JIMMATTOX Attorney

General

Supreme Court Bulldina P. b. BOX 12548 ” Austin. TX. 76711. 2546 5121475.2501 Telex 910/674-1367 Telecopier 5121475-0266

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

November 10, 1983

Honorable Lloyd Criss Chairman Labor .5EmploymentRelations Committee Texas House of Representatives P. 0. Box 2910 Austin,Texas 78769
Dear RepresentativeCriss: OpinionNo. J&g2
Re: Whether Department of Health has jurisdiction over sanitaryconditionson trains

You have advisedus thatyou have questionsregarding theTexasDepartmentof Health’s jurisdictionover toiletson lbcomotivesand toilets,drinkingwater andwash basins on cabooses.
Your questionsare as follows:

1. Are sanitaryconditionson a subject to Texas Nealth Department tomunicipalhealth regulations? 2. Is a railroad company (as railroad train regulationsor

an intrastate common carrier) required to maintain sanitary conditions as per article 4477-1, section 22(a), V.T.C.S.? 3. Couldunsanitary facilitiesbe construedas a nuisance dangerous to the public health under article 4477-l. section 2(f)? In addition,would the companybe subject to abatementproceedingsas 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.

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We will address your second question first. Section 22(a) of article 4477-1,V.T.C.S.,providesas foll.ows:

All persons, firms or corporations managi~ngor operating bus lines or airlines in the State of Texas, or any person, firm or corporation operatingany coastwisevessel along the shoresof the state of Texas shall maintain sanitary conditions in all of their equipment and at all terminalsor dockingpoints. 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 otherhand, doesnot 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 categoriescanbe 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) (statutorywordswhich,when given ordinarymeaning, are unambiguousare not subject to construction). We thereforeanswer your secondquestion in thenegative.
In order to next address your third question, we look to the followingprovisionof article 4477-l:

sec. 2. (a) Any and all of the following conditions are hereby specificallydeclared to be nuisancesdangerous to thepublichealth;

. . . . (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 transportationof garbage,human excreta,or other organic material which is defective and allows leakageor spillingof contents;

. . . .
sec. 3. (a) Every person, possessing 3 place in or onwhich there is a nuisance shall,as soon as its presence comes to his knowledge,

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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]. (Emphasisadded). 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 nuisancemust abate thatnuisance. We believe that a toilet facility In a railroad car is a "place" within the meaning of section 3(a). Section 3(b) authorizes localhealth 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 carwhich 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 fourthquestion,article 4477-l furtherprovides:

Sec. 5. (a) All human excreta in populous areasmust be disposedof throughproperlymanaged 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 conditionknown to have any

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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 establishmentshallbe continuallymaintained in a sanitarycondition. Section 5(a) provides quite explicitly for the health department's regulation of the type of toilet facilitiesused on railroad trains, that is, chemical toilets. The prohibitionsof section 19(a) against unhealthy and unsanitary conditions in theworkplace apply broadly to any "place of employment." SeeAttorneyGeneralOpinionV-227 (1947). Of course, theviolation ofeither of theseprovisions, 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 injunctivereliefunder section 25.
We now turn to your first question. Although this question asks generally about "sanitary conditions on a railroad train," your prefatory remarks indicatethatyour specificconcern iswith 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 legislaturelimited the applicationof this requirementto these three typesofvehicles, the fact is that it clearlydid 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, cannotenlargeor alterplaf~n meaning of statutory language). Section 22(s), therefore, clearly furnishesno authority for Board of Health Resources regulationstobe applicable to trains. Section 23 of article 4477-lprovides as follows:

(a) All provisions of this Act are hereby declared to constitute minimum requirements of sanitation and health protectionwithin 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, sectionV of the State Constitution, and Articles 1175-76 of the Revised Civil Statutesof Texas of 1925. (b) The Texas Board of Health Resources may adopt rules consistentwith the general intentand

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purposes of this Act, and establish standardsand procedures for the management and control of sanitationand healthprotectivemeasures.
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 themanagement 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. Martinv. 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 impliedprohibition in section 22(a) againstgeneralboard regulations applicable to trains is not overridden by the general grant of authority furnishedby section 23(b). except as to drinkingwater. In this context, it is instructive that in Barr V. Bernhard, 562 S.W.2d 844 (Tex. 1978) the Texas SupremeCourt stated that oneprovisionof a statutemay not be given s meaning out of harmony or inconsistentwith other provisions, even though it might be susceptible of such a constructionstandingalone.
Sectfon 23(a) explicitlyprovides 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 nuisancesand 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 theprotectionof anywater sheds and thepolicing 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 securityof the city and its inhabitants.

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7

We believe it vould be unreasonable to conclude that the power of municipalities to define and abate nuisancesdoesnot 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 citiesmay regulate sanitary conditions on trains. Railroad companies are not subject to section 22(a) of article 4477-1. V.T.C.S. If a nuisanceas defined Iansection 2(f) or (g) of article 4477-l is found in a toilet facilityof a railroad car, a localhealth officer within whose jurisdiction the car is located may implement the enforcementprocedures 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

AttorneyGeneral of Texas 1,

TOM GREEN FirstAssistantAttorneyGeneral
DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Colin Carl AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman David Brooks Colin Carl

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