Honorable Dan W. Jackson

Crlmlnal District Attorney Houston, Texas

Dear Sir: Attention: Hon. W. K. Rlahardson

_ Oplnlon Wo. O-4533 F@: Csnthe county health officer and/or city health officer under Artlale 705c, Penal Code, ddmand.that an actual Wasserman or'blood test be made for ~syphllls;and an aotual smear taken for gonorrhea? And-related questions.

. .. you have'rsquested-our opinion on various questions "involvingthe,interpretation of Artlale 70%~ of Vernon's Revised Penal Code of 1995; For-the purposes of~.thls.oplnlon, we will quote the applloable provisions of -thisstatute, ad then restate.

your questions, -nid:snswer eaoh'ln turn:
%eotlon 1, No person, firm, corporation, commoncarrier or assoolatlon operating,managing,. or conduotlng 'anyhotel 'orany.other public sleeping or 'eating

plaoe or any plaoe or:vehiole where food or drink or containers therefor, of any king, Is manufactured, transferred;prepared, stored, paoked served, sold, or otherwisehandled ln this State, or any manufacturer or vendor of candies' or manufactured sweets, shall work, employ, or keep ln their employ, ln, on or about any said pla6e or vehicle, or have delivered any artlole therefrom,any personinfected with any transmissible condition of any lnfeotlous or oontaglous disease, or work, or employ any person to work In, on or about.any said place, or to deliver any artiole therefrom, who, at the time of his or her employment,failed to deliver to the employer or‘his agent, a aertiflcate signed by a~legally licensed physlcLn, residing in the county where~said person is to be employed, or is.employed, attesting thenfact tha~tthe bearer had been'actually and'thoroughly examined by such physician within a week prior to the time of su6h employment, and~that such examination disclosed the fact that such nerson to be emploved.

.

HonorableDan W. Jaokson,Att%: Mr. Riohardson, Page 2 o-4533

was free from~any transmissible oondltion of any infectiousor contagious disease; or fail to institute and have made, months, at intervals of t&me not exoeeing six

actual and thorough examinations, essential to the findings of freedomfrom aommunioableand lnfeotious diseases, of all such employees, by a legally licensed physicianresiding in the county where said person is employed, and secure in evldenoe thereof a certificate signedby suoh physici,an stating that suah examinations had been made of such person, disoloslng the fact that he or she was free from any transmissible oonaition of any communicableand infeatiousdisease.
"

. . . %x. 3.~ All health certificates called for by thisAct shallbe displayed for publio lnspeotionat the place where the person named thereon is employed, and shall not be removed from suoh plaoe during the aontinuanoe of suah employment exoept by a public health officer,his duly appointed agent, or uponval'ldcourt order. All such oertlflbates shall bear the employee's slgnature,the name of the physiolana exeouting examlnations and tests, and shall.describe the oolor of eyes, and hair; height,, weight, race, sex, age, and date of lssuanoe,'andshall bevalid for six months only. Publla health departments,and looal lawmakingbodies, are hereby authorleed to establish suab further rules, regulations ana ordinanoes as they may deem essential to the execution of the intentions of this Act; providing,. however, that all oonaitions of this hot shall be requisite to all such regulations and ordinanoes, exaept, that the said authoritiesmay adopt a plan for the registration of the physicians( certificates requiredby thisAdt and in.

lieu thereof issue a registration aard to show that the person named thereon has complied with all of the provisions of this Aot;.providingfurther that the said registration card must bear the signature of the personnamed thereon and shall be dieplayed'forpublic inspsotionat the place where suoh a person is employed.
"Sea. 4. The failure of sny person, firm, corporation,oommon~carrier or association engaged ln any of the businesses'described in thisAct, to display at the placb where any of the operations of~suoh businesses are being oonduateda valid health or rbgis;ratJ.on

Oertificate, as required by this hot, for eaoh person employed in, on, or about suoh pPaae, shall be prima faoie evidenoe that the said person, firm, corporation, *ommon oarrier or assooiation, in violation of requirements called .forby this hat, failed to requireHonorableDan W. Jackson,Att~n,:.Mr. Richardson,Page.3

.. 

### 04533

the exhibition of the ire-employment.health certifioate,.

of suoh person and tailed to institute and have maat5of suah person, aotual ana thorough examInatIonsnecessary'to.the finds of freedom from oommunioable~ais.ea~ses at intervals of time not exceeding six months.

"Sea. 5. Whoever.violates any provision of this Act shall be fined In,an amount not exoeeding Two Hundred Dollars '($2CO). Each act or ommlssion in. violation of any of the.provlslons' of this ArtIble, shall oonstitute a separate offense and shall be punishable as hereinabove presaribed.

n. "

. . . . &RS~~~‘NO. .li.'

Cax'the County Health Officer and/ orGlty Heali

th Officer;under Se&ion 1 of the s'tatute,'demand thatan a&ual'Wasserman.or blood test be made for .syphIlls,.a~~d

an actual ,smear-takenfor'gonorrhea? ',
This .questIonIs &swered in thenegative by our OpinionsNo. O-213 and No. C-1138, copies of whioh are attachedhereto. ~.

:QURSTIOWWTO.2': z:kg If Question No. 1 Is answered' Is the physloIan~who~Issues the certificateswithout theblood,test and smear s~ubjeatto.anypenalty if It Is late'r

proved that the emplomso alleged to'.have been examinedby said physioian actually had syphilis or gonorrheaatthe time of dxami.natlonP

This question Is answered In the negative by'our OpinionNo. O-1585, a,copy of whioh Is also attaahed hereto.

QUESTIONNO. 3: sunderSeotlon 3 above quoted, are oountyhealth offioers and/or city health officers authorized to Issue regulations aemanaing~blooa tests to determine the presence of syphilis and smears to,determIne the presence'of gonorrhea? If they cannot, then what~officers or departments oan issue~regu.lations:; and aoula they **issue** 'regulationsaemandIng blood teststo determine tha presence of syphIlIs and smears to determine the presenoe of gonorrhea?

InvIew of~the faatthat the ~only"pub1I.o health departmentl'.crea~ted by law inthis State Is.the State Departm&t of,PublioHealth,oreated by hrtlole 4414a, v.A.CA., and which consists of the State Board of~liealth,the..State Health Officerandhis a3mInlstratIve staff, and'the further fact that the State Departmentof Ptib1i.a Health is'

given "general supervisionand-aontrol of all matters' pertaining to-theHonorable Dan W. Jaokson,Attchi Wr. Richardson, Page 4 -6e!m 

### o-4 533

health of oitliens of this Stiite;'as Yproviaea

hereIn,n (Artlole 4419, R.C.S.) we.think~theLegislature In using the nrords"pub110health depal'tmentsz'oould only have meant the State Department of Publio Health. While provision is made by the'statutes for county health officers (Artioles 4422-4423) and city health offiaers (Artioles 4424-4425), there is-no statutemaking any provision for .acounty or oity department of Health. Furthermore, such offloers are officers .ofthe State. White v. City of San'AntonIa, 94 Tex. 313, 60 S.W. 427. Each of.such .offIcersis amenable to the'rulesand-regulationsof the State .Roard.ofHealth. (Artioles 4427-4432,R. C. S.) This being true, It might. logioallybc-said that such offioers 'aremembers .ofthe. administrativestaff of the State Health Officer. In ang event, we thInk.the State Health Department fs the only department that oouldhave been Inaluded In the language of Artiole 705c. We'are therefore of the .opInionthat the State Department of PublloHealth Is authorized by this act to establish suoh rules and regulationsrequiring such laboratory tests for syphilis and gonorrhea as that department ~deemsessentlal to the .executIonof the Intentions of thesuet.
The same rule applies to the delegation of lawmaking powerto "local lawmakingbodies." We know of no local lawmaking bodies ,wIthInthIs State.whIah oould reasonably~ beheld within:the purview of this 'provision,other ~'. thsn thelooal governing bodies of Incorporated oitles; towns and villages,who have restrI&ed powers to enact legislation (ordinances)affeotIngtheIr respective jurisdiotions. And the power of the Legislature, todelegate to aities, towns and vllleges, its.authorityto make laws for the protection of the public health, Is amply upheld .bythe.opinion of the San Antonio Court of Civil Appeals in thecase of Haneel, et,al., v. City of San Antonio, et al., 221 S.W. 237; .- "If the ordinance that is 'assailed by appellants is one.enacted;.notfor the purpose of the ,oollectIon of taxes or public revenues, but for sanitary purposes and proteation'of the health of the publlo,.it Is not unconstitutional. The power to enact laws for these purposes is Inherent In every sovereignty, end can.be delegatedby such sovereignty to agencies created by it for suoh purposes. The power to require licenses for the protestion of the publIc,health,decency, and ~morals, may be exercisbd by the state direatly, or it may be done indirectly thrixqh a'municipa!~ corporation created ~bythe state and clothedwith such authority. Cooley on Taxation, c. 19;.pp. 1125-1138.L

**This fs**  **an exhaustive**  **Opb%.oi Ofi,**  **thi.8 qUeSt&Oti,**  **C%thg**- . -

Honorable Dsn W. Jaokson,~Att'nrMr. Richardson, Page 5

many authorities. court. Writ of error was refused-by the Supreme

To the same effeot~is our OpInIon No. 0-720, a copy of whIch.Is.attaahedhereto.,

It is our opinion that under the. provisions of'said Artiole 705c, and under the general police power, the governIng bodies of incorporated.Texascities,towns and villages are authorized to enact ordinancesdesigned to effectually prevent the spread of venereal diseases (provided,of-course, that such ordinancesdo notconfliot with the terms of said artlole), and that such ordInances.may specify and require any reasonable testsfor the. detection of~syphilis and gonorrhea.

QUESTIONNO. 4: What ismeant by the. provision, In saidSeotion.3, thatthe said authorltIesmay adopt a plan for the'reglstrationof.the physiclan*s.:certIflcate and In lieu thereof, Issue a.registratIon card? .,..

"RegistrationIs the act of-qaking a'list, oatalogue, schedule or register6 'The.word~~regIstratIon~Is an ordinary one. It Is used in ageneric sense, notetechnical.

" In re Supervisors of Election, 1 F. 1, 5. This ici,*t];erefore,.give's to the governing:body';of every IncorL.' porated cIty,".town and village .thepower to pass ordinanoes adopting a plan:for the-making.ofa.lIst,:oatalogue;-schedule or'register~

of physicians certificates (commonly.called "health cards-")

'Issuedto Its constituents, under the provisions of the.act, snd Issuing In place of each such certificate a card "to show that the-personnamed thereonhas complied with all theprovisions of this hot." The mechanics of the registration and.the issuance of the tiarasIs left to .thediscretion of the city commissioners or alderman, as the ease may be. ':. i,. QUIWTIONN.O.5: Can 'thephysician be fined for not giving an actual, thorough examinationwhere he Issues a Grtlficate over .thetelephone or to the employee In person -withoutan examination?

This question Is answered'In the negative by our OpinionNo. O-1585, cited above and atta~ohedhereto.;

QUESTION NO. 6: Can the'employerbeg~&vi&d (1)If he hires any person~withouta health certifloate,, or (2)hires any one with a health certificate knowing that sa1.d employee,is infected, or,(3) hires an employe'e who reoei ed, a health certifioatewithout any examination at all? (41 can the employee be oonvicted even though he or she has,a certificate',

if it be proven that said employee did not take an actual physical ex.amInatiOn, at the time knowing that he or- -.. _

Honorable Dsn W. Jaokson,Att'n: Mr. Richardson, Page 6

~GF!iE3

_
she had a aontagious disease?

..

Since this &estion isreally four questions,we have taken the liberty of subdividing It and numbering its component parts, and will answer each by number.

Number (l).lsmade an offense by the plain provisions of the Act.

Number (2) Is also made an offense under the'hat,
**roviadea** the employer knows that the employee Is Infected t+fai- a transmI.ssIble

condition of an Infectious or contagious disease. ,

Numbers (3) and (4) are not made penal offensesby any provision of this Act. But, relative to questionnumber (4)we respeatfully call.to your attentionArticle 704, Section 1, Penal code of 1926,~as follows:

Whoever violates any provision of this article shall-befined not less than fivenor more than.fifty dollars:
"1. No person.infeatedwith a venereal dis- -easeahall kminringly expose another iminfection with any venereal disease, or perform an.aot whloh ez&ose~s

another person to infectionwith suoh disease.

".

. . ."

'Yours very truly
Kl'TORNEYGENERhL OF TEXAS
81 IV'. R. Allen

'WRA:MBR malosures By ,. Wi R. hllen Assistant

APPRDVED JCRE 13; 1942 s/ Gerald C. Mann ATTORNRyGRNRRAL OF TRXAS
~. This opfnlon considered and approved In limited conference.