         TEEA~TORNEYGENERAL
                     OF TEXAS


                       March   6, 1961

Honorable Joe Resweber     Opinion No. W-1007
County Attorney
Harris County Courthouse   Re:   Whether the County Health
Houston, Texas                   Officer of Harris County is
                                 authorized to enter into,
                                 examine, Investigate, in-
                                 spect and view any ground,
                                 public building, factory,
                                 slaughter house, etc., and
                                 any other public place where
                                 he deems it proper for the
                                 enforcement of the rules of
                                 the sanitary code for Texas
                                 and of any health law, sanl-
                                 tary law or quarantine regu-
Dear Mr. Resweber:               lation of this State?
     You have requested our opinion concerning the authority
of the County Health Officer of Harris County, Texas. In your
letter of request you ask the following question:
         Whether the County Health Officer of
    Harris County is authorized to enter into,
    examine, investigate, inspect and view any
    ground, public building, factory, slaughter
    house, etc., and any other public place where
    he deems It proper for the enforcement of the
    rules of the sanitary code for Texas and of
    any health law, sanitary law or quarantine
    regulation of this State?
     Before discussing and answering your question, we wish
to make it clear that this opinion does not purport to define
the complete realm of authority and all duties of a county
health officer, but is limited in scope to the specific ques-
tion asked.
     As we interpret your question, you are primarily concern-
ed with whether the County Health Officer of Harris County has
Honorable Joe Resweber, Page 2 (WW-1007)


the general authority to enter into or upon premises to in-
spect, investigate and examine such premises for purposes of
discovery or suppression of disease and for the enforcement
of the health laws of this State.
     County Health Officers are creatures of the Legislature.
The office exists solely by virtue of legislative enactment.
Consequently, a county health officer has no powers or duties
other than those devolved upon him by the Legislature. The
Supreme Court of Texas has stated this well recognized rule
    a e 425 of the opinion In Bryan v. Sunderberg, 5 Tex. 418
$8Eg$:
    !,     The officer must look to the act by which
    his'ohfice is created, and its duties are defin-
    ed to ascertain the extent of his powers and the
    line of his duties; and he Is not at liberty to
    transcend the former or to vary the prescribed
    mode of oerformance of the latter. . . .It
    Duoted with approval in Spencer v. Galveston
    County, 56 Tex. 384 (1882');Crosthwalt v. State,
    135 Tex. 119, 138 S.W.2d 1060 (194O)g
     Article 4420 of Vernon's Civil Statutes is specifically
directed to the powers which you inquire about, and reads as
follows:
         "The members of the State Board of Health
    or any person duly authorized by them, upon pre-
    sentation of proper authority in writing, are
    hereby empowered, whenever they may deem it neces-
    sary In pursuance of their duties, to enter into,
    examine, investigate, inspect and view any ground,
    public building, factory, slaughter house, packing
    house, abattolr, dairy, bakery, manufactory, hotel,
    restaurant and any other public place and public
    building where they deem It proper to enter for
    the discovery and suppression of disease and for
    the enforcement of the rules of the sanitary code
    for Texas and of any health law, sanitary law or
    quarantine regulation of this State."
     Pursuant to this Article, the State Board of Health on
the 13th day of June, 1954, passed the following resolution:
          "'NOW, THEREFORE, BE IT KNOWN that the Board
     of Health of the State of Texas, by law duly estab-
     lished and acting by a majority of its members duly
.   .




        Honorable Joe Resweber, Page 3 (WW-1007)


            appointed, confirmed, qualified and commissioned
            under the law, has authorized and empowered and
            does hereby authorize and empower L. D. Farragut,
            M.D., County Health Officer of Harris County,
            Texas, W. A. Quebedeaux, Ph. D., Deputy County
            Health Officer of Harris County, Texas, and Direc-
            tor of the aforesaid Stream and Air Pollution Con-
            trol Section of the Harris County Health Unit, and
            any and all other Deputy County Health Officers
            acting for, with, or under the direction of the
            aforesaid L. D. Farragut or W. A. Quebedeaux, to
            enter Into, examine, investigate, inspect and view
            any ground, public building, factory, slaughter
            house, packing house, abb_attoir,dairy, bakery,
            manufactury, hotel, restaurant or any other public
            place an3 building, when they deem it necessary and
            where they deem it proper In pursuance of their
            duties to discover and suppress disease and to en-
            force the sanitary code of Texas and any health law,
            sanitary law or quarantine regulation of the State,
            to the full extent of the authority conferred upon
            the State Board of Health by Article 4420, V.A?C.S.'"
             This resolution authorized the County Health Officer of
        Harris County, Texas, to exercise the exact powers you have
        inquired about and It remained in full effect until rescinded
        by resolution of the State Board of Health on the 15th day of
        June, 1959. In the absence of the specific authorization of
        the State Board of Health, the powers enumerated by Article
        4420, Vernon's Civil Statutes, may not be exercised by the
        County Health Officer of Harris County, Texas. We must then
        look elsewhere to find such authority, if it exists.
             The statutor duties of a County Health Officer are set
        forth In Article %427 of Vernon's Civil Statutes, as follows:
                 "Each county health officer shall perform
            such duties as have been required of county
            physicians, with relation to caring for the
            prisoners in county jails and in caring for the
            inmates of county poor farms, hospitals, discharg-
            ing duties of county quarantine and other such
            duties as may be lawfully required of the county
            physician by the commissioners court and other
            officers of the county, and shall discharge any
            additional duties which it may be proper for
            county authorities under the present laws to re-
            quire of county physicians; and, in addition
                                                                ,   .




Honorable Joe Resweber, Page 4 (WW-1007)


    thereto, he shall discharge such duties as
    shall
        _ be
          8. prescribed for him under.the rules,
    regulations ana requirements or sne Texas
    State Board of Health, or the president there-
    of, and is empowered and authorized to estab-
    lish, maintain and enforce quarantine,withln
    his county. He shall also be required to aid,
    and assist the,State Board of Health In all
    matters of local'quarantine, inspection, disease
    prevention and suppression, vital and mortuary
    statistics and general sanitation within his
    county; and he shall at all times report to said
    State board, in such manner and form'as it shall
    prescribe, the presence,of all contagious, Fnfec-
    tlous and dangerous epidemic diseases within his
    jurisdiction; and he shall make such other and
    further reports in such manner and form and at
    such times as said State board shall 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
    its proper rules, ,regulations,requirements and
    ordinances, and in the enforcement of all sani-
    tary laws and quarantine regulations within his
    jurisdiction."
     We find no language in this Article, or any other Artl-
cle, which gives county health officers the broad general
power inquired about in your request. It should be noted in
this connection, however, that ,countyhealth officers are re-
quired to discharge "such duties as may be lawfully required
of the county physician by the commissioners court and other
officers of the county" and further that "he shall discharge
such duties as shall be,prescribed for him under the rules,
regulations and requirements of,the Texas State Board of
Health."
     We have n,oknowledge oftany action which may have been
taken by the Commissioners Court of Harris County pursuant to
Article 4427 and, therefore, decline to comment in this respect.
We have ascertained that the only action by the State Board of
Health has been that set forth above.
     Therefore, you are advised thatwe concur with your con-
clusion that the County Health Officer of Harris County, Texas,
Honorable Joe Resweber, Page 5 (WW-1007)


does not have the general authorization of entry and inspec-
tion which you have inquired about, and your question is
hereby answered in the negative.
     We would here point out that we do not hold that the
County Health Officer of Harris County, Texas, does not have
statutory authority to enter into or upon private or public
premises in connection with the duties of his office under
any circumstances. We merely hold that he has, at this time,
         eneral authority and we will not attempt to discuss
2 ;:%mTi       ose specific instances In which he Is author-
ized, other than by referrin you, by way of example, to
Rules 18 and 19 of Article 4&77 of Vernon's Civil Statutes:
         "Rule 18. Authorities to Investigate report-
    ed cases. - Whenever a local health authority is
    informed or has reason to suspect that there is a
    case of smallpox, scarlet fever, or other report-
    able disease within the territors over which he
    has jurisdiction, he shall immediately examine
    into the facts of the case and shall adopt th
     uarantlne or employ the sanitary measures asehere-
     n provided. (Emphasis ours)
          "Rule 19. Shall see that quarantine and dis-
    infection is carried out. - Within his .lurisdiction.
    each and every local health authority shall see that
    the quarantine or disinfection of any house, building,
    car, vessel, or vehicle, or any part thereof, and of
    any articles therein likely to retain infection, is
    carried out, and that all persons who have been in
    auarantlne
    _~~~- ~~    are reauired to take a disinfecting bath
    before the same are released. In the event 07 the
    disease having been smallpox, all persons exposed
    shall be isolated for eighteen days from the.time of
    last exposure unless successfully vaccinated."
    (Fmphasis ours)

                      SUMMARY
         The County Health Officer of Harris County,
         Texas, does not have general authority to
         enter into, examine, investigate, inspect
Honorable Joe Resweber, Page 6 (WW-1007)


            and view any ground, public building, fac-
            tory, slaughter house, etc., and any other
            public place where he deems it proper for
            the enforcement of the rules of the sani-
            tary code for Texas and of any health law,
            sanitary law or quarantine regulation of
            thia State.

                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas




wos:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Lawrence Hargrove
Bob Eric Shannon
William H. Pool, Jr.
Jerry H. Roberts
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Morgan Nesbitt
