NEY~ENERAL 

TEXAS 

Hon. F. L, Garrison 

County Attorney 

Ups~hur County 

Gilmer, Texas 

Deap Mr* Gafilson: 

Re: Recessitg for food 

handlers of a high 

school band mothers * 

club to possess health 

certificates. 

lows: 

Pour request for an opinion is in papt as fol- 

“Some of the mothers of students in 

the Gilmer High School Band have organized 

what they call ‘Band Mother’s Club D This 

club prepares cakes, pies, sandwiches, coffee and various other foods, and sells them 

at football games, basketball games and 

othep school functions. 

‘Doctor Daniels (the county health officer) tells me that fop a while, all persons who handled the food secured health 

certlf icates e However, they now Pefuse to 

do so. I am of the opinion that Article 

705~ of the Penal Code includes such an 

organization. 0 B e 

“I should appreciate a ruling from 

you as to whether such an organization as 

mentioned above should be made to comply 

with the ppovislons of the quoted article,” 

Article 705c, V.P.C., provides in part: 

“Sec. 1. No person, firm, corporation, common carrier 0~” assocfation 

atlug. mananinR, OP conducting any ho FF e 

or any other public sleeping or eating 

place, OF any place or vehicle where food 

or drink OF containers therefor, of any 

kind, Is manufactured, transferred, prepared, stored, packed, served, sold OP 

otherwise handled in this State, OP any 
Ron. F. L. Garrison, page 2 (V-1174) 

manufacturer OP vendor of candies OP manufactured sweets, shall work, employ, or 

keep in their employ, In, on, or about any 

said place OF vehicle, OP have delivered 

any article therefrom, any person infected 

with any transmissible condition of any infectious or contagious disease, or work, or 

employ any person to work in, on, OP about 

any said place, 

therefrom, who, 

or to deliver any article 

at the time of his or her 

employment, failed to deliver to the employep or his agent, a certificate signed 

by a legally licensed physician, Pesidlng 

in the county where said person is to be 

employed, or is employed, attesting the 

fact that the bearer had been actually and 

thoroughly examined by such physician wlthin a week prlo~ to the time of such employment, and that such examination disclosed 

the fact that such person to be employed 

was free from any transmissible condition 

of any infectious or contagious disease; 

OF fail to Institute and have made, at intervals of time not exceeding six months, 

actual and thorough examinations, essential to the findings of freedom from communicable and infectious diseases, of all 

such employees, by a legally licensed physician residfng in the county where said 

person Is employed, and secure in evidence 

thereof a certificate signed by such physician stating that such examinations had 

been made of such pepson, disclosing the 

fact that he OF she was free fPom,any 

transmissible condition of any communicable and infectious diseases. 

"See, 4. The failure of any person, 

firm, corporation, common carrier or association engaged In any of the businesses 

described in this Act, to diEDlay at the 

health OP registration certificate, as Fequlred by this Act, for each person employed 

in, on, OF about such place, shall be prima 

facie evidence that the said person, firm, 

corporation, common carrier or association, 
Hon. F. L. Garrison, page 3 (V-1174) 

in violation of requirements called for by 

this Act, failed to require the exhibition 

of the pre-employment health certificate, 

of such person and failed to institute and 

have made of such person, actual and thorough examinations necessary to the findings 

of freedom from communicable diseases at 

Intervals of time not exceeding six months.” 

(Emphasis added.) 

The dominant purpose and Intent of the Legislature in the enactment of Article 705~ was to prevent 

persons affected by any infectious or contagious disease from handling OP coming in contact with food to the 

detriment of public health, In order to accomplish that 

highly desirable end, it was provided that no person who 

was engaged in the operation of certain establishments 

therein described should employ or keep in his employ 

any person 0~ persons infected with, or affected by any 

infectious or contagious disease. Blain v. Service Mut. 

Ins. Co, of Texas, 159 S.W.2d 538 (Tex.Clv.App. 1 4 

versed on other grounds, 140 Tex. 541, 168 S.W.2dg& Te1943). 

In Servfce Mut. Ins. Co. V. Blain, 140 Tex. 541, 

168 S.W.28 854, 857-858 (1943), the court said: 

“The provision Is a vital papt of a statute enacted to safeguard the public health. 

~The statutory requirement as applicable to 

this case is not merely that a person who 

works in and about the Dlace where food is 

manufactured shall not, prior to or at the 

time of his employment and while he is working under such employment, be free from infectious or contagious disease; but the 

requirement is that no person operating 

such a place shall work, or employ any person to work in OP about the place who ‘at 

the time of his employment had not in his 

possession a certificate’ procured as provided by the statute and attesting, among 

other facts, that the required examination 

by a physician (made within one week prior 

to employment) discloses that the person 

“to be employeds was free from any infectious OF contagious disease *” 

In Attorney General ls Opinion O-2429 (1941)) 

relating to Article 705c, V.P.C., a copy of which is enclosed for your consideration, it IS said: 
Hon. F. L. Garrison, page 4 (V-1174) 

“We do not believe the statute suffd,- 

ciently denounces the act or omlsslon of 

the employer in failing to obtain a physical examination of his own person or In 

failing to display his own health certlficate so as to create an offense as to him. 

Nor do we believe, as we shall later point 

out, that such was the intent of the Legislature * 

” 

. . . 

*The intent of the Legislature Is of 

paramount importance in construing a statute, and the conclusion reached in the preceding paragraph is strengthened by looking 

to the emer ency clause of House Bill 142, 

Acts 1939, $ 6th Legislature, Chi 8, p. 231. 

This is an amendatory enactment, but each 

act of the Legislature since 1921 dealing 

with the same subject matter has had the 

same or a similar emergency clause. See 

Sec. 7, Acts 1921, 37 Ls 

134; Sec. 4, Acts 1937, & 

., Ch. 66, p. 

5th Leg. ch. 356, 

Q7 0 This clause reads in part as fol- 

“‘Sec. 2. Elaergency Clause. The fact 

that many food and drink establishments and 

factories are not required under the present 

law to have their employees examined or secure health certificates l l l . ’ (Underscoring ours.) 

*Thus is appears that the prilaary intent of the legislature was to reach emloyees of food and drink establishments. 

onsequently, it is the opinion of this department and you are respectfully advised 

that Article 705c, Vernon’s Annotated Penal 

Code, does not create an offense as to a 

proprietor of a food and drink establishment 

for the failure of such proprietor to have 

an examination of his person made by a physician for the purpose of determining freedom 

from infectious or communicable disease or 

for failure to display his own health certlflcate in his establishment .” 
. 

Hon. F. L. Garrison, page 5 (V-1174) 

The Legislature could have made the statute 

broad enough to cover band mothers’ clubs, which eel1 

food and drinks at football gamee, church groups which 

serve food to church suppers, and other cZv10 groups 

which engage in such activities without employees or 

established businesses. However, the Legislature did 

not choose to make the law that broad and laalosive. 

In our opinion, the statute refers only to established 

businesses and employees engaged In such businesses. 

It Is our opinion that Artlole 705c, V.P.C., does not 

apply to the Band Mothers v Club of Gllmer High School 

and that such mothers or others selling food and soft 

drinks for them at football games are not required to 

obtain health certlfipates under such act. 

SUMMARY 

Article 7050, V.P.C., requiring physical examination*. and health certificates 

for employees of businesses manufacturing, 

preparing, selling, or otherwise handling 

food or drinka or containers therefor, does 

not apply to a band mothers’ club of a high 

school selling food and’ soft drinks at football games. 

APPROVED: 

3. C. Davis, Jr. 

County Affairs 

Jesse P. Luton, Jr. 

Revlewlng Assistant 

Charles D. Mathews 

First Assistant 

BW:mw 

Yours very tz?lly, 

PRICE MXIEL 

Attorney General 

Burne.11 Waldrep 

Assistant