Untitled Texas Attorney General Opinion

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Robert Salinas opinion No. ``-552
Supreme Court Building
Criminal District Attorney Pro Tern
P. 0. BOX 12548
Austin, TX. 78711. 2548 Hidalgo County Courthouse Re: Application of article
5121475-2501 Edinburg, Texas 78539 4477-1, V.T.C.S., minimum
Telex 9101874-1367 health standards to farms and
Telecopier 51214750266 farm workers; and related
questions
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 Dear Mr. Salinas:
21417424944
You have asked if article 4477-1, V.T.C.S., and Texas Department
4824 Alberta Ave.. Suite 160
of Health "Occupational Health Regulation No. 2" are applicable to
El Paso, TX. 79905.2793 farmers and ranchers and their workers. The statute, enacted in 1945,
91515333484 establishes "minimum requirements of sanitation and health protection
within the State of Texas." V.T.C.S. art. 4477-l 923; Acts 1945, 49th
Leg., ch. 178, at 234. The regulation, now codified as sections
1220 Dallas Ave., Suite 202
Houston, TX. 77002-6986
289.21 through 289.31 in title 25 of the Texas Administrative Code,
7131650-0666 was first promulgated in 1957.
Article 4477-1, V.T.C.S., is generally applicable to the entire
806 Broadway, Suite 312 state and to all of the people and legal entities in it. The statute
Lubbock, TX. 79401.3479
8061747.5238
provides in section 4(a), for instance, that "all premises" occupied
or used for residential, business, or pleasure purposes be kept in a
sanitary condition. But some of its requirements are expressly
4309 N. Tenth, Suite B applicable only to facilities or operations of a special type. See,
McAllen, TX. 78501-1685 s. section 15 (swimming pools and bath houses), section 16 (school
5121682.4547
houses and grounds), section 17 (tourist courts, hotels, inns and
rooming houses), section 18 (fair grounds, public parks and amusement
200 Main Plaza, Suite 400 grounds), and section 19 (industrial establishments). Farms, ranches,
San Antonio, TX. 78205-2797 and fields, etc., are not expressly mentioned, but several statutory
5121225.4191 provisions are applicable only "in populous areasl' [id. 992(b), 2(j),
5b)l, or within the limits of a city, town or village [id. 52(h)], or
An Equal OpportunityI within an unincorporated village [id.
- $71.
Affirmative Action Employer
Express authority for the Texas Board of Health Resources to
adopt rules consistent with the intent and purposes of article 4477-l
in particular, and to establish standards and procedures for the
management and control of sanitary and health protective measures
thereunder, was not added until 1977 [& 923(b); Acts 1977, 65th
Leg., ch. 456 at, 11891, but we are of the opinion that the board
already possessed implied power to do so. See V.T.C.S. art. 4419;
Attorney General Opinion O-7131 (1946). Our concern is only with the
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scope of particular statutory provisions and administrative
regulations, i.e., whether agricultural locales and endeavors are
embraced thereby. You are particularly concerned with promulgated
requirements that certain drinking water facilities and toilet
facilities be provided for workers.
The statute itself, section 10(a), specifies that all drinking
water for public use "shall be free from deleterious matter and shall
comply with the standards established therefor by the State Department
of Health or the United States Public Health Service." This
requirement is not limited to particular persons or areas; it applies
alike to all. Similarly, section 10(b) applies to everyone,
everywhere in the state. It provides:
The use of the common drinking cup is hereby
prohibited in this state. No drinking water shall
be served except in sanitary containers or through
other sanitary mediums. (Emphasis added).
Thus. article 4477-1, without the aid of administrative
regulations, is sufficiently specific to make inconsistent practices
on farms illegal and subject to fine. -Id. 824.
The provision of toilet facilities on farms is another matter.
The statute itself does not require that particular toilet facilities
be maintained for agricultural workers located in non-populous areas,
although section 4(a) does require that every premises occupied or
used for residential, business, or pleasure purposes be kept in a
sanitary condition. Conversely, the statute does mandate that "all
human excretion in populous areas must be disposed of through properly
managed sewers, treatment tanks, chemical toilets, approved privies,
or by other methods approved by the State Department of Health." Id.
95(a). See also V.T.C.S. art. 4477-1, §6 (operators. managers%
superintendents of public buildings, school houses, theaters, filling
stations, tourist courts, bus stations and taverns to provide and
maintain sanitary toilet accomodations).
Notwithstanding the failure of the statute to speak directly to
the matter, we are confident the board of health (now the Texas Board
of Health Resources, see V.T.C.S. art. 4418g) is empowered to
reasonably promulgate rules and regulations defining the sort of
toilet facilities necessary in rural areas or agricultural settings to
keep the premises in a sanitary condition. V.T.C.S. art. 4477-l
523(b). Whether "Occupational Health Regulation No. 2" does so is a
different question.
The scope of "Occupational Health Regulation No. 2," first
promulgated in 1957, is stated by the regulation itself: "This
regulation applies to all industrial establishments." (Emphasis
added). 25 Tex. Adm. Code 9289.21(a). Its self-described purpose is
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Honorable Robert Salinas - Page 3 (MW-552)
"to prescribe minimum environmental requirements for the protection of
the health of employees in industrial establishments." (Emphasis
added). 25 Tex. Adm. Code 5289.21(b). An "industrial establishment"
is defined as "an institution, a place, building or location related
to manufactures or to the product of industry or labor." (Emphasis
added). 25 Tex. Adm. Code $289.22. "Places of employment" is a term
defined by the regulation as any place where two or more persons are
directly or indirectly employed by another for direct gain or profit.
The definition of "industrial establishments" refers to the limited
definition of "places of employment" but does not incorporate it as a
part of its own definition.
We must determine whether farms and other agricultural settings
come within this regulatory definition of "industrial establishment."
Administrative renulations are tested bv the same orincioles of
construction as statutes. Texas Liquor Control Board v. Attic Club,
Inc., 457 S.W.2d 41 (Tex. 1970); Lloyd A. Fry Roofing Company v.
@, 541 S.W.2d 639 (Tex. Civ. App. - Dallas 1976, writ ref'd
n.r.e.). In this state statutory words in common use will ordinarily
be read according to their natural, normal, and popular meaning unless
a contrary meaning is clearly apparent from the context. See V.T.C.S.
art. 10. §l; 53 Tex. Jur.2d Statutes §148, at 215. Applying these
tests, it is our opinion that farms and ranches devoted solely to the
production and harvesting of agricultural crops or livestock, and not
to the industrial processing thereof, are not ordinarily institutions,
places, buildings or locations "related to manufactures or to the
product of industry and labor" within the meaning of the Texas
Department of Healtb Resources "Occupational Health Regulation No. 2."
The definition of "industrial establishment" used by the
regulation is derived from a definition of "industrial" quoted in
Attorney General Opinion V-227 (1947). In that opinion, the state
health officer was concerned about his authority to make health and
sanitary surveys of "all establishments maintaining paid employees."
He asked if the term "industrial establishments" as used in section
19(c) of article 4477-1, V.T.C.S., was broad enough to include every
place of employment of any kind.
Attorney General Price Daniel advised him that not merely
subsection (c), but all three subsections of section 19 of the act,
and article 4420, V.T.C.S., must be read together to ascertain his
authority to make such surveys. The latter statute, article 4420,
authorizes the board of health or its agents to enter into, examine,
investigate, inspect and view any location affected with a public
interest. See Attorney General Opinion H-1126 (1978). Although
subsection 19(c) of article 4477-l expressly authorized the department
of health to make health and sanitary surveys and studies of only
"industrial establishments," the attorney general opinion advised that
"[tlhe term 'industrial establishments' constitutes no limitation on
the kind of place which may be entered because of the all-inclusive
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Honorable Robert Salinas - Page 4 (MW-552)
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...." (Emphasis added).
The attorney general did not there say that the term "industrial
establishments" included all such places; he indicated that the board
of health possessed broad survey powers notwithstanding the limited
scope of that term. In State v. Smith, 111 S.W.2d 513, 515 (MO.
1938). the Missouri Supreme Court observed:
The ordinarily accepted use of the phrase
'commercial establishment' denotes a place where
conrmoditiesare exchanged, bought or sold, while
the ordinarily accepted meaning of the phrase
'industrial establishment' denotes a place of
business 'which employs much labor and capital and
is a distinct branch of trade; as the sugar
industry.' Webster's New International
Dictionary. (Emphasis added).
The definition of "industrial" used in Attorney General Opinion
V-227 (1947) and thereafter adopted by the health regulation as its
"industrial establishment" definition was taken from the case of
Louisville and N.R.Company v. Fulgham, 8 So. 803 (Ala. 1891), as
annotated in Words and Phrases. That case considered a statute which
allowed railroads to give special rates to "aid in the development of
any industrial enterprise in this state." The court said: "It cannot
be disputed that 'industrial enterprises' includes all kinds of
manufacturing. Mr. Worcester defines 'industrial' as relating to
manufactures or to the product of industry or labor." &, at 804.
Since the plaintiff was a miller engaged in "the manufacture of corn
into meal," the court held he was entitled to soecial rates. In North
Whittier Heights Citrus Association v. National Labor Relations Board,
109 F.2d 76 (9th Cir. 1940), the court observed at 80:
Industrial activity commonly means the
treatment or processing of raw products in
factories. When the product of the soil leaves
the farmer, as such, and enters a factory for
processing and marketing it has entered upon the
status of 'industry'.
Cf. Maryland Casualty Company v. Dobbs, 70 S.W.2d 751 (Tex. Civ. App.
- San Antonio 1934, writ dism'd) (one employed by company engaged to
spray orchards for insects not a farm laborer). In Wayland v. Kleck.
112 P.2d 207 (Ariz. 1941). the Supreme Court of Arizona noted at 209:
[Mlany activities connected with the preparation
of farm products for use or sale which formerly
were carried on upon the farm or in intimate
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connection with it, such as the making of butter,
cheese and cider have gradually become specialized
and removed from the farm, and when this is done
such work may properly be regarded as thereby
becoming industrial in nature rather than
agricultural in the common conception of that
term. (Emphasis added).
See also In re Ginsburg, 255 F.2d 358 (3rd Cir. 1958); California
Employment Commission v. Butte County Rice Growers Association, 154
P.2d 892 (Cal. 1944).
We think article 4477-1, V.T.C.S., plainly draws a distinction
between "industrial establishments" and other kinds of commercial or
business establishments, section 19, and that it impliedly draws
distinctions between activities conducted in populous urban and
non-populous rural settings. While the Department of Health Resources
possesses ample authority to regulate sanitary conditions in all
establishments or places of employment located anywhere in the state,
in doing so it must take into consideration the differences among them
that the legislature obviously had in mind when the statute was
enacted. We think the department did so when it promulgated
"Occupational Health Regulation No. 2." It limited application of the
regulation to "industrial establishments," and tailored the regulatory
requirements -- some of which (particularly toilet facilities) would
be wholly impractical to administer on most farms and ranches -- to
establishments of that character.
It is our opinion, therefore, that article 4477-1, V.T.C.S., is
applicable to farms, ranches and agricultural work places but that
Texas Department of Health Resources "Occupational Health Regulation
No. 2" excludes most farms and ranches from its intended operation.
SUMMARY
Article 4477-1, V.T.C.S., establishing minimum
requirements of sanitation and health protection,
is applicable to farms, ranches, and agricultural
workplaces, but "Occupational Health Regulation
No. 2" excludes most farms and ranches from its
intended operation.
s/g
Attorney General of Texas
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Honorable Robert Salinas - Page 6 (MW-552)
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Bruce Youngblood
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