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            OFFICE    OF THE ATTORNEY  GENERAL            OF TEXAS
                                AUSTIN
GROVER
     SELLERS
*nORNnGENEy‘



 Honorable George 11. Cox                                                    ~.*
 State IIeiealth Officer
 Texas State Donrd of Health
 Austin 2, Texas         _

 Dear .Slr;                              opinion   NO.   o-7204
                                                                     and authority




 .April    3,, 1946, which reads a
                 “I enclose     the Te
          State law on
          Texas Health
          reference   to
                                                      Lsaiction  and
                                                      ion of kitchens
                                                     ce to patients

                                               f the Director of the Fooa
                                           Bosra of Health were ;uestea in
                                          title   4465A, V.A.C.S.
                              466, Vernon’s Civil    Statutes,  sets out the
                              tor and among other    things Set t ion 3 pro-



          for sale, or offered    Sor sale 1.n this State,
          ana for such purposes he my ontcr, any creamery,
          factory,  store’, salesro3m, drug store or. lnbor-
          story or place where he has reason to belLeve

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Honorable     George W. Cox - Page 2                                        r
              .

     'foods  or drugs are made, prepared, soid or offered.
     for sale or exchange, and open any cask, tub,- jar,
     bottle. or package containing   or supposed to c.ontain
     any article    of f00a or drug and examlne or cause
     to be examined the contents thereof,    and he shall
     take samples therefrom ana make analysis     thereof.
     When making such inspection    he shall seal and mark
     such sample and tender to the vendor or person
     havrng custody of same the value thereof,     and a                              :
     vritten   statement stating the reason for taking
     such sample.”
              The’lnspeoting   officer is further protected        by Article
716, Vernon’s      Annotated .Penal Code, in the following        language:
             “MO person shall vill.fullg        hinder or obstruct
      the director     of the food and drug division          of thee.‘.
      State Board of Health, or his Inspector or other                                    :’
      person duly .authorized by him in the exercise              of
      the pcwers conferred         upon him by, the laws of this
      State.”    :
                                                                :
             The &onaaras of qualification           of sanitary employees
and the. sterilization       oft dishes for public eating and sleeping
places are set .forth in Section 1 of Article              705c, and Section
2 of particle 7.001, of Vernon’s Annotated Penal Code, .which read.
respectively    as follows:                                                :
                       :          i                                          :
             “No person, firm,’ corporation,         common carrier.
      or associat.ion     operating,     managlng, or conducting
      any hotel or any other public sleeping or eating
   ’ .place,’ or any place or vshiclc where food or drink
      or contsjnors      therefor,    of any kind, is munufactur-
      ea, transferred,       prepared,    stored,   packea, served,
      sold, ‘or otherwise handled in this State, or any
      manufacturer or vendor of candies or manufactured -’
      sweets, shall work; employ, or keep in ~their employ,                  :        .
      In, on, or about’ any said place or vehicle,              or have
      delivered    any article      therefrom, any person infected
      vith any transmissible         condition    or ally infedtious
      or contagious      diseases,    or work,. or employ any
      person to work in, on, or about said place, or to
      deliver any article        therefrom, Vhoj at the time
      of his or her enploymsnt, failed to deliver               to the
      employer or his agent, a certificate             signed by a
      legally   lfcensea. phy$ician,       resfding    in the county
Honorable    Georg0   V.~Cox,     Prae 3


      vhere said person is to be employed, or is employed,
      attestin      tho fact that the beorcr had been actually
      ana.thorou@ly      ex&ned by ‘such physician vlth%n
      a veek prLor to the time of such employment, and
      tbat such exsrzination disclosed     the fact that such
      person to bo employed vas f&o from any trans-
      missible condition of any Infectious        or contag2oun
      diaeaoo; ol? feil to illatitute   alla have   lmljo, at
      lntemrals oi’ t:me not cxceedii?g SIX mnt?xs, actual
      and thorough examlnat’;lons, essential to~thc find-
      iugs   of freedom    from   ca+~unlc~bls    and lnfeceious
       diseases, of aI13 such CmpZLoyeos,by a legally
       l.lk.onsed phys%dian resj-ding In the county vhero
       said person is employed, and secure in evl&nco
       the$eof a cert~fioato          signed by au& physician
     ‘stating that such oxa~inatlons had beon made of
       snch.pascrson, dincloclag         the fact that he or she
       wag fre&Yrom .&y’traxxmias~b.ble oondition of any
       communicable    .. ana infectious
                  a ; y.~                     diseases.”
        .,
      ,-_    _.
               “SO‘C’?2i Stez9lizatlon          of Diahos, Recopta-
  . ~~“cJles;~or UtensEldi - IT0 poraon, Lirm, corpox3tion,
       02 nssoclation operating, mn2qLng, or conduct-
       ing ens hotel; cafe restaurant, dining car, drug
       store, soda vater fountain, meat market, bakery,
     -orconfeotionery,          ILquor dispensary or any otiier
       e~steblislment      >fizere food or drin?~ of any kind.is
       served or pmmlt~ed to be served to the public,
       shall furn3.rb~to any person any dlah, receptacle                         . .*.
       or utensil used in eating, d2inklr11, 02 oonvey-
       ing food if suoh dish, xeceptaolo,              or utens%l
      has not been vashed after c&oh service until cl&n
      to the si.@nt end touch in v&i \la2or contcinfag
       soap or alk&lf       &~anser~       hfter   cloalns,   aCLL1,’ ._
      glades,        dishes, silvcrvaro,       end other roceptccles       ._-
       and utonolls ahaX bo placed In wfro cog00 ond ‘.
 :~ immersed in-n still bath of cloer vatcr hoc&d
     .to a minimxa tcmpwctwc.of               170° F. for at least
   F tlwee nlnutes          or tvo minutes at U?O” F. Upon
      r~~moval.fro~~      41~~3hot vzter, ax1 &la3303, dishes, ..
       sllyxwa~e,        ml. other rocoptaclon aa utmmils
       &iLl be sto~od in 8ud1 c rmmer as not to becok
       contaminc;ted. bOVia0a           thd the State BOWa        Of
      HwiLtli nay a&vovO othcs equally effective               m&hod3

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Honorable   George W. Cox, Page 4

      of 'treatment by steam or hot water that m&et with                               ‘.
      the minimun~requirements for the safety of the
      public health, as prescribed    by the State Do&d of
      Health, that~ are not inconsistent   vith. this Act.
      When paper receptacles,    ice cream cones,, or other
      single service   utensils  are used for serving food
      or drinks, they must be 2:ept in a sanitary manneri
      protected  from dust, flies,   and other contamina-
      tions. ’

  :         The above     statutes  set out the authority   and dutles
.‘of the State Realth     Officer  In public eating and sleep1
 places . In pnssing,      your attention   is directed  to Art. 2 477-1,
 V.A.C.S.,  which sets     out the mlnFmumstandards OS sanitation
 and health protection.        The question now is whether a hospital
 is such an institution       as to come within that classification.
          13 Ruling Case Lav, page 938,         defines       a ,hospital    in
the Sol1bwi.1~ language:
            “In Its’uidest   sense a. hospital  ls~a place
      apprcpriated    to the reception  of tersons sick
      or infirm in body or mind . . . .
             “The term ‘hospital’   is often used synchro-
      aonsly if not synonymously with ‘asylum uhich
      1.8 defined to be an institution     Sor ‘receiving,
      maintaining and, as far as possLble,, amellorat-,
      ing the condition    of persons suffering    from
      bodily deSects,   mental maladLes, or other mS.s-
      fortunes,   as en orphan asylum, asylum for the
      blind, or asylum for the insane, and etc.”           ;
     (Underscor$ng ours)
           People v. Hutchings, 114.H. E. 444:      “Decent
      and respectful  treatment implied in the contract
      between a private hospital. and a .paticnt . ”
           Smith v. Duke University,’ 14 9.X. (2d) 643:
      “Ordinarily,  Q hospital    undertakes only to furnish
      room, food, facLlities    for operation,    and nttend-
      ante, and Yts not liabl8    for injuries   resulting
      from the negllgmcc     OS a. physician   . , . .’
          The services   rondered by EIhospital.arc      set out in
Southern Surety v. Dealrd,     235 S. \J. 240,  by the El   PQSO Court
of Civil Appdals, in vhich writ of errs        was dismissed by the
Supreme Court , In the ,followlng   lau~unge :

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            ‘NonorablQ :$eorge tf. Cox, P-e        5,


                                “The articles  on hospitals vo have oxaminod
                          do not specify the sorvlcos o?dinmily rqndered
                          by hospitals.     WQcan hovover QmSZne tho inqon-
                          venicnco snd utter lack of vhat would bo ex*titod
                          of a hospital service that did not fwnish corn
                          oaxa, txAl.s, heat &on ncsded, and aHAfici&l.
                          l;f&ht to a totally disabled anployeoi"
                       The tibovc cam was folloved in tho case of Comon
             Casualty Insurance Co. v. Hilton, 55 S. M. (2d) 1271
            .:~                 “The c.sr8, neaJ.s, mdicdl atteellCion,
                                                                     c&c.,
                          furnished to.a dicablod ec~ployoe comenserato
                          with hPs mods omz~included in hospital services
                          *   l   2”


                         1% is, therefore, ow op'lnlon that under:the above
             quoted statutes, *he State Eoclth OSffcor has the power to
            .‘inspeal .kitchena and food prapwation and PO& ~ervloe   to
              patients in public or private hospltala,

                                       .                      ivory    truly     youra
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                                                        Al’TOR3BY     i3TNWL      HOP ‘IBXAs   ‘,




                                                                               W. P. Watts
                                                                                 Assistant
