                               E       ATTORNEY           GENEHAL
                                           OF   TEXAS
                                           AuAT~N~~.'I.ExA~
PRICE  DANIEL
ATTORNEYGENERAL
                                                February 11, 1949


    Hon. John T. Nicholson                        Opinion No.   v-768
    County Attorney
    Comanche County                               Re:   The applicability of Article
    Comanche, Texas                                     4442, V.C.S., and Article 701,
                                                        V.P.C., relating to operation
                                                        of 'maternity homes' to private
                                                        hospitals.

    Dear Sir:
             Reference is made to your recent request which reads in
    part as follows:
              "The City of Comanche has a private hospital
         under the ownership and management of two brothers,
         acting as a partnership, and both licensed to prac-
         t-icemedicine and surgery in the State of Texas.
         The hospital engages in the general practice of
         medicine and surgery, not specializing in any certain
         thing, and keeps patients in beds during treatment,
         and cares for and treats pregnant women, and de-
         livers their children.
               "The hospital was established under permis-
         sion and authority of the City Council of
         Comanche,  Texas, under the provisions of Art.
         1015, Sec. 4, Vernon's Rev. Civ. Stats., 1925.
                  11
                       .   .       .   .



              “IS such a hospital an institution covered
         by Art. 4442, Vernon's 1925 RCS, Acts 1921, p.
         146, Acts 1935, 44th Leg., p. 294, ch. 108,Sec.
         1, and by P.C. Art. 701?
                  Articles 4442, Sec. l., V.C.S., and 7OlV.P.C.,               are as
    follows:
                  '"Art.4442.               Maternity home
              "1 . Every individual, firm, association,
         or corporation, owning, keeping, conducting or
         managing an institution or home for the boarding
         or sheltering of Infant children, or so-called
Hon. John T. Nicholson, page 2           V-768



     'Baby Farm,' or any lying-in hospital, hospital
    ward, maternity home or other place for the re-
    ception, care and treatment of pregnant women,
    and charging a fee or receiving or expecting com-
    pensation in the way of room rent or board, shall
    obtain an annual license which shall be issued by
    the State Board of Health without fee, shall not
    be transferable to other persons or other premises,
    and shall expire on the thirty-first day of Decem-
    ber next following the issuance. The application
    for such license shall state the name and address
    of the licensee, the specific location of the
    building used, and the number of inmates which may
    be boarded there at one time, and shall be ap-
    proved by the local health officer. No greater
    number of inmates shall be housed at one time in
    the building than is authorized by the license,
    and no pregnant woman or infant shall be kept in
    a building or place not designated in the license.
    A record of licenses issued shall be kept by the
    State Board of Health."
         "Art. 701.   Maternity home
         "Any person, manager, keeper, or officer
    of any corporation, firm or association who shall
    keep or conduct any 'Baby Farm,' lying-in hos-
    pital, hospital ward, maternity home or place for
    the reception, care or"treatment of pregnant
    women without first having obtained a license
    from the State Board of Health as provided by law
    shall be fined not less than fifty nor more than
    five hundred dollars and in addition thereto may
    be confined in iail not to exceed twelve months."
    Acts 1921, pe 167.
         It is stated in 39 T'ex.Jur, 228 that: "an emergency
C lause may be considered if It sheds light upon the inquiryand
W 'ill aid the Court in ascer,ta ining the legislative intent.
         The emergency clause of Senate Bill 215 Acts of the
37th Legislature, R-S., 1921, (Art. 4442, V.C.S.j is in part as
follows:
         "Owing to the fact that the well-being of
    the public demands the regulation of the above
    mentioned places both from the standpoint of
    public health and from an ethical and moral
    standpoint and owing to the fact that no law at
    present time exists on the statute books of this
Hon. John T. Nicholson, page 3          v-768



    State adequately controlllng such before men-
    tioned place, creates an emergency and an im-
    perative public necessity q . . .
         There is no general Hospital Licensing law in the State.
However, over a long period the State Board of Health, the
agency charged with enforcing the provisions under this Statute,
has required that a hospital with a Maternity Ward be licensed
under the provisions of Art. 4442, V.C.S., and it is the
opinion of this office that such a construction placed upon the
statutes is reasonable and sound. Since the Statute is ambig-
uous with respect to whether it applies to such an institution
and there is no authority to the contrary, the departmental con-
struction should be followed.
         This rule wa8 announced in the case of Texas Employers
Insurance Association v. Holmes, 145 Tex. 158, 196 S.W. 2d 390,
wherein Justice Sharp, speaking for the Court, stated as follows:
         "If a statute is ambigous and susceptible of
    more than one construction, there are certain well
    settled rules which govern its construction:
         "First, the practical interpretation of
    the Act by the agency charged with the duty of
    administering it is entitled to the highest
    respect from the Courts. And this is especially
    so when that interpretation has been long con-
    tinued and uniform."
         Ir view of the foregoing it is OUT opinion that under
the factual situation presented, such a hospital comes within the
provisions of Articles 4442, V.C.S., and 701, V.P.C.

                           SUMMARY
         A privately owned general hospital which has
    a maternity ward in which children are delivered
    and mothers are cared for is sequired to be licensed
    by the State Board of Health. Art. 4442, V.C.S.
    Art. 701, V.P.C.
                               Yours very truly,
                            ATTORNEY GENERAL OF TEXAS
BA:bh:wc                         By s/Bruce Allen
                                      Bruce Allen
APPROVED                              Assistant
s/Fagan Dickson
FIRST ASSISTANT
ATTORNEY GENERAL
