. _. .
R-533
OFFICE OF
THE ATTORNEYGENERAL
AUSTIN.TEXAS
PRICEDANIEL
ATTORNEY GENIERAL August 19, 1947
Hon. Ceo. W. Cox, M. D. Opinion No. V-351
State Health Orricer
Austin, Texas Re: Authority of’ the gov-
erning body 0r a city
to control issuance
or health certificates,
and related questions 0
Dear Sfr:
We refer to your letter of July 21, 1947, con-
cerning the lollowing questions:
*1. Does the law require that’ l’ood han-
dlers or persons working in soda fountains, cafes,
bars, and etc., have a Wassermann or Kahn test
berore, or at the time a lioensed physician and’
surgeon gives them a health certlrlaate?
“2. What is the exact law concerning who
can issue health oertlrlcates to food handlers?
“3. Can a city designate a .physician and
surgeon as the sole person who may issue a
health certifiaate within their corporate lia-
its? If the city does designate one physician,
as the only person whose health certificate
they will recogtize, .does that exclude other
licensed physicians in .good standing from is-
suing health certificates to food handlers if
they certify they have examined the applicant
and find them free from communicable disease?”
Article 705e of Vernonfs Penal Code reads, in
part, as r0ii0ws:
“Section 1 0 No person, firm, corporation,
common carrier or assooiation operating, manag-
ing, or conducting any hotel or any other public
sleeping or eating place, or any place or vehicle
~where food or drink or containers therefor, oft
any kind, is manufactured, transferred, prepared,
stored, packed, served, sold, or otherwise han-
dled in this State, or any manufacturer or vendor
.
Hon. Ceo. W. Cox, Md.D., Page 2, V-351
of oandies or manufactured sweets, ahall wox$c,
employ, or keep In their employ, In, on, or about
any said place or vehicle, or have delivered any
article therefrom, any person Infected with any
transmissible condition of any lnfectlous or con-
tagiaus disease, or work, or employ any person to
work in, on, or about any said place, or to de-
liver any article therefrom, who, at the time of
his or her employment, failed to deliver to the
employer or his agent, a certificate signed by a
legally-licensed physioian, residing in the coun-
ty where said person is to be employed, OX*Is em-
ployed 9 attesting the fact that the bearer had
been actually and thoroughly examined by .o.uoh
physician within a week prior to the time of suah
employment, and that such examination dfsolosed
the fact that such person to be employed was free
from any transmissible condition or any Iniectious
or aontagious disease; or fall to Institute aad
have m3at3, at Intervals of time not exoeeaing six
months, actual and thorough examination .easentIal
to the f‘indirVz8 of rreedom rrrrn oolamualaable and
Infectious diseases, or all saoh employees, by a
‘legally-licensed physialan reaidln& in the aounty
where said person b employed, and secure in evl-
denoe thereof a certiricate signed by such phys-
ician stating that such examinations had been made
of such person, disclosing the faot that he or she ’
was free from any transmissible condition of any
communicable and Infectioue diseases sn (Emphasis’
added)~
n . . . ,
TSect~Ion 3. . . . *Public health deuart-
ments. and local lawmaking bodies, are hereby
authorized ’ to establish such further rules
lations and ordinances as they may de- Fi e%f% .
-7TETexecut ion ZTWioi intenttons or this Act;
card must bear the signetaxe of ‘the person,’ named
thereon and.shall be displayed for public idspec-
. -
Hon. Geo. W. Cox, M. D., Page 3, V-351
tion at the place where such a person is employea.n
(Emphasis added)
n. . . .
*Section 5. Whoever violates any provision or
this Aot shall be fined in en amount not exceeding
Two Hundred Dollars ($200) e Each act ‘or omission
In violation of’ any of the provisions of this Artf-
cle, shall constitute a separate offense and shall
be punishable as hereinabove presoribdd.*
In 1937, the Legislature entered the whole field
of eraminlng and licensing persons employed In hotels and
other public eating and sleeping places or vehicles where
food or contaInera therefor, of any kind, are manufrotored,
transrerred, prepared, stored, pecked, served, sold, or
Qtherwise handled In this state, by enactment. .of said Ar-
tiole 705c, V. P. C., as a protection against the spread
of communicable, hnfectlous, and aontagioue dieeases In
and throughout the state. ,Suoh licenses are required to
be Issued by a legally, licensed physlolan lgeidlng in
the county where the person Is aaployed. Such physioian
Is reqnlred to certify that the person “has b.een aotual-
ly and thoroughly examined by such physician withIn a’
week prior to the time of such employment, and that such
examination disclosed the fact that suoh person to be em-
ployed was free from any transmlasible condition or any
Infectloue or contagious dI.eease.~~~”
In Prescott vs. City or Borgor, 158 8W (2d) ‘578
(Error refused), the Court said:
wFrom the above it will be seen that the
Legislature has entered the field of lagiela-
tion covered by the ordinance enected.by.the
governing authorities of the City of box&zir.
It Is well established’ law In this state that,
generally, the governing authoritlee of citiee
are prohiblted by the Constitution, Art. 11.,
Sec. 5, and the statutes, Art. 1185, et seq.,
R.C.S. 1925, Vernon’s Ann. Civ. St. Art. 1165
et seq., rrom entering a field of legislation
that has been occupied by general 1eglslatlve
enactments a Xydias Amusement Co, v. City of
Houston et al, Tex. Civ. AppO, 185 S.WR. 415;
City of Lubbock v. South Plains Hardware Co.,
Tex. Civ. App., 111 S. W. 2d 343."
?I. . D When the governing body of appellee,
. .
Hon. Geo. W. Cox, M. D., Page 4, V-351
the City of Borger, attempted to enact the
ordinance here in question, it undoubtedly
entered a field of legislation that had been
occupied by the Legislature when it enacted
Art. 165-3. The limitation placed upon local
bodies doe~e.not extend, of course, to those
ordinances which are permitted by, or are In-
harmony with constitutional and statutory pro-
visions even thOURh, in doinR so, they may be
id t be entering the same field Th fourth
iiragriph of Sec. 2 of Article 16!&i&ies
that the governing bodies of cities may adopt
specifications and regulations for any grade
of milk that is offered for sale in such cities
but provides that when the same are adopted
they shall be governed by the specifications
and regulations promulgated by the State Health
Officer as authorized by the Aot."
Said Article 705~ empowers local lawmaking bod-
ies to establish rules, regulations and ordinances, pro-
vided, that all conditions of that article shall'be requl-
site to such regulations and ordinances, and that regls-
tratlon cards issued to employees shall show that the per-
son named thereon has complied with all of the provisions
of that.article. Such local lawmaking bodies are not
given any authority to modify said Article 7050 or legie-
late inconsistently with it.
Your inquiry relates to an ordinance OS Crystal
City which is incorporated and operates under Title 28
of Vernon's Civil Statutes, which ordinance reads:
Wection 1. That all persons employea~ as
waiters, waitresses or cooks, and all other
persons in any manner handling foods, dishes
or other receptacles for food, in hotels, safes,
restaurants, soda foundtalns, bakeries or meat
markets, in the City of Crystal City, Texas,
shall before entering upon their~duties as such
and each six months thereafter obtain from~the
City Health Officer a certificate showing that
the party named therein is in good health on
day of examination by said health officer.
*Section 2. The Health Officer making such
examination may charge a See of not to exceed
(1.00 for making such examination and his cer-
tiiicate relative to.the same.
"Section 3. All persons using tools, other
apparatus or receptacles for Sood in bakeries,
Hon.~ Geo. 19. Cox, M. D., Page 5, V-351
meat mrkets or other places where food or drinks
are handled or sold shall keep the same in a
clean, sanitary condition at all times and the
same shall be subject to examination by the City
Health Offi~cer; and It in hereby made the duties
or the owner’.o’r nroprletor or any such bwx
to see that all employees have such certiS’icats
&sued. @mpha,sis added 1
We&ion 4. All-ordinances and parts of
ordinances in conflict with this ordinance are
hereby in all things repealed.
“Section 5 0 That any person or persons
Sound guilty of violating any provision of this
ordinance shall be fined in any sum not more then
)~oo.oo.-
The authorltg OS Crystal City to pass- an orcli-
nance pertaining to health certificates issued to employ-
ees mentioned In the ordinance is controlled by the lan-
guage in Section 3 OS Article 7050.
The only language in the ordinance, which applies
to pertinent examinations and certificates, is that the
class of amployees named in the ordinance shall “obtain
Strom the aity Health OSSic~er a oertificate showing that
the party named therein is in good health on the day of
examination by said health Offioer.”
Article 705~ authorizes any legallg licensed
physioian in the county where the person is employed, to
examine such person and issue a certifioate disoloslng
that he or she has been examined by such physician and
found free from any transmissible condition of any com-
municable and iniectious disease,
Article 7050, V.li.C., Andythe City Ordinanae
of Crystal City pertain to the proteotion of the publio
health by requiring employees in ,9ubllc eating pl.aces to
obtain health certificates. The penalty fixed in said
article la not more than $200 and that fixed in the ordl-
nance is not more than $100. Crystal City is not author-
ized to prescribe a penalty for violation OS its ordinanoe
inconsistent with the State law.
In City of Wink vs. Griffith Amusement Company,
100 5. Vi. (2d) 695, the Suprame Court said:
Hon. Geo. W. Cox, M. D., Page 6, V-351
"Article 054 of the Penal Code provides
as a penalty for establishing a lottery, a Sine
of 'not less than one hundred nor more than one
thousand dollars.' The penalty prescribed by
the ordinance in question, as shown above, is
a fine 'not exceeding ($100.00) One mema
Dollars, and each day of violation shall be 8
separate offense.* It will at once be observed
that the penal provisions of the ordimanhe are
different from those contained in the State
Penal Code, although both acts cover the of-
Sense of conducting a lottery.~ The rule is
definitely established with us that the penal
provisions of an ordinance cannot be different
from those of the Penal Code for the same of-
Sense, and that ordinances in confllot with
the general or state law are void. 30 Tex;
Jurisprudence p. 301, I 167, p:304, I 168,
and cases sited in the notes; El Paso Electric
Co. v. Collins (Tex. Corn. App.) 23 8W (2d) 295-
296."
The case of El Paso Electria company vs.; Col-
lins, 23 S. U. (2d) 295, was a traffic regulation case
in which the statute law defined a part of the ofrense
identical with the-ordinance involved. Other details
were speoified In the ordinanoe which were not in the
statute; the ~penalty prescribed in the 8tatute is "not
to exoeed $lOO.OO;n in the ordinance, *not leas than
(1.00 nor more than $lOO.OO.n The Supreme Court deoidea
that as to the conrlict, the ordinance was Ineffective.
We are of the opinion that the ordinanae of
City, above set out, Is void because it is inoon-
with the general laws of Texas.
Any legally licens.ed physician residing In
Zavala County is authorized to issue health certifl-
cates to food handlers in Crystal City; the governing
body of said city is not~authorized to aonfins such
authority to one physioian.
This department is not familiar with details
0s an examination 0s a person essential to rindings
that such person is free from communicable and infec-
tious diseases; if Wassermann or Kahn tests are esson-
tiai to the discovery of conditions of the person in
that regard, we are of the opinion that such are nec-
essary , otherwise not.
_. ’ . .’
Hon. Geo. W. C.ox, M. D., Page 7, V-351
SUMMARY
The ordinance of crystal City which
regulates the examination and lioenslng oS
employees in hotels, cafes, restaurants,
soda fountsins, hakpries, and meat markets
in Crystal City, is inconsistent with
Article 7050, V.P.C., because the ,ordinance
confines in its City Health Officer the aa-
thoritg to examine and issue licenses to
such employees, which examinations and li-
censes are different from those required
by said general law; the maximum penalty
fixed by the ordinance for its violation
is $lOO,, and the maximum penalty fixed,in
general law,for,the same offense in $200.
For these'reasona said ordinance is void.
Art'. 7054, V.P.C.; Prescott vs. City of
Borger, 158 S. W. (2d) 578; City ot Wink.
vs. Grirfith Amusement Company, 100 9: W."
(2d) 695; El Paso Eleatric Company vs. Col-
lins, 23 s. w. (2d) 295. If Wassermati and :‘.. ..
Kahn tests are essential to the discovery
of infectious and oommunicable diseases, such
tests are necessary in suok examinations..
Assistant
T ASSISTANT
= ‘i. ~..A,
WTW:et:jt:jrb