E ATTORNEY GENEHAL OF TEXAS

PRICE DANIEL ATTORNEY

GENERAL AuAT~N~~.'I.ExA~ February 11, 1949

Hon. John T. Nicholson County Attorney Comanche County Comanche, Texas OpinionNo.

### v-768
Re: The applicability ofArticle 4442,V.C.S., and Article 701, V.P.C., relating to operation of 'maternityhomes' to private hospitals.
Dear Sir:

Reference is made to your recent requestwhich reads in part as follows:

"TheCity of Comanche has a private hospital under the ownershipand management of two brothers, acting as a partnership,and both licensed to pract-ice medicine and surgery in the State of Texas. The hospital engages in the general practice of medicine and surgery,not specializing in any certain thing, and keeps patients in beds during treatment, and cares for and treats pregnantwomen, and delivers their children. "The hospitalwas establishedunder permission and authority of the City Council of Comanche, Texas, under the provisions ofArt. 1015, Sec. 4,Vernon's Rev. Civ. Stats., 1925.

11

. . . . “IS such a hospital an by Art. 4442,Vernon's 1925 146, Acts 1935, 44th Leg., 1, and by P.C.Art. 701? institutioncovered RCS, Acts 1921, p. p. 294, ch. 

### 108,

Sec.

Articles 4442, Sec. l.,V.C.S., and 7OlV.P.C., are as follows:
'"Art.

4442. Maternity home "1

. Every individual, firm, association, or corporation, owning, keeping, conducting or managing an institution or home for the boarding or sheltering of Infant children, or so-calledIt is stated in 39 T'ex.Jur, 228 that: "an emergency

Clause may be considered if I W'ill aid the Court in ascer,ta t sheds lightupon the inquiry and ining the legislative intent. Hon. John T. Nicholson, page 2 V-768

'BabyFarm,' or any lying-in hospital, hospital ward, maternity home or otherplace for the reception, care and treatment of pregnantwomen, and charging a fee or receiving or expecting compensation in theway of room rent or board, shall obtain an annual licensewhich shall be issuedby the State Board ofHealth without fee, shall not be transferableto otherpersons or other premises, and shall expire on the thirty-firstday of December next following the issuance. The application for such license shall state the name and address of the licensee, the specific location of the building used, and the number of inmateswhich may be boarded there at one time, and shall be approved by the local health officer. No greater number of inmates shallbe housed at one time in the building than is authorizedby the license, and no pregnantwoman or infant shallbe kept in a building or place not designated in the license. A record of licenses issued shallbe kept by the StateBoard of Health."
"Art.701. Maternity home "Anyperson,manager, keeper, or officer of any corporation, firm or associationwho shall keep or conduct any 'BabyFarm,' lying-in hospital, hospitalward, maternity home or place for the reception, care or"treatment of pregnant women without first having obtained a license from the State Board of Health as providedby law shallbe fined not less than fifty nor more than five hundreddollars and in addition theretomay be confined in iail not to exceed twelve months." Acts 1921, pe 167.

The emergency clause of Senate Bill 215 Acts of the 37th Legislature,R-S., 1921, (Art. 4442,V.C.S.j is in part as follows: "Owing to the fact that the well-being of the public demands the regulation of the above mentioned places both from the standpoint of public health and from an ethical and moral standpointand owing to the fact that no law at present time exists on the statutebooks of thisHon. John T. Nicholson, page 3 v-768

State adequately controlllng such before mentioned place, creates an emergencyand an imperative public necessity q . . . There is no general Hospital Licensing law in the State. However, over a long period the State Board of Health, the agency chargedwith enforcing the provisionsunder this Statute, has required that a hospitalwith a MaternityWard be licensed under the provisions of Art. 4442, V.C.S., and it is the opinion of this office that such a constructionplacedupon the statutes is reasonableand sound. Since the Statute is ambiguous with respect to whether it applies to such an institution and there is no authority to the contrary, the departmental construction shouldbe followed.

This rule wa8 announced in the case of Texas Employers InsuranceAssociation v. Holmes, 145 Tex. 158, 196 S.W. 2d 390, wherein Justice Sharp, speaking for the Court, stated as follows:

"Ifa statute is ambigous and susceptible of more than one construction, there are certainwell settled rules which govern its construction: "First, the practical interpretationof theAct by the agency charged with the duty of administering it is entitled to the highest respect from the Courts. And this is especially so when that interpretationhas been long continued anduniform."
Ir view of the foregoing it is OUT opinion thatunder the factual situationpresented, such a hospital comes within the provisions of Articles 4442, V.C.S., and 701,V.P.C.

SUMMARY
A privately owned general hospitalwhich has a maternity ward in which children are delivered and mothers are cared for is sequired to be licensed by the StateBoard of Health. Art. 4442, V.C.S. Art. 701, V.P.C.

BA:bh:wc APPROVED s/Fagan Dickson FIRST ASSISTANT ATTORNEY GENERAL Yours very truly, ATTORNEY GENERAL OF TEXAS By s/BruceAllen Bruce Allen Assistant