Dr. James E. Peavy Opinion No. c-489:
Commissioner of Health
Texas State Department Re: Whether the effect of Senate
of Health Bill 130, codified as Art.
Austin, Texas 4477-12, Vernon's Civil
Statutes, is to transfer to
the Texas State Department
of Health all responsibilities,
powers, and duties concerning
State Tuberculosis Hospitals
which were previously vested
In the Board for Texas State
Hospitals and Special Schools
Dear Dr. Peavy: and,related questions.
Your letter of August 5, 1965, requesting an opinion of
this office reads in part as follows:
II. . .
"In view of the above two statutes (Article
4477-12 and Article 3174b, Section 10, Vernon's
Civil Statutes) and the seeming conflict, we would
like a clarification as to who shall approve the
accounts for those hospitals (State Tuberculosis
Hospitals) that have been transferred to the State
Department of Health from the Board for Texas State
Hospitals and Special Schools.
"Further we need your opinion as to whether
the effect of Senate Bill 130, now codified as
Article 4477-12, V.C.S., was to transfer to the
Texas State Department of Health all responsibilities,
powers, and duties concerning the-ate Tuberculosis
Hospitals which were previously vested in the Board
for Texas State Hospitals and Special Schools.
"A further question on which we would ap-
preciate your opinion is whether this transfer
altered the statutory authority previously vested
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Dr. James E. Peavy, page 2 tc-489)
in specific positions, for example, superintendents
and business managers in the hospitals themselves
and if it did in any case whether the Commissioner
of Health, being the executive head of the Texas
State Department of Health, can delegate any au-
thority vested in the Texas State Department of
Health to specific hospital or Health Department
personnel.
"In summary we would appreciate your opinion
regarding the following questions:
"1. Was the effect of Senate Bill 130, now
codified as Article 4477-12, V.C.S., to transfer
to the Texas State Department of Health all res-
ponsibilities, powers, and duties concerning State
Tuberculosis Hospitals which were previously vested
in the Board for Texas State Hospitals and Special
Schools?
"2. Did this transfer alter, amend, or re-
peal previously existing statutes relating to the
hospitals themselves and their personnel?
“3. If the answer to question No. 2 is in
the affirmative, does the authority which previously
existed in statutes with reference to institutions
and institutional personnel now rest with the Texas
State Department of Health?
“4. Does the Commissioner of Health, as ex-
ecutive head of the Texas State Department of
Health, have the authority to delegate to institu-
tional or other Health Department personnel any
authority, power, duties, and responsibilities
which are legally vested in the Texas State Depart-
ment of Health?"
Senate Bill 130, Acts 59th Leg., Regular Session,
chapter 51, page 124, provides in part as follows:
"Section 1. From and after September 1,
1965, all tuberculosis hospitals In the custody
and control of the State Board for Hospitals and
Special Schools shall be transferred to the State
Health Department. This transfer is made to unify
and consolidate the responsibility and functions
of tuberculosis case finding and follow-up with
treatment and cure of the disease. From and
after September 1, 1965, the custody, control,
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Dr. James E. Peavy, page 3 @+a9)
maintenance and operation of all tuberculosis hos-
pitals maintained by the State of Texas shall be
under the Jurisdiction and control of the State
Board of Health and all responsibilities, powers
and duties concerning the care and treatment of
those afflicted with tuberculosis heretofore pos-
sessed by the Board for Texas State Hospitals
and Special Schools are hereby transferred to the
State Health Department, Including all powers
provided in House Bill No. 421, Acts of the 56th
Legislature, Regular Session, 1959, Chapter 181,
codified in Vernon's as Article 4477-11, Vernon's
Civil Statutes.
'There shall be transferred to the State
Health Department from the State Board for Hospitals
and Special Schools all equipment, staff, inventory,
and perishable stores necessary to insure the con-
tinual functioning of all state tuberculosis hospitals
without interruption. This transfer shall also in-
clude the transfer to the State Health Department
of all personnel employed by the Board for Hospitals
and Special Schools in its tuberculosis program,
authorized salary rates for employment of personnel
and all appropriations made to the Texas State Board
for Hospitals and Special Schools for the operation
of tuberculosis hospitals. This transfer shall be
made effective September 1, 1965.”
"Sec. 2. The State Board of Health may con-
tract for the support, maintenance, care and treat-
ment of tubercular patients admitted to any facilities
under the jurisdiction of the Board and/or for the
support, maintenance, care and treatment of tubercular
patients under its jurisdiction. Such contract may
be between the Board and city, county and state
hospitals, private physicians, licensed nursing homes
and hospitals and hospital districts, and the State
Board of Health may contract for such existing
diagnostic and other services~available in a com-
munity or region as deemed necessary to prevent
further spread of tuberculosis. Full development
of these essential services needed for the con-
trol of tuberculosis is the responsibility of
the State Board of Health.
II
. . .
'From and after the effective date of this
Act, the Board for Texas State Hospitals and Special
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Dr. James E. Peavy, page 4 (Cd@)
Schools shall not have the authority to contract
for the support, maintenance, care and treatment
of tubercular patients committed to the State Board
of Health. Provided, however, nothing herein shall
affect the contractual obligations created by the
Board for Texas State Hospitals and Special Schools
prior to the effective date of this Act for the
support, maintenance, care and treatment of tuber-
cular patients, and all such contractual obligations
on behalf of the state created by the Board for
Texas State Hospitals and Special Schools prior
to the effective date of this Act, pursuant to
the provisions of Acts of the 58th Legislature,
Regular Session, 1963, Chapter 43, codified in
Vernon's as Article 317&b-5, Vernon's Civil Statutes,
shall be performed and carried out by the State
Board of Health."
II
. . .
'Sec. a. The Commissioner of Health, upon
the recommendation of the State Board of Health
and with the advice of the Tuberculosis Advisory
Committee, shall appoint a Director of the Division
of Tuberculosis Services, who shall be a person
licensed to practice medicine in this state, with
a comprehensive knowledge of tuberculosis control
and management, to carry out the provisions of
this Act and to perform such other duties as may
be imposed upon the State Department of Health, re-
lating to the prevention, control and eradication
of the disease of tuberculosis and to the care and
treatment of those afflicted with tuberculosis.
The Commissioner of Health and the State Board of
Health are directed to confer with and seek the
advice of the Tuberculosis Advisory Committee
hereinafter provided for.
"The Commissioner of Health is hereby au-
thorized to employ such additional personnel as
he deems necessary in the performance of his du-
ties concerning the enforcement of the provisions
of this Act and relating to the prevention, cont;rol
and eradication of the disease of tuberculosis.
In answer to your first question It is our opinion
that the clear and unambiguous language of Section 1 and 2,
Article 4477-12 as quoted above, effectively transfers to the
Texas State Department of Health all responsibilities, powers,
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Dr. James E. Peavy, page’5 (C- 489)
and duties concerning State Tuberculosis Hospitals which were
previously vested in the Board for Texas State Hospitals and
Special Schools.
Article 4477-12 was enacted by the Legislature as
Senate Bill No. 130, Acts 59th Legislature, 1965, and, as it
appears in the Session Laws, the Act contained no repealing clause.
Section 1 of such Article not only transfers custody and control
of all state tuberculosis hospitals from the Board for Texas
State Hospitals and Special Schools to the State Department of
Health, it specifically confers upon the State Department of
Health all powers, duties and responsibilities relating to the
care and treatment of persons infected with tuberculosis which
were possessed by the Board for Texas State Hospitals and
Special Schools, In addition, Section 10 of Article 4477-12
provides that its provisions are to be cumulative of the provisions
of Article 4477-11 and of all other powers now possessed by the
State Department of Health relating to the care and treatment of
persons infected with tuberculosis. Therefore in answer to your
second question, you are hereby advised that in our opinion
existing statutes relating to the various State tuberculosis
hospitals and their personnel were repealed by Article 4477-12
only to the extent of any conflict or inconsistency. 53 Tex.
Jur.2d 146-148, Statutes B 100 and cases there cited.
In view of our answer to your second question and the
clear intent expressed by the Legislature in Section 1 of Article
4477-12 that the State Department of Health be invested with all
powers in this area which were previously conferred upon the
Board for Texas State Hospitals and Special Schools, In answer
to your third question it is our opinion that from and after the
effective date of Article 4477-12 the State Department of Health
will be vested with all statutory authority previously reposed
in the Board for Texas State Hospitals and Special Schools with
regard to the subject of State tuberculosis hospitals and the
care and treatment of persons infected with such disease.
Section 8 of Article 4477-12, as quoted above, pro-
vides that the Commissioner of Health shall appoint a Director
of Tuberculosis Services. It is our opinion that the Commissioner
of Health is required to delegate to said Director the authority
to carry out the provisions of the Act and to,perform such other
duties as may be imposed upon the State Department of Health re-
garding the subject matter of the Act. Also, such additional per-
sonnel as the Commissioner may deem necessary to enforce the Act
may be employed. We would further point out that under Article
4418d, Vernon's Civil Statutes, the Commissioner has the general
power to appoint directors of divisions and employees, to designate
their duties and supervise their work in relation to the performance
of duties.
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Dr. James E. Peavy, page 6 (C-489)
SUMMARY
(1) Article 4477-11, Vernon's Civil Statutes,
effectively transfers to the Texas State Department
of Health all responsibilities, powers, and duties
concerning State Tuberculosis Hospitals which were
previously vested in the Board for Texas State Hos-
pitals and Special Schools.
(2) Existing statutes relating to State
tuberculosis hospitals and the care and treatment
of persons infected with tuberculosis are repealed
by Article 4477-12 only to the extent of any con-
flict or inconsistency.
(3) The Texas State Department of Health is
granted all authority which previously existed with
the Board for Texas StateXospStZis mrL %p-&&L
Schools over State tuberculosis hospitals and per-
sonnel employed in the tuberculosis program.
(4) The Commissioner of Health may delegate
authority to carry out provisions of the Act in
accordance with Section 8, Article 4477-12 and
Article 4418d, Vernon's Civil Statutes.
Very truly yours,
WAGGONER CARR
Attorney General
By:
Gordon Houser
GH:mkh Assistant
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
John Reeves
James Broadhurst
Paul Phy
Kerns Taylor
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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