. . R-214

April 19,

HonorableJohn B. Winters .Bceoutlve

Mrectm Department of Publlo’.Welfare Austin 3, Texas

Dear Sir: 1947

OpinionNo. V-152

RO:~ Enforoement of Article 701-a, Vernon’s Texas Penal Code.

Ih anuweringyour queaiilon a6 to whether Artiole 701 a of the Texas Penal Code is enforceable, inasmuoh a8 the departmnt referred to in this statute is the State ,Boasld of_>Health

rather ,thanthe ,Diviaion of Child Welfare of.ths State De artment of Public Welfare which has ~he~responsibil !t y,under the present law of making then**&nspWtiOAt!** aA grarating, the licenses, it is aecesuarry for ue to rovieti

the history of this,Artioleand deternine the intent of the Legislature.

In 1929, the 41st Le&ei+twe, during ltr Regular Seesion, eweted Howe Bill Ho. 474, Page 444, Chapter 204 of the Generai snd,Special Lava. Generally, thiswas an Act requiring those~whooperateagencies for the care oy oustody of children,either for charity or ~?evei~ue, ,toobtaiA’8 license,without fee, from the State B6arQ of Health. The, board wa8 requlred to visit and imps&i all suchplaces, and to ascertain if the sameWere lawfully oonduoted. !?hose licensed

were also required to keep Certain reoords concerning the placement of children, and to lnakethe necessary reports to the Board of Health on suohplacements.

The Ill&&e

8obrd of Health,nor person buthorieedby the BokNI oouldvislt~tbehone Y -ii me a ohlld had been placedby an a$e,noy, and was to determinewhether such child,wasbei“9 properly caped for. If neeeenary, the Board wssrequ Fed to eee that a OompldiAt
was filed in the proper juvenile court against the cuetodi,an

of the child.

Seation 7 of this ~blll,the.seotion that we are concernedwith here, provided as f~ollows:Honorable John R. Winters - Page 2, V-152

“Section 7. Any person, association
or Corporation,who shall attempt to operate without a license as herein provided, or who shallviolate any of ‘the provisions of this Act, shallbe ~deemedguilty of a misdemeanor, and upon convictionthereof shallbe punished by imprisonment in the county jal.1 not aore than 30 days,orby a fine of not less than $25.00nor more than $500.00, and if operating under a license, such licensemay be revoked by the State Board bf Health. supplied) (mhaLlis

This Section 7 was placed in the Penal Code as Article 701-aV.P.C.

Section,7gives the State Bo&rd of Health the right torevoke the license .issued by the Board under Section 1 of the Act, if any provision of the enactmenthad been violatedby the licensee. Italso provfded that anyonewho violated any provision of the act shallbe deemed guilty of a misdemeanor, and shallbe punishedby imprisonmentor certain fines.

The State Board of Health sdtinistered this law until 1931. At that time, S,enate Bill No. 375 was enscted by the 42nd Legislature,page 323, chapter 194, of the General Laws, Regul~ar Session. This act created a Dlvision of ChildWelfare In the Board of 'Control,~ Andy among other things, transferred the licensing,visiting and inspection of all agencies required of the State Board of Health to theDivisionof Child Welfare of the State Board of Control.

Section 8, the transferring sectibn of the abovementioned bill, is quoted as follows!'

"Section8. .Thel,icensing, visiting and Inspection of all agencies required,underChapter 204, Page 444 of the General and Special Laws of the Regular Session of the 4lst Legislature, 1929, now required by the State Board of Health, shallbe and is hereby,transferred to andmade a part of the duties of the Divislon of ChildWelfare ,ofthe State Boardof Control."

What did the 42nd Legislature intend to include In the transfer above? We are of the opinion thatwhereHonorable John B. Winters - Page 

### 3,V-152

they included the licensing aslrequiredby Section 1 of the Act of 1929, that theymost certainly included the authority to revoke such a license as requiredby Section 

### 7 of the same enactment. The transfer to the State Board of Control from the State Beard of Health of the licensing,visiting and inspectionof all agencies was an outright trlnsfer of all the functions contained ip the originalHouse~blll 474 from one State agency to the other.

In 1959 the 

### '46th Legislature, in reqular session, enacted &ate Bill Wo. 

### 36,page 544, chapter 1, of the General Lava. Section 9 of this bill transferred all rights, powers and dutiesheretofore conferred by law upon the Division of ChildWelfare of the Board of Control to the State Department of Public Welfare.

We quote Section 9 of this Aott

"Sectiong. a." All of the rights, povera, and dutiesheretefore cenferred by law on the Division of Child Welfare of the Board of Control,vhen not otherwise in conflictwith any of the provisions of this Act, are hereby cent%nued in full force and effect, ind are hereby transferred,to,andconferred upon, the State Department of PublicWelfare as createdby this Act, and shallbe held exercised,and performedby the State 6epartment under the provisions of this Act and the severalActs now in force, and any amendment oramendments theretowhich might be made. To effectuate this purpose the Division of Child:Welfare,records, and physicalproperties are transferred to the State Department and placed under its supervision,and the’Divlsionof Child Welfare of the State Board of Control is hereby abolished."

It is clear that the Leglelature intended here to transfer everything thathad been previously tranaferred to the Board of Control. We have found that all the fur&ions of the State Board of Health were in the Board of Control, including the fur&ion of revoking the license as provided in Section 7 of the originalAct. It necessarily follows that such function is clearly inHonorable John H. Winters - Page 4, V-152

thenew agency, the Division of Child Welfare of the State Department of Public Welfare by reason of Section 9 above..

session, In 1945, the 49th Legislature, in regular

215. enactedHouse Bill Ro. 

### 635,page 297, chapter This was the third and last transfer of the functions thatwere originallygiven to the Stats Board of Health.

th! The reason given by the Legislature for this :rdtransfer m3 that the transfer from State Board of Control tc State Department of Public Welf.sre did not clearly indicate that the functions of thz State Board of Control applicable to the Division 3f Child Welfare were also to be transferred.

We quote a part of Section 1 of thi~y Act:

'Section 1. All of the functions and dut~'.2e which were designated 8.3 being the resp*+n&oility of the State Board of Control and/or the :Divisionof ChildWelfare oi ~tha

Ste~ts Board of Control as expmr3scl in Chapter 194, Page X3, Acts of the FortySecond Legislature,Regular Session, 1931, being Article 695A of Vernon's Texas Civil Statutes, includingArticle 606a, Sections 

### 6 and 7, of Vernon's Texas Penal Code, and the duties and functions of the State Health De artment as described in Chapter 204,.Page 

### 44t,'ofthe General and Special Laws of tha Regular Session of the Forty-First Legislature, 1929, and beingArticle 

### 4442Aof Vernon's Texas Civil Statutes are hereby transferred to the State Department of Public Welfare

. . .(l

The 49th Legislature, in this 'curative"transfer, removes any doubt that all the functions and duties of the State Board ofHealth, contained in Rouse Bill 

### 474, Page 

### 44k,Cha~pter 204, 41st Legislature,Regular Session,
are transferredto the ChildWelfare Division of the De.- part of Public Welfare.

We concludehere with a review of the three transferring statutes. The first speaks of a transfer of the licensing,visiting and inspection of all ,agencies, citing the origlnal,bill,in shorta transfer of the administrative duties under the Act. The second enactmentHonorable John Ii. Winters - Page 5, V-152

transfers "allrightsA powers, and dutiesheretofore conferredby law.

. . This includes everything that 

### was tranaferrsd in the first transf4r. The third transfer again sets out the original **Hours** Bills, and tramfers all the functions and duties und4r thesebills to the State Department of Public Welfare, Including those of Section 7, the ssotionhere in question.

We are of the opinion that tha authority contained in Article 701r of ths Tuar ?enrl CoQe parred to th4 Dbpartrent of 

### PubllaWelf8r4 84 be&Ion 

### 7 of ths originalHouse Bill. The fact that Section

### 7 was placed in the Texas Penal Code as Article 701a, did not affeat its inoluaion In the three trmaf4r8 Qoorid4r4d.

ArtlQle 702-a of V.P.C. is 4nforceable as a penal statute. Th4 department of Public WslSar4 ir investedwith the power to revoke a llcm44 **granted** to op4r0.4 child nurseri44, **upon** tb4 **OOnViQtiOn** of a lioonre4
**under** thisArtlale.

Yours very truly

ATTORNEY GXRBRAL OF TEXAS

C?A:JMc:t;dja Charles P. Atkinson Assistant

APPROVEDAPRIL 22, 1947 

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ATTORNEYGRRBRAL