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                                                                               R-533



                                                  OFFICE        OF
                           THE            ATTORNEYGENERAL
                                               AUSTIN.TEXAS
    PRICEDANIEL
    ATTORNEY GENIERAL                          August 19, 1947

              Hon. Ceo. W. Cox, M. D.                 Opinion No. V-351
              State Health Orricer
              Austin, Texas                           Re:   Authority of’ the gov-
                                                            erning body 0r a city
                                                            to control issuance
                                                            or health certificates,
                                                            and related questions 0
               Dear Sfr:
                                We refer   to your letter       of July 21, 1947, con-
               cerning        the lollowing   questions:
                              *1.   Does the law require that’ l’ood han-
                        dlers or persons working in soda fountains,     cafes,
                        bars, and etc.,   have a Wassermann or Kahn test
                        berore,   or at the time a lioensed physician and’
                        surgeon gives them a health certlrlaate?
                              “2.         What is the exact     law concerning who
                        can issue         health oertlrlcates     to food handlers?
                               “3.  Can a city designate a .physician    and
                        surgeon as the sole person who may issue a
                        health certifiaate    within their corporate   lia-
                        its?    If the city does designate one physician,
                        as the only person whose health certificate
                        they will recogtize,    .does that exclude other
                        licensed   physicians  in .good standing from is-
                        suing health certificates     to food handlers if
                        they certify    they have examined the applicant
                        and find them free from communicable disease?”
                                Article      705e of Vernonfs     Penal Code reads,    in
               part,     as    r0ii0ws:

                              “Section   1 0 No person, firm, corporation,
                        common carrier    or assooiation  operating,    manag-
                        ing, or conducting any hotel or any other public
                        sleeping or eating place, or any place or vehicle
                        ~where food or drink or containers     therefor,   oft
                        any kind, is manufactured, transferred,        prepared,
                        stored,   packed, served, sold, or otherwise han-
                        dled in this State, or any manufacturer or vendor
.



    Hon. Ceo. W.     Cox, Md.D., Page 2, V-351


         of oandies or manufactured sweets, ahall wox$c,
          employ, or keep In their employ, In, on, or about
         any said place or vehicle,          or have delivered     any
         article     therefrom,    any person Infected with any
          transmissible      condition    of any lnfectlous     or con-
         tagiaus disease,       or work, or employ any person to
         work in, on, or about any said place, or to de-
         liver any article        therefrom, who, at the time of
         his or her employment, failed to deliver to the
          employer or his agent, a certificate            signed by a
         legally-licensed       physioian,     residing   in the coun-
         ty where said person is to be employed,              OX*Is em-
          ployed 9 attesting      the fact that the bearer had
         been actually and thoroughly           examined by .o.uoh
          physician within a week prior to the time of suah
          employment, and that such examination dfsolosed
         the fact that such person to be employed was free
          from any transmissible        condition    or any Iniectious
         or aontagious disease;         or fall to Institute      aad
         have m3at3, at Intervals         of time not exoeeaing     six
         months, actual and thorough examination .easentIal
         to the f‘indirVz8 of rreedom rrrrn oolamualaable and
         Infectious      diseases,    or all saoh employees, by a
         ‘legally-licensed      physialan reaidln& in the aounty
         where said person b employed, and secure in evl-
          denoe thereof a certiricate          signed by such phys-
          ician stating that such examinations had been made
          of such person, disclosing         the faot that he or she      ’
         was free from any transmissible            condition   of any
          communicable and Infectioue          diseases sn (Emphasis’
          added)~
               n .   .   .   ,


               TSect~Ion 3. . . . *Public health deuart-
         ments. and local lawmaking bodies, are hereby
         authorized ’ to establish  such further rules
         lations and ordinances as they may de-        Fi e%f%                .
         -7TETexecut    ion ZTWioi  intenttons  or this Act;




         card must bear the signetaxe   of ‘the person,’ named
         thereon and.shall be displayed   for public idspec-
.   -



        Hon. Geo. W. Cox, M. D.,     Page 3, V-351


             tion at the place     where such a person is employea.n
             (Emphasis added)
                    n. . . .

                   *Section 5. Whoever violates      any provision  or
             this Aot shall be fined in en amount not exceeding
             Two Hundred Dollars    ($200) e Each act ‘or omission
             In violation   of’ any of the provisions   of this Artf-
             cle, shall constitute    a separate offense and shall
             be punishable as hereinabove presoribdd.*
                     In 1937, the Legislature      entered the whole field
        of eraminlng and licensing       persons employed In hotels and
        other public eating and sleeping places or vehicles            where
        food or contaInera therefor,       of any kind, are manufrotored,
        transrerred,    prepared, stored,     pecked,   served, sold, or
        Qtherwise handled In this state, by enactment. .of said Ar-
        tiole   705c, V. P. C., as a protection        against the spread
        of communicable, hnfectlous,       and aontagioue dieeases In
        and throughout the state.       ,Suoh licenses    are required to
        be Issued by a legally, licensed       physlolan lgeidlng in
        the county where the person Is aaployed.            Such physioian
        Is reqnlred to certify      that the person “has b.een aotual-
        ly and thoroughly examined by such physician withIn a’
        week prior to the time of such employment, and that such
        examination disclosed     the fact that suoh person to be em-
        ployed was free from any transmlasible          condition  or any
        Infectloue    or contagious   dI.eease.~~~”
                     In Prescott vs. City or Borgor,      158 8W (2d) ‘578
        (Error   refused),   the Court said:
                   wFrom the above it will be seen that the
             Legislature   has entered the field of lagiela-
             tion covered by the ordinance enected.by.the
             governing authorities    of the City of box&zir.
             It Is well established’ law In this state that,
             generally,   the governing authoritlee    of citiee
             are prohiblted   by the Constitution,    Art. 11.,
             Sec. 5, and the statutes,    Art. 1185, et seq.,
             R.C.S. 1925, Vernon’s Ann. Civ. St. Art. 1165
             et seq., rrom entering a field     of legislation
             that has been occupied by general 1eglslatlve
             enactments a Xydias Amusement Co, v. City of
             Houston et al, Tex. Civ. AppO, 185 S.WR. 415;
             City of Lubbock v. South Plains Hardware Co.,
             Tex. Civ. App., 111 S. W. 2d 343."
              ?I. . D When the governing     body of appellee,
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        Hon. Geo. W. Cox, M. D., Page 4, V-351


             the City of Borger, attempted to enact the
             ordinance here in question,       it undoubtedly
             entered a field of legislation       that had been
             occupied by the Legislature      when it enacted
             Art. 165-3.     The limitation   placed upon local
             bodies doe~e.not extend, of course,      to those
             ordinances which are permitted by, or are In-
             harmony with constitutional      and statutory pro-
             visions even thOURh, in doinR so, they may be
                id t be entering the same field         Th fourth
             iiragriph    of Sec. 2 of Article    16!&i&ies
             that the governing bodies of cities may adopt
             specifications    and regulations    for any grade
             of milk that is offered for sale in such cities
             but provides that when the same are adopted
             they shall be governed by the specifications
             and regulations     promulgated by the State Health
             Officer    as authorized by the Aot."
                    Said Article    705~ empowers local lawmaking bod-
        ies to establish    rules,   regulations  and ordinances,   pro-
        vided, that all conditions       of that article   shall'be requl-
        site to such regulations      and ordinances,    and that regls-
        tratlon   cards issued to employees shall show that the per-
        son named thereon has complied with all of the provisions
        of that.article.     Such local lawmaking bodies are not
        given any authority to modify said Article         7050 or legie-
        late inconsistently     with it.
                   Your inquiry    relates to an ordinance OS Crystal
        City which is incorporated      and operates under Title 28
        of Vernon's Civil  Statutes,     which ordinance reads:
                   Wection    1. That all persons employea~ as
             waiters,  waitresses   or cooks, and all other
             persons in any manner handling foods, dishes
             or other receptacles     for food, in hotels,     safes,
             restaurants,    soda foundtalns,     bakeries or meat
             markets,   in the City of Crystal      City,  Texas,
             shall before entering upon their~duties         as such
             and each six months thereafter        obtain from~the
             City Health Officer     a certificate     showing that
             the party named therein is in good health on
             day of examination by said health officer.
                    *Section 2. The Health Officer making such
             examination may charge a See of not to exceed
             (1.00 for making such examination and his cer-
             tiiicate    relative to.the same.
                  "Section 3. All persons using tools,   other
             apparatus or receptacles for Sood in bakeries,
Hon.~ Geo. 19. Cox, M. D., Page 5, V-351


     meat  mrkets    or other places where food or drinks
     are handled or sold shall keep the same in a
     clean, sanitary    condition  at all times and the
     same shall be subject to examination by the City
     Health Offi~cer; and It in hereby made the duties
     or the owner’.o’r nroprletor   or any such bwx
     to see that all employees have such certiS’icats
     &sued.      @mpha,sis added 1
           We&ion 4. All-ordinances        and parts   of
     ordinances in conflict with this      ordinance   are
     hereby in all things repealed.
            “Section 5 0 That any person or persons
     Sound guilty of violating   any provision of this
     ordinance shall be fined in any sum not more then
     )~oo.oo.-
           The authorltg OS Crystal City to pass- an orcli-
nance pertaining  to health certificates  issued to employ-
ees mentioned In the ordinance is controlled    by the lan-
guage in Section 3 OS Article   7050.
           The only language in the ordinance,   which applies
to pertinent   examinations and certificates,  is that the
class of amployees named in the ordinance shall “obtain
Strom the aity Health OSSic~er a oertificate  showing that
the party named therein is in good health on the day of
examination by said health Offioer.”
          Article  705~ authorizes any legallg   licensed
physioian in the county where the person is employed, to
examine such person and issue a certifioate    disoloslng
that he or she has been examined by such physician and
found free from any transmissible  condition   of any com-
municable and iniectious  disease,
             Article  7050, V.li.C.,   Andythe City Ordinanae
of Crystal City pertain to the proteotion        of the publio
health by requiring employees in ,9ubllc eating pl.aces to
obtain health certificates.        The penalty fixed in said
article   la not more than $200 and that fixed in the ordl-
nance is not more than $100.         Crystal City is not author-
ized to prescribe     a penalty for violation     OS its ordinanoe
inconsistent     with the State law.
           In City of Wink vs. Griffith Amusement Company,
100 5. Vi. (2d) 695, the Suprame Court said:
Hon. Geo. W. Cox, M. D., Page 6, V-351


            "Article     054 of the Penal Code provides
     as a penalty for establishing          a lottery,   a Sine
     of 'not less than one hundred nor more than one
     thousand dollars.'         The penalty prescribed      by
     the ordinance in question,          as shown above, is
     a fine 'not exceeding ($100.00) One mema
     Dollars,    and each day of violation        shall be 8
     separate offense.*          It will at once be observed
     that the penal provisions          of the ordimanhe are
     different     from those contained in the State
     Penal Code, although both acts cover the of-
     Sense of conducting a lottery.~          The rule is
     definitely      established    with us that the penal
     provisions      of an ordinance cannot be different
     from those of the Penal Code for the same of-
     Sense, and that ordinances in confllot            with
     the general or state law are void.             30 Tex;
     Jurisprudence       p. 301, I 167, p:304,       I 168,
     and cases sited in the notes; El Paso Electric
     Co. v. Collins        (Tex. Corn. App.) 23 8W (2d) 295-
     296."
            The case of El Paso Electria    company vs.; Col-
lins, 23 S. U. (2d) 295, was a traffic      regulation   case
in which the statute law defined a part of the ofrense
identical   with the-ordinance   involved.   Other details
were speoified   In the ordinanoe which were not in the
statute;  the ~penalty prescribed    in the 8tatute is "not
to exoeed $lOO.OO;n in the ordinance,      *not leas than
(1.00 nor more than $lOO.OO.n The Supreme Court deoidea
that as to the conrlict,     the ordinance was Ineffective.
          We are of the opinion that the ordinanae of
        City, above set out, Is void because it is inoon-
        with the general laws of Texas.
          Any legally  licens.ed physician residing   In
Zavala County is authorized to issue health certifl-
cates to food handlers in Crystal City; the governing
body of said city is not~authorized    to aonfins such
authority to one physioian.
           This department is not familiar with details
0s  an examination 0s a person essential   to rindings
that such person is free from communicable and infec-
tious diseases;   if Wassermann or Kahn tests are esson-
tiai to the discovery   of conditions of the person in
that regard, we are of the opinion that such are nec-
essary , otherwise not.
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                Hon. Geo. W. C.ox, M. D., Page 7, V-351


                                             SUMMARY
                            The ordinance of crystal        City which
                      regulates   the examination and lioenslng           oS
                     employees in hotels,       cafes,    restaurants,
                     soda fountsins,     hakpries,     and meat markets
                     in Crystal City, is inconsistent           with
                     Article   7050, V.P.C., because the ,ordinance
                     confines    in its City Health Officer         the aa-
                     thoritg   to examine and issue licenses           to
                     such employees, which examinations and li-
                     censes are different       from those required
                     by said general law; the maximum penalty
                     fixed by the ordinance for its violation
                     is $lOO,, and the maximum penalty fixed,in
                     general law,for,the       same offense in $200.
                     For these'reasona      said ordinance is void.
                     Art'. 7054, V.P.C.; Prescott vs. City of
                     Borger, 158 S. W. (2d) 578; City ot Wink.
                     vs. Grirfith    Amusement Company, 100 9: W."
                     (2d)   695; El Paso Eleatric        Company vs. Col-
                     lins, 23 s. w. (2d) 295.          If Wassermati and          :‘..   ..
                     Kahn tests are essential        to the discovery
                     of infectious     and oommunicable diseases,          such
                     tests are necessary in suok examinations..




                                                               Assistant




                                                        T ASSISTANT
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