                                                The Attorney        General of Texas

     JIM MATTOX                                                November 10, 1983
     AttorneyGeneral


 Supreme      Court Bulldina                  Honorable Lloyd Criss                  Opinion No. J&g2
 P. b. BOX 12548              ”               Chairman
 Austin.    TX. 76711. 2546                   Labor .5Employment Relations           Re:    Whether Department of
 5121475.2501
                                                 Committee                           Health has jurisdiction over
 Telex    910/674-1367
 Telecopier      5121475-0266                 Texas House of Representatives         sanitary conditions on trains
                                              P. 0. Box 2910
                                              Austin, Texas   78769
     714 Jackson.    Suite 700
     Dallas.   TX. 75202.4506
     2141742.6944
                                              Dear Representative Criss:

                                                  You have advised us that you have questions regarding
     4624 Alberta        Ave.. Suite    160
     El Paso, TX.        79905.2793                     the Texas Department of Health’s jurisdiction over
     9151533.3484
                                                        toilets on lbcomotives and toilets, drinking water
                                                        and wash basins on cabooses.
-1          Texas.      Suite   700
         usto”, TX.       77002-3111          Your questions are as follows:
     7131223.5666
                                                           1. Are sanitary conditions on a railroad train
     806 Broadway.         Suite 312
                                                        subject to Texas Nealth Department regulations or
     Lubbock.     TX.     79401-3479                    to municipal health regulations?
     6061747~5236
                                                          2. Is a railroad company (as an intrastate
                                                       common carrier) required to maintain sanitary
     4309 N. Tenth. Suite B
     McAllen.     TX. 76501-1665
                                                       conditions as per article 4477-1, section 22(a),
     5121662.4547                                      V.T.C.S.?

                                                          3. Could unsanitary facilities be construed as
     200 Main Plaza. Suite 400
                                                       a nuisance dangerous to the public health under
     San Antonio.  TX. 76205.2797
     5121225-4191
                                                       article 4477-l. section 2(f)? In addition, would
                                                       the company be subject to abatement proceedings as
                                                       described in section 3 of article 4477-l?
     An Equal        Opportunity/
     Affirmative       Action     Employer                4. [Does the entire statutory scheme of
                                                       article 4477-l affect the analysis of the
                                                       standards applicable to] unsanitary toilet and
                                                       drinking water facilities and wash basins on
                                                       trains?

                                              We understand that your question concerns   only the usage of the
                                              facilities at issue by railroad company employees on freight trains
                                              and address our answers to such situations.



                                                                      p. 390
Honorable Lloyd Criss - Page 2   (JM-92)




     We will address your second question first.    Section 22(a) of
article 4477-1, V.T.C.S., provides as foll.ows:

          All persons, firms or corporations managi~ng or
          operating bus lines or airlines in the State of
          Texas, or any person, firm or corporation
          operating any coastwise vessel along the shores of
          the state of Texas shall maintain sanitary
          conditions in all of their equipment and at all
          terminals or docking points.

Subsections (b), (c) and (d) of section 22 employ the term "common
carrier." We believe that a railroad company is a "common carrier" as
this term is defined in section l(c) of article 4477-1, and that it is
therefore subject to these three subsections. Subsection (a) of
section 22, on the other hand, does not use the term "common carrier."
Instead, it applies only to persons, firms or corporations which
operate "bus lines," "airlines," or "coastwise vessels."       In our
opinion, none of these three categories can be stretched far enough to
embrace railroad companies. See Railroad Commission v. Texas & New
Orleans Railroad Company, 42 S.W.2d 1091 (Tex. Civ. App. - Austin
1931, writ ref'd) (statutory words which, when given ordinary meaning,
are unambiguous are not subject to construction). We therefore answer
your second question in the negative.

     In order to next address your third question, we look to the
following provision of article 4477-l:

             sec. 2. (a) Any and all of the following
          conditions are hereby specifically declared to be
          nuisances dangerous to the public health;

             .   .   .   .

             (f) All sewage, human excreta, waste water,
          garbage, or other organic wastes deposited,
          stored, discharged or exposed in such a way as to
          be a potential instrument of medium in the
          transmission of disease to or between any person
          or persons.

             (g) Any vehicle or container used in the
          transportation of garbage, human excreta, or other
          organic material which is defective and allows
          leakage or spilling of contents;

             .   .   .   .

             sec. 3. (a) Every person, possessing 3
          place in or on which there is a nuisance shall, as
          soon as its presence comes to his knowledge,



                                 p. 391
Donorable Ll~oydCriss - Page 3   (JM-92)




          proceed at once    and continue to abate the said
          nuisance.

            (b) Every local health officer who receives
         information and proof of the existence of a
         nuisance within his jurisdiction shall issue a
         written notice to any. person responsible for the
         said nuisance ordering the abatement of same. He
         shall at the same time send a copy of the said
         notice to the local city, county, or district
         attorney . . . .    [Other procedures    follow].
         (Emphasis added).

The prefatory remarks in your request letter indicate that the
reference in your third question to "facilities" means toilet
facilities in railroad cars. We will proceed upon this assumption.
Section 3(a) provides that every person who possesses "any place" in
which there is a nuisance must abate that nuisance. We believe that a
toilet facility In a railroad car is a "place" within the meaning of
section 3(a). Section 3(b) authorizes local health officers to order
the abatement of nuisances "within [their] jurisdiction." In our
opinion, a nuisance in a toilet facility on a locomotive engine,
caboose, or other railroad car which is "within the jurisdiction" of a
particular local health officer would be subject to abatement under
section 3(a). The conditions specified in either item (f) or (g) of
section 2, if found in a toilet facility on a train, would constitute
the basis for a local health officer within whose jurisdiction the
offending toilet facility or railroad car is located to initiate a
proceeding under section 3. We therefore answer your third question
in the affirmative.

     As to your fourth question, article 4477-l further provides:

             Sec. 5. (a) All human excreta in populous
          areas must be disposed of through properly managed
          sewers,   treatment   tanks,   chemical   toilets,
          approved prfvies, or by other methods approved by
          the State Department of Health.      The disposal
          system shall be sufficient to prevent the
          pollution of surface ~011, the contamination of
          any drinking water supply, the infection of any
          flies, cockroaches, or the creation of any other
          nuisance.

             .   .   .   .

             Sec. 19. (a) No person, firm, corporation or
          other employer shall use, or permit to be used in
          the conduct of any business, manufacturing
          establishments or other place of employment, any
          process, material, or condition known to have any



                                 p. 392
                                                                         :


Honorable Lloyd Criss - Page 4   (m-92)




          possible adverse effect on the health of any
          person   or  persons    employed therein unless
          arrangements have been made to maintain the
          occupational environment to the extent that such
          injury "ill     not   result.   Every   industrial
          establishment shall be continually maintained in a
          sanitary condition.

Section 5(a) provides quite explicitly for the health department's
regulation of the type of toilet facilities used on railroad trains,
that is, chemical toilets. The prohibitions of section 19(a) against
unhealthy and unsanitary conditions in the workplace apply broadly to
any "place of employment." See Attorney General Opinion V-227 (1947).
Of course, the violation of either of these provisions, as well 8s of
section 22(b) (discussed below) or any other provision of article
4477-1, constitutes the basis for criminal prosecution under section
24 or injunctive relief under section 25.

     We now turn to your first question. Although this question asks
generally about "sanitary conditions on a railroad train," your
prefatory remarks indicate that your specific concern is with sanitary
conditions in toilet facilities in railroad cars. We have already
noted that railroad companies sre not subject to section 22(a) of
article 4477-1. This section requires only companies which operate
bus lines, airlines, and coastwise vessels to maintain sanita~ry
conditions in their equipment. Although it is not clear why the
legislature limited the application of this requirement to these three
types of vehicles, the fact is that it clearly did so. We must assume
that the specific distinctions drawn by the legislature in section
22(a) were drawn for a purpose. See also Goldman v. Torres, 341
S.W.2d 154 (TM. 1960) (courts, possessing no legislative powers,
cannot enlarge or alter plaf~nmeaning of statutory language). Section
22(s), therefore, clearly furnishes no authority for Board of Health
Resources regulations to be applicable to trains.

     Section 23 of article 4477-l provides as follows:

             (a) All provisions of this Act are hereby
          declared to constitute minimum requirements of
          sanitation and health protection within the State
          of Texas and shall in no way affect the authority
          of Home Rule Cities to enact more stringent
          ordinances pertaining to the matters herein
          referred to, and shall in no way affect the
          authority of Home Rule Cities to enact ordinances
          as granted to them under Article XI, section V of
          the State Constitution, and Articles 1175-76 of
          the Revised Civil Statutes of Texas of 1925.

             (b) The Texas Board of Health Resources may
          adopt rules consistent with the general intent and



                                 p. 393
.


    Honorable Lloyd Criss - Page 5        (JM-92)




             purposes of this Act, and establish standards and
             procedures for the management and control of
             sanitation and health protective measures.

    We must conclude that section 23(b) of article 4477-l does not
    authorize the Board of Health Resources to regulate general "sanitary
    conditions" in trains, except insofar as section 22(b) mandates
    standards for drinking water on common carriers.            Given the
    specificity of section 22(a), such regulations would not be
    "consistent with the general intent and purposes of this Act." Nor
    does the portion of section 23(b) which authorizes the board to
    "establish standards and procedures for the management and control of
    sanitation and health protective measures" S"PPLY the requisite
    authority, except with regard to drinking water. We recognize that
    section 23(b) was enacted more recently than section 22, Acts 1977,
    Sixty-fifth Legislature, chapter 456, at 1189. but section 22(a) is
    still on the books. We must read various provisions of the same act
    in pari materia and attempt to harmonize them if possible. Martin v.
    Sheppard, 102 S.W.2d 1036 (Tex. 1937). When we read sections 22(a)
    and 23(b) together, we arrive at the inescapable conclusion that the
    implied prohibition in section 22(a) against general board regulations
    applicable to trains is not overridden by the general grant of
    authority furnished by section 23(b). except as to drinking water. In
    this context, it is instructive that in Barr V. Bernhard, 562 S.W.2d
    844 (Tex. 1978) the Texas Supreme Court stated that one provision of a
    statute may not be given s meaning out of harmony or inconsistent with
    other provisions, even though it might be susceptible of such a
    construction standing alone.

         Sectfon 23(a) explicitly provides that the provisions of article
    4477-l "shall in no way affect the authority of Home Rule Cities to
    enact more stringent ordinances pertaining to the matters herein
    referred to" and article 1175, V.T.C.S. empowers such cities

                [19.] to define all nuisances and prohibit the
             same within the city and outside the city limits
             for a distance of five thousand feet . . . to
             prohibit the pollution of any stream, drain or
             tributaries thereof, which may constitute the
             source of water supply of any city and to provide
             for policing the same as well as to provide for
             the protection of any water sheds and the policing
             of same . . .

                 .   .   .   .

                34.  To enforce all ordinances necessary to
             protect health, life and property, and to prevent
             and summarily abate and remove all nuisances and
             to preserve and enforce the good government, order
             and security of the city and its inhabitants.




                                     p.    394
Honorable Lloyd Criss - Page 6     (JM-92)


                                                                         7




We believe it vould be unreasonable to conclude that the power of
municipalities to define and abate nuisances does not extend to trains
which contain such nuisances in the nature of unsanitary toilet
facilities.

                             SUMMARY

             Sanitary conditions in toilet facilities of
          railroad trains which contain drinking water are
          subject to the regulatory authority of the Board
          of Health. Home rule cities may regulate sanitary
          conditions on trains. Railroad companies are not
          subject to section 22(a) of article 4477-1.
          V.T.C.S. If a nuisance as defined Iansection 2(f)
          or (g) of article 4477-l is found in a toilet
          facility of a railroad car, a local health officer
          within whose jurisdiction the car is located may
          implement the enforcement procedures of section 3
          of that article. Sections 5(a) and 19(a) apply to
          trains and provide the basis for action pursuant
          to section 24 and 25.




                                       Jqtjgk
                                                                         1,




                                          Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Colin Carl
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Colin Carl




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