THE ATTORNEYGENERAL
OF TEXAS
Au- aa. - _.._.+-
WILL WILSON
A'ITO- ‘XENEILAL
July 26, 1960
Mr. Raymond W. Vowel1
Executive Director
Board for Texas State Hospitals
and Special Schools
Austin, Texas
opinion NO. ww- 896
Re: Whether the Board for
Texas State Hospitals and
Special Schools may le-
gally adopt appropriate
rules and regulations pro-
viding for the restraint
of patients who have volun-
tarily committed themselves
to the Board's care, when
such patients attempt to
leave the hospital while in
an active, contagious and
communicable state and re-
Dear Mr. Vowell: lated question.
We are in receipt of your letter dated June 27th in
which you requested an opinion from this office concern-
ing the following questions:
"1 . May this Board legally adopt
appropriate rules and regulations pro-
viding for the restraint of patients
who have voluntarily committed them-
selves to our care when such patient
attempts to leave the hospital while
in an active, contagious and communi-
cable state against medical advice?
"2 . If your answer to the above
is in the affirmative, would the heads
of the hospitals, in carrying out the
rules and regulations adopted by the
Mr. Raymond W. Vowell, page 2 (ww-896)
Board, be responsible in damages there-
for?"
In Attorney General’s Opinion O-7131 (1946) this
office passed on substantially the same question, that
is, the validity of the State Board of Health's passing
rules and regulations covering the detention for treat-
ment of persons having those communicable diseases
which in the opinion of the State Health Officer con-
stitute a real menace to public health. In that opinion
we held:
"The power of the Legislature to pre-
vent the introduction and spread of lnfec-
tious and contagious diseases cannot be
questioned, and, accordingly, health authori-
ties are usually empowered to take such action
as may be considered expedient to prevent the
outbreak of epidemic and communicable diseases.
Thus all rules and regulations adopted pursuant
to legislative authority, which are reasonably
calculated to.preserve the public health, are
valid The power to make quarantine regulations
is one of the most important conferred upon
health authorities and such regulations consti-
tute a proper exercise of the police power. These
general principles are so firmly entrenched in
our system of jurisprudence as to admit of no con-
jecture, and we therefore cite no cases to sus-
tain them. Your attention is directed to the
annotations in 2 A.L.R. 1539 and the legion of
cases there cited."
Section 2 of Article 4477-11 of Vernon's Civil Stat-
utes, which is styled as the "Texas Tuberculosis Code"
states as follows:
"It is the purpose of this Code to pro-
vide care and treatment for those afflicted
with tuberculosis, to facilitate their hos-
pitalization, and to enable them to obtain
,needed care."
The Legislature of the State of Texas in Section 4
of such statute provides that:
Mr. Vowell, page 3 (ml-896)
Raymond !,f.
"Tuberculosis in a contagious, infec-
tious, or communicable state is hereby de-
clared to be dangerous to public health."
In providing the duties of the Board for Texas
State Hospitals and Special Schools, the Legislature
enacted among other provisions Section 12 (b) which
states as follows:
"(b) The Board shall prepare and adopt
by-laws, rules,and regulations for the
government, control, and management of all
State tuberculosis hospitals, prescribing
the duties of all officers and employees,
and for enforcing the necessary discipline
and restraint of all patients." (Emphasis
added).
You state in your letter to us that your Board, which
is charged with the responsibility of caring for tuber-
culous patients, has become aware of the fact that many
patients who voluntarily admit themselves through the
county courts to tuberculosis hospitals and after re-
ceiving some treatment will absent themselves from these
hospitals while in an active, contagious and communi-
cable state and against medical advice. You mention that
the problem has become so acute that during the present
fiscal year, 541 or 44.5 percent of all discharged patients
have so absented themselves.
In seeking to ascertain the intent of the Legislature
at the time that House Bill 421, 56th Legislature, Regular
Session, which is now codified as Article 4477-11, Vernon's
Civil Statutes, was enacted, we must look to Sections 2
and 4 previously cited, as well as Section 5 of thi.sAct.
Section 5 Sets out in detail what is'to be done upon re-
ceipt of a report of a case of.tuberculosis to any local
health authority and the measures for protection of other
persons from infection by such diseased persons. It pro-
vides that such diseased person must place himself under
medical care from a licensed physician, hospital, or clinic
for treatment until such time that a certificate can be
furnished from such health authority that such person is
free from tuberculosis in an infectious or contagious state.
Mr. Raymond W. Vowell, page 4 (Ww-896)
Subsection (c) of Section 5 provides as follows:
"(c) Any person who violates the
provisions of Section 4 (d), or who fails
to follow the directions of the local
health authority, or who fails to follow
the directions of his attending physician
pursuant to Section 4 (c), or who in the
opinion of the local health authority can-
not be treated with reasanable safety to
the public, at home, may be quarantined, as
that term is hereinafter defined,'and the
local health authority may direct, pur-
suant to rules and regulations promulgated
by the Department, the removal of the person
to a suitable place for examination, and if
such persan is found to be infected with
tuberculosis in an infectious and contagious
state, then such person may be quarantined,
as that term is hereinafter defined, until
such person Is no longer in an infectious and
contagious state. (Emphasis added).
"Quarantine, as used in this Section,
means the limitation of movement and separa-
tion, duri,ngthat period of time while in-
fectious and contagious, from other persons
not so infected, In such places and under
such conditions as will prevent the direct
or indirect conveyance of such Infectious or
contagious condition to others not so infected.
"A person found to be infec'tedwith
tuberculosis in an infectious and contagious
state and quarantined under the provisions
of this Section may be placed in any place
suitable for the detention 'and segregation
required under the provisions of this Set-
tion. If suitable facilities are not avail-
able within the jurisdiction of the local
health authority, then in such event, the
person so quarantined may be transported to
a State tuberculosis hospital designated by
the Board. The Board is hereby empowered
and directed to provide suitable facilities
for detention of such individuals.
. . .#I
I,
Mr. Raymond W. Vowell, page 5 (W-896)
Subsection (6) of Section 5 provides:
"(d) It shall be the duty of all per-
sons infected with tuberculosis, or who,
from exposure to tuberculosis, may be liable
to endanger others who may come in contact
with them, to strictly observe 'such instruc-
tions as may be given them by any local
health authority of the State in order to
prevent the spread of tuberculosis.'
Section 6 provides as follows:
'Any person violating the provisions
of Sections 4 or 5 of this Act shall be
guilty of a misdemeanor and upon convic-
tion shall be punished by a fine of not
less than Fifty Dollars ($50.00) nor more
than Five Hundred Dollars ($500.00) and/or
by imprisonment in the county jail for not
more than thirty (30) days."
It Is our opinion that the provisions of the Act to
fight and control the disease of tuberculosis are clear.
While the Tuberculosis Code provides a method for volun-
tary admission by persons in a contagious condition with
this disease to State hospitals, this does not mean that
such persons remain in these tubercular hospitals as
guests and free to leave at their discretion, It Is our
opinion that the mode of admission to such hospitals is
only ancillary, for only one class of persons are eligible
to gain admittance and they are those who have tuberculo-
sis in an active, contagious and communicable state and who
cannot be treated safely in the community from which they
come. Once these persons are admitted either voluntarily
or involuntarily, your Board is charged with the duty and
the responsibility of caring for such persons until such
time as they can be pronounced free from this contagious
disease.
It is our further opinion that the Board for Texas
State Hospitals and Special Schools has the authority by
virtue of Subsection (b) of Section 12 of this Act to pro-
mulgate such rules and regulations for the restraint of
"all" patients as they think necessary. The general rule
is that where statutes delegate to subordinate governmental
Mr. Raymond W. Vowell, page 6 (m-896)
agencies and authorities the power to enact, establish
and enforce health regulations, they are to be liberally
construed in order to effectuate the DurDose of their
enactment. 25 Am. Jur.,Health, Sec. 8, p. 291. So long
as such regulations are reasonable and impartial and
not against the general policy of the State, they must
be submitted to by individuals for the good of the public.
Regulations by an agency authorized to promulgate them
will be sustained if upon a reasonable construction there
appears to be some substantial reason why they will pro-
mote the public health and if they are reasonably adapted
to or tend to accomplish the result sought. To this end,
the constitutional guarantees of due process and equal
protection of the law were not intended to limit the
subjects from which the police power of a state may law-
fully be exerted. 25 Am. Jur., Health, Sec. 21, pP. 299,
300.
-
Your second question concerns the liability of the
heads of the hospital for damages in carrying out the regu-
lations adopted by the Board.
It is the general rule that the agents of the State
shall not be personally held liable for their acts when
done pursuant to statute or Official acts Derformed in
the administration of their official duty - Chester Ra
Morris v. Arno Nowotny, et al, 323 S.W. 2d 3d
cases cited therein. When acting within the scope of a
statute or valid rule promulgated by your Board,.it is
our opinion that officials so acting would fall within
this general rule of immunity as to personal llablllty.
SUMMARY
The Board for Texas State Hospitals and
Special Schools may legally adopt ap-
propriate rules and regulations provid-
ing for the restraint of patients who
have voluntarily committed themselves to
their care when such person attempts to
leave the hospital while in an active,
contagious and communicable state and
against medical advice.
The general rule Is that the agents of
Mr. Raymond W. Vowell, page 7 (W-896)
the State shall not be held personally
liable for their acts when done pursuant
to statute or official acts performed In
the administration of their official duty.
Your3 very truly,
LFP:mm:ms
APPROVED
OPINION COMMITTEE:
Houghton Brownlee, Jr.
Robert T. Lewis
Thomas Burrus
Bob Eric Shannon
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore