Under the word 'industrIalI we ar,eape-
clflcally desirous to know whether or not this
would Include all establishments malntalnlng
paid employees."
Section 19 of Article 4477-1, Vernon's civil Statutes,
is as follows:
"Sec. 19. (a) No person, firm, corpor-
atlon or other employer shall use, or permit to
be used in the conduct of an?fbusiness, manufac-
turing establishments or other olaces of emolou-
d, any process, material, or condition known
to have any possible adverse effect on the health
of any person or persons employed therein unless
arrangements have been made to maintain the OCCU-
pational environment to the extent that such in-
jury will not result. Every Industrial eatablish-
ment shall be continually malntalned in a sanitary
condition. (Emphasis ours)
.
Hon. Geo. W. Cox, M.D. , page 2 v-227
"(b) The Texas State Department of Health
shall make available to the citizens of Texas cur-
rent information concerning minimum allowable con-
centrations of toxic gases and such environmental
standards as may pertain to the health and safety
of the employees of industrial estabi.ishmentsin
this state.
"(c) The Texas State Department of Health
shall make health and sanitary surveys and studies
of industrial establishments including such special
items ,as water supplies and d~istribution,waste
disposal, adverse conditions caused by processes
which may be responsible for or cause ill health
of industrial workers. Such Texas State Department
of Health shall bring to the attention of each sur-
veyed establishment a summary of the studies and
findings resultant thereof, together with any recom-
mendations which may be deemed necessary for the
adequate protection of the health, safety and well-
being of the workers."
All three sub-sections of Section 19 and Article 4420,
R.S. 1925 must be read and construed together. Sub-section (a)
is a regulatory penal staute for the protection of the health and
safety of persons employed in places such as are enumerated in that
section. The penalty for violation is fixed in Section 24. Sub-
sections (b) and (c) charge the State Department of Health w'lth
duty to make health and sanitary surveys and studies,as a fact find-
ing agency of the State. Article 4420, R.S. 1925, is as follows:
"The members of the State Board of Health
or any person duly authorized,by them, upon pre-
sentation of proper authority in writing, are
hereby empowered, whenever they may deem It neces-
sary in pursuance of their duties, to enter into,
examine, investigate, inspect and view any ground,
public building, factory, slaughter house, pack-
ing house, abattoir, dairy, bakery, manufactory,
hotel, restaurant and any other public place and
public buLldIng where they deem it proper to enter
for the discovery and suppression of disease and
for the enforcement of the rules of the sanitary
code for Texas and of any health law, sS)nitarylaw
or quarantine regulation of this State.
The case of Leach vs. Coleman, 188 S.W. 2d., 220, (writ
refused) involved the question of the authority of a Health Officer
to enter and make inspections of a dairy barn. After such inspec-
tion, the permit to sell milk was summarily revoked. The Court of
Civil Appeals said:
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Hon. Geo. W. Cox, M.D. , page 3 V-227
"A health officer who is expected to accom-
plish any results mst necessarily possess large
powers and be endowed with the right to take sum-
mary action, which at times must trench closely
upon despotic rule. The public health cannot wait
upon the slow processes of a legislative body, or
the leisurely deliberation of a court. Executive
boards or officers, who can deal at once with the
emergency under general principles laid down by the
lawmaking body, must exist if the public health is
to be preserved in great cities. Low v. Conrog, 120
Wis. 151, 97 N.W. 942, 66 L.R.A. 907, 102 Am. St.
Rep. 983 (1 Ann. Cas. 341 . It is well said in
People (ex rel. Lieberman1 v. Vandecarr, t;',,".Y.
440, 67 N.E. 913, 108 Am. St. Rep. 781:
vesting of powers more or less arbitrary in various
officials and boards is necessary if the work of
prevention and regulation is to ward off fevers,
pestilence, and the many other ills that constantly
menace great centers of population'".
We are of the opinion that Texas Department of Health,
or any person authorized by It, may enter into all industrial
establishments, manufacturing establishments or other places of
employment in Texas, pursuant to their duties in making health
and sanitary surveys for discovery and suppression of disease or
enforcement of the health and sanitary codes of the State of Texas.
The term "industrial establishments" constitutes no limi-
tation on the kind of place which may be entered, because of the
all-inclusive language of the laws specifying the powers and duties
of the Texas State Board of Health in the protection of the health
and welfare of the people, expressly including persons employed
in any "manufacturing establishment or other place of employment."
(Emphasis added)
"Industrial" is defined as "relating to manufactures,
or to the product of industry or labor", Words and Phrases, Vol.
21, p. 225. "Establishment", when not restricted by specific men-
tion of some particular kind of establishment such as mercantite
or other, means an "institution, place, building, or location.
Words and Phrases, Vol. 15, p. 179.
Obviously, neither the Legislature nor this Department
can write a definition which will cover each fact situation in de-
tall, but we trust this will answer your question generally, and
that you will call upon us for assistance on specific cases when
necessary.
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Hon. Geo. W. Cox, M.D. , page 4 V-227
SUMMARY
The State Department of Health is authorized
to enter all industrial establishments and manufac-
turing establishments or other places of employment
in the State of Texas to make health and sanitary
surveys and studies under the provisions of Sec. 19,
Art. 4477,-l,V.C.S., and Art. 4420 R.S. 1925. The
term "industrial establishment" means an Institution,
place, building or location related to manufactures
or to the product,of industry or labor.
Yours very truly,
ATTORREY GENERAL OF TEXAS
By s/W.T. Williams
W. T. Williams
Assistant
WTW:jrb:wc
APPROVED
s/Price Daniel
ATTORNEY GENERAL