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                                                                R-392


                      THE   ATTORNEY              GENERAL
                                QP   TEXAS
                                AUSTIN z1.W~
    PRICE  DANIEL
    ATTORNEYGENERAL

                                      May    29, 1947


           Honorable Geo. W. Cox, M.D.      Opinion No. v-227
           State Health Officer
           Texas State Hoard of Health      Re:   Right of entry by State Health
           Austfn, Texas                          Officer into Industrial estab-
                                                  lishments and meaning of Sec-
           Dear Si.r:                             tion 19 of Article 4477-1,
                                                  V.C.S., in that regard.
                     Reference IS made to your letter of April 17, 1947, in
           which you request an oplnlon of this office answerlng the follow-
           ing%
                     "In Title 71, Article 4477-1, Section 19
               (c), the Texas State Department of Health is
               directed to make health and sanl'cargsurveys
               and studies of industrial establishments. It
               would be appreciated if you would render us an
               oplnlon as to whether this assignment of work
               includes the right of entry Into all Industrial
               establishments in Texas. It would also be ap-
               preciated if you would provlde us with a legal
               deflnitlon of 'Industrial' as It Is used in
               Section 19. We realize the;e is some present
               confusion relative to the extension of coverage.
                    "Under the word 'industrIalI we ar,eape-
              clflcally desirous to know whether or not this
              would Include all establishments malntalnlng
              paid employees."
                     Section 19 of Article 4477-1, Vernon's civil Statutes,
           is as follows:
                    "Sec. 19. (a) No person, firm, corpor-
              atlon or other employer shall use, or permit to
              be used in the conduct of an?fbusiness, manufac-
              turing establishments or other olaces of emolou-
              d,    any process, material, or condition known
              to have any possible adverse effect on the health
              of any person or persons employed therein unless
              arrangements have been made to maintain the OCCU-
              pational environment to the extent that such in-
              jury will not result. Every Industrial eatablish-
              ment shall be continually malntalned in a sanitary
              condition. (Emphasis ours)
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Hon. Geo. W. Cox, M.D. , page 2        v-227


          "(b) The Texas State Department of Health
    shall make available to the citizens of Texas cur-
    rent information concerning minimum allowable con-
    centrations of toxic gases and such environmental
    standards as may pertain to the health and safety
    of the employees of industrial estabi.ishmentsin
    this state.
           "(c) The Texas State Department of Health
    shall make health and sanitary surveys and studies
    of industrial establishments including such special
    items ,as water supplies and d~istribution,waste
    disposal, adverse conditions caused by processes
    which may be responsible for or cause ill health
    of industrial workers. Such Texas State Department
    of Health shall bring to the attention of each sur-
    veyed establishment a summary of the studies and
    findings resultant thereof, together with any recom-
    mendations which may be deemed necessary for the
    adequate protection of the health, safety and well-
    being of the workers."
          All three sub-sections of Section 19 and Article 4420,
R.S. 1925 must be read and construed together. Sub-section (a)
is a regulatory penal staute for the protection of the health and
safety of persons employed in places such as are enumerated in that
section. The penalty for violation is fixed in Section 24. Sub-
sections (b) and (c) charge the State Department of Health w'lth
duty to make health and sanitary surveys and studies,as a fact find-
ing agency of the State. Article 4420, R.S. 1925, is 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, pack-
   ing house, abattoir, dairy, bakery, manufactory,
   hotel, restaurant and any other public place and
   public buLldIng 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, sS)nitarylaw
   or quarantine regulation of this State.
          The case of Leach vs. Coleman, 188 S.W. 2d., 220, (writ
refused) involved the question of the authority of a Health Officer
to enter and make inspections of a dairy barn. After such inspec-
tion, the permit to sell milk was summarily revoked. The Court of
Civil Appeals said:
-   -




        Hon. Geo. W. Cox, M.D. , page 3        V-227


                 "A health officer who is expected to accom-
           plish any results mst necessarily possess large
           powers and be endowed with the right to take sum-
           mary action, which at times must trench closely
           upon despotic rule. The public health cannot wait
           upon the slow processes of a legislative body, or
           the leisurely deliberation of a court. Executive
           boards or officers, who can deal at once with the
           emergency under general principles laid down by the
           lawmaking body, must exist if the public health is
           to be preserved in great cities. Low v. Conrog, 120
           Wis. 151, 97 N.W. 942, 66 L.R.A. 907, 102 Am. St.
           Rep. 983 (1 Ann. Cas. 341 . It is well said in
           People (ex rel. Lieberman1 v. Vandecarr, t;',,".Y.
           440, 67 N.E. 913, 108 Am. St. Rep. 781:
           vesting of powers more or less arbitrary in various
           officials and boards is necessary if the work of
           prevention and regulation is to ward off fevers,
           pestilence, and the many other ills that constantly
           menace great centers of population'".
                  We are of the opinion that Texas Department of Health,
        or any person authorized by It, may enter into all industrial
        establishments, manufacturing establishments or other places of
        employment in Texas, pursuant to their duties in making health
        and sanitary surveys for discovery and suppression of disease or
        enforcement of the health and sanitary codes of the State of Texas.
                  The term "industrial establishments" constitutes no limi-
        tation on the kind of place which may be entered, because of the
        all-inclusive language of the laws specifying the powers and duties
        of the Texas State Board of Health in the protection of the health
        and welfare of the people, expressly including persons employed
        in any "manufacturing establishment or other place of employment."
        (Emphasis added)
                   "Industrial" is defined as "relating to manufactures,
        or to the product of industry or labor", Words and Phrases, Vol.
        21, p. 225. "Establishment", when not restricted by specific men-
        tion of some particular kind of establishment such as mercantite
        or other, means an "institution, place, building, or location.
        Words and Phrases, Vol. 15, p. 179.
                  Obviously, neither the Legislature nor this Department
        can write a definition which will cover each fact situation in de-
        tall, but we trust this will answer your question generally, and
        that you will call upon us for assistance on specific cases when
        necessary.
                                                            .




Hon. Geo. W. Cox, M.D. , page 4       V-227


                            SUMMARY
          The State Department of Health is authorized
    to enter all industrial establishments and manufac-
    turing establishments or other places of employment
    in the State of Texas to make health and sanitary
    surveys and studies under the provisions of Sec. 19,
    Art. 4477,-l,V.C.S., and Art. 4420 R.S. 1925. The
    term "industrial establishment" means an Institution,
    place, building or location related to manufactures
    or to the product,of industry or labor.
                             Yours very truly,
                          ATTORREY GENERAL OF TEXAS
                             By s/W.T. Williams
                                  W. T. Williams
                                  Assistant
WTW:jrb:wc

APPROVED
s/Price Daniel
ATTORNEY GENERAL
