.   .
                                                              R-214




                                April 19, 1947

        Honorable John B. Winters          Opinion No. V-152
        .BceoutlveMrectm
        Department of Publlo’.Welfare      RO:~ Enforoement of
        Austin 3, Texas                         Article 701-a,
                                                Vernon’s Texas
                                                Penal Code.
        Dear Sir:
                  Ih anuwering your queaiilona6 to whether
        Artiole 701 a of the Texas Penal Code is enforceable,
        inasmuoh a8 the departmnt referred to in this stat-
        ute is the State ,Boasld
                               of_>Healthrather ,thanthe ,Divi-
        aion of Child Welfare of.ths State De artment of Pub-
                                              ty,under the
        lic Welfare which has ~he~responsibil!t
        present law of making then&nspWtiOAt! aA grarating,
        the licenses, it is aecesuarryfor ue to rovietithe
        history of this,Artiole and deternine the intent of
        the Legislature.
                    In 1929, the 41st Le&ei+twe,         during ltr
        Regular Seesion, eweted Howe Bill Ho. 474, Page 444,
        Chapter 204 of the Generai snd,Special Lava. General-
        ly, this was an Act requiring those ~who operate agen-
        cies for  the  care oy oustody of children, either for
        charity or ~?evei~ue, ,to obtaiA’8      license, without fee,
        from the State B6arQ of Health. The,board wa8 requlred
        to visit and imps&i all such places, and to ascertain
        if the same Were lawfully oonduoted. !?hoselicensed
        were also required to keep      Certain    reoords concerning
        the placement of children, and to lnake the necessary
        reports to the Board of Health on suoh placements.
                  The Ill&&e8obrd of Health, nor      person buth-
                                                 Y me a ohlld
        orieed by the BokNI oould vislt~tbe hone-ii
        had been placed by an a$e,noy,and was to determine whe-
        ther such child ,was bei  properly caped for.    If neeee-
        nary, the Board wssrequ“9Fed to eee that a OompldiAt
        was filed in the proper juvenile court against the cue-
        todi,anof the child.
                  Seation 7 of this ~blll, the.seotion that we
        are concerned with here, provided as f~ollows:
Honorable John R. Winters - Page 2, V-152


          “Section 7. Any person, association
     or Corporation, who shall attempt to operate
     without a license as herein provided, or who
     shall violate any of ‘theprovisions of this
     Act, shall be ~deemed guilty of a misdemeanor,
     and upon conviction thereof shall be punished
     by imprisonment in the county jal.1not aore
     than 30 days,or by a fine of not less than
     $25.00 nor more than $500.00, and if operat-
     ing under a license, such license may be re-
     voked by the State Board bf Health. (mhaLlis
     supplied)
          This Section 7 was placed in the Penal Code as
Article 701-a V.P.C.
           Section,7 gives the State Bo&rd of Health the
right to revoke the license .issuedby the Board under Sec-
tion 1 of the Act, if any provision of the enactment had
been violated by the licensee. Italso provfded that
anyone who violated any provision of the act shall be
deemed guilty of a misdemeanor, and shall be punished by
imprisonment or certain fines.
          The State Board of Health sdtinistered this law
until 1931. At that time, S,enateBill No. 375 was ensct-
ed by the 42nd Legislature, page 323, chapter 194, of the
General Laws, Regul~arSession. This act created a Dlvi-
sion of Child Welfare In the Board of 'Control,~
                                               Andyamong
other things, transferred the licensing, visiting and in-
spection of all agencies required of the State Board of
Health to the Divisionof Child Welfare of the State Board
of Control.
          Section 8, the transferring sectibn of the above-
mentioned bill, is quoted as follows!'
          "Section 8. .The l,icensing,visiting and
     Inspection of all agencies required,under Chap-
     ter 204, Page 444 of the General and Special
     Laws of the Regular Session of the 4lst Legis-
     lature, 1929, now required by the State Board
     of Health, shall be and is hereby,transferred
     to and made a part of the duties of the Divi-
     slon of Child Welfare ,of the State Boardof
     Control."
          What did the 42nd Legislature intend to include
In the transfer above? We are of the opinion that where
Honorable John B. Winters - Page 3, V-152


they included the licensing aslrequired by Section 1
of the Act of 1929, that they most certainly included
the authority to revoke such a license as required by
Section 7 of the same enactment. The transfer to the
State Board of Control from the State Beard of Health
of the licensing, visiting and inspection of all agen-
cies was an outright trlnsfer of all the functions
contained ip the original House~blll 474 from one State
agency to the other.

          In 1959 the '46thLegislature, in reqular
session, enacted &ate   Bill Wo. 36, page 544, chapter
1, of the General Lava. Section 9 of this bill trans-
ferred all rights, powers and duties heretofore con-
ferred by law upon the Division of Child Welfare of
the Board of Control to the State Department of Public
Welfare.
          We   quote Section 9 of this Aott
         "Section g. a." All of the rights,
    povera, and duties heretefore cenferred
    by law on the Division of Child Welfare
    of the Board of Control, vhen not other-
    wise in conflict with any of the provi-
    sions of this Act, are hereby cent%nued
    in full force and effect, ind are hereby
    transferred ,to, andconferred upon, the
    State Department of Public Welfare as
    created by this Act, and shall be held
    exercised, and performed by the State 6e-
    partment under the provisions of this Act
    and the several Acts now in force, and
    any amendment oramendments thereto which
    might be made. To effectuate this purpose
    the Division of Child:Welfare, records,
    and physical properties are transferred
    to the State Department and placed under
    its supervision, and the’Divlsion of Child
    Welfare of the State Board of Control is
    hereby abolished."
          It is clear that the Leglelature intended
here to transfer everything that had been previously
tranaferred to the Board of Control. We have found that
all the fur&ions of the State Board of Health were in
the Board of Control, including the fur&ion of revoking
the license as provided in Section 7 of the original Act.
It necessarily follows that such function is clearly in
Honorable John H. Winters - Page 4, V-152


the new agency, the Division of Child Welfare of the
State Department of Public Welfare by reason of Sec-
tion 9 above..
          In 1945, the 49th Legislature, in regular
session, enacted House Bill Ro. 635, page 297, chapter
215. This was the third and last transfer of the func-
tions that were originally given to the Stats Board of
Health.
           The reason given by the Legislature for this
th!:rd transfer m3  that the transfer from State Board
of Control tc State Department of Public Welf.sredid
not clearly indicate that the functions of thz State
Board of Control applicable to the Division 3f Child
Welfare were also to be transferred.
          We quote a part of Section 1 of thi~yAct:
          'Section 1. All of the functions and
     dut~'.2e
            which were designated 8.3being the
     resp*+n&oility of the State Board of Con-
     trol and/or the :Divisionof Child Welfare
     oi ~thaSte~tsBoard of Control as expmr3scl
     in Chapter 194, Page X3, Acts of the Forty-
     Second Legislature, Regular Session, 1931,
     being Article 695A of Vernon's Texas Civil
     Statutes, including Article 606a, Sections
     6 and 7, of Vernon's Texas Penal Code, and
     the duties and functions of the State Health
     De artment as described in Chapter 204,.Page
     44t, 'of the G eneral and Special Laws of tha
     Regular Session of the Forty-First Legisla-
     ture, 1929, and being Article 4442A of Ver-
     non's Texas Civil Statutes are hereby trans-
     ferred to the State Department of Public
     Welfare . . .(l
          The 49th Legislature, in this 'curative" trans-
fer, removes any doubt that all the functions and duties
of the State Board of Health, contained in Rouse Bill 474,
Page 44k, Cha~pter204, 41st Legislature, Regular Session,
are transferred to the Child Welfare Division of the De.-
part of Public Welfare.
          We conclude here with a review of the three
transferring statutes. The first speaks of a transfer of
the licensing, visiting and inspection of all ,agencies,
citing the origlnal,bill, in short a transfer of the ad-
ministrative duties under the Act.  The second enactment
Honorable John Ii.Winters - Page 5, V-152


transfers "all rightsA powers, and duties heretofore
conferred by law. . .   This includes everything that
was tranaferrsd in the first transf4r. The third trans-
fer again sets out the original Hours Bills, and tram-
fers all the functions and duties und4r these bills to
the State Department of Public Welfare, Including those
of Section 7, the ssotion here in question.
          We are of the opinion that tha authority con-
tained in Article 701r of ths Tuar ?enrl CoQe parred
to th4 Dbpartrent of Publla Welf8r4 84 be&Ion 7 of ths
original House Bill. The fact that Section 7 was placed
in the Texas Penal Code as Article 701a, did not affeat
its inoluaion In the three trmaf4r8 Qoorid4r4d.


          ArtlQle 702-a of V.P.C. is 4nforceable
    as a penal statute.   Th4 department of Pub-
    lic WslSar4 ir invested with the power to
    revoke a llcm44 granted to op4r0.4 child
    nurseri44, upon tb4 OOnViQtiOn  of a lioonre4
    under  this Artlale.
                                    Yours very truly
                                ATTORNEY GXRBRAL OF TEXAS



                                    Charles P. Atkinson
C?A:JMc:t;dja                                 Assistant


                                APPROVED APRIL 22, 1947

                                 z:, Gt?ii!d
                                ATTORNEY GRRBRAL