JIM MATTOX 

Attorney General 

Supreme Court Bulldina 

P. b. BOX 12548 ” 

Austin. TX. 76711. 2546 

5121475.2501 

Telex 910/674-1367 

Telecopier 5121475-0266 

714 Jackson. Suite 700 

Dallas. TX. 75202.4506 

2141742.6944 

4624 Alberta Ave.. Suite 160 

El Paso, TX. 79905.2793 

9151533.3484 

-1 Texas. Suite 700 

usto”, TX. 77002-3111 

7131223.5666 

806 Broadway. Suite 312 

Lubbock. TX. 79401-3479 

6061747~5236 

4309 N. Tenth. Suite B 

McAllen. TX. 76501-1665 

5121662.4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 76205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

November 10, 1983 

Honorable Lloyd Criss 

Chairman 

Labor .5 Employment Relations 

Committee 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Dear Representative Criss: 

Opinion No. J&g2 

Re: Whether Department of 

Health has jurisdiction over 

sanitary conditions on trains 

You have advised us that you have questions regarding 

the Texas Department of Health’s jurisdiction over 

toilets on lbcomotives and toilets, drinking water 

and wash basins on cabooses. 

Your questions are as follows: 

1. Are sanitary conditions on a 

subject to Texas Nealth Department 

to municipal health regulations? 

2. Is a railroad company (as 

railroad train 

regulations or 

an intrastate 

common carrier) required to maintain sanitary 

conditions as per article 4477-1, section 22(a), 

V.T.C.S.? 

3. Could unsanitary facilities be construed as 

a nuisance dangerous to the public health under 

article 4477-l. section 2(f)? In addition, would 

the company be subject to abatement proceedings as 

described in section 3 of article 4477-l? 

4. [Does the entire statutory scheme of 

article 4477-l affect the analysis of the 

standards applicable to] unsanitary toilet and 

drinking water facilities and wash basins on 

trains? 

We understand that your question concerns only the usage of the 

facilities at issue by railroad company employees on freight trains 

and address our answers to such situations. 

p. 390 
Honorable Lloyd Criss - Page 2 (JM-92) 

We will address your second question first. Section 22(a) of 

article 4477-1, V.T.C.S., provides as foll.ows: 

All persons, firms or corporations managi~ng or 

operating bus lines or airlines in the State of 

Texas, or any person, firm or corporation 

operating any coastwise vessel along the shores of 

the state of Texas shall maintain sanitary 

conditions in all of their equipment and at all 

terminals or docking points. 

Subsections (b), (c) and (d) of section 22 employ the term "common 

carrier." We believe that a railroad company is a "common carrier" as 

this term is defined in section l(c) of article 4477-1, and that it is 

therefore subject to these three subsections. Subsection (a) of 

section 22, on the other hand, does not use the term "common carrier." 

Instead, it applies only to persons, firms or corporations which 

operate "bus lines," "airlines," or "coastwise vessels." In our 

opinion, none of these three categories can be stretched far enough to 

embrace railroad companies. See Railroad Commission v. Texas & New 

Orleans Railroad Company, 42 S.W.2d 1091 (Tex. Civ. App. - Austin 

1931, writ ref'd) (statutory words which, when given ordinary meaning, 

are unambiguous are not subject to construction). We therefore answer 

your second question in the negative. 

In order to next address your third question, we look to the 

following provision of article 4477-l: 

sec. 2. (a) Any and all of the following 

conditions are hereby specifically declared to be 

nuisances dangerous to the public health; 

. . . . 

(f) All sewage, human excreta, waste water, 

garbage, or other organic wastes deposited, 

stored, discharged or exposed in such a way as to 

be a potential instrument of medium in the 

transmission of disease to or between any person 

or persons. 

(g) Any vehicle or container used in the 

transportation of garbage, human excreta, or other 

organic material which is defective and allows 

leakage or spilling of contents; 

. . . . 

sec. 3. (a) Every person, possessing 3 

place in or on which there is a nuisance shall, as 

soon as its presence comes to his knowledge, 

p. 391 
Donorable Ll~oyd Criss - Page 3 (JM-92) 

proceed at once and continue to abate the said 

nuisance. 

(b) Every local health officer who receives 

information and proof of the existence of a 

nuisance within his jurisdiction shall issue a 

written notice to any . person responsible for the 

said nuisance ordering the abatement of same. He 

shall at the same time send a copy of the said 

notice to the local city, county, or district 

attorney . . . . [Other procedures follow]. 

(Emphasis added). 

The prefatory remarks in your request letter indicate that the 

reference in your third question to "facilities" means toilet 

facilities in railroad cars. We will proceed upon this assumption. 

Section 3(a) provides that every person who possesses "any place" in 

which there is a nuisance must abate that nuisance. We believe that a 

toilet facility In a railroad car is a "place" within the meaning of 

section 3(a). Section 3(b) authorizes local health officers to order 

the abatement of nuisances "within [their] jurisdiction." In our 

opinion, a nuisance in a toilet facility on a locomotive engine, 

caboose, or other railroad car which is "within the jurisdiction" of a 

particular local health officer would be subject to abatement under 

section 3(a). The conditions specified in either item (f) or (g) of 

section 2, if found in a toilet facility on a train, would constitute 

the basis for a local health officer within whose jurisdiction the 

offending toilet facility or railroad car is located to initiate a 

proceeding under section 3. We therefore answer your third question 

in the affirmative. 

As to your fourth question, article 4477-l further provides: 

Sec. 5. (a) All human excreta in populous 

areas must be disposed of through properly managed 

sewers, treatment tanks, chemical toilets, 

approved prfvies, or by other methods approved by 

the State Department of Health. The disposal 

system shall be sufficient to prevent the 

pollution of surface ~011, the contamination of 

any drinking water supply, the infection of any 

flies, cockroaches, or the creation of any other 

nuisance. 

. . . . 

Sec. 19. (a) No person, firm, corporation or 

other employer shall use, or permit to be used in 

the conduct of any business, manufacturing 

establishments or other place of employment, any 

process, material, or condition known to have any 

p. 392 
Honorable Lloyd Criss - Page 4 (m-92) 

: 

possible adverse effect on the health of any 

person or persons employed therein unless 

arrangements have been made to maintain the 

occupational environment to the extent that such 

injury "ill not result. Every industrial 

establishment shall be continually maintained in a 

sanitary condition. 

Section 5(a) provides quite explicitly for the health department's 

regulation of the type of toilet facilities used on railroad trains, 

that is, chemical toilets. The prohibitions of section 19(a) against 

unhealthy and unsanitary conditions in the workplace apply broadly to 

any "place of employment." See Attorney General Opinion V-227 (1947). 

Of course, the violation of either of these provisions, as well 8s of 

section 22(b) (discussed below) or any other provision of article 

4477-1, constitutes the basis for criminal prosecution under section 

24 or injunctive relief under section 25. 

We now turn to your first question. Although this question asks 

generally about "sanitary conditions on a railroad train," your 

prefatory remarks indicate that your specific concern is with sanitary 

conditions in toilet facilities in railroad cars. We have already 

noted that railroad companies sre not subject to section 22(a) of 

article 4477-1. This section requires only companies which operate 

bus lines, airlines, and coastwise vessels to maintain sanita~ry 

conditions in their equipment. Although it is not clear why the 

legislature limited the application of this requirement to these three 

types of vehicles, the fact is that it clearly did so. We must assume 

that the specific distinctions drawn by the legislature in section 

22(a) were drawn for a purpose. See also Goldman v. Torres, 341 

S.W.2d 154 (TM. 1960) (courts, possessing no legislative powers, 

cannot enlarge or alter plaf~n meaning of statutory language). Section 

22(s), therefore, clearly furnishes no authority for Board of Health 

Resources regulations to be applicable to trains. 

Section 23 of article 4477-l provides as follows: 

(a) All provisions of this Act are hereby 

declared to constitute minimum requirements of 

sanitation and health protection within the State 

of Texas and shall in no way affect the authority 

of Home Rule Cities to enact more stringent 

ordinances pertaining to the matters herein 

referred to, and shall in no way affect the 

authority of Home Rule Cities to enact ordinances 

as granted to them under Article XI, section V of 

the State Constitution, and Articles 1175-76 of 

the Revised Civil Statutes of Texas of 1925. 

(b) The Texas Board of Health Resources may 

adopt rules consistent with the general intent and 

p. 393 
. 

Honorable Lloyd Criss - Page 5 (JM-92) 

purposes of this Act, and establish standards and 

procedures for the management and control of 

sanitation and health protective measures. 

We must conclude that section 23(b) of article 4477-l does not 

authorize the Board of Health Resources to regulate general "sanitary 

conditions" in trains, except insofar as section 22(b) mandates 

standards for drinking water on common carriers. Given the 

specificity of section 22(a), such regulations would not be 

"consistent with the general intent and purposes of this Act." Nor 

does the portion of section 23(b) which authorizes the board to 

"establish standards and procedures for the management and control of 

sanitation and health protective measures" S"PPLY the requisite 

authority, except with regard to drinking water. We recognize that 

section 23(b) was enacted more recently than section 22, Acts 1977, 

Sixty-fifth Legislature, chapter 456, at 1189. but section 22(a) is 

still on the books. We must read various provisions of the same act 

in pari materia and attempt to harmonize them if possible. Martin v. 

Sheppard, 102 S.W.2d 1036 (Tex. 1937). When we read sections 22(a) 

and 23(b) together, we arrive at the inescapable conclusion that the 

implied prohibition in section 22(a) against general board regulations 

applicable to trains is not overridden by the general grant of 

authority furnished by section 23(b). except as to drinking water. In 

this context, it is instructive that in Barr V. Bernhard, 562 S.W.2d 

844 (Tex. 1978) the Texas Supreme Court stated that one provision of a 

statute may not be given s meaning out of harmony or inconsistent with 

other provisions, even though it might be susceptible of such a 

construction standing alone. 

Sectfon 23(a) explicitly provides that the provisions of article 

4477-l "shall in no way affect the authority of Home Rule Cities to 

enact more stringent ordinances pertaining to the matters herein 

referred to" and article 1175, V.T.C.S. empowers such cities 

[19.] to define all nuisances and prohibit the 

same within the city and outside the city limits 

for a distance of five thousand feet . . . to 

prohibit the pollution of any stream, drain or 

tributaries thereof, which may constitute the 

source of water supply of any city and to provide 

for policing the same as well as to provide for 

the protection of any water sheds and the policing 

of same . . . 

. . . . 

34. To enforce all ordinances necessary to 

protect health, life and property, and to prevent 

and summarily abate and remove all nuisances and 

to preserve and enforce the good government, order 

and security of the city and its inhabitants. 

p. 394 
Honorable Lloyd Criss - Page 6 (JM-92) 

7 

We believe it vould be unreasonable to conclude that the power of 

municipalities to define and abate nuisances does not extend to trains 

which contain such nuisances in the nature of unsanitary toilet 

facilities. 

SUMMARY 

Sanitary conditions in toilet facilities of 

railroad trains which contain drinking water are 

subject to the regulatory authority of the Board 

of Health. Home rule cities may regulate sanitary 

conditions on trains. Railroad companies are not 

subject to section 22(a) of article 4477-1. 

V.T.C.S. If a nuisance as defined Ian section 2(f) 

or (g) of article 4477-l is found in a toilet 

facility of a railroad car, a local health officer 

within whose jurisdiction the car is located may 

implement the enforcement procedures of section 3 

of that article. Sections 5(a) and 19(a) apply to 

trains and provide the basis for action pursuant 

to section 24 and 25. 

Jqtjgk 

Attorney General of Texas 

1, 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Colin Carl 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

David Brooks 

Colin Carl 

p. 395