. . 

R-214 

April 19, 

Honorable John B. Winters 

.Bceoutlve Mrectm 

Department of Publlo’.Welfare 

Austin 3, Texas 

Dear Sir: 

1947 

Opinion No. V-152 

RO:~ Enforoement of 

Article 701-a, 

Vernon’ s Texas 

Penal Code. 

Ih anuwering your 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 ,than the ,Diviaion of Child Welfare of.ths State De artment of Public Welfare which has ~he~responsibil !ty,under the 

present law of making then &nspWtiOAt! aA grarating, 

the licenses, it is aecesuarry for ue to rovieti the 

history of this,Artiole and 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, this was an Act requiring those ~who operate agencies for the care oy oustody of children, either for 

charity or ~?evei~ue, ,to obtaiA’8 license, without fee, 

from the State B6arQ of Health. The, board wa8 requlred 

to visit and imps&i all such places, and to ascertain 

if the same Were lawfully oonduoted. !?hose licensed 

were also required to keep Certain reoords concerning 

the placement of children, and to lnake the necessary 

reports to the Board of Health on suoh placements. 

The Ill&&e 8obrd of Health, nor person buthorieed by the BokNI oould vislt~tbe hone -ii Y me a ohlld 

had been placed by an a$e,noy, and was to determine whether such child ,was bei 

“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 concerned with 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 

shall violate any of ‘the provisions of this 

Act, shall be ~deemed guilty of a misdemeanor, 

and upon conviction thereof shall be punished 

by imprisonment in the county jal.1 not aore 

than 30 days,or by a fine of not less than 

$25.00 nor more than $500.00, and if operating under a license, such license may be revoked by the State Board bf Health. 

supplied) 

(mhaLlis 

This Section 7 was placed in the Penal Code as 

Article 701-a V.P.C. 

Section,7 gives the State Bo&rd of Health the 

right to revoke the license .issued by the Board under Section 1 of the Act, if any provision of the enactment had 

been violated by the licensee. Italso provfded that 

anyone who violated any provision of the act shall be 

deemed guilty of a misdemeanor, and shall be punished by 

imprisonment or 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 Child Welfare 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 the Divisionof Child Welfare of the State Board 

of Control. 

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

"Section 8. .The l,icensing, visiting and 

Inspection of all agencies required,under Chapter 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, shall be and is hereby,transferred 

to and made a part of the duties of the Divislon of Child Welfare ,of the State Boardof 

Control." 

What did the 42nd Legislature intend to include 

In the transfer above? We are of the opinion that where 
Honorable John B. Winters - Page 3, V-152 

they included the licensing aslrequired by Section 1 

of the Act of 1929, that they most certainly included 

the authority to revoke such a license as required by 

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 inspection of all agencies was an outright trlnsfer of all the functions 

contained ip the original House~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 duties heretofore conferred by law upon the Division of Child Welfare of 

the Board of Control to the State Department of Public 

Welfare. 

We quote Section 9 of this Aott 

"Section g. a." All of the rights, 

povera, and duties heretefore cenferred 

by law on the Division of Child Welfare 

of the Board of Control, vhen not otherwise in conflict with 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 Public Welfare as 

created by this Act, and shall be held 

exercised, and performed by the State 6epartment under the provisions of this Act 

and the several Acts now in force, and 

any amendment oramendments thereto which 

might be made. To effectuate this purpose 

the Division of Child:Welfare, records, 

and physical properties are transferred 

to the State Department and placed under 

its supervision, and the’Divlsion of Child 

Welfare of the State Board of Control is 

hereby abolished." 

It is clear that the Leglelature intended 

here to transfer everything that had 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 original Act. 

It necessarily follows that such function is clearly in 
Honorable John H. Winters - Page 4, V-152 

the new 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. 

enacted House Bill Ro. 635, page 297, chapter 

This was the third and last transfer of the functions that were originally given to the Stats Board of 

Health. 

th! 

The reason given by the Legislature for this 

:rd transfer 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 :Division of Child Welfare 

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, including Article 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, 'of the G eneral and Special Laws of tha 

Regular Session of the Forty-First Legislature, 1929, and being Article 4442A of 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 of Health, contained in Rouse Bill 474, 

Page 44k, Cha~pter 204, 41st Legislature, Regular Session, 

are transferred to the Child Welfare Division of the De.- 

part of Public Welfare. 

We conclude here 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 short a transfer of the administrative duties under the Act. The second enactment 
Honorable John Ii. Winters - Page 5, V-152 

transfers "all rightsA powers, and duties heretofore 

conferred by 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 these bills to 

the State Department of Public Welfare, Including those 

of Section 7, the ssotion here in question. 

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

to th4 Dbpartrent of Publla Welf8r4 84 be&Ion 7 of ths 

original House 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 invested with the power to 

revoke a llcm44 granted to op4r0.4 child 

nurseri44, upon tb4 OOnViQtiOn of a lioonre4 

under this Artlale. 

Yours very truly 

ATTORNEY GXRBRAL OF TEXAS 

C?A:JMc:t;dja 

Charles P. Atkinson 

Assistant 

APPROVED APRIL 22, 1947 

z:, Gt?ii!d 

ATTORNEY GRRBRAL