         TB[EATTORNEY      GENERAL
                  OF TEXAS



Honorable R. L. Lattimore       Opinion No. C-210
Criminal District Attorney
Hidalgo County                  Re:   Whether local city and county
Edinburg, Texas                       health officers have legal
                                      authority to issue warrants
                                      of arrest for the removal of
                                      persons infected with tuber-
                                      culosis in an infectious and
                                      contagious state to a state
Dear Mr. Lattimore:                   tuberculosis hospital.

You have requested an opinion of this office in regard to the
captioned matter. Article 4477-11,Vernon's Civil Statutes, cited
as the Texas Tuberculosis Code, provides in Section 5(c) there-
of as follows:

               "Any person who violates the
          provisions of Section 4(d), or who
          fails to follow the directions of the
          local health authority, or who fails
          to follow the directions of his attend-
          ing physician pursuant to Section 4(c),
          or who in the opinion of the local
          health authority cannot be treated with
          reasonable safety to the public, at
          home, may be quarantined, as that term
          is hereinafter defined, and the local
          health authority may direct, pursuant
          to rules and regulations promulgated
          by the Department, the removal of the
          person to a suitable place for examina-
          tion, and if such person is found to
          be infected with tuberculosis in an
          infectious and contaqious state, then
          such person may be quarantined, as that
          term is hereinafter defined, until such
          person is no longer in an infectious
          and contaqious state.

               "Quarantine, as used in this Section,
          means the limitation of movement and se-
          paration, during that period of time



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Honorable R. L. Lattimore, Page 2 (Opinion NO. C-210 )


          while infectious and contagious, from
          other persons not so infected, in such
          places and under such conditions as will
          prevent the direct or indirect conveyance
          of such infectious or contagious condi-
          tion to others not so infected.

               "A person found to be infected with
          tuberculosis in an infectious and con-
          taqious state and quarantined under the
          provisions of this Section may be placed
          in any place suitable for the detention
          and segregation required under the pro-
          visions of this Section. If suitable
          facilities are not available within the
          jurisdiction of the local health authority,
          then in such event, the person so quaran-
          tined may be transported to a State
          tuberculosis hospital designated by the
          Board. The Board is hereby empowered and
          directed to provide suitable facilities
          for detention of such individuals."
          (Emphasis supplied)

YOU note in your request that such article does not specifically
empower the issuance of warrants of arrest by local health
authorities.  However, the Department is given specific power
to promulgate rules and regulations in the enforcement of its
quarantine power.

Article 4477-11 has not been construed by the courts of this
state. However, Article 4445, Vernon's Civil Statutes, has
been several times construed by the Court of Criminal Appeals.
This statute has always provided for quarantine of persons
suffering from venereal disease, without, however, any express
provision for the issuance of warrants of arrest by local health
authorities and without any delegation of authority to the State
Department of Health for promulgation of rules and regulations.

In Ex Parte Hardcastle, 208 S.W. 531 (Tex.Crim 1919), the relator
was held under a warrant issued by the San Antonio City Health
Officer by virtue of his quarantine established under Article
4445; (then reading in its applicable parts exactly as it does
now) . The Court stated, even though the statute contained no
express provision authorizing the issuance of arrest warrants,
that

               "The Legislature, under the police
          power, has authority to authorize the



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Honorable R. L. Lattimore, Page 3 (Opinion No. C-210 )


          establishment of quarantine regulations
          for the protection of the public against
          contagion from those persons whose con-
          dition is such as to spread disease, &,
          incident thereto, to authorize the arrest
          and detention of such persons; and such,
          we understand, is the purpose of the
          statute in question. Under its terms,
          the proper health officer may issue
          a warrant bv virtue of which a lawful
          arrest mav be made without preliminarv
          thereto affording the person affected
          a hearinq; but if, 'after arrest, such
          person challenges the right of the
          authorities to continue the detention,
          the fundamental law accords him the
          right to have the legality of his
          detention inquired into by a proper
          court in a habeas corpus proceeding.
          The law denies to no one restrained
          of his liberty without a hearing the
          right to prove in some tribunal that
          the facts justifying his restraint do
          not exist. Ruling Case Law, vol. 6,
          p. 435, 8 449. The health authorities
          causing the arrest of a relator derive
          their power to do so from the alleged
          existence of the fact that the relator
          is affected with the disease mentioned,
          and that her detention is required in
          the public interest to prevent contagion.
          If those facts do not exist, the officer
          has no jurisdiction to continue the
          restraint and the court in the habeas
          corpus proceeding has authority to in-
          quire whether the facts essential to
          jurisdiction exist. Ex parte Degener,
          30 Tex.App. 566, 17 S.W. 1111." (Emphasis
          supplied)

Again, the same conclusion has been reached by the Court in g
Parte James, 181 S.W.Zd 83 (Tex.Crim. 1944); and Ex Parte Gilbert,
135 S.W.Zd 718 (Tex.Crim. 1940), under the same state of facts
as existed in Hardcastle.  These cases stand for the proposition
that a grant by the Legislature to the health authorities of the
power to quarantine necessarily carries with it the power to
issue warrants of arrest. Since the powers conferred upon the
health authorities by the Tuberculosis Code are much greater than




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Honorable R. L. Lattimore, Page 4 (Opinion No. C-210 )


those conferred by Article 4445, it would follow that at least
the same powers may be exercised by them as have been approved
by the Court in the cases cited above.


                           SUMMARY

          Local city and county health officers
          are authorized to issue warrants of
          arrest for the removal of persons in-
          fected with tuberculosis in an infec-
          tious and contagious state to a tuber-
          culosis hospital under the provisions
          of Article 4477-11, V.C.S.

                              Yours very truly,

                              WAGGONER CARR
                              Attorney General of Texas



                              By:

                                     Assistant Attorney General

CBS/k

APPROVED:
OPINION COMMITTEE

W. V. Geppert, Chairman
C. L. Snow
V. F. Taylor
Robert Smith
W. 0. Shultz

APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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