Honorable George 'A, Cox 

state Health officer 

Texas State Board of Health 

Austin, Texas 

Dear Sir: opinion No. 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. pie quote from said request as follows: 

"The inorease in the armed forces stationed in 

Texas has made 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. I wish 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 persons who should be 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 responsible for 

the examination 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 direct your attention 

to the following statutes. Artiale 4481f of the Revised Civil Statutes of 

Texas, reads as follows: 

"Commissioners1 Court to make appropriations. -- 

It shall be lawful for the State Department of Health 

to accept donations and oontributions to be expended 

in the interest of the public health and the enforcement 
Hon. Gee. W. Cox, Page 2 (o-4960) 

of public health laws. The Commissioners' Court 

of any county shall have the authority to 'appropriate and expend money from the general revenues 

of its county for and in behalf of publio health 

and sanitation within its county." 

Article 4434 reads as followss 

"Co-operation. -- The municipal authorities of 

towns-and cities, and commissioners' courts of the 

counties wherein such towns and cities are situated, 

may co-operate with each other in making such improvements connected with said towns, cities and counties 

as said authorities and courts may deem necessary to 

improve the public health and to promote efficient 

sanitary regulations3 and, by mutual arrangement, 

they may provide for the construction of said imprwements and the payment therefor." 

Article 4445 is in part as Pollowsn 

"Venereal diseases. -- Syphilis, gonorrhea and 

chanoroid, hereinafter designated venereal diseases, 

are hereby declared to be contagious, infectious, 

oommunicabls, and dangerous to the public health; 

. . . 

I . . . 

" The oonnnissioners' courts of the various counties 

and tbe,governing body of all incorporated towns and cities are hereby empowered and directad'to provide suitable 

places for the detention of persons who may fa subject to 

quarantine and who should be segregated for the execution 

of the provisions of this law3 and such commissioners' 

courts and govening bodies of incorporated oitiss and 

towns are hereby authorized to incur, on behalf of their 

said counties, cities, or towns, the expenses necessary 

to the enforoement of 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 

limits with the introduction or dissemination of a dangerous, contagious or infectious disease that can and 

should be guarded against by quarantine they may direct 

their county health officer to declare 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 

contagious and infectious disease: to furnish provisions, medicine and all other things absolutely essention for the comfort of the well snd the convenience of the sick. The oounty physician 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 embraced within the 

purview of this article, and the mere fact of incorporation does not exclude them from the protection 

against epidemic diseases given by the commissioners' 

court to 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, but must be amenable and obedient 

to rules prescribed by the State Board of Health. 

This article, however, must not be construed as prohibiting any incorporated town 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 neoessary public buildings. 

* ” 

. . . 

An an&r to said first question asked by you depends to some 

extent upon what the Legislature intended by the use of the word "directed" 

in Article 4445 above referred to. Tne general meaning 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 it might be a mandatory vard, unless controlled by something 

in the context indicating otherwise, and the fact that discretion is given 

in the execution of the direction is not sufficient to change the mandatory 

sense thereof. However, your attention is called to the fact xthat some 

provisions of said Article 4445 indicate that the conrmissioners~ court 

shall determine the neoessity of providing a suitable plaoe for the detention of persons who may be subject to qaarsntine thereunder, as sell as 

what would be a suitable place 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' court would have the right and that it would be its duty 

to determine that phase of the matter. As to all such matters, the 
Hon. Geo. W. Cox, Page 4 (o-4960) 

general rule is that an order of the ccmmissioners' court is binding 

and conclusive, and is not subject to revision, in the absence of a 

clear showing of gross abuse of discretion, or fraud or collusion. If 

the commissioners' court refuses to make provision for the detention of 

persons required to be detained under the law in question, the general 

remedy would 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 mandamus will lie to correct a gross 

abuse of discretion uponthe part of boards or officers intrusted with 

such discretion, when such abuse is so clearly shown as to establish the 

fact that in performing the action complained of the officers or boards 

acted wholly through fraud, caprice, or by a purely arbitrary decition, 

and without reason. 

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

go foriiard and make 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 

should be answered in the negative, and in support thereof we dire& your 

attntion to the following statutes1 

A&icle 4423 reads as follows: 

"County health officer. -- The commissionars~ court 

by a majority vote in each organized county shall biennially appoint a proper person for the office of county 

health offioer for his county, who shall hold 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 appointment with the Texas State 

Board of Health3 and, until such copies are so filed, said 

officer shall not be deemed legally qualified. compensation 

of said county health offiaer shall be fixed by the connnissioners' oourt; provided, that no compensation or 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 city health officer as in this 

chapter provided 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 county health offioer.-- Eaoh county 

health officer shall perform such duties as haw been 

required of county physicians, with relation to oaring 

for the inmates of county poor farms, hospitals, discharging duties of county quarantine and other suoh duties as may be lawfully required of he county physician 

by the commissioners court and other officers ofthe 

county, and shall discharge any additional duties which 

it may be proper for county authorities under the present 

laws to require of county physioians: and, in addition 

thereto, he shall discharge suoh duties as shall be prsscribed for him under the rules, regulations and requirements of the Texas State Board of Health, or the president 

thereof, and is smpowered and authorissd to establish, 

maintain and enforoe quarantine within his county. He 

shall also be required to aid and assist the State Boa3 

86 Health in all matters of local quarantine, inspection, 

disease prevention and suppression, vital and mortuary 

statistics and general sanitation within 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 epidemic diseases 

within his jurisdiotion; and he shall make suoh other and 

reports in suchmanner snd form and at such times as said 

State board shall direct3 touching on such matters as may 

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 enforcement of all sanitary laws and quarantine regulations within his jurisdiction." 

Article 4428 reads as follows: 

sRemuva1 of county health officer. -- In all matters 

with which the State Board of Health may be.olothed with 

authority, said county health offioer shall at 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 ccnstitute malfeasance in office, and shall subjeot said county 

health offioer to removal from office at the relation of the 

State Board of Health3 and pending charges forremoval, said 

county health officer shall be tried in the district court 

ofthe county inwhich such county health officer resides." 
Hon. George W. Cox, Page 6 (o-4960) 

Apiole 4429 reads as follow83 

"Charges against the county health &floor.-- If any county health officer 

shall fail or refuse to properly dis,charge the duties of his office, as 

prescribed by this chapter, the State Board of Health shall file charges 

with the cdwnieeioners~ court for the proper county, specifying wherein 

such officer has failed in the discharge of his duties3 and at the same 

time the State Board of Health shall file a protest with the county clerk 

a&i the county treasurer against the payment of further fees, salary or 

allornPnoe to said county health officer3 and, pending such protest and 

charges, it shall not be lawful for such county health offioer to be paid 

or to receive any subsequently earned 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 county health offi oer, 

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 arch appeal, no salary, fees or allowances shall be paid to 

said county health officer for any subseqnently earned salary3 and, if the 

charges shall be sustained, the county health officer shall be adjudged to 

apy all oosts of court, and shall forfeit all salary, fees and allowanoes, 

earned subsequently to 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 available msans to ascertain the existence of, and to investigate alloases of 

syphilis, gonorrhea, and ohanoroid within their several territorial jurisdictions, and to ascertain the sources of such infections. Local health 

officers P e hereby empowered and directed to make examinations of persons 

reasonably susnected of 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 assoaiated with them, 

all such persons are to be considered within the above class. 

"Sea. 4, Upon receipt of a report of a case of venereal disease, the local 

health officer shall institute measures for protection of other persons from 

infection by such wnereally diseased person3 

11 

. . . 

"Sea, 9. Any health officar or other physician who shall wilfully fail 

to perform tic duties required of him in this article shall, in addition 

tot'he fines imposed by law, forfeit his right and lioense to practice 

medicine wlthinthis State3 and the district courts of the State shall 

have jurisdiotion of suits for the forfeiture of such license in such 

oases, and the suit may be filed by any citizen of the %ate in a court 
Hon. 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 represent the petitioners in such suit." 

Article 704 of the Penal Code is in part as follows: 

"Venereal diseases. -- Whoever violates any provision of this article shall 

be fined not less than five nor more 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. 

" n . . 0 

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 

county health officer is not responsible for 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 clearly make it the duty of 

the county health officer to give attention to such matters, and this 

without regard to any action the commissioners oourt may take in regard 

thereto. 

are 

Trusting that this satisfactorily answers your 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 GENEBAL OF TEXAS APPROVED 

Opinion Committee 

byBWB 

Chairman