Untitled Texas Attorney General Opinion

Honorable Dan W. Jackson Crlmlnal District Attorney Houston, Texas Dear Sir: Attention: Hon. W. K. Rlahardson_ Oplnlon Wo. O-4533 F@: Csnthe county health officer and/or city health officer under Artlale 705c, Penal Code, ddmand.that an actual Wasserman or'blood test be made for ~syphllls;and an aotual smear taken for gonorrhea? And-re- lated questions. . .. you have'rsquested-our opinion on various questions "involving the,interpretation of Artlale 70%~ of Vernon's Re- vised Penal Code of 1995; For-the purposes of ~.thls.oplnlon, we will quote the applloable provisions of -this statute, ad then restate.your questions, -nid:snswereaoh'ln turn: %eotlon 1, No person, firm, corporation, commoncarrier or assoolatlon operating, managing,. or conduotlng 'anyhotel 'orany.other public sleeping or 'eatingplaoe or any plaoe or:vehiole where food or drink or containers therefor, of any king, Is manufactured, transferred; prepared, stored, paoked served, sold, or otherwise handled ln this State, or any manufacturer or vendor of candies'or manufactured sweets, shall work, employ, or keep ln their employ, ln, on or about any said pla6e or vehicle, or have delivered any artlole therefrom, any personinfected with any transmissible condition of any lnfeotlous or oontaglous disease, or work, or employ any person to work In, on or about.any said place, or to deliver any artiole therefrom, who, at the time of his or her employment, failed to deliver to the employer or‘his agent, a aertiflcate signed by a~legally licensed physlcLn, residing in the county where~said person is to be employed, or is.employed, attesting thenfact tha~tthe bearer had been'actually and'thoroughly examined by such physician within a week prior to the time of su6h employment, and~that such examination disclosed the fact that such nerson to be emploved . . Honorable Dan W. Jaokson, Att%: Mr. Riohardson, Page 2 o-4533 was free from~any transmissible oondltion of any infectious or contagious disease; or fail to institute and have made, at intervals of t&me not exoeeing six months, actual and thorough examinations, essential to the findings of freedomfrom aommunioable and lnfeotious diseases, of all such employees, by a legally licensed physician residing in the county where said person is employed, and secure in evldenoe thereof a certificate signed by suoh physici,anstating that suah examinations had been made of such person, disoloslng the fact that he or she was free from any transmissible oonaition of any communicable and infeatious disease. ". . . %x. 3.~ All health certificates called for by this Act shall be displayed for publio lnspeotion at the place where the person named thereon is employed, and shall not be removed from suoh plaoe during the aontinuanoe of suah employment exoept by a public health officer, his duly appointed agent, or upon val'ld court order. All such oertlflbates shall bear the employee's slgnature,the name of the physiolana exeouting examl- nations and tests, and shall.describe the oolor of eyes, and hair; height,,weight, race, sex, age, and date of lssuanoe,'and shall be valid for six months only. Publla health departments, and looal lawmaking bodies, are hereby authorleed to establish suab further rules, regulations ana ordinanoes as they may deem essential to the execution of the intentions of this Act; providing,. however, that all oonaitions of this hot shall be re- quisite to all such regulations and ordinanoes, exaept, that the said authorities may adopt a plan for the registration of the physicians( certificates required by this Adt and in.lieu thereof issue a registration aard to show that the person named thereon has complied with all of the provisions of this Aot;.providing further that the said registration card must bear the signature of the person named thereon and shall be dieplayed'for public inspsotion at the place where suoh a person is employed. "Sea. 4. The failure of sny person, firm, corporation, oommon~carrier or association engaged ln any of the businesses'described in thisAct, to display at the placb where any of the operations of~suoh businesses are being oonduated a valid health or rbgis;ratJ.onOertificate, as required by this hot, for eaoh person employed in, on, or about suoh pPaae, shall be prima faoie evidenoe that the said person, firm, corporation, *ommon oarrier or assooiation, in violation of requirements called .for by this hat, failed to require Honorable Dan W. Jackson, Att~n,:.Mr.Richardson, Page.3 .. 04533 the exhibition of the ire-employment.health certifioate,.of suoh person and tailed to institute and have maat5of suah person, aotual ana thorough examInatIons necessary'to.the finds of freedom from oommunioable~ais.ea~ses at intervals of time not ex- ceeding six months. "Sea. 5. Whoever.violates any provision of this Act shall be fined In,an amount not exoeeding Two Hundred Dollars '($2CO). Each act or ommlssion in. violation of any of the.provlslons'of this ArtIble, shall oonstitute a separate offense and shall be punishable as hereinabove presaribed. n. . . . ." &RS~~~‘NO. .li.' Cax'the County Health Officer and/ or Glty Healith Officer; under Se&ion 1 of the s'tatute,'de- mand thatan a&ual'Wasserman.or blood test be made for .syphIlls,.a~~d an actual ,smear-takenfor'gonorrhea? ', This .questIon Is &swered in the negative by our Opinions No. O-213 and No. C-1138, copies of whioh are attached hereto. ~. : QURSTIOW WTO.2': If Question No. 1 Is answered' Is the physloIan~who~Issues the certificates without z:kg the blood,test and smear s~ubjeatto.any penalty if It Is late'rproved that the emplomso alleged to'.havebeen examined by said physioian actually had syphilis or gonorrhea atthe time of dxami.natlonP This question Is answered In the negative by'our Opinion No. O-1585, a,copy of whioh Is also attaahed hereto. QUESTION NO. 3: sunder Seotlon 3 above quoted, are oounty health offioers and/or city health officers authorized to Issue regulations aemanaing~blooa tests to determine the presence of syphilis and smears to,determIne the presence'of gonorrhea? If they cannot, then what~officers or departments and aoula they issue oan issue ~regu.lations:; 'regulationsaemand- Ing blood teststo determine tha presence of syphIlIs and smears to determine the presenoe of gonorrhea? InvIew of~the faatthat the ~only "pub1I.ohealth departmentl'.crea~ted by law inthis State Is.the State Depart- m&t of,Publio Health,oreated by hrtlole 4414a, v.A.CA., and which consists of the State Board of~liealth,the..StateHealth Officer andhis a3mInlstratIve staff, and'the further fact that the State Departmentof Ptib1i.aHealth is'given "general supervision and-aontrol of all matters'pertaining to-the Honorable Dan W. Jaokson, Attchi Wr. Richardson, Page 4 -6e!m o-4 533 health of oitliens of this Stiite;'asYproviaeahereIn,n (Artlole 4419, R.C.S.) we.think~the Legislature In using the nrords "pub110 health depal'tmentsz'oouldonly have meant the State Department of Publio Health. While provision is made by the'statutes for county health officers (Artioles 4422-4423) and city health offiaers (Artioles 4424-4425), there is-no statute making any provision for .a county or oity department of Health. Furthermore, such offloers are officers .of the State. White v. City of San'AntonIa, 94 Tex. 313, 60 S.W. 427. Each of.such .offIcersis amenable to the'rules and-regulations of the State .Roard.of Health. (Artioles 4427-4432, R. C. S.) This being true, It might. logioally bc- said that such offioers 'are members .of the. administrative staff of the State Health Officer. In ang event, we thInk.the State Health Department fs the only department that oould have been Inaluded In the language of Artiole 705c. We' are therefore of the .opInion that the State Department of Publlo Health Is authorized by this act to establish suoh rules and regulations requiring such laboratory tests for syphilis and gonorrhea as that depart- ment ~deemsessentlal to the .executIon of the Intentions of the suet. The same rule applies to the delegation of law- making powerto "local lawmaking bodies." We know of no local lawmaking bodies ,wIthInthIs State.whIah oould reason- ably~beheld within:the purview of this 'provision,other ~'. thsn the looal governing bodies of Incorporated oitles; towns and villages, who have restrI&ed powers to enact legislation (ordinances) affeotIngtheIr respective jurisdiotions. And the power of the Legislature, to delegate to aities, towns and vllleges, its.authority to make laws for the protection of the public health, Is amply upheld .bythe.opinion of the San Antonio Court of Civil Appeals in the case of Haneel, et,al., v. City of San Antonio, .- et al., 221 S.W. 237; "If the ordinance that is 'assailedby appellants is one.enacted;.not for the purpose of the ,oollectIon of taxes or public revenues, but for sanitary purposes and proteation'of the health of the publlo,.it Is not unconstitutional. The power to enact laws for these purposes is Inherent In every sovereignty, end can.be delegated by such sovereignty to agencies created by it for suoh purposes. The power to require licenses for the protestion of the publIc,health, decency, and ~morals, may be exercisbd by the state direatly, or it may be done indirectly thrixqh a'municipa!~corporation created ~by the state and clothed with such authority. Cooley on Taxation, c. 19;.pp. 1125-1138.L This fs an exhaustive Opb%.oi Ofi, thi.8 qUeSt&Oti, C%thg - . - Honorable Dsn W. Jaokson,~Att'nr Mr. Richardson, Page 5 many authorities. Writ of error was refused-by the Supreme court. To the same effeot~is our OpInIon No. 0-720, a copy of whIch.Is.attaahed hereto., It is our opinion that under the.provisions of'said Artiole 705c, and under the general police power, the govern- Ing bodies of incorporated.Texas cities, towns and villages are authorized to enact ordinances designed to effectually prevent the spread of venereal diseases (provided, of-course, that such ordinances do notconfliot with the terms of said artlole), and that such ordInances.may specify and require any reasonable testsfor the.detection of~syphilis and gonorrhea. QUESTION NO. 4: What is meant by the.provision, In said Seotion.3, thatthe said authorltIes may adopt a plan for the'reglstration of.the physiclan*s.:certIflcate and In lieu thereof, Issue a.registratIon card? .,.. "Registration Is the act of-qaking a'list, oata- logue, schedule or register6 'The.word~~regIstratIon~Is an ordinary one. It Is used in ageneric sense, note technical. " In re Supervisors of Election, 1 F. 1, 5. This ici,*t];erefore,.give'sto the governing:body';ofevery IncorL.' porated cIty,".townand village .the power to pass ordinanoes adopting a plan:for the-making.ofa.lIst,:oatalogue;-sche- dule or'register~of physicians certificates (commonly.called "health cards-")'Issuedto Its constituents, under the pro- visions of the.act, snd Issuing In place of each such certi- ficate a card "to show that the-person named thereon has complied with all the provisions of this hot." The mechanics of the registration and.the issuance of the tiarasIs left to .the discretion of the city commissioners or alderman, as the ease may be. ':.i ,. QUIWTION N.O.5: Can 'thephysician be fined for not giving an actual, thorough examination where he Issues a Grtlficate over .thetelephone or to the employee In person -without an examination? This question Is answered'In the negative by our Opinion No. O-1585, cited above and atta~ohedhereto.; QUESTION NO. 6: Can the'employer beg~&vi&d (1) If he hires any person ~withouta health certifloate,,or (2) hires any one with a health certificate knowing that sa1.d employee,is infected, or,(3) hires an employe'ewho reoei ed, a health certifioate without any examination at all? (41 can the employee be oonvicted even though he or she has,a certi- ficate',if it be proven that said employee did not take an actual physical ex.amInatiOn,at the time knowing that he or - -.. _ Honorable Dsn W. Jaokson, Att'n: Mr. Richardson, Page 6 ~GF!iE3 _ she had a aontagious disease? .. Since this &estion isreally four questions, we have taken the liberty of subdividing It and numbering its component parts, and will answer each by number. Number (l).ls made an offense by the plain provi- sions of the Act. Number (2) Is also made an offense under the'hat, roviadeathe employer knows that the employee Is Infected a transmI.ssIblecondition of an Infectious or contagious t+fai- disease. , Numbers (3) and (4) are not made penal offenses by any provision of this Act. But, relative to question number (4) we respeatfully call.to your attention Article 704, Sec- tion 1, Penal code of 1926,~as follows: Whoever violates any provision of this article shall-be fined not less than five nor more than.fifty dollars: "1. No person.infeated with a venereal dis- -ease ahall kminringlyexpose another iminfection with any venereal disease, or perform an.aot whloh ez&ose~sanother person to infection with suoh disease. ". . . ." 'Yoursvery truly Kl'TORNEYGENERhL OF TEXAS 81 IV'. R. Allen 'WRA:MBR By ,. Wi R. hllen malosures Assistant APPRDVED JCRE 13; 1942 s/ Gerald C. Mann ATTORNRyGRNRRAL OF TRXAS ~. This opfnlon considered and approved In limited conference.