Case Information
*1 . . R-214
April 19, 1947 Honorable John B. Winters Opinion No. V-152 .Bceoutlve Mrectm
Department of Publlo’.Welfare RO:~ Enforoement of Austin 3, Texas Article 701-a, Vernon’ s Texas
Penal Code.
Dear Sir:
Ih anuwering your queaiilon a6 to whether Artiole 701 a of the Texas Penal Code is enforceable, inasmuoh a8 the departmnt referred to in this stat- ute is the State ,Boasld of_>Health rather ,than the ,Divi- aion of Child Welfare of.ths State De artment of Pub- lic Welfare which has ~he~responsibil !t ty,under the present law of making then &nspWtiOAt! aA grarating, the licenses, it is aecesuarry for ue to rovieti the history of this,Artiole and deternine the intent of the Legislature.
In 1929, the 41st Le&ei+twe, during ltr Regular Seesion, eweted Howe Bill Ho. 474, Page 444, Chapter 204 of the Generai snd,Special Lava. General- ly, this was an Act requiring those ~who operate agen- oy oustody of children, either for cies for the care charity or ~?evei~ue, ,to obtaiA’8 license, without fee, from the State B6arQ of Health. The, board wa8 requlred to visit and imps&i all such places, and to ascertain if the same Were lawfully oonduoted. !?hose licensed were also required to keep reoords concerning Certain the placement of children, and to lnake the necessary reports to the Board of Health on suoh placements. person buth-
The Ill&&e 8obrd of Health, nor
orieed by the BokNI oould vislt~tbe hone Y -ii me a ohlld had been placed by an a$e,noy, and was to determine whe- ther such child ,was bei properly caped for. If neeee- “9 nary, the Board wssrequ Fed to eee that a OompldiAt was filed in the proper juvenile court against the cue- todi,an of the child.
Seation 7 of this ~blll, the. seotion that we are concerned with here, provided as f~ollows: *2 Honorable John R. Winters - Page 2, V-152
“Section 7. Any person, association or Corporation, who shall attempt to operate without a license as herein provided, or who shall violate any of ‘the provisions of this Act, shall be ~deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment in the county jal.1 not aore than 30 days,or by a fine of not less than $25.00 nor more than $500.00, and if operat- ing under a license, such license may be re- voked by the State Board bf Health. (mhaLlis supplied)
This Section 7 was placed in the Penal Code as Article 701-a V.P.C.
Section,7 gives the State Bo&rd of Health the right to revoke the license .issued by the Board under Sec- tion 1 of the Act, if any provision of the enactment had been violated by the licensee. Italso provfded that anyone who violated any provision of the act shall be deemed guilty of a misdemeanor, and shall be punished by imprisonment or certain fines.
The State Board of Health sdtinistered this law until 1931. At that time, S,enate Bill No. 375 was ensct- ed by the 42nd Legislature, page 323, chapter 194, of the General Laws, Regul~ar Session. This act created a Dlvi- sion of Child Welfare In the Board of 'Control,~ Andy among other things, transferred the licensing, visiting and in- spection of all agencies required of the State Board of Health to the Divisionof Child Welfare of the State Board of Control.
Section 8, the transferring sectibn of the above- mentioned bill, is quoted as follows!'
"Section 8. .The l,icensing, visiting and Inspection of all agencies required,under Chap- ter 204, Page 444 of the General and Special Laws of the Regular Session of the 4lst Legis- lature, 1929, now required by the State Board of Health, shall be and is hereby,transferred to and made a part of the duties of the Divi- slon of Child Welfare ,of the State Boardof Control."
What did the 42nd Legislature intend to include In the transfer above? We are of the opinion that where *3 Honorable John B. Winters - Page 3, V-152
they included the licensing aslrequired by Section 1 of the Act of 1929, that they most certainly included the authority to revoke such a license as required by Section 7 of the same enactment. The transfer to the State Board of Control from the State Beard of Health of the licensing, visiting and inspection of all agen- cies was an outright trlnsfer of all the functions contained ip the original House~blll 474 from one State agency to the other.
In 1959 the '46th Legislature, in reqular session, enacted &ate Bill Wo. 36, page 544, chapter 1, of the General Lava. Section 9 of this bill trans- ferred all rights, powers and duties heretofore con- ferred by law upon the Division of Child Welfare of the Board of Control to the State Department of Public Welfare.
We quote Section 9 of this Aott "Section g. a." All of the rights, povera, and duties heretefore cenferred
by law on the Division of Child Welfare
of the Board of Control, vhen not other-
wise in conflict with any of the provi-
sions of this Act, are hereby cent%nued
in full force and effect, ind are hereby
transferred ,to, andconferred upon, the
State Department of Public Welfare as
created by this Act, and shall be held
exercised, and performed by the State 6e-
partment under the provisions of this Act
and the several Acts now in force, and
any amendment oramendments thereto which might be made. To effectuate this purpose the Division of Child:Welfare, records,
and physical properties are transferred to the State Department and placed under
its supervision, and the’Divlsion of Child Welfare of the State Board of Control is
hereby abolished."
It is clear that the Leglelature intended here to transfer everything that had been previously tranaferred to the Board of Control. We have found that all the fur&ions of the State Board of Health were in the Board of Control, including the fur&ion of revoking the license as provided in Section 7 of the original Act.
It necessarily follows that such function is clearly in
Honorable John H. Winters - Page 4, V-152
the new agency, the Division of Child Welfare of the State Department of Public Welfare by reason of Sec- tion 9 above..
In 1945, the 49th Legislature, in regular session, enacted House Bill Ro. 635, page 297, chapter 215. This was the third and last transfer of the func- tions that were originally given to the Stats Board of Health.
The reason given by the Legislature for this th! :rd transfer m3 that the transfer from State Board of Control tc State Department of Public Welf.sre did not clearly indicate that the functions of thz State Board of Control applicable to the Division 3f Child Welfare were also to be transferred.
We quote a part of Section 1 of thi~y Act: 'Section 1. All of the functions and dut~'.2e which were designated 8.3 being the resp*+n&oility of the State Board of Con- trol and/or the :Division of Child Welfare oi ~tha Ste~ts Board of Control as expmr3scl
in Chapter 194, Page X3, Acts of the Forty- Second Legislature, Regular Session, 1931, being Article 695A of Vernon's Texas Civil Statutes, including Article 606a, Sections 6 and 7, of Vernon's Texas Penal Code, and the duties and functions of the State Health De artment as described in Chapter 204,.Page 44t, 'of the G eneral and Special Laws of tha Regular Session of the Forty-First Legisla- ture, 1929, and being Article 4442A of Ver- non's Texas Civil Statutes are hereby trans- ferred to the State Department of Public Welfare . . .(l
The 49th Legislature, in this 'curative" trans- fer, removes any doubt that all the functions and duties of the State Board of Health, contained in Rouse Bill 474, Page 44k, Cha~pter 204, 41st Legislature, Regular Session, are transferred to the Child Welfare Division of the De.- part of Public Welfare.
We conclude here with a review of the three transferring statutes. The first speaks of a transfer of the licensing, visiting and inspection of all ,agencies, citing the origlnal,bill, in short a transfer of the ad- The second enactment ministrative duties under the Act.
Honorable John Ii. Winters - Page 5, V-152
transfers "all rightsA powers, and duties heretofore conferred by law. . . This includes everything that was tranaferrsd in the first transf4r. The third trans- fer again sets out the original Hours Bills, and tram- fers all the functions and duties und4r these bills to the State Department of Public Welfare, Including those of Section 7, the ssotion here in question.
We are of the opinion that tha authority con- tained in Article 701r of ths Tuar ?enrl CoQe parred to th4 Dbpartrent of Publla Welf8r4 84 be&Ion 7 of ths original House Bill. The fact that Section 7 was placed in the Texas Penal Code as Article 701a, did not affeat its inoluaion In the three trmaf4r8 Qoorid4r4d.
ArtlQle 702-a of V.P.C. is 4nforceable as a penal statute. Th4 department of Pub- lic WslSar4 ir invested with the power to revoke a llcm44 granted to op4r0.4 child nurseri44, upon tb4 OOnViQtiOn of a lioonre4 under this Artlale.
Yours very truly ATTORNEY GXRBRAL OF TEXAS Charles P. Atkinson Assistant C?A:JMc:t;dja APPROVED APRIL 22, 1947 z:, Gt?ii!d
ATTORNEY GRRBRAL