Untitled Texas Attorney General Opinion ( 1942 )

Honorable Dan W. Jackson
Crlmlnal District Attorney
Houston, Texas
Dear Sir: Attention: Hon. W. K. Rlahardson_
Oplnlon Wo. O-4533
F@: Csnthe county health officer
and/or city health officer
under Artlale 705c, Penal Code,
ddmand.that an actual Wasserman
or'blood test be made for
~syphllls;and an aotual smear
taken for gonorrhea? And-re-
lated questions. . ..
you have'rsquested-our opinion on various questions
"involving the,interpretation of Artlale 70%~ of Vernon's Re-
vised Penal Code of 1995; For-the purposes of ~.thls.oplnlon,
we will quote the applloable provisions of -this statute, ad
then restate.your questions, -nid:snswereaoh'ln turn:
%eotlon 1, No person, firm, corporation,
commoncarrier or assoolatlon operating, managing,.
or conduotlng 'anyhotel 'orany.other public sleeping
or 'eatingplaoe or any plaoe or:vehiole where food
or drink or containers therefor, of any king, Is
manufactured, transferred; prepared, stored, paoked
served, sold, or otherwise handled ln this State, or
any manufacturer or vendor of candies'or manufactured
sweets, shall work, employ, or keep ln their employ,
ln, on or about any said pla6e or vehicle, or have
delivered any artlole therefrom, any personinfected
with any transmissible condition of any lnfeotlous
or oontaglous disease, or work, or employ any person
to work In, on or about.any said place, or to deliver
any artiole therefrom, who, at the time of his or her
employment, failed to deliver to the employer or‘his
agent, a aertiflcate signed by a~legally licensed
physlcLn, residing in the county where~said person
is to be employed, or is.employed, attesting thenfact
tha~tthe bearer had been'actually and'thoroughly
examined by such physician within a week prior to
the time of su6h employment, and~that such examination
disclosed the fact that such nerson to be emploved
.
.
Honorable Dan W. Jaokson, Att%: Mr. Riohardson, Page 2
o-4533
was free from~any transmissible oondltion of any
infectious or contagious disease; or fail to institute
and have made, at intervals of t&me not exoeeing six
months, actual and thorough examinations, essential to
the findings of freedomfrom aommunioable and lnfeotious
diseases, of all such employees, by a legally licensed
physician residing in the county where said person is
employed, and secure in evldenoe thereof a certificate
signed by suoh physici,anstating that suah examinations
had been made of such person, disoloslng the fact that
he or she was free from any transmissible oonaition of
any communicable and infeatious disease.
". . .
%x. 3.~ All health certificates called for by
this Act shall be displayed for publio lnspeotion at
the place where the person named thereon is employed,
and shall not be removed from suoh plaoe during the
aontinuanoe of suah employment exoept by a public health
officer, his duly appointed agent, or upon val'ld court
order. All such oertlflbates shall bear the employee's
slgnature,the name of the physiolana exeouting examl-
nations and tests, and shall.describe the oolor of eyes,
and hair; height,,weight, race, sex, age, and date of
lssuanoe,'and shall be valid for six months only. Publla
health departments, and looal lawmaking bodies, are
hereby authorleed to establish suab further rules,
regulations ana ordinanoes as they may deem essential
to the execution of the intentions of this Act; providing,.
however, that all oonaitions of this hot shall be re-
quisite to all such regulations and ordinanoes, exaept,
that the said authorities may adopt a plan for the
registration of the physicians( certificates required by
this Adt and in.lieu thereof issue a registration aard
to show that the person named thereon has complied with
all of the provisions of this Aot;.providing further that
the said registration card must bear the signature of the
person named thereon and shall be dieplayed'for public
inspsotion at the place where suoh a person is employed.
"Sea. 4. The failure of sny person, firm,
corporation, oommon~carrier or association engaged ln
any of the businesses'described in thisAct, to display
at the placb where any of the operations of~suoh
businesses are being oonduated a valid health or
rbgis;ratJ.onOertificate, as required by this hot, for
eaoh person employed in, on, or about suoh pPaae, shall
be prima faoie evidenoe that the said person, firm,
corporation, *ommon oarrier or assooiation, in violation
of requirements called .for by this hat, failed to require
Honorable Dan W. Jackson, Att~n,:.Mr.Richardson, Page.3
..
04533
the exhibition of the ire-employment.health
certifioate,.of suoh person and tailed to institute
and have maat5of suah person, aotual ana thorough
examInatIons necessary'to.the finds of freedom from
oommunioable~ais.ea~ses
at intervals of time not ex-
ceeding six months.
"Sea. 5. Whoever.violates any provision of
this Act shall be fined In,an amount not exoeeding
Two Hundred Dollars '($2CO). Each act or ommlssion in.
violation of any of the.provlslons'of this ArtIble,
shall oonstitute a separate offense and shall be
punishable as hereinabove presaribed.
n.
. . . ."
&RS``~‘NO. .li.' Cax'the County Health Officer and/
or Glty Healith Officer; under Se&ion 1 of the s'tatute,'de-
mand thatan a&ual'Wasserman.or blood test be made for
.syphIlls,.a``d an actual ,smear-takenfor'gonorrhea? ',
This .questIon Is &swered in the negative by our
Opinions No. O-213 and No. C-1138, copies of whioh are
attached hereto. ~.
: QURSTIOW WTO.2': If Question No. 1 Is answered'
Is the physloIan~who~Issues the certificates without
z:kg the blood,test and smear s~ubjeatto.any penalty if
It Is late'rproved that the emplomso alleged to'.havebeen
examined by said physioian actually had syphilis or
gonorrhea atthe time of dxami.natlonP
This question Is answered In the negative by'our
Opinion No. O-1585, a,copy of whioh Is also attaahed hereto.
QUESTION NO. 3: sunder Seotlon 3 above quoted, are
oounty health offioers and/or city health officers authorized
to Issue regulations aemanaing~blooa tests to determine the
presence of syphilis and smears to,determIne the presence'of
gonorrhea? If they cannot, then what~officers or departments
and aoula they issue
oan issue ~regu.lations:; 'regulationsaemand-
Ing blood teststo determine tha presence of syphIlIs and
smears to determine the presenoe of gonorrhea?
InvIew of~the faatthat the ~only "pub1I.ohealth
departmentl'.crea~ted
by law inthis State Is.the State Depart-
m&t of,Publio Health,oreated by hrtlole 4414a, v.A.CA., and
which consists of the State Board of~liealth,the..StateHealth
Officer andhis a3mInlstratIve staff, and'the further fact
that the State Departmentof Ptib1i.aHealth is'given "general
supervision and-aontrol of all matters'pertaining to-the
Honorable Dan W. Jaokson, Attchi Wr. Richardson, Page 4
-6e!m
o-4 533
health of oitliens of this Stiite;'asYproviaeahereIn,n
(Artlole 4419, R.C.S.) we.think~the Legislature In using
the nrords "pub110 health depal'tmentsz'oouldonly have meant
the State Department of Publio Health. While provision is
made by the'statutes for county health officers (Artioles
4422-4423) and city health offiaers (Artioles 4424-4425),
there is-no statute making any provision for .a county or
oity department of Health. Furthermore, such offloers are
officers .of the State. White v. City of San'AntonIa, 94
Tex. 313, 60 S.W. 427. Each of.such .offIcersis amenable
to the'rules and-regulations of the State .Roard.of Health.
(Artioles 4427-4432, R. C. S.) This being true, It might.
logioally bc- said that such offioers 'are members .of the.
administrative staff of the State Health Officer. In ang
event, we thInk.the State Health Department fs the only
department that oould have been Inaluded In the language of
Artiole 705c. We' are therefore of the .opInion that the
State Department of Publlo Health Is authorized by this
act to establish suoh rules and regulations requiring such
laboratory tests for syphilis and gonorrhea as that depart-
ment ~deemsessentlal to the .executIon of the Intentions of
the suet.
The same rule applies to the delegation of law-
making powerto "local lawmaking bodies." We know of no
local lawmaking bodies ,wIthInthIs State.whIah oould reason-
ably~beheld within:the purview of this 'provision,other ~'.
thsn the looal governing bodies of Incorporated oitles; towns
and villages, who have restrI&ed powers to enact legislation
(ordinances) affeotIngtheIr respective jurisdiotions. And
the power of the Legislature, to delegate to aities, towns
and vllleges, its.authority to make laws for the protection
of the public health, Is amply upheld .bythe.opinion of the
San Antonio Court of Civil Appeals in the case of Haneel,
et,al., v. City of San Antonio,
.- et al., 221 S.W. 237;
"If the ordinance that is 'assailedby appellants
is one.enacted;.not for the purpose of the ,oollectIon
of taxes or public revenues, but for sanitary purposes
and proteation'of the health of the publlo,.it Is not
unconstitutional. The power to enact laws for these
purposes is Inherent In every sovereignty, end can.be
delegated by such sovereignty to agencies created by
it for suoh purposes. The power to require licenses for
the protestion of the publIc,health, decency, and ~morals,
may be exercisbd by the state direatly, or it may be
done indirectly thrixqh a'municipa!~corporation created
~by the state and clothed with such authority. Cooley
on Taxation, c. 19;.pp. 1125-1138.L
This fs an exhaustive Opb%.oi Ofi, thi.8 qUeSt&Oti, C%thg
- . -
Honorable Dsn W. Jaokson,~Att'nr Mr. Richardson, Page 5
many authorities. Writ of error was refused-by the Supreme
court. To the same effeot~is our OpInIon No. 0-720, a copy
of whIch.Is.attaahed hereto.,
It is our opinion that under the.provisions of'said
Artiole 705c, and under the general police power, the govern-
Ing bodies of incorporated.Texas cities, towns and villages
are authorized to enact ordinances designed to effectually
prevent the spread of venereal diseases (provided, of-course,
that such ordinances do notconfliot with the terms of said
artlole), and that such ordInances.may specify and require
any reasonable testsfor the.detection of~syphilis and
gonorrhea.
QUESTION NO. 4: What is meant by the.provision,
In said Seotion.3, thatthe said authorltIes may adopt a
plan for the'reglstration of.the physiclan*s.:certIflcate
and In lieu thereof, Issue a.registratIon card? .,..
"Registration Is the act of-qaking a'list, oata-
logue, schedule or register6 'The.word``regIstratIon~Is an
ordinary one. It Is used in ageneric sense, note technical.
" In re Supervisors of Election, 1 F. 1, 5. This
ici,*t];erefore,.give'sto the governing:body';ofevery IncorL.'
porated cIty,".townand village .the power to pass ordinanoes
adopting a plan:for the-making.ofa.lIst,:oatalogue;-sche-
dule or'register~of physicians certificates (commonly.called
"health cards-")'Issuedto Its constituents, under the pro-
visions of the.act, snd Issuing In place of each such certi-
ficate a card "to show that the-person named thereon has
complied with all the provisions of this hot." The mechanics
of the registration and.the issuance of the tiarasIs left to
.the discretion of the city commissioners or alderman, as the
ease may be. ':.i ,.
QUIWTION N.O.5: Can 'thephysician be fined for not
giving an actual, thorough examination where he Issues a
Grtlficate over .thetelephone or to the employee In person
-without an examination?
This question Is answered'In the negative by our
Opinion No. O-1585, cited above and atta~ohedhereto.;
QUESTION NO. 6: Can the'employer beg~&vi&d
(1) If he hires any person ~withouta health certifloate,,or
(2) hires any one with a health certificate knowing that sa1.d
employee,is infected, or,(3) hires an employe'ewho reoei ed,
a health certifioate without any examination at all? (41 can
the employee be oonvicted even though he or she has,a certi-
ficate',if it be proven that said employee did not take an
actual physical ex.amInatiOn,at the time knowing that he or
- -.. _
Honorable Dsn W. Jaokson, Att'n: Mr. Richardson, Page 6
~GF!iE3 _
she had a aontagious disease? ..
Since this &estion isreally four questions, we
have taken the liberty of subdividing It and numbering its
component parts, and will answer each by number.
Number (l).ls made an offense by the plain provi-
sions of the Act.
Number (2) Is also made an offense under the'hat,
roviadeathe employer knows that the employee Is Infected
a transmI.ssIblecondition of an Infectious or contagious
t+fai-
disease. ,
Numbers (3) and (4) are not made penal offenses by
any provision of this Act. But, relative to question number
(4) we respeatfully call.to your attention Article 704, Sec-
tion 1, Penal code of 1926,~as follows:
Whoever violates any provision of this article
shall-be fined not less than five nor more than.fifty
dollars:
"1. No person.infeated with a venereal dis-
-ease ahall kminringlyexpose another iminfection
with any venereal disease, or perform an.aot whloh
ez&ose~sanother person to infection with suoh disease.
". . . ."
'Yoursvery truly
Kl'TORNEYGENERhL OF TEXAS
81 IV'.
R. Allen
'WRA:MBR By ,. Wi R. hllen
malosures Assistant
APPRDVED JCRE 13; 1942
s/ Gerald C. Mann
ATTORNRyGRNRRAL OF TRXAS
~.
This opfnlon considered and approved In limited conference.