### 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 opinionNO. ww- 

### 896

Dear Mr. Vowell: Re: Whether the Board for Texas State Hospitals and Special Schools may legally adopt appropriate rules and regulationsproviding for the restraint of patientswho have voluntarily committed themselves to the Board's care,when such patients attempt to leave the hospitalwhile 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 legallyadopt appropriate rules and regulationsproviding 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 theMr. 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 substantiallythe 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 communicablediseases which in the opinion of the State Health Officer constitute a real menace to public health. In that opinion
we held: "Thepower of the Legislature to prevent the introductionand spread of lnfectious and contagiousdiseases cannotbe questioned, and, accordingly,health authorities are usually empowered to take such action
as may be considered expedient to prevent the outbreak of epidemic and communicablediseases. Thus all rules and regulations adopted pursuant to legislative authority,which are reasonably calculated to.preservethe public health, are valid The power to make quarantineregulations is one of the most important conferredupon health authoritiesand such regulations constitute a proper exercise of the police power. These general principlesare so firmly entrenched in
our system of jurisprudenceas to admit of no conjecture, and we thereforecite 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 "TexasTuberculosisCode" states as follows:

"It is the purpose of this Code to provide care and treatment for those afflicted with tuberculosis, to facilitate theirhospitalization,and to enable them to obtain ,neededcare."
The Legislature of the State of Texas in Section 4 of such statuteprovides that:Mr. Raymond !,f. Vowell, page 

### 3 (ml-896)

"Tuberculosisin 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,andregulations for the government, control,and management of all State tuberculosishospitals,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 thatyour Board, which is chargedwith the responsibilityof caring for tuberculouspatients, has become aware of the fact that many patientswho voluntarilyadmit themselves through the county courts to tuberculosishospitals and after receiving some treatmentwill absent themselves from these hospitalswhile in an active, contagiousand communicable state and againstmedical advice. You mention that the problem has become so acute that during the present fiscalyear, 

### 541or 

### 44.5percent of all dischargedpatients have so absented themselves.

In seeking to ascertain the intent of the Legislature at the time that House Bill 421, 

### 56thLegislature,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 infectionby such diseased persons. It provides that such diseased person must place himself under medical care from a licensedphysician, hospital, or clinic for treatmentuntil 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 attendingphysician pursuant to Section 4 (c), or who in the opinion of the local health authority cannot be treatedwith reasanable safety to the public, at home, may be quarantined,as that term is hereinafter defined,'and the localhealth authority may direct,pursuant to rules and regulationspromulgated by the Department, the removal of the person to a suitable place for examination,and if such persan is found to be infectedwith tuberculosis in an infectiousand contagious state, then such person may be quarantined,
as that term is hereinafterdefined,until such person Is no longer in an infectiousand contagious state. (Emphasisadded). "Quarantine,as used in this Section, means the limitation of movement and separation, duri,ngthat period of timewhile 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 Infectiousor contagious condition to others not so infected.

"Aperson found to be infec'ted with tuberculosis in an infectiousand contagious state and quarantined under the provisions of this Section may be placed in any place suitable for the detention 'andsegregation required under the provisions of this Settion. If suitable facilitiesare not available within the jurisdictionof the local health authority, then in such event, the person so quarantinedmay be transportedto a State tuberculosishospital designatedby 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 shallbe the duty of all persons infectedwith tuberculosis,or who, from exposure to tuberculosis, may be liable to endanger otherswho may come in contact with them, to strictly observe 'suchinstructions 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:
'Anyperson violating the provisions of Sections 4 or 

### 5 of this Act shallbe guilty of a misdemeanorand upon conviction shallbe punishedby a fine of not less than Fifty Dollars ($50.00)nor more than Five HundredDollars ($500.00)and/or by imprisonmentin 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 tuberculosisare clear. While the TuberculosisCode provides a method for voluntary admissionby persons in a contagious conditionwith this disease to State hospitals, this does not mean that suchpersons remain in these tubercularhospitals 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 admittanceand they are thosewho have tuberculosis in an active, contagiousand communicable state and who cannot be treated safely in the community from which they
come. Once thesepersons are admitted either voluntarily or involuntarily,your Board is chargedwith the duty and the responsibilityof 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 authorityby virtue of Subsection (b) of Section 12 of thisAct to promulgate such rules and regulations for the restraint of "all"patients as they think necessary. The general rule is thatwhere statutesdelegate to subordinategovernmentalMr. RaymondW. Vowell, page 

### 6 (m-896)

agencies and authorities the power to enact, establish and enforcehealth 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 regulationsare reasonable and impartialand not against the general policy of the State, theymust be submittedto by individuals for the good of the public. Regulationsby an agency authorized to promulgate them will be sustained if upon a reasonable construction there appears to be some substantial reasonwhy theywill promote the public health and if they are reasonablyadapted to or tend to accomplish the result sought. To this end, the constitutionalguarantees of due process and equal protection of the law were not intended to limit the subjects fromwhich the police power of a statemay lawfully be exerted. 

### 300. 25 Am. Jur., Health, Sec. 21, pP. 

### 299,

- Your secondquestion 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 shallnot be personallyheld liable for their actswhen done pursuant to statute or Official acts Derformed in the administrationof their official duty - ChesterRa 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 promulgatedby 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 Schoolsmay legally adopt appropriate rules and regulationsproviding for the restraint of patientswho have voluntarily committed themselves to their care when such person attempts to leave the hospitalwhile in an active, contagiousand communicable state and againstmedical advice.
The general rule Is that the agents ofMr. RaymondW. 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 administrationof their official duty.

Your3 very truly,

LFP:mm:ms

APPROVED

OPINION COMMITTEE: Houghton Brownlee, Jr.
Robert T. Lewis ThomasBurrus Bob Eric Shannon

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore