THE ATTORNEYGENERAL 

OF TEXAS 

Au- aa. - _.._.+- 

WILL WILSON 

A'ITO- ‘XENEILAL July 26, 1960 

Mr. Raymond W. Vowel1 

Executive Director 

Board for Texas State Hospitals 

and Special Schools 

Austin, Texas 

opinion NO. ww- 896 

Dear Mr. Vowell: 

Re: Whether the Board for 

Texas State Hospitals and 

Special Schools may legally adopt appropriate 

rules and regulations providing for the restraint 

of patients who have voluntarily committed themselves 

to the Board's care, when 

such patients attempt to 

leave the hospital while in 

an active, contagious and 

communicable state and related question. 

We are in receipt of your letter dated June 27th in 

which you requested an opinion from this office concerning the following questions: 

"1 . May this Board legally adopt 

appropriate rules and regulations providing for the restraint of patients 

who have voluntarily committed themselves to our care when such patient 

attempts to leave the hospital while 

in an active, contagious and communicable state against medical advice? 

"2 . If your answer to the above 

is in the affirmative, would the heads 

of the hospitals, in carrying out the 

rules and regulations adopted by the 
Mr. Raymond W. Vowell, page 2 (ww-896) 

Board, be responsible in damages therefor?" 

In Attorney General’s Opinion O-7131 (1946) this 

office passed on substantially the same question, that 

is, the validity of the State Board of Health's passing 

rules and regulations covering the detention for treatment of persons having those communicable diseases 

which in the opinion of the State Health Officer constitute a real menace to public health. In that opinion 

we held: 

"The power of the Legislature to prevent the introduction and spread of lnfectious and contagious diseases cannot be 

questioned, and, accordingly, health authorities are usually empowered to take such action 

as may be considered expedient to prevent the 

outbreak of epidemic and communicable diseases. 

Thus all rules and regulations adopted pursuant 

to legislative authority, which are reasonably 

calculated to.preserve the public health, are 

valid The power to make quarantine regulations 

is one of the most important conferred upon 

health authorities and such regulations constitute a proper exercise of the police power. These 

general principles are so firmly entrenched in 

our system of jurisprudence as to admit of no conjecture, and we therefore cite no cases to sustain them. Your attention is directed to the 

annotations in 2 A.L.R. 1539 and the legion of 

cases there cited." 

Section 2 of Article 4477-11 of Vernon's Civil Statutes, which is styled as the "Texas Tuberculosis Code" 

states as follows: 

"It is the purpose of this Code to provide care and treatment for those afflicted 

with tuberculosis, to facilitate their hospitalization, and to enable them to obtain 

,needed care." 

The Legislature of the State of Texas in Section 4 

of such statute provides that: 
Mr. Raymond !,f. Vowell, page 3 (ml-896) 

"Tuberculosis in a contagious, infectious, or communicable state is hereby declared to be dangerous to public health." 

In providing the duties of the Board for Texas 

State Hospitals and Special Schools, the Legislature 

enacted among other provisions Section 12 (b) which 

states as follows: 

"(b) The Board shall prepare and adopt 

by-laws, rules,and regulations for the 

government, control, and management of all 

State tuberculosis hospitals, prescribing 

the duties of all officers and employees, 

and for enforcing the necessary discipline 

and restraint of all patients." (Emphasis 

added). 

You state in your letter to us that your Board, which 

is charged with the responsibility of caring for tuberculous patients, has become aware of the fact that many 

patients who voluntarily admit themselves through the 

county courts to tuberculosis hospitals and after receiving some treatment will absent themselves from these 

hospitals while in an active, contagious and communicable state and against medical advice. You mention that 

the problem has become so acute that during the present 

fiscal year, 541 or 44.5 percent of all discharged patients 

have so absented themselves. 

In seeking to ascertain the intent of the Legislature 

at the time that House Bill 421, 56th Legislature, Regular 

Session, which is now codified as Article 4477-11, Vernon's 

Civil Statutes, was enacted, we must look to Sections 2 

and 4 previously cited, as well as Section 5 of thi.s Act. 

Section 5 Sets out in detail what is'to be done upon receipt of a report of a case of. tuberculosis to any local 

health authority and the measures for protection of other 

persons from infection by such diseased persons. It provides that such diseased person must place himself under 

medical care from a licensed physician, hospital, or clinic 

for treatment until such time that a certificate can be 

furnished from such health authority that such person is 

free from tuberculosis in an infectious or contagious state. 
Mr. Raymond W. Vowell, page 4 (Ww-896) 

Subsection (c) of Section 5 provides as follows: 

"(c) 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 reasanable 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 persan is found to be infected with 

tuberculosis in an infectious and contagious 

state, then such person may be quarantined, 

as that term is hereinafter defined, until 

such person Is no longer in an infectious and 

contagious state. (Emphasis added). 

"Quarantine, as used in this Section, 

means the limitation of movement and separation, duri,ng that period of time 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 infec'ted with 

tuberculosis in an infectious and contagious 

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 Settion. 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. 

I, #I 

. . . 
Mr. Raymond W. Vowell, page 5 (W-896) 

Subsection (6) of Section 5 provides: 

"(d) It shall be the duty of all persons infected with tuberculosis, or who, 

from exposure to tuberculosis, may be liable 

to endanger others who may come in contact 

with them, to strictly observe 'such instructions as may be given them by any local 

health authority of the State in order to 

prevent the spread of tuberculosis.' 

Section 6 provides as follows: 

'Any person violating the provisions 

of Sections 4 or 5 of this Act shall be 

guilty of a misdemeanor and upon conviction shall be punished by a fine of not 

less than Fifty Dollars ($50.00) nor more 

than Five Hundred Dollars ($500.00) and/or 

by imprisonment in the county jail for not 

more than thirty (30) days." 

It Is our opinion that the provisions of the Act to 

fight and control the disease of tuberculosis are clear. 

While the Tuberculosis Code provides a method for voluntary admission by persons in a contagious condition with 

this disease to State hospitals, this does not mean that 

such persons remain in these tubercular hospitals as 

guests and free to leave at their discretion, It Is our 

opinion that the mode of admission to such hospitals is 

only ancillary, for only one class of persons are eligible 

to gain admittance and they are those who have tuberculosis in an active, contagious and communicable state and who 

cannot be treated safely in the community from which they 

come. Once these persons are admitted either voluntarily 

or involuntarily, your Board is charged with the duty and 

the responsibility of caring for such persons until such 

time as they can be pronounced free from this contagious 

disease. 

It is our further opinion that the Board for Texas 

State Hospitals and Special Schools has the authority by 

virtue of Subsection (b) of Section 12 of this Act to promulgate such rules and regulations for the restraint of 

"all" patients as they think necessary. The general rule 

is that where statutes delegate to subordinate governmental 
Mr. Raymond W. Vowell, page 6 (m-896) 

agencies and authorities the power to enact, establish 

and enforce health regulations, they are to be liberally 

construed in order to effectuate the DurDose of their 

enactment. 25 Am. Jur., Health, Sec. 8, p. 291. So long 

as such regulations are reasonable and impartial and 

not against the general policy of the State, they must 

be submitted to by individuals for the good of the public. 

Regulations by an agency authorized to promulgate them 

will be sustained if upon a reasonable construction there 

appears to be some substantial reason why they will promote the public health and if they are reasonably adapted 

to or tend to accomplish the result sought. To this end, 

the constitutional guarantees of due process and equal 

protection of the law were not intended to limit the 

subjects from which the police power of a state may lawfully be exerted. 

300. 

25 Am. Jur., Health, Sec. 21, p P. 299, 

- 

Your second question concerns the liability of the 

heads of the hospital for damages in carrying out the regulations adopted by the Board. 

It is the general rule that the agents of the State 

shall not be personally held liable for their acts when 

done pursuant to statute or Official acts Derformed in 

the administration of their official duty - Chester Ra 

Morris v. Arno Nowotny, et al, 323 S.W. 2d 3d 

cases cited therein. When acting within the scope of a 

statute or valid rule promulgated by your Board,.it is 

our opinion that officials so acting would fall within 

this general rule of immunity as to personal llablllty. 

SUMMARY 

The Board for Texas State Hospitals and 

Special Schools may legally adopt appropriate rules and regulations providing for the restraint of patients who 

have voluntarily committed themselves to 

their care when such person attempts to 

leave the hospital while in an active, 

contagious and communicable state and 

against medical advice. 

The general rule Is that the agents of 
Mr. Raymond W. Vowell, page 7 (W-896) 

the State shall not be held personally 

liable for their acts when done pursuant 

to statute or official acts performed In 

the administration of their official duty. 

Your3 very truly, 

LFP:mm:ms 

APPROVED 

OPINION COMMITTEE: 

Houghton Brownlee, Jr. 

Robert T. Lewis 

Thomas Burrus 

Bob Eric Shannon 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore