Dr. James E. Peavy              Opinion   No. c-489:
Commissioner of Health
Texas State Department          Re:   Whether the effect of Senate
  of Health                           Bill 130, codified as Art.
Austin, Texas                         4477-12, Vernon's Civil
                                      Statutes, is to transfer to
                                      the Texas State Department
                                      of Health all responsibilities,
                                      powers, and duties concerning
                                      State Tuberculosis Hospitals
                                      which were previously vested
                                      In the Board for Texas State
                                      Hospitals and Special Schools
Dear Dr. Peavy:                       and,related questions.
          Your letter of August 5, 1965, requesting an opinion of
this office reads in part as follows:
          II. . .

         "In view of the above two statutes (Article
    4477-12 and Article 3174b, Section 10, Vernon's
    Civil Statutes) and the seeming conflict, we would
    like a clarification as to who shall approve the
    accounts for those hospitals (State Tuberculosis
    Hospitals) that have been transferred to the State
    Department of Health from the Board for Texas State
    Hospitals and Special Schools.
         "Further we need your opinion as to whether
    the effect of Senate Bill 130, now codified as
    Article 4477-12, V.C.S., was to transfer to the
    Texas State Department of Health all responsibilities,
    powers, and duties concerning the-ate   Tuberculosis
    Hospitals which were previously vested in the Board
    for Texas State Hospitals and Special Schools.
          "A further question on which we would ap-
     preciate your opinion is whether this transfer
     altered the statutory authority previously vested


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Dr. James E. Peavy, page 2 tc-489)


     in specific positions, for example, superintendents
     and business managers in the hospitals themselves
     and if it did in any case whether the Commissioner
     of Health, being the executive head of the Texas
     State Department of Health, can delegate any au-
     thority vested in the Texas State Department of
     Health to specific hospital or Health Department
     personnel.
          "In summary we would appreciate your opinion
     regarding the following questions:
          "1. Was the effect of Senate Bill 130, now
     codified as Article 4477-12, V.C.S., to transfer
     to the Texas State Department of Health all res-
     ponsibilities, powers, and duties concerning State
     Tuberculosis Hospitals which were previously vested
     in the Board for Texas State Hospitals and Special
     Schools?
          "2. Did this transfer alter, amend, or re-
     peal previously existing statutes relating to the
     hospitals themselves and their personnel?
          “3.  If the answer to question No. 2 is in
     the affirmative, does the authority which previously
     existed in statutes with reference to institutions
     and institutional personnel now rest with the Texas
     State Department of Health?
          “4.  Does the Commissioner of Health, as ex-
     ecutive head of the Texas State Department of
     Health, have the authority to delegate to institu-
     tional or other Health Department personnel any
     authority, power, duties, and responsibilities
     which are legally vested in the Texas State Depart-
     ment of Health?"
          Senate Bill 130, Acts 59th Leg., Regular Session,
chapter 51, page 124, provides in part as follows:
          "Section 1. From and after September 1,
     1965, all tuberculosis hospitals In the custody
     and control of the State Board for Hospitals and
     Special Schools shall be transferred to the State
     Health Department. This transfer is made to unify
     and consolidate the responsibility and functions
     of tuberculosis case finding and follow-up with
     treatment and cure of the disease. From and
     after September 1, 1965, the custody, control,
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Dr. James E. Peavy, page 3 @+a9)


    maintenance and operation of all tuberculosis hos-
    pitals maintained by the State of Texas shall be
    under the Jurisdiction and control of the State
    Board of Health and all responsibilities, powers
    and duties concerning the care and treatment of
    those afflicted with tuberculosis heretofore pos-
    sessed by the Board for Texas State Hospitals
    and Special Schools are hereby transferred to the
    State Health Department, Including all powers
    provided in House Bill No. 421, Acts of the 56th
    Legislature, Regular Session, 1959, Chapter 181,
    codified in Vernon's as Article 4477-11, Vernon's
    Civil Statutes.
         'There shall be transferred to the State
    Health Department from the State Board for Hospitals
    and Special Schools all equipment, staff, inventory,
    and perishable stores necessary to insure the con-
    tinual functioning of all state tuberculosis hospitals
    without interruption. This transfer shall also in-
    clude the transfer to the State Health Department
    of all personnel employed by the Board for Hospitals
    and Special Schools in its tuberculosis program,
    authorized salary rates for employment of personnel
    and all appropriations made to the Texas State Board
    for Hospitals and Special Schools for the operation
    of tuberculosis hospitals. This transfer shall be
    made effective September 1, 1965.”
         "Sec. 2. The State Board of Health may con-
    tract for the support, maintenance, care and treat-
    ment of tubercular patients admitted to any facilities
    under the jurisdiction of the Board and/or for the
    support, maintenance, care and treatment of tubercular
    patients under its jurisdiction. Such contract may
    be between the Board and city, county and state
    hospitals, private physicians, licensed nursing homes
    and hospitals and hospital districts, and the State
    Board of Health may contract for such existing
    diagnostic and other services~available in a com-
    munity or region as deemed necessary to prevent
    further spread of tuberculosis. Full development
    of these essential services needed for the con-
    trol of tuberculosis is the responsibility of
    the State Board of Health.
         II
          . . .
          'From and after the effective date of this
     Act, the Board for Texas State Hospitals and Special

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Dr. James E. Peavy, page 4 (Cd@)


    Schools shall not have the authority to contract
    for the support, maintenance, care and treatment
    of tubercular patients committed to the State Board
    of Health. Provided, however, nothing herein shall
    affect the contractual obligations created by the
    Board for Texas State Hospitals and Special Schools
    prior to the effective date of this Act for the
    support, maintenance, care and treatment of tuber-
    cular patients, and all such contractual obligations
    on behalf of the state created by the Board for
    Texas State Hospitals and Special Schools prior
    to the effective date of this Act, pursuant to
    the provisions of Acts of the 58th Legislature,
    Regular Session, 1963, Chapter 43, codified in
    Vernon's as Article 317&b-5, Vernon's Civil Statutes,
    shall be performed and carried out by the State
    Board of Health."
         II
          . . .
          'Sec. a. The Commissioner of Health, upon
     the recommendation of the State Board of Health
     and with the advice of the Tuberculosis Advisory
     Committee, shall appoint a Director of the Division
     of Tuberculosis Services, who shall be a person
     licensed to practice medicine in this state, with
     a comprehensive knowledge of tuberculosis control
     and management, to carry out the provisions of
     this Act and to perform such other duties as may
     be imposed upon the State Department of Health, re-
     lating to the prevention, control and eradication
     of the disease of tuberculosis and to the care and
     treatment of those afflicted with tuberculosis.
     The Commissioner of Health and the State Board of
     Health are directed to confer with and seek the
     advice of the Tuberculosis Advisory Committee
     hereinafter provided for.
          "The Commissioner of Health is hereby au-
     thorized to employ such additional personnel as
     he deems necessary in the performance of his du-
     ties concerning the enforcement of the provisions
     of this Act and relating to the prevention, cont;rol
     and eradication of the disease of tuberculosis.
          In answer to your first question It is our opinion
that the clear and unambiguous language of Section 1 and 2,
Article 4477-12 as quoted above, effectively transfers to the
Texas State Department of Health all responsibilities, powers,

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Dr. James E. Peavy, page’5   (C- 489)



and duties concerning State Tuberculosis Hospitals which were
previously vested in the Board for Texas State Hospitals and
Special Schools.
          Article 4477-12 was enacted by the Legislature as
Senate Bill No. 130, Acts 59th Legislature, 1965, and, as it
appears in the Session Laws, the Act contained no repealing clause.
Section 1 of such Article not only transfers custody and control
of all state tuberculosis hospitals from the Board for Texas
State Hospitals and Special Schools to the State Department of
Health, it specifically confers upon the State Department of
Health all powers, duties and responsibilities relating to the
care and treatment of persons infected with tuberculosis which
were possessed by the Board for Texas State Hospitals and
Special Schools, In addition, Section 10 of Article 4477-12
provides that its provisions are to be cumulative of the provisions
of Article 4477-11 and of all other powers now possessed by the
State Department of Health relating to the care and treatment of
persons infected with tuberculosis. Therefore in answer to your
second question, you are hereby advised that in our opinion
existing statutes relating to the various State tuberculosis
hospitals and their personnel were repealed by Article 4477-12
only to the extent of any conflict or inconsistency. 53 Tex.
Jur.2d 146-148, Statutes B 100 and cases there cited.
          In view of our answer to your second question and the
clear intent expressed by the Legislature in Section 1 of Article
4477-12 that the State Department of Health be invested with all
powers in this area which were previously conferred upon the
Board for Texas State Hospitals and Special Schools, In answer
to your third question it is our opinion that from and after the
effective date of Article 4477-12 the State Department of Health
will be vested with all statutory authority previously reposed
in the Board for Texas State Hospitals and Special Schools with
regard to the subject of State tuberculosis hospitals and the
care and treatment of persons infected with such disease.
          Section 8 of Article 4477-12, as quoted above, pro-
vides that the Commissioner of Health shall appoint a Director
of Tuberculosis Services. It is our opinion that the Commissioner
of Health is required to delegate to said Director the authority
to carry out the provisions of the Act and to,perform such other
duties as may be imposed upon the State Department of Health re-
garding the subject matter of the Act. Also, such additional per-
sonnel as the Commissioner may deem necessary to enforce the Act
may be employed. We would further point out that under Article
4418d, Vernon's Civil Statutes, the Commissioner has the general
power to appoint directors of divisions and employees, to designate
their duties and supervise their work in relation to the performance
of duties.
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Dr. James E. Peavy, page 6 (C-489)


                     SUMMARY
          (1) Article 4477-11, Vernon's Civil Statutes,
     effectively transfers to the Texas State Department
     of Health all responsibilities, powers, and duties
     concerning State Tuberculosis Hospitals which were
     previously vested in the Board for Texas State Hos-
     pitals and Special Schools.
          (2) Existing statutes relating to State
     tuberculosis hospitals and the care and treatment
     of persons infected with tuberculosis are repealed
     by Article 4477-12 only to the extent of any con-
     flict or inconsistency.
          (3)  The Texas State Department of Health is
     granted all authority which previously existed with
     the Board for Texas StateXospStZis mrL %p-&&L
     Schools over State tuberculosis hospitals and per-
     sonnel employed in the tuberculosis program.
          (4) The Commissioner of Health may delegate
     authority to carry out provisions of the Act in
     accordance with Section 8, Article 4477-12 and
     Article 4418d, Vernon's Civil Statutes.
                                Very truly yours,
                                WAGGONER CARR
                                Attorney General



                                By:
                                      Gordon Houser
GH:mkh                                Assistant
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
John Reeves
James Broadhurst
Paul Phy
Kerns Taylor
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright


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