Honorable George 'A, Cox
state Health officer
Texas State Board of Health
Austin, Texas

Dear   Sir:                          opinion No. O-4960
                                     Re: Duty of ocmmissioners' oourt to
                                     provide a place for the detention of
                                     perstinswho have venereal diseases,
                                     and related questions.

            Your request for an opinion on the abow matter hasbsen re-
oeived and oarefully considered. piequote from said request as follows:

                   "The inorease in the armed forces stationed in
              Texas has made it neoessary to encourage the enforos-
              ment of the venereal disease law regarding the rspres-
              sion of prostitution in scme areas inwhich this pol-
              ioy is not wholeheartedly endorsed. I wish to ask VOW
              opinion on two points in question:

              "1. &der the venereal disease law the Connnissioners'
              Court is empowered and directed to provide suitable
              places for the detention of persons who should be seg-
              regated. The question is, if the Commissioners' Court
              fails to provide such a plaoe, what can be done,about
              it?

              "2. Looal health officers are empowered and direoted
              to examine persons reasonably suspected of having a
              venereal disease. The question is, Is it legal for a
              Commissioners* Court to pass a ruling to the affaot
              that the county health officer is not responsible for
              the examination and treabsnt of such persons picked up
              and held in the oounty jai% as venereal disease suspeots?"

            As to the first question asked by you, YDFI
                                                      direct your attention
to the following statutes. Artiale 4481f of the Revised Civil Statutes of
Texas, reads as follows:

                   "Commissioners1 Court to make appropriations. --
              It shall be lawful for the State Department of Health
              to accept donations and oontributions to be expended
              in the interest of the public health and the enforcement
Hon. Gee. W. Cox, Page 2 (o-4960)



           of public health laws. The Commissioners' Court
           of any county shall have the authority to 'appro-
           priate and expend money from the general revenues
           of its county for and in behalf of publio health
           and sanitation within its county."

           Article 4434 reads as followss

                "Co-operation. -- The municipal authorities of
           towns-and cities, and commissioners' courts of the
           counties wherein such towns and cities are situated,
           may co-operate with each other in making such improv-
           ements connected with said towns, cities and counties
           as said authorities and courts may deem necessary to
           improve the public health and to promote efficient
           sanitary regulations3 and, by mutual arrangement,
           they may provide for the construction of said imprwe-
           ments and the payment therefor."

           Article 4445 is in part as Pollowsn

                "Venereal diseases. -- Syphilis, gonorrhea and
           chanoroid, hereinafter designated venereal diseases,
           are hereby declared to be contagious, infectious,
           oommunicabls, and dangerous to the public health;
           . . .
                 I. . .

                 " The oonnnissioners'courts of the various counties
            and tbe,governing body of all incorporated towns and cit-
            ies are hereby empowered and directad'to provide suitable
            places for the detention of persons who may fa subject to
            quarantine and who should be segregated for the execution
            of the provisions of this law3 and such commissioners'
            courts and govening bodies of incorporated oitiss and
            towns are hereby authorized to incur, on behalf of their
            said counties, cities, or towns, the expenses necessary
            to the enforoement of this lawe I

           AFticle 4460 reads as follows:

                 "County quarantine. -- Whenever the commissioners"
            oourkof any county has reason to believe that they are
            threatened at any point within or without the county
            limits with the introduction or dissemination of a dan-
            gerous, contagious or infectious disease that can and
            should be guarded against by quarantine they may direct
            their county health officer to declare and maintain said
      .




Hon. Geo. lV. Cox, Page 3 (o-4960)



            quarantine against any and all such dangerous dis-
            eases3 to establish, maintain and supply stations
            or camps for thoseheld in quarantine3 to provide
            hospitals, tents or pest houses for those sick of
            contagious and infectious disease: to furnish provi-
            sions, medicine and all other things absolutely es-
            sention for the comfort of the well snd the conven-
            ience of the sick. The oounty physician shall keep
            an itemized aocount of all lawful expenses incurred
            by local quarantine, and his county shall assume and
            pay them as other claims against the county are paid.
            Chartered cities and towns are embraced within the
            purview of this article, and the mere fact of incor-
            poration does not exclude them from the protection
            against epidemic diseases given by the commissioners'
            court to other parts of their respective counties.
            The medioal officers of ohartered cities and towns
            may perform the duties granted or commanded in their
            several charters, but must be amenable and obedient
            to rules prescribed by the State Board of Health.
            This article, however, must not be construed as pro-
            hibiting any incorporated town or city from declaring,
            maintaining and paying for looal quarantine."

            Article 2361 is in part as follows8

                        "Each commissioners' court shall: . . .

            "7. Provide and keep in repair court houses, jails and
            all neoessary public buildings.
            *               ”
                .   .   .


            An an&r   to said first question asked by you depends to some
extent upon what the Legislature intended by the use of the word "directed"
in Article 4445 above referred to. Tne general meaning of said term is
that when one is directed to do a certainthing he is ordered to do it and
has the same foroe as an order given to a soldier, whose only answer is
obedience! or it might be a mandatory vard, unless controlled by something
in the context indicating otherwise, and the fact that discretion is given
in the execution of the direction is not sufficient to change the mandatory
sense thereof. However, your attention is called to the fact xthat some
provisions of said Article 4445 indicate that the conrmissioners~court
shall determine the neoessity of providing a suitable plaoe for the deten-
tion of persons who may be subject to qaarsntine thereunder, as sell as
what would be a suitable place therefor. In addition to these matters,
there muld also be the question of providing the funds necessary to
build and eq~lp such a place, end there can be no question but that the
commissioners' court would have the right and that it would be its duty
to determine that phase of the matter. As to all such matters, the
Hon. Geo. W. Cox, Page 4 (o-4960)



general rule is that an order of the ccmmissioners' court is binding
and conclusive, and is not subject to revision, in the absence of a
clear showing of gross abuse of discretion, or fraud or collusion. If
the commissioners' court refuses to make provision for the detention of
persons required to be detained under the law in question, the general
remedy would be by writ of mandamus and thereby seek to compel them to
make such provision. The general rule as to this remedy is that it will
not lie to control or review the action of an officer or board in a
matter involving the exercise of discretion. There exists, however,
this exception to said rule, that a mandamus will lie to correct a gross
abuse of discretion uponthe part of boards or officers intrusted with
such discretion, when such abuse is so clearly shown as to establish the
fact that in performing the action complained of the officers or boards
acted wholly through fraud, caprice, or by a purely arbitrary decition,
and without reason.

            Therefore, if the commissioners' court of a county refuses to
go foriiardand make provisions for cormplyingwith said law, action can be
brought against it through a writ of mandamus and relief had in the went
it can be shown that said court acted arbitrarily, through fraud, or
without r&son.

            As to the second question, it is our opinion that the ssme
should be answered in the negative, and in support thereof we dire& your
attntion to the following statutes1

            A&icle   4423 reads as follows:

                 "County health officer. -- The commissionars~ court
            by a majority vote in each organized county shall bienni-
            ally appoint a proper person for the office of county
            health offioer for his county, who shall hold office for
            two years. Said county health officer shall take and sub-
            scribe to the official oath, and shall file a copy of such
            oath and a copyof his appointment with the Texas State
            Board of Health3 and, until such copies are so filed, said
            officer shall not be deemed legally qualified. compensation
            of said county health offiaer shall be fixed by the connnis-
            sioners' oourt; provided, that no compensation or salary shall
           be allowed except for servioes actually rendered."
             __
            A$cicle 4426 reads as follows~

                 "Health offioers appoint (appointed) by board,when.-
            If said authorities shall fail, negleot or refuse to fill
            the office of county or city health officer as in this
            chapter provided then the State Board of Health shall have
            the power to appoint such county or city health officer to
            hold office until the local authorities shall fill said
            office, first having given ten days notice in writing to
       .



Hon.       000.   w.    cm,      Page   6 (4960)




                       such authority of the desire for such appointment."

                       Article 4427 reads as follows~

                             "Duties of county health offioer.-- Eaoh county
                        health officer shall perform such duties as haw been
                        required of county physicians, with relation to oaring
                        for the inmates of county poor farms, hospitals, dis-
                        charging duties of county quarantine and other suoh du-
                        ties as may be lawfully required of he county physician
                       by the commissioners court and other officers ofthe
                        county, and shall discharge any additional duties which
                        it may be proper for county authorities under the present
                        laws to require of county physioians: and, in addition
                        thereto, he shall discharge suoh duties as shall be prs-
                        scribed for him under the rules, regulations and require-
                        ments of the Texas State Board of Health, or the president
                        thereof, and is smpowered and authorissd to establish,
                       maintain and enforoe quarantine within his county. He
                        shall also be required to aid and assist the State Boa3
                        86 Health in all matters of local quarantine, inspection,
                        disease prevention and suppression, vital and mortuary
                        statistics and general sanitation within his county3 anl
                        he shall at all times report to said State board, in such
                       manner and form as it shall presoribe, the presence of&
                        contagious, infectious and dangerous epidemic diseases
                        within his jurisdiotion; and he shall make suoh other and
                        reports in suchmanner snd form and at such times as said
                        State board shall direct3 touching on such matters as may
                       be proper for said State board to direct3 and he shall aid
                        said State board at all times in the enforcermentof its
                        proper rules, regulations, requirements and ordinances, and
                        in the enforcement of all sanitary laws and quarantine reg-
                        ulations within his jurisdiction."

                       Article     4428 reads      as follows:

                         sRemuva1 of county health officer. -- In all matters
                    with which the State Board of Health may be.olothed with
                    authority, said county health offioer shall at all times
                   be under its direction) and any failure er refusal on the
                    part of said county health officer to obey the authority and
                    reasonable comnands of said State Board of Health shall ccn-
                    stitute malfeasance in office, and shall subjeot said county
                    health offioer to removal from office at the relation of the
                    State Board of Health3 and pending charges forremoval, said
                    county health officer shall be tried in the district court
                    ofthe county inwhich such county health officer resides."
Hon. George W. Cox, Page 6 (o-4960)



Apiole                4429   reads   as   follow83

"Charges against the county health &floor.-- If any county health officer
shall fail or refuse to properly dis,chargethe duties of his office, as
prescribed by this chapter, the State Board of Health shall file charges
with the cdwnieeioners~ court for the proper county, specifying wherein
such officer has failed in the discharge of his duties3 and at the same
time the State Board of Health shall file a protest with the county clerk
a&i the county treasurer against the payment of further fees, salary or
allornPnoeto said county health officer3 and, pending such protest and
charges, it shall not be lawful for such county health offioer to be paid
or to receive any subsequently earned salary, fees or allowance on account
of his office, unless such oharges arc shown '-0be untrue and are not sus-
tained. After five days notice in writing to said county health offioer,
the commissioners court shall  hearths charges, at which hearing the county
judge shall preside,and the State Board of Health may be represented.
Either prty, the State Board of Health or the county health officer, may
appeal from the decision of said court to the distriot court ofthe county3
and, pending arch appeal, no salary, fees or allowances shall be paid to
said county health officer for any subseqnently earned salary3 and, if the
charges shall be sustained, the county health officer shall be adjudged to
apy all oosts of court, and shall forfeit all salary, fees and allowanoes,
earned subsequently to the date of filing the charges snd protests."

Article 4445 reads in                     part as    follows:
”
     .   .   .


‘Sec.     All city, county, or other health officers shall use ewry avail-
                 3.
able msans to ascertain the existence of, and to investigate alloases of
syphilis, gonorrhea, and ohanoroid within their several territorial juris-
dictions, and to ascertain the sources of such infections. Local health
officers P e hereby empowered and directed to make examinations of persons
reasonably susnected of havia: syphilis, gonorrhea or chanoroid, as may be
neoessary for carrying out the provisions of this law. Owing to the preva-
lence of suoh diseases among prostitues and persons assoaiated with them,
all such persons are to be considered within the above class.

"Sea. 4, Upon receipt of a report of a case of venereal disease, the local
health officer shall institute measures for protection of other persons from
infection by such wnereally diseased person3
11
     .   .   .



"Sea, 9. Any health officar or other physician who shall wilfully fail
to perform tic duties required of him in this article shall, in addition
tot'he fines imposed by law, forfeit his right and lioense to practice
medicine wlthinthis State3 and the district courts of the State shall
have jurisdiotion of suits for the forfeiture of such license in such
oases, and the suit may be filed by any citizen of the %ate in a court
Hon. George W. Cox, Page 7 (Od960)


having jurisdiction, under the ordinary rules of venue, and it shall be
the duty of the county and district attorneys to represent the petition-
ers in such suit."

Article 704 of the Penal Code is in   part as follows:

"Venereal diseases. -- Whoever violates any provision of this article shall
be fined not less than five nor more than fifty dollars:



"2. No local health officer, employe, inspeotor, physician, nurse, or sup-
erintendent of a clinic or hospital shall fail to perform any duty required
of him by the laws of this State relating to venereal diseases and requir-
ing reports in such cases.
" . . 0n

            It is evident from a reading of these statutes that the cam-
missioners' court has no authority to pass a ruling to the effect that the
county health officer is not responsible for the examination and treatment
of persons who have been picked up and are held in the county jail as
venereal disease suspects, as these statutes clearly make it the duty of
the county health officer to give attention to such matters, and this
without regard to any action the commissioners oourt may take in regard
thereto.

             Trusting that this satisfactorily answers your inquiry, we
are

                                              Very truly yours

                                         ATTOFTIEY
                                                 GEZi'ERIU,
                                                         OF TEXAS


                                         By /s/ Jas. T. Bassett

                                                Jas. T. Bassett
                                                     Assistant

JbBtmpregw

APPROVED DEC 1, 1942
/s/ GERAJDC. MAFIN
ATTORNEY GENEBAL OF TEXAS                           APPROVED
                                                Opinion Committee
                                                    byBWB
                                                    Chairman
