. _. . 

R-533 

OFFICE OF 

THE ATTORNEYGENERAL 

AUSTIN.TEXAS 

PRICEDANIEL 

ATTORNEY GENIERAL 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 a Wassermann or Kahn test 

berore, or at the time a lioensed physician and’ 

surgeon gives them a health certlrlaate? 

“2. What is the exact law concerning who 

can issue health oertlrlcates to food handlers? 

“3. Can a city designate a .physician and 

surgeon as the sole person who may issue 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 

and find them free from communicable disease?” 

Article 705e of Vernonfs Penal Code reads, in 

part, as r0ii0ws: 

“Section 1 0 No person, firm, corporation, 

common carrier or assooiation operating, managing, or conducting any hotel or any other public 

sleeping or eating place, or any place or vehicle 

~where food or drink or containers therefor, oft 

any kind, is manufactured, transferred, prepared, 

stored, packed, served, sold, or otherwise handled in this State, or any manufacturer 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 

any said 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 any said place, or to deliver any article 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 9 attesting the fact that the bearer had 

been actually and thoroughly examined by .o.uoh 

physician within a week prior to the time of suah 

employment, and that such examination dfsolosed 

the fact that such person to be employed was free 

from any transmissible condition or any Iniectious 

or aontagious disease; or fall to Institute aad 

have m3at3, at Intervals of time not exoeeaing six 

months, actual and thorough 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 had been made 

of such person, disclosing the faot that he or she ’ 

was free from any transmissible condition of any 

communicable and Infectioue diseases sn (Emphasis’ 

added)~ 

n 

. . . , 

TSect~Ion 3. . . . *Public health deuartauthorized ’ 

lations and ordinances as they may de- 

-7TETexecut ion 

ments. and local lawmaking bodies, are hereby 

to establish such further rules 

Fi e%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 amount not exceeding 

Two Hundred Dollars ($200) e Each act ‘or omission 

In violation of’ any of the provisions of this Artfcle, shall constitute a separate offense and shall 

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, and aontagioue dieeases In 

and throughout the state. ,Suoh licenses 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.een aotually and thoroughly examined by such physician withIn a’ 

week prior to the time of such employment, and that such 

examination disclosed the fact that suoh person to be employed was free from any transmlasible condition or any 

Infectloue or contagious dI.eease.~~~” 

In Prescott vs. City or Borgor, 158 8W (2d) ‘578 

(Error refused), the Court said: 

wFrom the 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 a field of legislation 

that has been occupied by general 1eglslatlve 

enactments a Xydias Amusement Co, v. City of 

Houston et al, Tex. Civ. AppO, 185 S.WR. 415; 

City of Lubbock v. South Plains Hardware Co., 

Tex. Civ. App., 111 S. W. 2d 343." 

?I 

. . D When the 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 had been 

occupied by the Legislature when it enacted 

Art. 165-3. The limitation placed upon local 

bodies doe~e.not extend, of course, to those 

ordinances which are permitted by, or are Inharmony with constitutional and statutory provisions even thOURh, in doinR so, they may be 

id t be entering the same field Th fourth 

iiragriph of Sec. 2 of Article 16!&i&ies 

that the governing bodies of cities may adopt 

specifications and regulations for any grade 

of milk that is offered for sale in such cities 

but provides that when the same are adopted 

they shall be governed by the specifications 

and regulations promulgated by the State Health 

Officer as authorized by the Aot." 

Said Article 705~ empowers local lawmaking bodies to establish rules, regulations and ordinances, provided, that all conditions of that article shall'be requlsite to such regulations and ordinances, and that reglstratlon cards issued to employees shall show that the person named thereon 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 OS Crystal 

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, and all other 

persons in any manner handling 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 upon their~duties as such 

and each six months thereafter obtain from~the 

City Health Officer a certificate showing that 

the party named therein is in good health on 

day of examination by said health officer. 

*Section 2. The Health Officer making such 

examination may charge a See of not to exceed 

(1.00 for making such 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 same in a 

clean, sanitary condition at all times and the 

same shall be subject to examination by the City 

Health Offi~cer; and It in hereby made the duties 

or the owner’.o’r nroprletor or any such bwx 

to see that all employees have such certiS’icats 

&sued. @mpha,sis added 1 

We&ion 4. All-ordinances and parts of 

ordinances in conflict with this ordinance are 

hereby in all things repealed. 

“Section 5 0 That any person or persons 

Sound guilty of violating any provision of this 

ordinance shall be fined in any sum not more then 

)~oo.oo.- 

The authorltg OS Crystal City to pass- an orclinance pertaining to health certificates issued to employees mentioned In the ordinance is controlled by the language in Section 3 OS Article 7050. 

The only language in the ordinance, which applies 

to pertinent examinations and certificates, is that the 

class of amployees named in the ordinance shall “obtain 

Strom the aity Health OSSic~er a oertificate showing that 

the party named therein is in good health on the 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 and that fixed in the ordlnance is not more than $100. Crystal City is not authorized to prescribe a penalty for violation OS its ordinanoe 

inconsistent with the State law. 

In City of Wink vs. Griffith Amusement Company, 

100 5. Vi. (2d) 695, the Suprame Court said: 
Hon. Geo. W. Cox, M. D., Page 6, V-351 

"Article 054 of the Penal Code provides 

as a penalty for establishing a lottery, a Sine 

of 'not less than one hundred nor more than one 

thousand dollars.' The penalty prescribed by 

the ordinance in question, as shown above, is 

a fine 'not exceeding ($100.00) One mema 

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.~ The rule is 

definitely established with us that the penal 

provisions of an ordinance cannot be different 

from those of the Penal Code for the same ofSense, and that ordinances in confllot with 

the general or state law are void. 30 Tex; 

Jurisprudence p. 301, I 167, p:304, I 168, 

and cases sited in the notes; El Paso Electric 

Co. v. Collins (Tex. Corn. App.) 23 8W (2d) 295- 

296." 

The case of El Paso Electria company vs.; Collins, 23 S. 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 The Supreme Court deoidea 

that as to the conrlict, the ordinance was Ineffective. 

We are of the opinion that the ordinanae of 

City, above set out, Is void because it is inoonwith the general laws of Texas. 

Any legally 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 an examination 0s a person essential to rindings 

that such person is free from communicable and infectious diseases; if Wassermann or Kahn tests are essontiai to the discovery of conditions of the person in 

that regard, we are 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, and meat 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 maximum penalty 

fixed by the ordinance for its violation 

is $lOO,, and the maximum penalty fixed,in 

general law,for,the same offense in $200. 

For these'reasona said ordinance is void. 

Art'. 7054, V.P.C.; Prescott vs. City of 

Borger, 158 S. W. (2d) 578; City ot Wink. 

vs. Grirfith Amusement Company, 100 9: W." 

(2d) 695; El Paso Eleatric Company vs. Collins, 23 s. w. (2d) 295. If Wassermati and 

Kahn tests are essential to the discovery 

of infectious and oommunicable diseases, such 

tests are necessary in suok examinations.. 

:‘.. . . 

Assistant 

T ASSISTANT 

= ‘i. ~.A, 

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