Honorable George 'A,Cox

state Health officer Texas State Board of Health Austin, Texas

Dear Sir: opinionNo. O-4960 Re: Duty of ocmmissioners'oourt to provide a place for the detention of perstins

who have venereal diseases, and related questions.

Your request for an opinion on the abow matter hasbsen reoeived and oarefully considered. piequote from said request as follows:

"The inorease in the armed forces stationed in Texas hasmade it neoessary to encourage the enforosment of the venereal disease law regarding the rspression of prostitution in scme areas inwhich this polioy is not wholeheartedly endorsed. Iwish to ask VOW opinion on two points in question:

"1. &der the venereal disease law the Connnissioners' Court is empowered and directed to provide suitable places for the detention of personswho shouldbe segregated. The question is, if the Commissioners'Court fails to provide such a plaoe,what can be done,about it?

"2. Looal health officers are empowered and direoted to examine persons reasonably suspected of having a venereal disease. The question is, Is it legal for a Commissioners*Court to pass a ruling to the affaot that the county health officer is not responsiblefor theexamination and treabsnt of such persons picked up and held in the oounty jai% as venereal disease suspeots?"

As to the first question asked by you, YDFI directyour attention to the following statutes. Artiale 4481f of the Revised Civil Statutes of Texas, reads as follows:

"Commissioners1Court to make appropriations.-- It shall be lawful for the State Department of Health to accept donations and oontributionsto be expended in the interest of the public health and the enforcementHon. Gee. W. Cox, Page 2 (o-4960)

of public health laws. The Commissioners'Court of any county shall have the authority to 'appropriate and expendmoney from the general revenues of its county for and in behalf of publio health and sanitationwithin its county."
Article 4434 reads as followss "Co-operation.-- The municipal authoritiesof towns-and cities, and commissioners'courts of the countieswherein such towns andcities are situated, may co-operatewith each other inmaking such improvements connectedwith said towns, citiesand counties
as said authorities and courtsmay deem necessary to improve the publichealth and to promote efficient sanitaryregulations3 and, bymutual arrangement, they may provide for the constructionof said imprwements and the payment therefor."
Article 4445 is inpart as Pollowsn

"Venereal diseases. -- Syphilis, gonorrheaand chanoroid,hereinafterdesignatedvenereal diseases,
are hereby declared to be contagious, infectious, oommunicabls,and dangerous to the public health;

. . .I

. . .
" The oonnnissioners' courts of thevarious counties and tbe,governingbody of all incorporatedtowns and cities are hereby empowered and directad'toprovide suitable places for the detention of personswho may fa subjectto quarantine and who shouldbe segregatedfor the execution of the provisions of this law3and such commissioners' courts and govening bodies of incorporatedoitiss and towns are hereby authorizedto incur, on behalf of their said counties,cities, or towns, the expenses necessary to the enforoementof this lawe I
AFticle 4460 reads as follows:
"County quarantine. -- Whenever the commissioners" oourkof any county has reason to believe that they are threatened at any point within or without the county limitswith the introductionor disseminationof a dangerous, contagiousor infectiousdisease that can and shouldbe guarded againstby quarantinethey may direct their countyhealth officer todeclare and maintain said.

Hon. Geo. lV.Cox, Page 3 (o-4960)

quarantine against any and all such dangerous diseases3 to establish,maintain and supply stations
or camps for thoseheld in quarantine3 to provide hospitals,tents or pest houses for those sick of contagiousand infectiousdisease: to furnish provisions,medicine and all other things absolutely essention for the comfort of thewell snd the convenience of the sick. The oountyphysician shall keep
an itemized aocount of all lawful expenses incurred by local quarantine,and his county shall assume and pay them as other claims against the county are paid. Chartered cities and towns are embracedwithin the purview of this article, and the mere fact of incorporation does not exclude them fromthe protection against epidemic diseases given by the commissioners' courtto other parts of their respective counties. The medioal officers of ohartered cities and towns may perform the duties granted or commanded in their several charters,butmust be amenable and obedient to rules prescribedby the State Board of Health. This article, however,must not be construed as prohibiting any incorporatedtown or city from declaring, maintaining and paying for looal quarantine."
Article 2361 is in part as follows8

"Each commissioners'court shall:

. . .
"7. Provide and keep in repair court houses, jails and all neoessarypublic buildings.

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An an&r to said first question asked by you depends to some extent upon what the Legislature intendedby the use of theword "directed" in Article 4445 above referred to. Tne generalmeaning of said term is that when one is directed to do a certainthing he is ordered to do it and has the same foroe as an order given to a soldier,whose only answer is obedience! or itmight be a mandatory vard, unless controlledby something in the context indicatingotherwise, and the fact that discretion is given in the execution of the direction is not sufficientto change themandatory
sense thereof. However,your attention iscalled to the fact xthat some provisions of saidArticle 4445 indicate that the conrmissioners~ court shall determine the neoessity of providinga suitableplaoe for the detention ofpersons who may be subject to qaarsntine thereunder,as sell as what would be a suitableplace therefor. In addition to these matters, there muld also be the question of providing the funds necessary to build and eq~lp such a place, end there can be no question but that the commissioners'courtwould have the right and that itwould be its duty to determine that phase of thematter. As to all suchmatters, theHon. Geo. W. Cox, Page 4 (o-4960)

general rule is that an order of the ccmmissioners'court is binding and conclusive,and is not subjectto revision, in the absence of a clear showing of gross abuse of discretion, or fraud or collusion. If the commissioners' court refuses tomake provision for the detention of persons required to be detained under the law in question, the general remedywould be by writ of mandamus and thereby seek to compel them to make such provision. The general rule as to this remedy is that it will not lie to control or review the action of an officer or board in a matter involving the exercise of discretion. There exists, however, this exception to said rule, that a mandamuswill lie to correct a gross abuse of discretionuponthe part of boards or officers intrustedwith such discretion,when suchabuse is so clearly shown as to establish the fact that in performingthe action complainedof the officers or boards acted wholly through fraud, caprice, or by a purely arbitrary decition, andwithout reason.

Therefore, if the commissioners'court of a county refuses to go foriiard

andmake provisions for cormplying with said law, action can be brought against it through a writ of mandamus and relief had in the went it can be shown that said court acted arbitrarily, through fraud, or without r&son.

As to the second question, it is our opinion that the ssme shouldbe answered in the negative, and in support thereofwe dire& your attntion to the following statutes1

A&icle 4423 reads as follows:
"County health officer. -- The commissionars~court by amajority vote in each organized county shall biennially appoint a proper person for the office of county health offioer for his county,who shallhold office for two years. Said county health officer shall take and subscribe to the official oath, and shall file a copy of such oath and a copyof his appointmentwith the Texas State Board of Health3 and, until such copies are so filed, said officer shall not be deemed legally qualified. compensation of said countyhealth offiaer shallbe fixed by the connnissioners' oourt;provided, that no compensationor salary shall be allowed except for servioes actually rendered."

__ A$cicle 4426 reads as follows~
"Health offioers appoint (appointed)by board,when.- If said authorities shall fail, negleot or refuse to fill the office of county or cityhealth officer as in this chapterprovided then the State Board of Health shall have the power to appoint such county or city health officer to hold office until the local authorities shall fill said office, first having given ten days notice in writing to.

Hon. 000. w. cm, Page 6 (4960)

such authority of the desire for such appointment."
Article 4427 reads as follows~
"Duties of countyhealth offioer.--Eaoh county health officer shall perform such duties as haw been required of county physicians,with relation to oaring for the inmates of countypoor farms, hospitals, dischargingduties of county quarantine and other suoh duties asmay be lawfully required of he countyphysician by the commissioners court and other officers ofthe county, and shall discharge anyadditional duties which it may be proper for county authoritiesunder the present laws to require of countyphysioians: and, in addition thereto, he shall discharge suoh duties as shall be prsscribed for him under the rules, regulationsand requirements of the Texas State Board of Health, or the president thereof, and is smpoweredand authorissd to establish, maintainand enforoe quarantinewithin his county. He shall also be required to aid and assist the State Boa3 86 Health in all matters of local quarantine, inspection, diseaseprevention and suppression,vital andmortuary statisticsand general sanitationwithin his county3 anl he shall at all times report to said State board, in such
manner and form as it shall presoribe, the presence of& contagious,infectious and dangerous epidemicdiseases within his jurisdiotion;and he shallmake suoh other and reports in suchmanner snd form and at such times as said State board shall direct3 touching on suchmatters asmay be proper for said State board to direct3 and he shall aid said State board at all times in the enforcerment of its proper rules, regulations,requirements and ordinances, and in the enforcementof all sanitary laws and quarantine regulationswithin his jurisdiction."
Article 4428 reads as follows:

sRemuva1 of countyhealth officer. -- In allmatters with which the State Board of Healthmay be.olothedwith authority, said countyhealth offioer shallat all times be under its direction) and any failure er refusal on the part of said county health officer to obey the authority and reasonable comnands of said State Board of Health shall ccnstitutemalfeasance in office, and shall subjeot said county health offioer to removal from office at the relation of the State Board of Health3 and pending chargesforremoval, said countyhealth officer shallbe tried in the district court ofthe county inwhich such county health officer resides."Hon. GeorgeW. Cox, Page 6 (o-4960)

Apiole 4429 reads as follow83
"Chargesagainst the county health &floor.-- If any countyhealth officer shall fail or refuse to properly dis,charge the duties of his office, as prescribedby this chapter, the State Board of Health shall file charges with the cdwnieeioners~court for the proper county, specifyingwherein such officer has failed in the discharge of his duties3 and at the same time the State Board of Health shall file a protestwith the county clerk a&i the county treasurer against the payment of furtherfees, salary or allornPnoe

to said countyhealth officer3 and, pending suchprotest and charges, it shall not be lawful for such county health offioer to be paid
or to receive any subsequentlyearned salary, fees or allowance on account of his office, unless such oharges arc shown '-0 be untrue and are not sustained. After five days notice in writing to said countyhealth offioer, the commissioners court shall hearths charges, at which hearing the county judge shall preside,and the State Board of Health may be represented. Either prty, the State Board of Health or the county health officer,may appeal from the decision of said court to the distriot court ofthe county3 and, pending archappeal, no salary,fees or allowances shall be paid to said county health officer for any subseqnentlyearned salary3 and, if the charges shall be sustained, the countyhealth officer shall be adjudged to apy all oosts of court, and shall forfeit all salary,fees and allowanoes, earned subsequentlyto the date of filing the charges snd protests."
Article 4445 reads in part as follows:

”

. . .

‘Sec. 3. All city, county,or other health officers shall use ewry availablemsans to ascertainthe existence of, and to investigate alloasesof syphilis,gonorrhea, and ohanoroidwithin their several territorial jurisdictions,and to ascertain the sources of such infections. Local health officersP e hereby empowered and directed tomake examinationsof persons reasonably susnectedof havia: syphilis, gonorrhea or chanoroid,as may be neoessary for carrying out the provisions of this law. Owing to the prevalence of suoh diseases among prostitues and persons assoaiatedwith them, all such persons are to be consideredwithin the above class.

"Sea. 4, Upon receipt of a report of a case of venereal disease, the local health officer shall institutemeasures for protection of other persons from infectionby such wnereally diseasedperson3

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. . . "Sea, 9. Any health officar or other physicianwho shallwilfully fail to perform tic duties required of him in this article shall, in addition tot'he fines imposedby law, forfeit his right and lioense to practice medicine wlthinthis State3 and the district courtsof the State shall have jurisdiotionof suitsfor the forfeiture of such license in such oases, and the suit may be filed by any citizen of the %ate in a courtHon. George W. Cox, Page 7 (Od960)

having jurisdiction,under the ordinary rules of venue, and it shall be the duty of the county and district attorneys to representthe petitioners in such suit."
Article 704 of the Penal Code is in part as follows:

"Venerealdiseases. -- Whoever violates any provision of this article shall be fined not less than five normore than fifty dollars:

"2. No local health officer, employe, inspeotor,physician,nurse, or superintendent of a clinic or hospital shall fail to perform any duty required of him by the laws of this State relating to venereal diseases and requiring reports in such cases.
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It is evident from a reading of these statutes that the cammissioners' court has no authority to pass a ruling to the effect that the countyhealth officer is not responsiblefor the examination and treatment of persons who have been picked up and are held in the county jail as venereal disease suspects, as these statutes clearlymake it the duty of the county health officer to give attention to suchmatters, and this without regard to any action the commissioners oourtmay take in regard thereto.

are Trusting that this satisfactorilyanswersyour inquiry,we

Very truly yours
ATTOFTIEY

GEZi'ERIU,

OF TEXAS

By /s/ Jas.T. Bassett

Jas.T. Bassett Assistant
JbBtmpregw

APPROVED DEC 1, 1942 /s/ GERAJDC. MAFIN ATTORNEY GENEBALOF TEXAS APPROVED Opinion Committee byBWB Chairman