                                         NEY~ENERAL
                                        TEXAS




Hon. F.    L, Garrison
County    Attorney
Ups~hur   County                            Re:   Recessitg      for food
Gilmer,    Texas                                  handlers      of a high
                                                  school    band mothers *
                                                  club to possess       health
Deap Mr* Gafilson:                                certificates.

              Pour      request   for    an opinion    is   in papt    as fol-
lows:

              “Some of the mothers of students       in
        the Gilmer High School Band have organized
        what they call     ‘Band Mother’s   Club D   This
        club prepares    cakes,   pies,  sandwiches,   cof-
        fee and various     other foods,   and sells   them
        at football   games, basketball     games and
        othep school   functions.

               ‘Doctor  Daniels  (the county health   of-
        ficer)    tells me that fop a while,   all per-
        sons who handled the food secured health
        certlf icates e However, they now Pefuse to
        do so.     I am of the opinion  that Article
        705~ of the Penal Code includes      such an
        organization.      0 B e

              “I should appreciate  a ruling  from
        you as to whether such an organization      as
        mentioned above should be made to comply
        with the ppovislons   of the quoted article,”

              Article      705c, V.P.C.,        provides    in part:

               “Sec.  1.   No person,     firm,    corpora-
        tion,   common carrier     0~” assocfation
        atlug.   mananinR, OP conducting         any hoFFe
        or any other public      sleeping     or eating
        place,   OF any place    or vehicle      where food
        or drink OF containers       therefor,      of any
        kind,   Is manufactured,     transferred,       pre-
        pared,   stored,   packed,   served,     sold OP
        otherwise    handled in this State,         OP any
Ron.   F. L. Garrison,        page   2    (V-1174)



       manufacturer      OP vendor of candies             OP manu-
       factured     sweets,     shall work, employ,            or
       keep in their       employ,     In, on, or about any
        said place OF vehicle,          OP have delivered
       any article      therefrom,      any person infected
       with any transmissible           condition       of any in-
       fectious     or contagious       disease,      or work, or
       employ any person to work in, on, OP about
       any said place,        or to deliver        any article
       therefrom,     who, at the time of his or her
       employment,     failed     to deliver       to the em-
       ployep or his agent,          a certificate         signed
       by a legally      licensed     physician,       Pesidlng
       in the county where said person is to be
       employed,     or is employed,        attesting       the
       fact that the bearer had been actually                     and
       thoroughly     examined by such physician                wlth-
       in a week prlo~ to the time of such employ-
       ment, and that such examination                disclosed
       the fact that such person to be employed
       was free from any transmissible                condition
       of any infectious         or contagious        disease;
       OF fail    to Institute       and have made, at in-
       tervals    of time not exceeding            six months,
       actual   and thorough       examinations,         essen-
       tial   to the findings        of freedom from com-
       municable     and infectious        diseases,       of all
       such employees,        by a legally       licensed       phy-
       sician   residfng      in the county where said
       person Is employed,         and secure in evidence
       thereof    a certificate       signed by such phy-
       sician   stating     that such examinations              had
       been made of such pepson,            disclosing        the
       fact that he OF she was free fPom,any
       transmissible       condition     of any communi-
       cable and infectious          diseases.



              "See, 4. The failure    of any person,
       firm,    corporation,  common carrier  or as-
       sociation     engaged In any of the businesses
       described     in this Act, to diEDlay at the


       health    OP registration   certificate,      as Fe-
       qulred by this Act, for each person employed
       in, on, OF about such place,         shall be prima
       facie   evidence    that the said person,      firm,
       corporation,     common carrier     or association,
Hon. F.   L. Garrison,      page   3   (V-1174)



      in violation    of requirements     called     for by
      this Act, failed    to require     the exhibition
      of the pre-employment     health     certificate,
      of such person and failed       to institute       and
      have made of such person,       actual     and thor-
      ough examinations    necessary     to the findings
      of freedom from communicable        diseases      at
      Intervals    of time not exceeding       six months.”
      (Emphasis added.)

              The dominant purpose and Intent             of the Legis-
lature     in the enactment of Article           705~ was to prevent
persons affected       by any infectious         or contagious    dis-
ease from handling       OP coming     in contact      with food to the
detriment     of public    health,     In order to accomplish          that
highly    desirable    end, it was provided          that no person who
was engaged in the operation           of certain      establishments
therein     described   should employ or keep in his employ
any person 0~ persons         infected     with,    or affected   by any
infectious      or contagious     disease.       Blain v. Service      Mut.
Ins. Co, of Texas,       159 S.W.2d 538 (Tex.Clv.App.            1 4
versed on other grounds,           140 Tex. 541, 168 S.W.2dg&            Te1943).

             In Servfce  Mut. Ins.       Co.    V.  Blain,  140 Tex.    541,
168 S.W.28    854, 857-858 (1943),        the     court said:

             “The provision       Is a vital    papt of a stat-
      ute enacted     to safeguard       the public   health.
      ~The statutory     requirement      as applicable    to
      this case is not merely that a person who
      works in and about the Dlace where food is
      manufactured      shall not, prior       to or at the
      time of his employment and while he is work-
      ing under such employment,           be free from in-
      fectious    or contagious       disease;    but the
      requirement     is that no person operating
      such a place shall work, or employ any per-
      son to work in OP about the place who ‘at
      the time of his employment had not in his
      possession     a certificate’       procured   as pro-
      vided by the statute         and attesting,     among
      other facts,      that the required       examination
      by a physician       (made within      one week prior
      to employment)       discloses     that the person
       “to be employeds was free from any infec-
      tious    OF contagious      disease *”

             In Attorney   General ls Opinion O-2429 (1941))
relating    to Article   705c, V.P.C.,    a copy of which is en-
closed   for your consideration,       it IS said:
Hon. F.   L. Garrison,   page   4   (V-1174)



             “We do not believe    the statute     suffd,-
     ciently    denounces   the act or omlsslon       of
     the employer in failing       to obtain a physi-
     cal examination      of his own person or In
     failing    to display   his own health     certlfi-
     cate so as to create       an offense    as to him.
     Nor   do we believe,    as we shall    later   point
     out, that such was the intent         of the Leg-
     islature   *
            ”. .   .

           *The intent  of the Legislature      Is of
     paramount importance    in construing    a stat-
     ute, and the conclusion     reached in the pre-
     ceding paragraph   is strengthened    by looking
     to the emer ency clause      of House Bill   142,
     Acts 1939, $ 6th Legislature,     Chi 8, p. 231.
     This is an amendatory enactment,      but each
     act of the Legislature     since 1921 dealing
     with the same subject    matter has had the
     same or a similar    emergency clause.      See
     Sec. 7, Acts 1921, 37 Ls ., Ch. 66, p.
     134; Sec. 4, Acts 1937, &5th Leg. ch. 356,
     Q7     0 This clause reads in part as fol-

             “‘Sec.    2.    Elaergency Clause.     The fact
     that many food and drink establishments              and
     factories      are not required      under the present
     law to have their          employees  examined or se-
     cure health       certificates     l l l . ’ (Underscor-
     ing ours.)

            *Thus is appears that the prilaary in-
     tent of the legislature        was to reach em-
       loyees    of food and drink establishments.
       onsequently,     it is the opinion     of this de-
     partment and you are respectfully           advised
     that Article      705c, Vernon’s     Annotated   Penal
     Code, does not create        an offense    as to a
     proprietor     of a food and drink establishment
     for the failure       of such proprietor     to have
     an examination       of his person made by a phy-
     sician    for the purpose of determining         freedom
     from infectious        or communicable   disease    or
     for failure      to display   his own health     certlf-
     lcate    in his establishment     .”
.



    Hon. F.   L. Garrison,     page   5   (V-1174)



                The Legislature      could have made the statute
    broad enough to cover band mothers’ clubs,            which eel1
    food and drinks at football        gamee, church groups which
    serve food to church suppers,         and other cZv10 groups
    which engage in such activities          without employees     or
    established    businesses.     However, the Legislature       did
    not choose to make the law that broad and laalosive.
    In our opinion,     the statute    refers    only to established
    businesses    and employees    engaged In such businesses.
    It Is our opinion       that Artlole 705c, V.P.C., does not
    apply to the Band Mothers v Club of Gllmer High School
    and that such mothers or others selling           food and soft
    drinks for them at football        games are not required       to
    obtain health   certlfipates     under such act.

                                  SUMMARY

                 Article     7050, V.P.C.,    requiring     phy-
          sical   examination*.     and health    certificates
          for employees        of businesses   manufacturing,
          preparing,      selling,    or otherwise    handling
          food or drinka or containers           therefor,     does
          not apply to a band mothers’ club of a high
          school    selling     food and’ soft drinks at foot-
          ball games.

    APPROVED:                                     Yours   very   tz?lly,

    3. C. Davis,   Jr.                               PRICE MXIEL
    County Affairs                                Attorney  General

    Jesse P. Luton, Jr.
    Revlewlng Assistant

    Charles D. Mathews                               Burne.11 Waldrep
    First  Assistant                                        Assistant

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