Case Information
*1 WILLIAM MOCRAN, ATTORNEY GENEAL
SOETT SAINER, PIERT ASSISTANT
BUTH NYERS, GHEEP BLEEE
ADVERTANTS JEN J. ALBERT YECTOR D. GORAJIN J. N. BROADMURHT WN. N. BROYEN N. BEAST CHAMBAR VANHOR GEN WILLIAM G. WATES L. G. BECK WN. BARDEN HILL W. J. (BACK) HOLT W. J. KENN C. M. KENNEGY LENARAS KING GODING P. KIRKPATRICK DAN LAME
OFFICE OF THE ATTORNEY GENERAL
AUSTIN
Mr. Robert F. Peden, Jr. County Attorney Matagorda County Bay City, Texas
Dear Sir:
Opinion No. 0-47 Re: County Hospitals
Your letter of January 5, 1939, to this department in which you request an opinion of the following questions has been referred to the writer for attention. The questions submitted by you are:
- Can Matagorda County participate in the construction of a public education hospital where the table targets in hops by five or more trustees for the use and benefit of Matagorda County, such hospital to be observed in the nature of a public nonprofit and charitable hospital?
- If your answer to the above questions is affirmative, then can the county issue deficiency warrants to be retired out of the Permanent Improvement Fund of the County to the extent of County Thousand Dollars ($20,000.00), for such purposes?
Article 4478 of the Revised Civil Statutes of 1925, is as follows:
"The Commissioners Court of any county shall have power to establish a county hospital and to enlarge any existing hospitals for the care and treatment of persons suffering from any illness, disease or injury, and yet the provisions
*2 Mr. Robert F. Podon, Jr., January 11, 1959, Page 2 of this chapter. At intervals of not less than twelve months, ten per cent of the qualified property tax paying voters of a county may petition such court to provide for the establishing or enlarging of a county hospital, in which event said court within the time designated in such petition shall submit to such voters at a special or regular election the proposition of issuing bonds in such aggregate amount as may be design- nated in said petition for the establishing or enlarging of such hospital. Whenever any such proposition shall beceive a majority of the votes of the qualified property tax payers voting at such election, said commis- ioners court shall establish and maintain such hospital and shall have the following powers: "1. To purchase and lease real pro- perty therefor, or acquire such real property, and easements therein, by condemnation proceedings. "2. To purchase or orest all necessary buildings, make all necessary improvements and repairs and alter any existing buildings, for the use of said hospital. The plans for such ereation, alteration, or repair shall bérat be approved by the State Health Of fice, if his approval is requested by the said commissioners court. "3. To cause to be assessed, levied and solllected, such taxes upon the real and personal property owned in the county as it shall deem necessary to provide the funds for the main- tenance thereof, and for all other necessary expenditures therefor. "4. To issue county bonds to provide funds for the establishing, enlarging and equipping of said hospital and for all other necessary permanent improvements in connection
*3 Mr. Robert F. Peden, Jr., January 11, 1959, Page 3 therewith; to do all other things that may be required by law in order to render said bonds valid. "5. To appoint a board of managers for said hospital. "6. To accept and hold in trust for the ountry, any grant or devise of land, or any gift or bequest of money or other personal property or any donation to be applied, principal or income or both, for the benefit of said hospital, and apply the same in accordance with the terms of the gift. (Acts 1913, P. 71)"
The above statute is the only statutory authority of a Commissioners' Court of a ounty to build hospitals for the oare and treatment of persons suffering from illness and disease, except Article 4492, Revised Civil Statutes of 1925, under which Article you advise that your ounty cannot qualify.
Tour attention is called to that portion of Article 4478 reading as follows: "Whenever any such proposition shall receive a majority of the votes of the qualified property tax payers voting at such election, said commissioners oourt shall establish and maintain such hospital and shall have the following powers:"
After such words appears numerically the sixth paragraph, as is hereinbefore set out. The sixth paragraph is: "To accept and hold in trust for the ounty, any grant or devise of land, or any gift or bequest of money or other personal property or any donation to be applied, principal or income or both; for the benefit of said hospital, and apply the same in accordance with the terms of the gift."
*4 Mr. Robert F. Peden, Jr., January 11, 1939, Page 4
The language of the Article clearly and unequivocally provides that the commissioners' court shall:
"Hold in trust for the county, any grant or devise of land, or any gift or bequest of money or other personal property of any donation to be applied...."
It has long been announced in Texas that commissioners courts are courts of limited jurisdiction without any power's except such as are expressly conferred. El Paso vs. Elam, 106 SW 2nd, 393; Howard vs. Henderson County, 116 SW 2nd 479; Hill County vs. Bryant and Huffman, 264 SW 520; Commissioners' Court vs. Tallaco, 154 SW 2nd 535.
In the last case cited in support of this proposition Judge Pierson, speaking for the Supreme Court, approved and confirmed the holding of the Court of Civil Appeals on this proposition, reported in 281 SW 573. In the Court of Civil appeals case, Judge Barous of the Raco Court said:
"The Commissioners' Court is a creature of the state Constitution and its power are limited and controlled by the Constitution and the laws as passed by the Legislature."
The failure of the Constitution to prohibit counties from issuing bonds for construction and maintenance of hospital left open to the Legislature the power to establish such hospitals. The Legislature has exercised this power by the enactment of the herein-before quoted Article 4478. The Commissioners' Court, having no power except that specially conferred by the Constitution and statutes passed pursuant thereto, would have no power to enter into any contract for the building and maintenance of a hospital, the title to which would be held in any manner contrary to the principal provisions of Article 4478.
You are respectfully advised that in the opinion of this department, the first question propounded
*5
Mr. Robert F. Peden, Jr., January 11, 1939, Page 5 by you and herelabefore get out must be anowered in the negative. Having so answered the first question, it is anneeessary to dispose of the aseond question.
Trusting that the foregoing anewers your inquiry, I an
Yours respectfully
LA:AV APPROVED: