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 issue warrants 

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 in regard to the 

captioned matter. Article 4477-11,Vernon's Civil Statutes, cited 

as the Texas Tuberculosis Code, provides in Section 5(c) thereof as follows: 

"Any person who violates the 

provisions of Section 4(d), or who 

fails to follow the directions of the 

local health authority, or who fails 

to follow the directions of his attending physician pursuant to Section 4(c), 

or who in the opinion of the local 

health authority cannot be treated with 

reasonable safety to the public, at 

home, may be quarantined, as that term 

is hereinafter defined, and the local 

health authority may direct, pursuant 

to rules and regulations promulgated 

by the Department, the removal of the 

person to a suitable place for examination, and if such person is found to 

be infected with tuberculosis in an 

infectious and contaqious state, then 

such person may be quarantined, as that 

term is hereinafter defined, until such 

person is no longer in an infectious 

and contaqious state. 

"Quarantine, as used in this Section, 

means the limitation of movement and separation, during that period of time 

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Honorable R. L. Lattimore, Page 2 (Opinion NO. C-210 ) 

while infectious and contagious, from 

other persons not so infected, in such 

places and under such conditions as will 

prevent the direct or indirect conveyance 

of such infectious or contagious condition to others not so infected. 

"A person found to be infected with 

tuberculosis in an infectious and contaqious state and quarantined under the 

provisions of this Section may be placed 

in any place suitable for the detention 

and segregation required under the provisions of this Section. If suitable 

facilities are not available within the 

jurisdiction of the local health authority, 

then in such event, the person so quarantined may be transported to a State 

tuberculosis hospital designated by the 

Board. The Board is hereby empowered and 

directed to provide suitable facilities 

for detention of such individuals." 

(Emphasis supplied) 

YOU note in your request that such article does not specifically 

empower the issuance of warrants of arrest by local health 

authorities. However, the Department is given specific power 

to promulgate rules and regulations in the enforcement of its 

quarantine power. 

Article 4477-11 has not been construed by the courts of this 

state. However, Article 4445, Vernon's Civil Statutes, has 

been several times construed by the Court of Criminal Appeals. 

This statute has always provided for quarantine of persons 

suffering from venereal disease, without, however, any express 

provision for the issuance of warrants of arrest by local health 

authorities and without any delegation of authority to the State 

Department of Health for promulgation of rules and regulations. 

In Ex Parte Hardcastle, 208 S.W. 531 (Tex.Crim 1919), the relator 

was held under a warrant issued by the San Antonio City Health 

Officer by virtue of his quarantine established under Article 

4445; (then reading 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 the police 

power, has authority to authorize the 

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Honorable R. L. Lattimore, Page 3 (Opinion No. C-210 ) 

establishment of quarantine regulations 

for the protection of the public 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 the purpose of the 

statute in question. Under its terms, 

the proper health officer may issue 

a warrant bv virtue of which a lawful 

arrest mav be made without preliminarv 

thereto affording the person affected 

a hearinq; but if, 'after arrest, 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 into by a proper 

court in a habeas corpus proceeding. 

The law denies to no one restrained 

of his liberty without a hearing the 

right to prove 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 

is affected with the disease mentioned, 

and that her detention is required in 

the public interest to prevent 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, 

30 Tex.App. 566, 17 S.W. 1111." (Emphasis 

supplied) 

Again, the same conclusion has been reached by the Court in g 

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 in Hardcastle. These cases stand for the proposition 

that a grant by the Legislature to the health authorities of the 

power to quarantine necessarily carries with it the power to 

issue warrants of arrest. Since the powers conferred upon the 

health authorities by the Tuberculosis Code are much greater than 

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Honorable R. L. Lattimore, Page 4 (Opinion No. C-210 ) 

those conferred by Article 4445, it would follow that at least 

the same powers may be exercised by them as have been approved 

by the Court in the cases cited above. 

SUMMARY 

Local city and county health officers 

are authorized to issue warrants of 

arrest for the removal of persons infected with tuberculosis in an infectious and contagious state to a tuberculosis hospital under the provisions 

of Article 4477-11, V.C.S. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

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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