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 

"involving the, 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 -this statute, ad 

then restate. your questions, -nid:snswer eaoh'ln turn: 

%eotlon 1, No person, firm, corporation, 

commoncarrier or assoolatlon operating, managing,. 

or conduotlng 'any hotel 'or any.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 otherwise handled 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 then fact 

tha~t the 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 
. 

. 

Honorable Dan W. Jaokson, Att%: Mr. Riohardson, Page 2 

o-4533 

was free from~any transmissible oondltion of any 

infectious or 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 aommunioable and lnfeotious 

diseases, of all such employees, by a legally licensed 

physician residing in the county where said person is 

employed, and secure in evldenoe thereof a certificate 

signed by 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 communicable and infeatious disease. 

" . . . 

%x. 3.~ All health certificates called for by 

this Act shall be displayed for publio lnspeotion at 

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 upon val'ld court 

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,'and shall be valid for six months only. Publla 

health departments, and looal lawmaking bodies, 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 authorities may adopt a plan for the 

registration of the physicians ( certificates required by 

this Adt 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;.providing further that 

the said registration card must bear the signature of the 

person named thereon and shall be dieplayed'for public 

inspsotion at 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 oonduated a 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 .for by this hat, failed to require 
Honorable Dan 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 maat5 of suah person, aotual ana thorough 

examInatIons necessary'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/ 

or Glty 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-taken for'gonorrhea? ', 

This .questIon Is &swered in the negative by our 

Opinions No. O-213 and No. C-1138, copies of whioh are 

attached hereto. ~. 

: QURSTIOW WTO. 2': 

z:kg 

If Question No. 1 Is answered' 

Is the physloIan~who~Issues the certificates without 

the blood,test and smear s~ubjeat to.any penalty if 

It Is late'r proved that the emplomso alleged to'.have been 

examined by said physioian actually had syphilis or 

gonorrhea atthe time of dxami.natlonP 

This question Is answered In the negative by'our 

Opinion No. O-1585, a,copy of whioh Is also attaahed hereto. 

QUESTION NO. 3: sunder Seotlon 3 above quoted, are 

oounty health 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 'regulations aemandIng 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,Publio Health,oreated by hrtlole 4414a, v.A.CA., and 

which consists of the State Board of~liealth, the..State Health 

Officer andhis a3mInlstratIve staff, and'the further fact 

that the State Departmentof Ptib1i.a Health is' given "general 

supervision and-aontrol of all matters' pertaining to-the 
Honorable 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~the Legislature In using 

the nrords "pub110 health 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 statute making any provision for .a county or 

oity department of Health. Furthermore, such offloers are 

officers .of the State. White v. City of San'AntonIa, 94 

Tex. 313, 60 S.W. 427. Each of.such .offIcers is amenable 

to the'rules and-regulations of the State .Roard.of Health. 

(Artioles 4427-4432, R. C. S.) This being true, It might. 

logioally bc- said that such offioers 'are members .of the. 

administrative staff of the State Health Officer. In ang 

event, we thInk.the State Health Department fs the only 

department that oould have been Inaluded In the language of 

Artiole 705c. We' are therefore of the .opInion that the 

State Department of Publlo Health Is authorized by this 

act to establish suoh rules and regulations requiring such 

laboratory tests for syphilis and gonorrhea as that department ~deemsessentlal to the .executIon of the Intentions of 

the suet. 

The same rule applies to the delegation of lawmaking powerto "local lawmaking bodies." We know of no 

local lawmaking bodies ,wIthInthIs State.whIah oould reasonably~ beheld within: the purview of this 'provision, other ~'. 

thsn the looal 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, to delegate to aities, towns 

and vllleges, its.authority to make laws for the protection 

of the public health, Is amply upheld .by the. opinion of the 

San Antonio Court of Civil Appeals in the case 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;.not for 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 

delegated by 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 

~by the state and clothed with 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'nr Mr. 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.attaahed hereto., 

It is our opinion that under the. provisions of'said 

Artiole 705c, and under the general police power, the governIng bodies of incorporated.Texas cities, towns and villages 

are authorized to enact ordinances designed to effectually 

prevent the spread of venereal diseases (provided, of-course, 

that such ordinances do notconfliot with the terms of said 

artlole), and that such ordInances.may specify and require 

any reasonable testsfor the. detection of~syphilis and 

gonorrhea. 

QUESTION NO. 4: What is meant by the. provision, 

In said Seotion.3, thatthe said authorltIes may adopt a 

plan for the'reglstration of. the physiclan*s.:certIflcate 

and In lieu thereof, Issue a.registratIon card? .,.. 

"Registration Is the act of-qaking a'list, oatalogue, schedule or register6 'The.word~~regIstratIon~ Is an 

ordinary one. It Is used in ageneric sense, note technical. 

" 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 .the power to pass ordinanoes 

adopting a plan:for the-making. ofa.lIst,:oatalogue;-schedule or'register~ of physicians certificates (commonly.called 

"health cards-") 'Issued to Its constituents, under the provisions of the.act, snd Issuing In place of each such certificate a card "to show that the-person named thereon has 

complied with all the provisions of this hot." The mechanics 

of the registration and.the issuance of the tiaras Is left to 

.the discretion of the city commissioners or alderman, as the 

ease may be. ':. i ,. 

QUIWTION N.O. 5: Can 'the physician be fined for not 

giving an actual, thorough examination where he Issues a 

Grtlficate over .the telephone or to the employee In person 

-without an examination? 

This question Is answered' In the negative by our 

Opinion No. O-1585, cited above and atta~ohed hereto.; 

QUESTION NO. 6: Can the'employer beg ~&vi&d 

(1) If he hires any person ~without a 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 certifioate without 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).ls made 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- atransmI.ssIble condition of an Infectious or contagious 

disease. , 

Numbers (3) and (4) are not made penal offenses by 

any provision of this Act. But, relative to question number 

(4) we respeatfully call.to your attention Article 704, Section 1, Penal code of 1926,~as follows: 

Whoever violates any provision of this article 

shall-be fined not less than five nor more than.fifty 

dollars: 

"1. No person.infeated with a venereal dis- 

-ease ahall kminringly expose another iminfection 

with any venereal disease, or perform an.aot whloh 

ez&ose~s another person to infection with 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.