## TB[EATTORNEY GENERAL OF TEXAS

Honorable R. L. Lattimore Opinion No. C-210 Criminal District Attorney Hidalgo County Re: Whether local city and county Edinburg, Texas health officers have legal authority to issuewarrants of arrest for the removal of persons infected with tuberculosis in an infectious and contagious state to a state Dear Mr. Lattimore: tuberculosis hospital.

You have requested an opinion of this office inregard to the captioned matter. Article 4477-11,Vernon's Civil Statutes, cited
as theTexas Tuberculosis Code, provides in Section 5(c) thereof as follows:
"Anyperson who violates the

provisions of Section 4(d), orwho fails to follow the directions of the local health authority, orwho fails to follow the directions ofhis attendingphysician pursuant to Section 4(c),
or who in the opinion of the local health authority cannot be treated with reasonable safety to thepublic, at home, may be quarantined, as that term ishereinafter defined, and the local health authority may direct, pursuant to rules and regulations promulgated by the Department, the removal of the person toa suitable place for examination, and if suchperson is found to be infected with tuberculosis inan infectious and contaqious state, then suchperson may be quarantined, as that term ishereinafter defined, until such person isno longer inan infectious and contaqious state. "Quarantine, asused in this Section,
means the limitation ofmovement and separation, during that period of time

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while infectious and contagious, from other persons not so infected, in such places and under such conditions aswill prevent the direct or indirect conveyance of such infectious or contagious condition to others not so infected.

"Aperson found tobe infected with tuberculosis inan infectious and contaqious state and quarantined under the provisions of this Section may be placed inany place suitable for the detention and segregation required under theprovisions of this Section. If suitable facilities are not available within the jurisdiction of the localhealth authority, then in such event, theperson soquarantined may be transported to a State tuberculosis hospital designated by the Board. The Board ishereby empowered and directed toprovide suitable facilities for detention of such individuals." (Emphasis supplied)

YOU note inyour request that such article does not specifically empower the issuance of warrants of arrest by local health authorities. However, the Department isgiven specific power topromulgate rules and regulations in the enforcement of its quarantine power.
Article 4477-11 has notbeen construed by the courts of this state. However, Article 4445, Vernon's Civil Statutes, has been several times construed by the Court ofCriminal Appeals. This statute has always provided for quarantine ofpersons suffering from venereal disease, without, however, any express provision for the issuance ofwarrants of arrest by local health authorities andwithout any delegation of authority to the State Department ofHealth forpromulgation of rules and regulations.

In Ex Parte Hardcastle, 208 S.W. 531 (Tex.Crim 1919), the relator
was held under awarrant issuedby the SanAntonio City Health Officer by virtue ofhis quarantine established underArticle 4445; (thenreading in its applicable parts exactly as it does now)

.The Court stated, even though the statute contained no express provision authorizing the issuance of arrest warrants, that

"The Legislature, under thepolice

power, has authority to authorize the

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establishment of quarantine regulations for theprotection of thepublic against contagion from those persons whose condition is such as to spread disease, &, incident thereto, to authorize the arrest and detention of such persons; and such,
we understand, is thepurpose of the statute inquestion. Under its terms, theproper health officer may issue
awarrant bv virtue of which a lawful arrest mav bemade without preliminarv thereto affording the person affected
ahearinq; but if, 'afterarrest, such person challenges the right of the authorities to continue the detention, the fundamental law accords him the right to have the legality of his detention inquired intoby aproper court inahabeas corpus proceeding. The law denies tono one restrained ofhis liberty without a hearing the right toprove in some tribunal that the facts justifying his restraint do not exist. Ruling Case Law, vol. 6, p. 435, 8 449. The health authorities causing the arrest of a relator derive their power to do so from the alleged existence of the fact that the relator isaffected with the disease mentioned, and that her detention isrequired in the public interest toprevent contagion. If those facts do not exist, the officer has no jurisdiction to continue the restraint and the court in the habeas corpus proceeding has authority to inquire whether the facts essential to jurisdiction exist. Ex parte Degener, 30Tex.App. 566, 17S.W. 1111." (Emphasis supplied) Again, the same conclusion has been reached by the Court ing Parte James, 181 S.W.Zd 83 (Tex.Crim. 1944); and Ex Parte Gilbert, 135 S.W.Zd 718 (Tex.Crim. 1940), under the same state of facts
as existed inHardcastle. These cases stand for theproposition that a grant by the Legislature to thehealth authorities of the power to quarantine necessarily carries with it thepower to issue warrants of arrest. Since the powers conferred upon the health authorities by theTuberculosis Code are much greater than

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those conferred byArticle 4445, itwould follow that at least the same powers may be exercised by them ashave been approved by theCourt in the cases cited above.

SUMMARY
Local city and county health officers
are authorized to issuewarrants of arrest for the removal ofpersons infected with tuberculosis inan infectious and contagious state to a tuberculosis hospital under the provisions ofArticle 4477-11, V.C.S.

Yours very truly,

WAGGONER CARR Attorney General ofTexas

By:
Assistant Attorney General
CBS/k

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman C. L. Snow V. F. Taylor Robert Smith W. 0. Shultz

APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone

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