### NEY~ENERAL

TEXAS

Hon. F. L, Garrison County Attorney Ups~hurCounty Gilmer, Texas

Deap Mr*Gafilson: Re: Recessitg for food handlers of ahigh 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 Bandhave organized what they call ‘Band Mother’s ClubD 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 methat fop awhile, all persons whohandled the food secured health certlf icates e However, they nowPefuse to doso. I amof the opinion that Article 705~ of the Penal Code includes such an organization. 0Be

“I should appreciate aruling from you as to whether such an organization as mentioned above should be madeto comply with the ppovislons of the quoted article,”

Article 

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

“Sec. 1. Noperson, firm, corporation, commoncarrier 0~”assocfation FF atlug. mananinR, OPconducting anyho 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, OPanyRon. F. L. Garrison, page 2 (V-1174)

manufacturer OPvendor 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, OPabout 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 aweek 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 

### anyinfectious or contagious disease; OFfail to Institute andhave made, at intervals of time not exceeding six months, actual andthorough examinations, essential to the findings of freedom from communicable and infectious diseases, of all such employees, bya 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 madeof such pepson, disclosing the fact that he OFshe was free fPom,any transmissible condition of any communicable and infectious diseases.

"See, 4. The failure of any person, firm, corporation, commoncarrier or association engaged In any of the businesses described in this Act, to diEDlay at the

health OPregistration 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, commoncarrier 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 madeof such person, actual andthorough 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 noperson 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, 159S.W.2d 538 (Tex.Clv.App. 14 versed on other grounds, 140Tex. 541, 168S.W.2dg& Te1943).

In Servfce Mut. Ins. Co. V. Blain, 140Tex. 541, 168 S.W.28 854, 857-858 (1943), the court said:

“The provision Is avital papt of astatute enacted to safeguard the public health. ~Thestatutory requirement 

### asapplicable to this case is not merely that aperson who works in andabout the Dlace where food is manufactured shall not, prior to or at the time of his employment andwhile he is working under such employment, be free from infectious or contagious disease; but the requirement is that noperson operating such aplace 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 aphysician (madewithin oneweek prior to employment) discloses that the person

“to be employeds 

### wasfreefrom any infectious OFcontagious 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)

“Wedonot believe the statute suffd,- ciently denounces the act or omlsslon of the employer in failing to obtain aphysical examination of his ownperson or In failing to display his ownhealth certlficate so as to create an offense as to him.

Nor dowebelieve, as weshall later point out, that such was the intent of the Legislature * ”

. . . *The intent of the Legislature Is of paramount importance in construing astatute, 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 anamendatory enactment, but each act of the Legislature since 1921 dealing with the same subject matter has had the
sameor a similar emergency clause. See Sec. 7, Acts 1921, 37Ls 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 manyfood 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 andyou 

### arerespectfully 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
anexamination of his person madeby aphysician for the purpose of determining freedom from infectious or communicable disease or for failure to display his ownhealth certlflcate in his establishment

.”.

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

The Legislature could have madethe 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 makethe 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.,doesnot apply to the BandMothers vClub of 

### GllmerHigh School and that such mothers or others selling food and soft drinks for themat football games are not required to obtainhealth 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 

### ordrinka or containers therefor, does not apply to aband mothers’ club of ahigh 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,

PRICEMXIEL Attorney General

Burne.11Waldrep Assistant