Case Information

*1 _. R-533 OFFICE OF THE ATTORNEYGENERAL AUSTIN.TEXAS PRICEDANIEL August 19, 1947 ATTORNEY GENIERAL

Hon. Ceo. W. Cox, M. D. Opinion No. V-351

State Health Orricer

Austin, Texas Re: Authority of’ the gov-

erning body 0r a city to control issuance or health certificates, and related questions 0 Dear Sfr:

We refer to your letter of July 21, 1947, con- cerning the lollowing questions:

*1. Does the law require that’ l’ood han- dlers or persons working in soda fountains, cafes, bars, and etc., have a Wassermann or Kahn test berore, or at the time a lioensed physician and’ surgeon gives them a health certlrlaate?

“2. What is the exact law concerning who can issue health oertlrlcates to food handlers?

“3. Can a city designate a .physician and surgeon as the sole person who may issue a health certifiaate

within their corporate lia-

its? If the city does designate one physician, as the only person whose health certificate

they will recogtize, .does that exclude other licensed physicians in .good standing from is- suing health certificates to food handlers if they certify they have examined the applicant and find them free from communicable disease?” 705e of Vernonfs Penal Code reads, in part, as r0ii0ws:

“Section 1 0 No person, firm, corporation, common carrier or assooiation operating, manag- ing, or conducting any hotel or any other public sleeping or eating place, or any place or vehicle ~where food or drink or containers therefor, oft any kind, is manufactured, transferred, prepared, stored, packed, served, sold, or otherwise han- dled in this State, or any manufacturer or vendor *2 .

Hon. Ceo. Cox, Md. D., Page 2, V-351

of oandies or manufactured sweets, ahall wox$c, employ, or keep In their employ, In, on, or about any said place or vehicle, article or have delivered any

therefrom, any person Infected with any transmissible condition of any lnfectlous or con- tagiaus disease, or work, or employ any person to work in, on, or about any said place, or to de- liver any article therefrom, who, at the time of his or her employment, failed to deliver to the employer or his agent, a certificate signed by a legally-licensed physioian, residing in the coun- ty where said person is to be employed, OX* Is em- ployed 9 attesting the fact that the bearer had been actually and thoroughly examined by .o.uoh physician within a week prior to the time of suah employment, and that such examination dfsolosed the fact that such person to be employed was free from any transmissible condition or any Iniectious or aontagious disease; or fall to Institute aad have m3at3, at Intervals of time not exoeeaing six months, actual and thorough examination .easentIal to the f‘indirVz8 of rreedom rrrrn oolamualaable and Infectious ‘legally-licensed diseases, or all saoh employees, by a physialan in the aounty reaidln& where said person b employed, and secure in evl- denoe thereof a certiricate signed by such phys- ician stating that such examinations had been made of such person, disclosing the faot that he or she ’ was free from any transmissible of any communicable and Infectioue diseases sn (Emphasis’ added)~

n . . ,

TSect~Ion 3. . . . *Public health deuart- ments. and local lawmaking bodies, are hereby authorized ’ to establish such further rules

lations and ordinances as they may de- Fi e%f% or this Act; -7TETexecut ion ZTWioi intenttons card must bear the signetaxe of ‘the person,’ named thereon and.shall be displayed for public idspec- *3 - Hon. Geo. Cox, M. D., Page 3, V-351

tion at the place where such a person is employea.n (Emphasis added)

n . . . .

*Section 5. Whoever violates any provision or this Aot shall be fined in en amount not exceeding Two Hundred Dollars ($200) e Each act ‘or omission In violation of’ any of the provisions of this Artf- cle, shall constitute a separate offense and shall be punishable as hereinabove presoribdd.*

In 1937, the Legislature entered the whole field of eraminlng and licensing persons employed In hotels and other public eating and sleeping places or vehicles where food or contaInera therefor, of any kind, are manufrotored, transrerred, prepared, stored, pecked, served, sold, or Qtherwise handled In this state, by enactment. .of said Ar- tiole 705c, V. P. C., as a protection against the spread of communicable, hnfectlous, and aontagioue dieeases In and throughout the state. ,Suoh licenses are required to be Issued by a legally, licensed physlolan lgeidlng in the county where the person Is aaployed. Such physioian Is reqnlred to certify that the person “has b.een aotual- ly and thoroughly examined by such physician withIn a’ week prior to the time of such employment, and that such examination disclosed the fact that suoh person to be em- ployed was free from any transmlasible or any Infectloue or contagious dI.eease.~~~”

In Prescott vs. City or Borgor, 158 8W (2d) ‘578 (Error refused), the Court said:

wFrom the above it will be seen that the Legislature has entered the field of lagiela- tion covered by the ordinance enected.by.the governing authorities of the City of box&zir.

It Is well established’ law In this state that, generally, are prohiblted the governing authoritlee of citiee

by the Constitution, Art. 11., Sec. 5, and the statutes, Art. 1185, et seq., R.C.S. 1925, Vernon’s Ann. Civ. St. Art. 1165 et seq., rrom entering a field of legislation that has been occupied by general 1eglslatlve enactments a Xydias Amusement Co, v. City of Houston et al, Tex. Civ. AppO, 185 S.WR. 415; City of Lubbock v. South Plains Hardware Co., Tex. Civ. App., 111 S. W. 2d 343."

?I . . D When the governing body of appellee, *4 Hon. Geo. W. Cox, M. D., Page 4, V-351

the City of Borger, attempted to enact the

ordinance here in question, it undoubtedly

entered a field of legislation that had been occupied by the Legislature when it enacted Art. 165-3. The limitation placed upon local bodies doe~e.not extend, of course, to those ordinances which are permitted by, or are In- harmony with constitutional and statutory pro- visions even thOURh, in doinR so, they may be

id t be entering the same field Th fourth iiragriph of Sec. 2 of Article 16!&i&ies

that the governing bodies of cities may adopt specifications and regulations for any grade of milk that is offered for sale in such cities but provides that when the same are adopted they shall be governed by the specifications

and regulations promulgated by the State Health Officer as authorized by the Aot."

Said Article 705~ empowers local lawmaking bod- ies to establish and ordinances, pro- rules, regulations vided, conditions of that article shall'be requl- that all site to such regulations and ordinances, and that regls- tratlon cards issued to employees shall show that the per- son named thereon has complied with all of the provisions of that.article. Such local lawmaking bodies are not given any authority to modify said 7050 or legie- late inconsistently with it. inquiry relates to an ordinance OS Crystal

Your City which is incorporated and operates under Title 28 of Vernon's Civil which ordinance reads: Statutes,

Wection 1. That all persons employea~ as waiters, waitresses or cooks, and all other persons in any manner handling foods, dishes or other receptacles for food, in hotels, safes, restaurants, soda foundtalns, bakeries or meat in the City of Crystal City, Texas, markets, shall before entering upon their~duties as such and each six months thereafter obtain from~the City Health Officer a certificate showing that the party named therein is in good health on day of examination by said health officer.

*Section 2. The Health Officer making such examination may charge a See of not to exceed (1.00 for making such examination and his cer- tiiicate relative to.the same.

"Section 3. All persons using tools, other apparatus or receptacles for Sood in bakeries, *5 Hon.~ Geo. 19. Cox, M. D., Page 5, V-351 or other places where food or drinks

meat mrkets are handled or sold shall keep the same in a clean, sanitary condition at all times and the same shall be subject to examination by the City Health Offi~cer; and It in hereby made the duties or the owner’.o’r nroprletor or any such bwx to see that all employees have such certiS’icats &sued. @mpha,sis added 1

We&ion 4. All-ordinances and parts of ordinances in conflict with this ordinance are hereby in all things repealed.

“Section 5 0 That any person or persons Sound guilty of violating any provision of this ordinance shall be fined in any sum not more then )~oo.oo.-

The authorltg OS Crystal City to pass- an orcli- nance pertaining to health certificates issued to employ- ees mentioned In the ordinance is controlled by the lan- guage in Section 3 OS Article 7050.

The only language in the ordinance, which applies to pertinent examinations and certificates, is that the class of amployees named in the ordinance shall “obtain Strom the aity Health OSSic~er a oertificate showing that the party named therein is in good health on the day of examination by said health Offioer.”

Article 705~ authorizes any legallg licensed physioian in the county where the person is employed, to examine such person and issue a certifioate that he or she has been examined by such physician and disoloslng found free from any transmissible of any com- municable and iniectious disease, 7050, V.li.C., Andy the City Ordinanae

of Crystal City pertain to the proteotion of the publio health by requiring employees in ,9ubllc eating pl.aces to obtain health certificates. The penalty fixed in said article la not more than $200 and that fixed in the ordl- nance is not more than $100. Crystal City is not author- ized to prescribe a penalty for violation OS its ordinanoe inconsistent with the State law.

In City of Wink vs. Griffith Amusement Company, 100 5. Vi. (2d) 695, the Suprame Court said:

Hon. Geo. Cox, M. D., Page 6, V-351

"Article 054 of the Penal Code provides as a penalty for establishing a lottery, a Sine of 'not less than one hundred nor more than one thousand dollars.' The penalty prescribed by the ordinance in question, as shown above, is a fine 'not exceeding ($100.00) One mema

Dollars, and each day of violation shall be 8 separate offense.* It will at once be observed that the penal provisions different of the ordimanhe are

from those contained in the State Penal Code, although both acts cover the of- Sense of conducting a lottery.~ The rule is

definitely established with us that the penal provisions of an ordinance cannot be different from those of the Penal Code for the same of- Sense, and that ordinances in confllot with

the general or state law are void. 30 Tex;

Jurisprudence p. 301, I 167, p:304, I 168, and cases sited in the notes; El Paso Electric Co. v. Collins (Tex. Corn. App.) 23 8W (2d) 295- 296."

The case of El Paso Electria company vs.; Col- lins, 23 S. U. (2d) 295, was a traffic regulation case in which the statute identical with the-ordinance law defined a part of the ofrense

involved. Other details were speoified In the ordinanoe which were not in the the ~penalty prescribed in the 8tatute is "not statute; to exoeed $lOO.OO;n in the ordinance, *not leas than (1.00 nor more than $lOO.OO.n The Supreme Court deoidea that as to the conrlict, the ordinance was Ineffective.

We are of the opinion that the ordinanae of City, above set out, Is void because it is inoon- with the general laws of Texas.

Any legally licens.ed physician residing In Zavala County is authorized to issue health certifl- cates to food handlers in Crystal City; the governing body of said city is not~authorized to aonfins such authority to one physioian.

This department is not familiar with details 0s an examination 0s a person essential to rindings that such person is free from communicable and infec- tious diseases; if Wassermann or Kahn tests are esson- tiai to the discovery of conditions of the person in that regard, we are of the opinion that such are nec- essary , otherwise not.

_. ’ .’

Hon. Geo. W. C.ox, M. D., Page 7, V-351

SUMMARY The ordinance of crystal City which the examination and lioenslng oS regulates employees in hotels, cafes, restaurants, soda fountsins, and meat markets hakpries,

in Crystal City, is inconsistent with 7050, V.P.C., because the ,ordinance

confines in its City Health Officer the aa- thoritg to examine and issue licenses to

such employees, which examinations and li-

censes are different from those required

by said general law; the maximum penalty

fixed by the ordinance for its violation

is $lOO,, and the maximum penalty fixed,in

general law,for,the same offense in $200. is void.

For these'reasona said ordinance

Art'. 7054, V.P.C.; Prescott vs. City of

Borger, 158 S. W. (2d) 578; City ot Wink.

vs. Grirfith Amusement Company, 100 9: W." 695; El Paso Eleatric Company vs. Col-

(2d) lins, 23 s. w. (2d) 295. If Wassermati and :‘.. . . Kahn tests are essential to the discovery of infectious and oommunicable diseases, such tests are necessary in suok examinations..

Assistant T ASSISTANT = ‘i. ~. .A, WTW:et:jt:jrb