* - R-392

THE ATTORNEY GENERAL

QP TEXAS

PRICE DANIEL AUSTIN z1.W~
ATTORNEY

GENERAL
May 29, 1947

Honorable Geo.W. Cox, M.D. OpinionNo. v-227 State Health Officer Texas State Hoard of Health Re: Right of entryby State Health Austfn, Texas Officer into Industrial establishments and meaning of SecDear Si.r: tion 19 of Article 4477-1, V.C.S., in that regard.
Reference IS made to your letter ofApril 17, 1947, in which you request an oplnlon of this office

### answerlng the following%

"InTitle 71, Article 4477-1, Section 19 (c), the Texas State Department of Health is directed to make health and sanl'carg surveys and studies of industrial establishments. It would be appreciated if you would render us an oplnlon as to whether this assignment ofwork includes the right of entry Into all Industrial establishmentsin Texas. It would also be appreciated ifyou would provldeus with a legal deflnitlon of 'Industrial' as It Isused in Section 19. We realize the;e is some present confusion relative to the extension of 

### coverage. "Under the word 'industrIalIwe ar,eapeclflcallydesirous to know whether or not this would Include all establishmentsmalntalnlng paid employees." Section 19 of Article 4477-1,Vernon's civil Statutes, is as follows:

"Sec. 19. (a) No person, firm, corporatlon or other employer shalluse, or permit to be used in the conduct of an?f business, manufacturing establishmentsor other olaces of emoloud, any process, material, or condition known to have any possible adverse effect on the health of any person or persons employed thereinunless arrangements have been made to maintain the OCCUpational environmentto the extent that such injurywill not result. Every Industrial eatablishment shallbe continuallymalntalned in a sanitary condition. (Emphasis ours).

Hon. Geo. W. Cox, M.D. ,page 2 v-227

"(b) The Texas State Department ofHealth shallmake available to the citizens of Texas current informationconcerningminimum allowable concentrations of toxic gases and such environmental standardsas may pertain to the health and safety of the employees of industrial estabi.ishments in this state. "(c) The Texas StateDepartment of Health shallmake health and sanitary surveys and studies of industrial establishments including such special items ,aswater supplies and d~istribution, waste disposal, adverse conditions caused by processes which may be responsible for 

### or cause ill health of industrialworkers. Such Texas State Department of Health shallbring to the attention of each surveyed establishmenta summary of the studiesand findings resultant thereof, togetherwith any recommendationswhich may be deemed necessary for the adequate protection of the health, safety and wellbeing of the workers."
All three sub-sections of Section 19 and Article 4420, R.S. 1925must be read and construed together. Sub-section (a) is a regulatorypenal staute for the protection of the health and safety of persons employed in places suchas are enumerated in that section. The penalty for violation is fixed in Section 24. Subsections (b)and (c) charge the State Department of Health w'lth duty to make health and sanitary surveys and studies, as a fact finding agency of the State. Article 4420,R.S. 1925, is as follows:

"Themembers of the State Board of Health or any personduly authorized, by them,upon presentation of proper authority inwriting, are hereby empowered,whenever they may deem It necessary in pursuance of their duties, to enter into, examine, investigate, inspectand view any ground, public building, factory, slaughterhouse, packing house, abattoir, dairy, bakery, manufactory, hotel, restaurant and any other public place and public buLldIngwhere they deem it proper to enter for the discovery and suppression of disease and for the enforcement of the rules of the sanitary code for Texas and of any health law, sS)nitary law or quarantine regulation of this State.
The case of Leach vs. Coleman, 188 S.W. 2d., 220, (writ refused) involved the question of the authority of a Health Officer to enter and make inspections of a dairy barn. After such inspection, the permit to sell milk was summarily revoked. The Court of CivilAppeals said:- -

Hon. Geo. W. Cox, M.D. ,page 3 V-227

"A health officerwho is expected to accomplish any results mst necessarilypossess large powers and be endowedwith the right to take summary action,which at times must trench closely upon despotic rule. The public health cannotwait upon the slow processes of a legislativebody, or the leisurelydeliberation of a court. Executive boards or officers,who can deal at oncewith the emergencyunder general principles laid down by the lawmakingbody, must exist if the public health is to be preserved in great cities. Low v. Conrog, 120 Wis. 151, 97 N.W. 942, 66 L.R.A. 907, 102 Am. St. Rep. 983 (1Ann. Cas. 341

. It is well said in People (ex rel. Lieberman1 v. Vandecarr, t;',,".Y. 440, 67 N.E. 913, 108Am. St. Rep. 781: vesting of powers more or less arbitrary in various officialsand boards is necessary if the work of prevention and regulation is to ward off fevers, pestilence, and the many other ills that constantly menace great centers of population'".

We are of the opinion that Texas Department of Health, or any person authorizedby It, may enter into all industrial establishments,manufacturing establishmentsor other places of employment in Texas, pursuant to their duties in making health and sanitary surveys for discovery and suppressionof disease or enforcement of the health and sanitary codes of the State of Texas.

The term "industrialestablishments"constitutes no limitation on the kind of place which may be entered,because of the all-inclusive language of the laws specifying the powers and duties of the Texas State Board of Health in the protection of the health and welfare of the people, expressly includingpersons employed in any "manufacturingestablishment or otherplace of employment." (Emphasisadded)

"Industrial"is defined as "relatingto manufactures, or to the product of industry or labor",Words and Phrases,Vol. 21, p. 225. "Establishment",when not restrictedby specificmention of some particular kind of establishment such as mercantite or other,means an "institution,place,building, or location. Words and Phrases,Vol. 15, p. 179.

Obviously,neither the Legislature nor this Department can write a definitionwhich will cover each fact situation in detall,but we trust thiswill answer your question generally, and that you will call upon us for assistance on specific caseswhen necessary..

Hon. Geo. W. Cox, M.D. ,page 4 V-227

SUMMARY
The State Department of Health is authorized to enter all industrial establishmentsand manufacturing establishmentsor other places of employment in the State of Texas to make health and sanitary surveys and studiesunder the provisions of Sec. 19, Art. 4477,-l,

V.C.S., and Art. 4420R.S. 1925. The term "industrialestablishment"means an Institution, place, building or location related to manufactures or to the product, of industry or labor.

Yours very truly,
ATTORREY GENERAL OF TEXAS By s/W.T.Williams W. T. Williams Assistant WTW:jrb:wc

APPROVED s/PriceDaniel ATTORNEY GENERAL