Untitled Texas Attorney General Opinion

* - 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: - - 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. . 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