            OFFICE   OF THE   ATTORNEY      GENERAL    OF TEXAS
                                 AUSTlP+l




Honorable George W. Cox
State Health Officer
State Board of Health
Austin, Texas
Dear Sir:                     Opinion Iloa7131
                              Re: Authorltr of the S
                                   Health    to pas8   Nl
                                   tlons ooverlng the




             We h8ve your letter
quest the opinion of this office




                        tuberculosismight be detained
                         treatment center for such pur-
                        ternnight be not unlike to the
                       disease treatment program. . ."
            '1
             E&i& Biblical tlmes when the Lepers were commanded
to dwell alone, "Without the camp shall his habitation be" (Levltl-
CUB 13:46) all civilized communltleehave recognized the necessity
of quarantine regulations. Among all the objects sought to be se-
@red by governmentallaws, none la more important than the pre-
servation of the public health; and an imperativeobligationrests
Honorable Qeorge W. Cox, page 2


upon the State, through Its proper lnstrumentalltlssor agenoles,
to take all neoessary steps to promote this object. The police
power, which 1s Inherent In the State, may be invoked for this
purpose and the most extensive powers may be conferredon local
health officers.
             The paver of the legislature to prevent the lntro-
duatlon and spread of infectious and contagiousdiseases caanot
be questioned,and, accordingly,health authoritiesare usually
empovered to take such action as may ti consideredexpedient to
prevent the outbreak OS epldemlo and oommunloablediseases. Thus
all NleS and regulationsadopted pursuant to legislativeauthor-
ity, vhloh are reasonably calculated to preserve the public health,
are valid. The power to make quarantine regulationsIs one of the
most important oonSerredupon health authoritiesand such regula-
tlonr oonatltute a proper exercise OS the police power. These
general prinolplesare ao firmly entrenched in our system of jur-
isprudenceas to admit of no conjecture,and we therefore cite no
oases to sustain them. Your attention Is directed to the annota-
tion in 2 A. L. R. 1539 and the legion of cases there cited.
             With these general prlnolples in mind, we proceed to
a considerationof the question betore us. An exeminatlonof -
Vernon's Annotated Revised Civil Statutes reveals the following
pertinent statutoryprovisions:
             qArtlole 4419. The State Board of Health
     shall have general supervisionand control of all
     matters pertaining to the healtii‘ofcltleena of this
     State, as provided herein. It shall make a study of
     the oauses and prevention of lnteotlon of contagious
     diseasesaffecting the lives of citizens vlthin this
     State and except as othervise provided In this cbap-
     ter shall have direction and oontrol of all matters
     of quarentlneregulationsand enforcementand shall.
     have full power and authority to prevent the entrance
     of such diseases from points without the State, and
     shall have direction and control over sanitary and
     quarantinemeasures for dealing with all diseases
     vlthin the State and to suppress same and prevent
     their apread. The president of the board shall have
     charge of and superintend the admlnlstratlonof all
     matters pertaining to State quarantine. Acts 1909,
Honorable George W. Cox, page 3


     1st‘C. s., p. 340; Acta 1913, p. 147."
             'Article 4427. Each county health officer
    shall perform such duties as have been required of
    county physicians,with relation to caring for the
    prisoners ln county jails and in caring for the in-
    mates of county poor farms, hospitals,discharging
    duties of county quarantineand other such duties
    as may be lavf'ully required of the county physician
    by the oommlsslonerscourt and other officers oS
    the county, and shall discharge any additional'
    duties vhlch It may be proper for county authorl-
    ties under the present lava to require of county
    physlclans;and, in addition thereto,he shall dls-
    charge suoh duties as shall be prescribed for him
    under the rules, regulationsand requirementsof the
    Texas State Board of Health, or the president there-
    of, and Is empowered and authorlted to establish,
    maintain and enforce quarantine vlthin his county.
    lieshall also be required to aid and assist the
    State Board of Health In all matters of local quar-
    antine, Inspection,disease prevention and suppres-
    sion, vital and mortuary statisticsand general san-
    itation vithin his county; and he shall at all times
    report to said State board, in such manner and form
    as It shall presorlbe, the presence OS all contagious,
    iniectlousand dangerous epidemic diseases within his
    jurisdiction;and he shall make such other and fur-
    ther reports in such manner and Sorm and at such
    times as said State board &all direct; touching on
    such matters as may be proper for said State board
    to direct; and he shall aid said State board at all
    times In the enforcement of lta proper NleS, regu-
    lations, requirementsand ordinances,and in the en-
    forcement of all sanitary laws and quarantine regu-
    lations within his jurisdlotlon."
             "Article 4430. Each city health officer shall
     perlorm such duties as may be required of hlm by gen-
     eral law and city ordlnanoes with regard to the general
     health and sanitation of towns and cities, and perform
     such other duties a8 shall be legally required of him
     by the mayor, governing body or the ordinances of his
     city or town. He shall discharge and perform such
     duties as may be prescribed for him under the directions,
Honorable George W. Cox, page 4


    Nles, regulationsand requirementsof the State Board
    of Health and the president thereof. He shall be re-
    quired to aid and asslat the State Board of Health In
    all matters of quarantine,vital and mortuary statls-
    tiCB, Inspection,disease prevention and BUppIWBBiOn
    and sanitationulthln his jurisdiction. He shall at
    all times report to the State Board of Health, In
    such manurerand form as Said board may prescribe, the
    presence of all oontagious,inieCtiOUSand dangerous
    epidemic diseases within his jurisdiction,and shall
    make such other and Further reports in such manner
    and form and at such times as Said State board shall
    direct, touching all such matters as may be proper
    for said board to direct, and he shall aid said State
    board at all times in the enforcement Of proper Nle8,
    regulationsand requirementsIn the enforcementof
    all sanitary laws, quarantine regulation8and vital
    statlstlcsoolleotlon,and perform such other duties
    as said State board shall direct.*
            'Ai.tlcle4477. The following Nles are here-
    by enacted as the 'SanitaryCode for Texas,' adopted
    for the promotion and proteotlon of the pub110 health
    and Sor the general amelloratlon of the sanitaryand
    hygienic condition within this State, for the suppres-
    sion and prevention OS Infectiousand contagiousdie-
    eaees, and for the proper enforcement of quarantine,
    isolationand control of such diseases, to wltt
             "Rule 1. Physician  to report.--Everyphysician
     in this State shall report in writing or by an acknovl-
     edged telephone communicationto the local health au-
     thority, immediatelyaster his or her first professional
     vlslt, each patient he or She shall have or suspect of
     sufferingwith any contaglouqdisease. If such disease
     Is of a pestllentlalnature, he shall notify the Presl-
     dent of the State Board OS Health at Austin by telegraph
     or telephoneat State expense, and report to him every
     death from 8UCh disease Immediatelyafter it shall have
     oocurred. The attending physician is authorized to and he
     shall place the patient under restrictionsof the charac-
     ter described herein In the case of each respectivedisease.
             "Rule 2. 'Local health authority.'--Forthe
     purpose of these regulations, the term (localhealth
     authority' shall be held to designate the city or county
                                                                 _.




Honorable George W. Cox, page 5


     health officer, or local board OS health, wlthln their
     Mspectlve jurlBdlctlons.
              "Rule 3.     'COntagiOUB
                                   diEeaSeS.'--The term
     ‘COntagiOUs   diSett8e' as used
                                  in these regulationsshall
     be held to Include the follovlng diseases, whether con-
     tagious or lnfectlous;and as such Shall be reported
     to all local health authoritiesand by said authority
     reported In turn to the President of the State Board
     of Healths Asiatic cholera, bubonic plague, tJphU8
     fever, yellor fever, leprosy, smallpox, scarlet fever
     (scazQatlna)Tdiphtheria (membranouscroup), epidemic
     cerebrosplnalmenlngltls, dengue typhoid Sever, epl-
     demlc dysentery, tlurchoma,tUberCUlOBi8and anthrax.
     (Emphasis supplied)
              “.* l   l


             "Rule 5. Rules to quarantineand dlslnfectlon.--
     !PheSollovlng rules of instructiOnfor the regulation
     OS quarantine, Isolation and dlBlnSectlon in the several
     contagiousdlseases,.herelnbefore  mentioned, are to be
     obsemred by all boards of health, health officers, physl-
     clans, school superintendentsand trusteea, and others.
     All health authorities of counties, cities, and towns ln
     this State are hereby directed and authorized to estab-
     lish looal quarantine,hold in detention,maintain lsola-
     tlon and praotlce disinfectionas hereinaster provided
     for. of all such infected persons, vehicles or premls?s
     which are mected or are Suspected of being infected
     with any of the above-nameddiseases vhenever found.


             "(0) Absolute Isolation inClUdea, first, the
     confinementof the-patientand attendants to one apart-
     ment or suite OS apartments, to whleh none but author-
     ized officers or attendants shall have admission; Second,
     soreentig of room and entire house if necessary vlth not
     less than 16-mesh vim gauze; third, the prohibition of
     paselng out of the sick room of any object or material
     until the same haa been thoroughlydisinfected; fourth,
     protection of the air of the house by hanging a sheet,
     kept constantlymolst~wlth a dl.slnSscQint solution,
     over the doorway:of the patient's room or rooms and
     reaching from the top of the door; fifth, If in the
Honorable Qeorge W. Cox, page 6


     Opinion of the local health authority the patient can-
     not be treated. vlth reasonablesafety to the public,
     at home. the removal of the patient and exposures to
     a contagiousdisease hospital or pest house." (Bnpha~l~
     supplied)
             Construing the above statutory provisions In the light
OS our introductoryremarks concerning the authority of the State
through the proper agencies to promulgate rules and regulationsfor
the protection and preservationOS the public health, It follows
that the State Board of Health may adopt rules and regulationsfor
the purpose of carrying out the provisions of these statutes;and,
these rules and regulations,if reasonableand impartial,vi11 be
given the full force and effect of lav.
             In regard to your hypotheticaloase concerning the
validity OS rules and regulationsfor detaining for treatment in
treatment centers lndlvldualshaving severe cases of highly con-
tagious tuberculosis,It Is our opinion t&at the State Board of
Health may adopt rules and regulationsfor the removal of indlvl-
duals havlpg any OS the "contagiousdiseases" listed in Rule 3 of
the Sanitary Code to treatment oenters.
              These rules and regulations to be valid must be reas-
onable and lmpartlal and ln pursuance of and not In conillct vlth
Rule 5(o) of the Sanitary Code. That Is, before an individual
-suSSerlng Srom a severe case of highly aontaglous tuberculosismay
be .removedagainst his will to a treatment center (contagiousdis-
ease hospital or pest house) the loaal health authority must be of
the opinion that the patient cannot be treated, with reasonable
safety to the public, at home.
             In cases where the local health authority 1s of the
opinion that the patient cannot be safely treated at home he may
Issue a warrant by virtue of which a lawful arrest may be made Sor
the purpose of removing the individual to a treatment center. Ex.
parte Hardcastle, (Court of CriminalAppeals) 208 9. W. 531~ Rx.
                                 parte James, 181 9. W. (2dj 83.
parte Brooks, 212 9. W. 956; 'Eix.
             Thus, IS In the opinion of the local health authority,
an lndlvldual suffering from a severe case of any of the contagious
diseases listed in Rule 3 of the Sanitary Code cannot be treated,
with reaSOnable safety to the public, at home, he may be removed
to a contagious disease hOEpita or pest house. Rules and regula-
tlons made In pursuance of Rule 5(c) of the Sanitary Code must not
                                    ,
Honorable George W. Cox, page 7


be arbitrary, ogpresalveand unreasonable (22 A. L. R. 835).
Therefore, the opinion of the local health authority that the
patient cannot be treated with reasonable safety to the public,
at home," must not be arbitrary but must be based on: (1) a
thorough medical examinationemploying the standard tests em-
ployed by the medical professionIn diagnosing the various  con-
ta ous diseases listed In Rule 3 of the Sanitary Code, and
(8  a thorough investigationof the surroundingcircumstances
to determine whether or not the patient may be safely treated
at home. The law Is more aptly stated ln 39 C. J. S., Xealth,.
Seotlon 15c, from vhloh ve quoter
              "A person may properly be quarantined ln his
     residence,and ordinarilyshould be quarantined there
     unless the danger la suah as to justify quarantine
     isolation elsewhere. The mere deteralnatlonthat a
     disease Is dangerousand communlaabledoes not em-
     power a health offloer to refuse Isolation ln the
     home by quarantineand placard notice thereof and
     to consultthe diseased person to a hospital. A per-
     son may be quarantinedIn a place other than hls
     resldenoe vhere the clraumstancesso warrant, In
     vhlch case an appropriateplace for the confinement
     Is a hospital and not a jall or penitentiary. . .@'
              We trust the above fully anavers your l.nqulry.
                                        Yours   very tNly
                  25 pJ$F
                     . . .f
                 A          n     ATTORREY ORRRRAL   OF THXAS
