. _. . R-533



### OFFICE OF 

# THE

# ATTORNEYGENERAL

AUSTIN.TEXAS

PRICEDANIEL ATTORNEYGENIERAL August 19, 1947

Hon. Ceo. W. Cox, M.D. Opinion No. V-351 State Health Orricer Austin, Texas Re: Authority of ’ the governing body 0r a city to control issuance or health certificates, and related questions 0 Dear Sfr:
We refer to your letter of July 21, 1947, concerning the lollowing questions:

*1. Does the law require that’ l’ood handlers or persons working in soda fountains, cafes, bars, and etc., have aWassermannor Kahntest berore, or at the time a lioensed physician and’ surgeon gives thema health certlrlaate?

“2. Whatis the exact law concerning who can issue health oertlrlcates to food handlers?

“3. Cana city designate a.physician and surgeon as the sole person whomayissue a health certifiaate within their corporate liaits? If the city does designate one physician, as the only person whose health certificate they will recogtize, .does that exclude other licensed physicians in.good standing from issuing health certificates to food handlers if they certify they have examined the applicant andfind themfree from communicable disease?” Article 705e of Vernonfs Penal Code reads, in part, as r0ii0ws:

“Section 10 Noperson, firm, corporation, commoncarrier or assooiation operating, managing, or conducting anyhotel or any other public sleeping or eating place, or any place or vehicle ~wherefood or drink or containers therefor, oft any kind, is manufactured, transferred, prepared, stored, packed, served, sold, or otherwise handled in this State, or anymanufacturer or vendor.
Hon. Ceo. W. Cox, Md.D., Page 2, V-351

of oandies or manufactured sweets, ahall wox$c, employ, or keep In their employ, In, on, or about anysaid place or vehicle, or have delivered any article therefrom, any person Infected with any transmissible condition of any lnfectlous or contagiaus disease, or work, or employ any person to work in, on, or about anysaid place, or to deliver anyarticle therefrom, who, at the time of his or her employment, failed to deliver to the employer or his agent, a certificate signed by a legally-licensed physioian, residing in the county where said person is to be employed, OX* Is employed 9attesting the fact that the bearer had been actually and thoroughly examined by .o.uoh physician within aweek prior to the time of suah employment, and that such examination dfsolosed the fact that such person to be employed was free from anytransmissible condition or any Iniectious or aontagious disease; or fall to Institute aad have m3at3, at Intervals of time not exoeeaing six months, actual andthorough examination .easentIal to the f

‘indirVz8 of rreedom rrrrn oolamualaable and Infectious diseases, or all saoh employees, by a
‘legally-licensed physialan reaidln& in the aounty where said person b employed, and secure in evldenoe thereof a certiricate signed by such physician stating that such examinations hadbeen made of such person, disclosing the faot that he or she ’ was free from anytransmissible condition of any communicable and Infectioue diseases sn(Emphasis’ added)~

n

. . . , TSect~Ion3.

. . .*Public health deuartauthorized ’ lations and ordinances as they mayde- -7TETexecut ion ments. and local lawmaking bodies, are hereby

to establish such further rulesFie%f% ZTWioi intenttons or this Act; .

card must bear the signetaxe of ‘the person,’named thereon and.shall be displayed for public idspec-. -
Hon. Geo. W. Cox, M.D., Page 3, V-351

tion at the place where such a person is employea.n (Emphasis added)
n

. . . . *Section 5. Whoever violates any provision or this Aot shall be fined in en amountnot exceeding TwoHundredDollars ($200) e Eachact ‘or omission In violation of

’ any of the provisions of this Artfcle, shall constitute a separate offense andshall be punishable as hereinabove presoribdd.* In 1937, the Legislature entered the whole field of eraminlng and licensing persons employed In hotels and other public eating and sleeping places or vehicles where food or contaInera therefor, of any kind, are manufrotored, transrerred, prepared, stored, pecked, served, sold, or Qtherwise handled In this state, by enactment. .of said Artiole 705c, V. P. C., as a protection against the spread of communicable, hnfectlous, andaontagioue dieeases In andthroughout the state. ,Suohlicenses are required to be Issued by a legally, licensed physlolan lgeidlng in the county where the person Is aaployed. Such physioian Is reqnlred to certify that the person “has b.eenaotually and thoroughly examined by such physician withIn a’ week prior to the time of such employment, andthat such examination disclosed the fact that suoh person to be employed was free from anytransmlasible condition or any Infectloue or contagious dI.eease.~~~”

In Prescott vs. City or Borgor, 1588W(2d) ‘578 (Error refused), the Court said:

wFromthe above it will be seen that the Legislature has entered the field of lagielation covered by the ordinance enected.by.the governing authorities of the City of box&zir. It Is well established’ law In this state that, generally, the governing authoritlee of citiee are prohiblted by the Constitution, Art. 11., Sec. 5, and the statutes, Art. 1185, et seq., R.C.S. 1925, Vernon’s Ann. Civ. St. Art. 1165 et seq., rrom entering afield of legislation that has been occupied bygeneral 1eglslatlve enactments a Xydias AmusementCo, v. City of Houston et al, Tex. Civ. AppO, 185S.WR.415; City of Lubbock v. South Plains HardwareCo., Tex. Civ. App., 111 S. W. 2d 343." ?I

. . DWhenthe governing body of appellee,. .
Hon. Geo. W.Cox, M. D., Page 4, V-351

the City of Borger, attempted to enact the ordinance here in question, it undoubtedly entered a field of legislation that hadbeen occupied by the Legislature whenit enacted Art. 165-3. Thelimitation placed upon local bodies doe~e.not extend, of course, to those ordinances which are permitted by, or are Inharmonywith constitutional andstatutory provisions even thOURh,in doinR so, they maybe id t be entering the samefield Th fourth iiragriph of Sec. 2of Article 16!&i&ies that the governing bodies of cities mayadopt specifications andregulations for any grade of milk that is offered for sale in such cities but provides that whenthe sameare adopted they shall be governed bythe specifications and regulations promulgated by the State Health Officer as authorized by the Aot." Said Article 705~ empowerslocal lawmaking bodies to establish rules, regulations andordinances, provided, that all conditions of that article shall'be requlsite to such regulations and ordinances, and that reglstratlon cards issued to employees shall showthat the person namedthereon has complied with all of the provisions of that.article. Such local lawmaking bodies are not given any authority to modify said Article 7050 or legielate inconsistently with it.

Your inquiry relates to an ordinance OSCrystal City which is incorporated and operates under Title 28 of Vernon's Civil Statutes, which ordinance reads:

Wection 1. That all persons employea~as waiters, waitresses or cooks, andall other persons in anymannerhandling foods, dishes or other receptacles for food, in hotels, safes, restaurants, soda foundtalns, bakeries or meat markets, in the City of Crystal City, Texas, shall before entering upontheir~duties as such and each six months thereafter obtain from~the City Health Officer acertificate showing that the party namedtherein is in good health on day of examination by said health officer. *Section 2. TheHealth Officer making such examination maycharge a See of not to exceed (1.00 for makingsuch examination and his certiiicate relative to.the same. "Section 3. All persons using tools, other apparatus or receptacles for Sood in bakeries,Hon.~Geo. 19.Cox, M. D., Page 5, V-351

meat mrkets or other places where food or drinks are handled or sold shall keep the samein a clean, sanitary condition at all times and the sameshall be subject to examination bythe City Health Offi~cer; andIt in hereby madethe duties or the owner’.o

’r nroprletor or any such bwx to see that all employees have such certiS’icats &sued. @mpha,sis added1 We&ion 4. All-ordinances and parts of ordinances in conflict with this ordinance are hereby in all things repealed.

“Section 50 That any person or persons Soundguilty of violating any provision of this ordinance shall be fined in anysumnot morethen )~oo.oo.- Theauthorltg OSCrystal City to pass-an orclinance pertaining to health certificates issued to employees mentioned In the ordinance is controlled by the language in Section 3 OSArticle 7050.

Theonly language in the ordinance, which applies to pertinent examinations and certificates, is that the class of amployees namedin the ordinance shall “obtain Stromthe aity Health OSSic~era oertificate showing that the party namedtherein is in good health onthe day of examination by said health Offioer.”

Article 705~authorizes any legallg licensed physioian in the county where the person is employed, to examine such person and issue a certifioate disoloslng that he or she has been examined by such physician and found free from any transmissible condition of any communicable and iniectious disease,

Article 7050, V.li.C., Andy the City Ordinanae of Crystal City pertain to the proteotion of the publio health by requiring employees in ,9ubllc eating pl.aces to obtain health certificates. The penalty fixed in said article la not more than $200 andthat fixed in the ordlnance is not more than $100. Crystal City is not authorized to prescribe a penalty for violation OSits ordinanoe inconsistent with the State law.

In City of Winkvs. Griffith AmusementCompany, 1005. Vi. (2d) 695, the SuprameCourt said:Hon. Geo. W. Cox, M. D., Page 6, V-351

"Article 054of the Penal Codeprovides as apenalty for establishing a lottery, a Sine of 'not less than one hundred nor morethan one thousand dollars.' Thepenalty prescribed by the ordinance in question, as shownabove, is a fine 'not exceeding ($100.00) Onemema Dollars, and each day of violation shall be 8 separate offense.* It will at once be observed that the penal provisions of the ordimanhe are different from those contained in the State Penal Code, although both acts cover the ofSense of conducting a lottery.~ Therule is definitely established with us that the penal provisions of an ordinance cannot be different from those of the Penal Code for the sameofSense, andthat ordinances in confllot with the general or state law are void. 30Tex; Jurisprudence p. 301, I 167, p:304, I 168, and cases sited in the notes; El Paso Electric Co. v. Collins (Tex. Corn.App.) 238W(2d) 295- 296."The case of El Paso Electria companyvs.; Collins, 23S. U. (2d) 295, was a traffic regulation case in which the statute law defined a part of the ofrense identical with the-ordinance involved. Other details were speoified In the ordinanoe which were not in the statute; the ~penalty prescribed in the 8tatute is "not to exoeed $lOO.OO;n in the ordinance, *not leas than (1.00 nor more than $lOO.OO.n TheSupremeCourt deoidea that as to the conrlict, the ordinance was Ineffective.

Weare of the opinion that the ordinanae of City, above set out, Is void because it is inoonwith the general laws of Texas. Anylegally licens.ed physician residing In Zavala County is authorized to issue health certiflcates to food handlers in Crystal City; the governing body of said city is not~authorized to aonfins such authority to one physioian.

This department is not familiar with details 0s anexamination 0s a person essential to rindings that such person is free from communicable and infectious diseases; if Wassermannor Kahntests are essontiai to the discovery of conditions of the person in that regard, weare of the opinion that such are necessary , otherwise not._. ’

. .’
Hon. Geo. W. C.ox,M.D., Page 7, V-351

SUMMARY The ordinance of crystal City which regulates the examination and lioenslng oS employees in hotels, cafes, restaurants, soda fountsins, hakpries, andmeat markets in Crystal City, is inconsistent with Article 7050, V.P.C., because the ,ordinance confines in its City Health Officer the aathoritg to examine and issue licenses to such employees, which examinations and licenses are different from those required by said general law; the maximumpenalty fixed by the ordinance for its violation is $lOO,, andthe maximumpenalty fixed,in general law,for,the sameoffense in $200. For these'reasona said ordinance is void. Art'. 7054, V.P.C.; Prescott vs. City of Borger, 158S. W. (2d) 578; City ot Wink. vs. Grirfith AmusementCompany, 1009: W." (2d) 695; El Paso Eleatric Company vs. Collins, 23s. w. (2d) 295. If Wassermati and Kahntests are essential to the discovery of infectious and oommunicable diseases, such tests are necessary in suok examinations.. :‘.. . .

Assistant

TASSISTANT
=‘i.~. A, WTW:et:jt:jrb